JUDGMENT The applicants have filed this application under Section 439 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] read with Section 167 and 309 of Code of Criminal Procedure, 1973 read with Article 21 of the Constitution of India, with the following main prayers: [B] YOUR LORDSHIPS to call for the records and proceedings of Criminal Case No. 3947 of 2013 which subsequently became part of the Sessions Case No.107 of 2013 which is pending with the court of learned 3rd Additional Sessions Judge, Jamnagar and the records and proceedings of Criminal Misc. Application No.128 of 2014 from the Court of learned 3rd Additional Sessions Judge, Jamnagar; [C] YOUR LORDSHIPS BE PLEASED to call for the records, proceedings and administrative correspondence including internal correspondence between the Court of learned 3rd Additional Sessions Judge and Court of learned 3rd Senior Civil Judge, 4th Senior Civil Judge, 9th Senior Civil Judge and Chief Judicial Magistrate of Jamnagar and also the correspondence between the learned 3rd Additional Sessions Judge, Jamnagar, and learned Principal District & Sessions Judge, Jamnagar in respect of the subject matter of the present application (illegal and unauthorized custody of the applicants-accused) from the office of the administration of District and Sessions Court Jamnagar; [D] YOUR LORDSHPIPS BE PLEASED to quash and set aside the impugned judgment and order of rejection dated 2442014 passed by the learned 3rd Additional Sessions Judge, Jamnagar in Criminal Misc. Application No.128 of 2014; [E] YOUR LORDSHIPS MAY BE PLEASED to allow this application by way of granting regular bail to the applicants in connection with Cr. No.I 122/2013 registered with the B Division Police Station, District Jamnagar. The facts of the case, as per the applicants, are that the FIR against the applicants came to be lodged on 19.04.2013 and the applicants came to be arrested by the police on the same day. On 20.04.2013 when the applicants – accused were produced before the concerned Magistrate, the police prayed for remand of the applicants. The learned JMFC was pleased to grant remand of the applicants in police custody up to 22.04.2013 under the provisions of the Section 167 of Code. On 20.04.2013 when the applicants – accused were produced before the concerned Magistrate, the police prayed for remand of the applicants. The learned JMFC was pleased to grant remand of the applicants in police custody up to 22.04.2013 under the provisions of the Section 167 of Code. On 22.04.2013 the applicants were once again produced before the concerned Magistrate and on that date the applicants were taken into judicial custody and they were remanded to judicial custody for 14 days i.e. up to 06.05.2013 under the provisions of Section 167 of Code. 2.1 Thereafter on 23.04.2013, the police submitted an application to the concerned Magistrate seeking custody of the applicants for the purpose of carrying out Test Identification Parade. The learned Magistrate allowed the said application without giving any opportunity of hearing to the applicants vide order dated 24.04.2013 and directed the jail authority to hand over the custody of the applicants to the police for specific time and for specific purpose of conducting Test Identification Parade. Accordingly, police took custody of the applicants from the jail on 25.04.2013, conducted Test Identification Parade before the Executive Magistrate and thereafter handed over the custody of the applicants to the jail authority on the same day evening i.e. on 25.05.2013. 2.2 It is the case of the applicants that vide order dated 22.04.2013 the applicants accused were remanded to the judicial custody up to 06.05.2013 on 06.05.2013 and the applicants either personally or by electronic medium like video conference, were not produced before the learned Judicial Magistrate. No order was passed by Magistrate authorizing their further detention in judicial custody and no proceedings to that effect were drawn and though the provisions of section 167 of the Code was applicable to the case of the applicants, but the same was not complied with and thereafter the applicants-accused were not produced before any Magistrate for a considerable long time up to 05.12.2013. The investigation continued up to 14.07.2013 and the police submitted charge sheet before the court of learned Chief Judicial Magistrate on 15.07.2013 vide charge sheet No.196 of 2013. 2.3 On 05.12.2013 both the applicants were personally and physically produced before the learned Chief Judicial Magistrate, Jamnagar and on that day copy of police papers were supplied to the applicants-accused and the learned Chief Judicial Magistrate, Jamnagar drawn proceedings in Criminal Case No.3947 of 2013. 