S.S. Vyas, J.
1. These twin applications, one under Section 482, and the other under Section 438, Cr. PC are directed against an order of the learned Additional Sessions Judge, Sirohi dated June 27, 1983 passed in Sessions Case No. 31 of 1981 on his file. It was prayed that the aforesaid order of the learned Additional Sessions Judge be quashed and in alternative anticipatory bail be granted to them.
2. Since the facts and circumstances arising for consideration in these two petitions are closely knitted inter se, they were heard together and are disposed of by a common order.
3. In order to properly appreciate the rival contentions of the parties, it is necessary to recapitulate the facts and circumstances giving rise to these applications. The accused persons are facing trial under Sections 147, 148, 302, 302/149, IPC in the court below. The charge against them is that they committed as many as six murders. They were in custody and moved this Court for bail under Section 439, Cr. P.C. Their application was dismissed by this Court on 27-8-80 for non-prosecution. A second bail application was filed by them again under Section 439, Cr. P.C. in this Court. It was dismissed on January 14, 1983 on merits as it was not found a fit case for granting bail. The accused persons filed a third application for bail under Section 439, Cr. P.C. in this Court, one of the contentions taken by them was that their detention was illegal because remand to keep them in custody was not passed by the competent authority under Section 309(2), Cr. P.C. The contention found favour with my learned brother Mehta, J. The application was allowed. Taking their detention to be illegal on the ground that remand to keep them in judicial custody was not granted by a competent authority under Section 309(2) Cr. P.C., they were set at liberty. However, they were directed to appear in the court below on June 7, 1983.
4. On June 7, 1983, the accused petitioners failed to personally appear in the court below. Their advocate appeared on their behalf and submitted an application to seek their exemption from personal appearance. This application was opposed by the prosecution. The learned Session Judge adjourned the hearing and fixed 25-6-83 for the disposal of the above application. Again on 25-6-83, the accused persons did not put personal appearance in the court and their learned Advocate appeared on their behalf. A similar application like the earlier one was filed to seek exemption from putting personal appearance. The learned Judge heard the parties and by his impugned under dated 27-6-83 rejected the applications of the accused persons. He issued was rants of arrest against them to secure their appearance in his court. Aggrieved against the said order, the petitioners has rushed to this Court for the relief's mentioned at the very out set.
5. Very attractive and elaborate arguments were addressed at Bar, for convenience, it would be proper to take the two applications one by one.
Application Under Section 482 Cr.C.P.
6. Learned Counsel appearing for the petitioners made a scathing attack on the impugned order and contended that it was wholly erroneous & bad in law. It was argued that the order passed by my learned brother Mehta, J. on June 3, 1983 was that of releasing the petitioners on bail and not letting them off through Habeas Corpus. In order to build up the argument, the earned Counsel took two positions:
(1) that the order was passed by a learned Single Judge, and
(2) There were direct authorities of this Court viz. Basu and Ors. v. State of Rajasthan 1982 RLW 502, & Birbal and Ors. v. State of Rajasthan 1983 Cr. L.R. (Raj.) 83 & Ratiram and Ors. v. State of Rajasthan 1982 RLW 443 in which bail was allowed in case where detentions of the accused persons wee found illegal for one or other reason.
7. In reply it was vehemently contended that the accused were let off not on bail but under 'Habeas Corpus'. It was argued that the accused had strenuously contended before Mehta, J., that they should be released on bail instead of being let off but their contention was negative. The order of Mehta, J. clearly shows that prayer for bail was straight way rejected. I have taken the respective contentions into consideration.
8. Undoubtedly, the order dated June 3, 1982 letting off the accused was passed by a learned Single Judge. A bare reading of the order shows that the petitioners were not released on bail. Since their detention was found illegal, they were lef off under the Habeas Corpus. This order was passed by the learned Single Judge sitting as a Vacation Judge. It is true that a Habeas Corpus' petition is to be heard by a Division Bench. But Rule 63 of the High Court of Rajasthan Rules, 1952 dealing with the jurisdiction of the Vacation Judge clearly lays down:
63. Such jurisdiction may be exercised even in cases which are, under the Rules cognizable by two or more Judges, unless such case is required by any other law to be heard by more than one Judge.
9. As such, a single Judge sitting in vacation can hear and decide a matter which is required to be heard and decided by two or more Judges. The order dated Judge 3, 1983 therefore, does not become bad in law on the ground that it was passed by a Single Judge.
10. The detection of the petitioners was illegal on June 3, 1983 because they were not remanded to custody by a competent authority under Section 309(2), Cr. P.C. Since their detention was found illegal, their application for bail was treated to be that of 'Habeas Corpus' and they were consequently let off. It is true that in view of the authorities cited (Supra) the petitioners could travel been released on bail. But my learned brother Mehta, J. thought it proper to let them off under 'Habeas Corpus'. The contention of the petitioners before His Lordships that bail should be granted to them, was rejected.
