IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.859 of 2010 MD.IBRAHIM, SON OF SAKOOR MIAN, RESIDENT OF VILLAGE – CHHARDEWALI, P.O. AND P.S. GOPALPUR, DISTRICT – WEST CHAMPARAN. ………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT MAGISTRATE, WEST CHAMPARAN AT BETTIAH. 3. THE SUPERINTENDENT OF POLICE, WEST CHAMPARAN AT BETTIAH. 4. THE JAIL SUPERINTENDENT, BETTIAH JAIL, WEST CHAMPARAN AT BETTIAH. ……….. RESPONDENTS. ----------- 02/ 26.08.2010 This application has been filed by the petitioner for issuance of writ in the nature of habeas corpus directing the respondents to release him forthwith as he is in custody illegally since 22.7.2010 by the orders of Sri Nandlal Prasad, Additional District & Sessions Judge, F.T.C., West Champaran at Bettiah in connection with Sessions Trial No. 330 of 2006. Petitioner’s case is that a complaint case was filed by him bearing Complaint Case No. 38 of 1997 against 14 named accused persons alleging that they forcibly harvested his paddy crops on 17.11.1996 variously armed with deadly weapons from his land appertaining to khata no. 2062, plot no. 213 measuring 10 katha and plot no. 1567 measuring 4 katha. The Chief Judicial Magistrate passed an order for institution of police case under Section 2 156(3) of the Cr.P.C.and accordingly, Gopalpur P.S. Case No. 12 of 1997 was instituted. After investigation police submitted final form against all named accused persons and also submitted report for initiating a proceeding against the complainant under Section 182 & 211 of the IPC. The Chief Judicial Magistrate, Bettiah after receiving the final form issued summon to the petitioner for his appearance. Petitioner’s case is that he did not receive summon and also that his protest petitioner was not considered by the Magistrate at the time of accepting the final form and without issuing any notice to him final form was accepted and the proceeding under Section 182 & 211 of the IPC was initiated. Petitioner was thereafter allowed bail by the Magistrate on his appearance and he continued to appear before the court. When the case was fixed for framing of the charge the petitioner filed his petition for discharge but the same was rejected. The petitioner thereafter filed an application under Section 482 of the Cr.P.C. before the High Court for quashing of the order passed by the Magistrate rejecting his prayer for discharge. In the meantime, on 8.6.2010 the petitioner filed 3 an application before the trial court under Section 317 of the Cr.P.C. for dispensing with his personal appearance on account of his serious illness, but the same was rejected and non-bailable warrant of arrest was issued against the petitioner on 9.6.2010. The petitioner was arrested in execution of warrant of arrest and produced before the trial court on 22.7.2010. On the same day he filed application for granting bail and the bail application was moved on 23.7.2010. The Additional District & Sessions Judge, F.T.C. III called for the record of the case from the Chief Judicial Magistrate, but the same was not produced. The order sheet indicates that on 4.8.2010 again an application was filed by the petitioner for disposal of his pending bail application but same was not considered. The charge was also not framed as the record was not produced before the trial court. Counsel for the petitioner submits that since 22.7.2010 he is in custody. His bail application is not being considered. It should have been either allowed or rejected by the trial court, but it is kept pending simply for the reason that the connected record is not being produced by the Chief Judicial Magistrate, Bettiah. 4 Since the petitioner was arrested in execution of the warrant of arrest issued against him, so his custody cannot be considered as illegal detention. However, the illegality is apparent in the manner, the F.T.C. III, Bettiah has kept the bail application of petitioner pending, specially when the offences are bailable and misuse of privilege for bail was also of one day only. Petitioner had filed bail application on 22.7.2010. In case the records were not available for that bail application could not have been kept pending and the petitioner forced to remain in custody for indefinite period. The bail application filed by the petitioner had to be either rejected or allowed by the court below. In case of non-availability of the records the A.D.J. F.T.C. III had other options. He could have presented the matter before the District Judge for searching out missing connected records or for reconstitution of the record. In no case the bail application of the petitioner could have been kept pending for indefinite period. This application is being disposed of, directing Additional District & Sessions Judge, F.T.C. III, Bettiah to dispose of the pending bail application of the petitioner 5 forthwith on production/communication of this order. The trial Judge while considering the bail application of the petitioner will not overlook this fact that the case of the petitioner is only for misuse of one day. It is expected that in future the trial Judge will not commit any such error. This order be communicated to the trial through fax in connection with Sessions Trial No. 330 of 2006 pending in the court of Additional District & Sessions Judge, F.T.C. III, West Champaran at Bettiah, in case requisite cost for the same is deposited on behalf of the petitioner. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)