2.3 On 05.12.2013 both the applicants were personally and physically produced before the learned Chief Judicial Magistrate, Jamnagar and on that day copy of police papers were supplied to the applicants-accused and the learned Chief Judicial Magistrate, Jamnagar drawn proceedings in Criminal Case No.3947 of 2013. 2.4 The applicants preferred bail application before the High Court vide Criminal Misc. Application No.19252 of 2013 and 19253 of 2013, which came to be withdrawn with a liberty to raise an appropriate plea before the concerned Court vide order dated 03.02.2014. 2.5 Thereafter, the applicants filed bail application being Criminal Misc. Application No. 128 of 2014 before the learned Sessions Court, Jamnagar, which came to be rejected vide order dated 24.04.2014 passed by the learned 3rd Additional Sessions Judge, Jamnagar. 2.6 Being aggrieved by the aforesaid impugned order dated 24.04.2014 passed by the learned 3rd Additional Sessions Judge, Jamnagar in Criminal Misc. Application No.128 of 2014 rejecting bail of the applicants, the applicants have approached this Court for releasing them on regular bail on the ground that their custody is illegal and unauthorized. 3. Mr. P.M. Lakhani, learned counsel for the applicants – accused submits that the applicants-accused cannot be kept in judicial custody for uncertain long period and that too; [i] without prior production before any Magistrate or Court [either physically or by electronic medium – video linkage] under Section 167(2) of the Code; [ii] without any order/authorization by way of competent Judicial Magistrate under Section 167(2) of Code; [iii] without any warrant as required under Section 309 of the Code; and [iv] without any judicial order and without following the procedure established by law in that regard. 3.1 It is next contended that the learned Magistrate concerned is required to apply his judicial mind and to be satisfied with the grounds for extending the custody of accused persons. While extending the custody of accused person in the jail during the pendency of investigation provisions of Section 167 of the Code and during the pendency of inquiry provisions of Section 309 of the Code are to be followed. 3.2 It is next contended that the basic requirement of law under Section 167 and 309 of the Code are mandatory in nature and in absence of compliance of the same the custody of accused becomes illegal/unauthorized. 3.2 It is next contended that the basic requirement of law under Section 167 and 309 of the Code are mandatory in nature and in absence of compliance of the same the custody of accused becomes illegal/unauthorized. Therefore, the illegal and unauthorized custody of the applicants-accused by not following procedures established by law amounts to violation of the fundamental rights guaranteed under article 121 of the Constitution of India. 3.3 It is next contented that the illegal and unauthorized custody of the applicants-accused persons can be sole ground for granting their bail under Section 439 of the Code. 3.4 It is further submitted that the present applicants-accused were produced before a judicial Magistrate by video conference system, as stated by jail authority in its pursis submitted before the learned Additional Sessions Judge, Jamnagar in the proceedings of Criminal Misc. Application No.128 of 2014, more particularly when; [i] there is no warrant signed and sealed by any Magistrate; [ii] there is no judicial order of that effect passed by any court or Magistrate which may be available on record or of any court or authority; [iii] in absence of any proceedings [rojkam] of that effect drawn by any court or Magistrate; [iv] particularly in the light of the fact that the concerned Magistrate very specifically and categorically stated in writing that the concerned accused were never produced before him either physically or even by electronic medium like video conference and at no point of time he has passed any order authorizing the detention of accused in jail for particular period nor has he issued any warrant to that effect and further in the light of the fact that the concerned Magistrate has categorically admitted that no case papers were available with him and he has not perused any case papers in respect of the applicants-accused; [v] in absence of any certificate issued by any Magistrate as provided under the explanation to Section 167(2) of the Code; [vi] in light of the fact that the accused themselves filed specific affidavit and similar affidavits have also been filed by their respective fathers that the applicants – accused were never produced before any Magistrate concerned either personally or by electronic medium like video conference from 23.04.2013 to 05.12.2013. Per contra, learned APP submits that the applicants-accused were produced before the concerned Magistrate trough the facility of video conference, which is legal and valid produced and at belated stage it cannot be disputed. 