11. Learned Counsel for the petitioners contended that the petitioners could net have been released under 'Habeas Corpus' because the matter could be decided under the provisions of Code on Criminal Procedure. Reliance in support of the contention was placed on Col Ramchandra Rao v. State of Orissa AIR 1971 SC 219, A Laxman Rao v. J.M Parvatipuram AIR 1971 SC 185 Kanu Sanyal v. DM. Darjeeling, &. : 1974CriLJ465 , Ratndto v. State of Bihar 1978 Cr. L.J. 1074. In all thes-authorities, the point for consideration was whether a writ of Habeas Corpus can be granted to a person who has been detained by a competent court under a valid law. It was held that if the detention is m pursuant to order of remand, under Section 344, Cr. P.C. (Now, Section 309), it as not open to challenge it in 'Habeas Corpus' proceedings. In all these cases, the detentions were attacked on the ground that remand was granted on insufficient grounds. Here this is not the situation. These authorities, therefore, render no help to the petitioners. Moreover these contentions were raised before the learned Mehta, J. and were rejected by him. They, therefore, cannot be re-agitated now.
12. The position which thus emerges cut is that the accused petitioners were let off not on bail but under 'Habeas Corpus'.
13. It was next contended that once the accused are let off by the High Court, the Courts, sub-ordinate to it had no jurisdiction to re-arrest them and commit them to custody. I again find the contention barren and untenable. The accused who is let off under 'Habeas Corpus' on the ground of his detention being found illegal on a particular date due to error in remand, can be re arrested. A situation similar on all the fours to that in the instatant case arose in Babu Nandnn v. State of Bihar 1972 Cr. L.J. 423 before the Patra High Court. The accuser's detention was found illegal because he was remanded to judicial custody by a Magistrate for more than 15 days at a time. This order was found in violation of the mandatory provisions of Section 344 of the Criminal Procedure Code. 898 (now, Section 319, Cr. P.C.). The accused was let off under 'Habeas Corpus', but it was made clear that he could be re-arrested. I am tempted to quote the following passage, which furnished a complete answer to the contention of the earned Counsel for the petitioner:
Having beard earned Counsel for the petitioner and learned Government Advocate for the State and having perused the certified copy of the order dated 4-6-1971 recorded by the Magistate in whose court the committal proceeding is pending, we have arrived at the conclusion that a writ of habeas corpus should issue directing the release of the petitioner from the illegal custody which has continued as per order dated 4-6-71 upto 3-7-71 and should be presumed to have continued even today. We accordingly issue a writ of habeas corpus and directed the Superintendent, Hazaribagh Central jail to release the petitioner forthwith. Reason for this order will follow later on.
We would, however, like to observe that it will be open to the authorities or the competent court to take the petitioner under proper legal custody again in accordance with law and this order will not stand as a bar in any subsequent action or order which may be taken or made according to law. But in that event, we would also like to observe that we have though to issue a writ of hebeas corpus only on the application of the petitioner and have not examined the merits of his case in regard to his prayer in this very petition for enlarging him on bail. If be is arrested or taken in custody again, it will be open to him to move the proper court for enlarging him on bail, and in that event it will for that court to dispose of that application in accordance with law and in manner it thinks fit and proper.
14. Thus, an accused let off under 'Habeas Corpus' can be re-arrested. It cannot be therefote said that the impugned order of the learned Additional Session Judge is erroneous on the ground that he had no jurisdiction to issue warrants of arrest against the petitioners. The order is perfectly legal and suffers with no legal taint.
15. The last contention raised is that on merits, too, the impugned order of the learned Additional Sessions Judge is not justified. It was argued that the accused could not put appearance due to their illness. They sought exemption from personal appearance through their counsel. The learned Judge should have granted exemption to the petitioners from putting personal appearance. The contention is rot impressive.
16. When the accused-persons were let off by this court, directions were issued to them to put appearance in the court-below on June, 7, 1983. The trust was reposed in them that they would put personal appearance in the trial Court on June 7, 1983 and subsequently till the trial lasts. It was exepected from the accused petitioners that they would pay proper regard to the directions of this Court and would not flout the liberty granted to them under habeas corpus. But the accused paid scant respect to the confidence reposed in them by this Court. They started playing hide and seek in the trial court and avoided putting appearance. The learned Sessions Judge was not satisfied with the grounds of their illness to exempt them from their personal appearance. The approach of the learned Session Judga does not appear erroneous or unjustified. The case was pending trial and the progress of the trial got hampered due to the absence of the accused petitioners. In these circumstances, the learned Sessions Judge was within his powers to issue warrants of arrest to secure the presence of the petitioners before him so that the trial of the case may proceed further. The contention has no substance and falls to ground.
17. The powers under Section 482, Cr. P.C. are of exceptional nature. They are to be exercised only to prevent abuse of the process of any court or otherwise to secure the ends of justice. None of these conditions is present there in favour of the petitioners. No fit case is made out to exercise the powers under Section 482, Cr. P.C. The application under Section 482, Cr. P.C. this has no force and must the dismissed.
Application Under Section 438, Cr. P.C.
18. It was argued that since the accused-petitioners have been let off by this Court and they are to be re arrested now, anticipatory bail should be granted to them. I have given my thoughtful consideration to the contention and find no force in it Simply because their detention was found illegal at one time and they were let off under 'Habeas Corpus', anticipatory bail cannot be granted to them. It may be mentioned that their application for bail was dismissed earlier on merits. The charge against them is under Section 302, IPC for committing as many as six murders. Granting anticipatory bail in such a case will be wholly unjustified and would amount to misuse of the discretion vested in this Court under Section 438, Cr. P.C.
19. In the result, both the applications of the accused petitioners under Section 482 as well as 438, Cr. P.C. are dismissed.
20. Let a copy of the order of this Court be sent to the trial court for information.