4.1. Learned APP further submits that the case was committed by Judicial Magistrate and both the applicants were produced before the Sessions Court, Jamnagar on 02.11.2014. Even the Superintendent of the Jail Jamnagar in affidavits 18.03.2014 and 03.04.2014 specifically denied that accused were not produced before Hon'ble Court on 23.04.2013 to 05.12.2013 and it is stated that the accused were produced during the said period before Additional Chief Judicial Magistrate Court Nos.3, 4 and 9 during the period from 06.05.2013 to 26.11.2013 by video conferencing. It is further submitted that the applicants accused were physically produced before the Chief Judicial Magistrate on 05.12.2013 and 19.12.2013 with police escort and thereafter on 02.01.2014 applicants were produced before the Additional Sessions Judge, Jamnagar and on 09.01.2014 onwards produced before the Sessions Court regularly in connection with Sessions Case No.107 of 2013. 4.2 Learned APP further submits that the applicants did not prefer any bail application for default bail during 23.04.2013 to 05.12.2013 and the applicants – accused were produced before the competent court by video conferencing. 4.3 Learned APP further submits that the learned trial Court has also recorded in internal page 6 as continuous in para 86 that the applicants had not raised any dispute about the alleged illegal detention from 23.04.2013 to 05.12.2013 and no application in this regard has been filed for claiming default bail for the said period. In view of the above, learned APP submits that the impugned order passed by the learned Judge is just, proper and no interference is called for by this Court. 5. The applicants – accused filed rejoinder almost reiterating the submissions made earlier along with copy of Rojkam. 6. In view of the above, learned APP submits that the impugned order passed by the learned Judge is just, proper and no interference is called for by this Court. 5. The applicants – accused filed rejoinder almost reiterating the submissions made earlier along with copy of Rojkam. 6. Having heard learned counsel for the applicants and learned APP and on perusal of the record of case, it appears that no doubt the learned Additional Sessions Judge has considered certain facts, provisions of Sections 167(2) and Section 439 of the Code and proceedings earlier taken place between the learned Magistrate and no final conclusion is drawn and matter is disposed of by holding that the whole subject matter is pertaining to liberty of an individual and the case falls under Article 21 of the Constitution of India and jurisdiction to decide such issue lies with the High Court. The above approach of the learned Additional Sessions Judge in not deciding the issue whether custody of the applicants-accused was legal or not and relegating the applicants to this court is not just and proper. On 03.02.2014, this Court passed the following common order in Criminal Misc. Application No.19252 of 2013 with Criminal Misc. Application No.19252 of 2013 filed by the applicants: “1. On instructions, learned Advocate for the applicant/s seeks permission to withdraw both the applications at this stage, with a liberty to raise an appropriate plea before the concerned Court. 2. Permission, with the liberty as prayed for is granted. 3. In the aforesaid circumstances, both the applications stand disposed of as withdrawn. Rule discharged. However, it is made clear that this Court has not entered into the merits/contentions of both the cases”. If the above order is perused, the applicants were given liberty to raise the specific plea before the learned Sessions Judge and accordingly when they have contended about their illegal custody before the Sessions Court which ought to have been answered specifically as to whether the judicial custody of the applicants was unauthorized and, therefore, illegal or not. In view of the above, I am of the considered opinion that the issue involved in the application is required to be adjudicated by the learned Additional Sessions Judge, Jamnagar. Accordingly, the impugned order dated 24.04.2015 passed by the learned 3rd Additional Sessions Judge, Jamnagar in Criminal Misc. In view of the above, I am of the considered opinion that the issue involved in the application is required to be adjudicated by the learned Additional Sessions Judge, Jamnagar. Accordingly, the impugned order dated 24.04.2015 passed by the learned 3rd Additional Sessions Judge, Jamnagar in Criminal Misc. Application No.128 of 2014 with a direction to decide the issue involved in the application as to whether the custody of the applicants-accused during the period from 06.05.2013 to 23.11.2013 is legal or not and to pass appropriate order in accordance with law with a period of four weeks from the receipt of the writ of this order. This application is allowed to the aforesaid extent only. Accordingly, Rule is made absolute. Direct service is permitted.