JUDGMENT
Ramratna Singh, J.
1. These are applications under Section 491 of the Code of Criminal Procedure and Article 226 of the Constitution of India. The petitioners were arrested by the Police on the 80th September, 1964, under Section 151 of the Code of Criminal Procedure and produced before the Magistrate on the 1st October, 1964, with a police report of the same date, in which it was alleged that each of the petitioners was designing to commit certain cognizable offences, The petitioners were remanded to jail custody by the Sub-divisional Magistrate of Jamui. On the 22nd October, 1904, petitions for bail were filed oil behalf of each petitioner before the learned Magistrate, but is view of a report from the police, dated the 23rd October, 1964, no orders were passed on the petitions and the Magistrate who was working for the Sub-divisional Magistrate on the date directed that a further report from the police be called for and then the matter should be placed before the Sub-divisional Magistrate. On the 27th October, 1964, the same Magistrate directed the matter to be put up before the Sub-divisional Magistrate on the 2nd November, 1964, because according to the police report, each of the petitioners was required under the Defence of India Rules. On the 2nd November, 1961, the Sub-divisional Magistrate postponed the matter to the 16th November, 1964, awaiting further police re, port. But on the 5th November, 1964, orders releasing the petitioners from jail were received from the Sessions Judge and then the petitioners were released on bail.
2. The present applications were however, filed before this Court on the 30th October, 1964, i. e., six days before the release of the petitioners on bail.
3. Mr. Radha Raman who appeared for the petitioners submitted that there was no justification for keeping the proceeding under Section 151, Code of Criminal Procedure, pending after the report of the police dated the 23rd October, 1964, This report reads as follows:
The activities of above two individuals spread and extend in whole of the district. Materials to detain them under D. I. Rules are being compiled by Superintendent of Police, Monghyr, who will submit the proposal for their detention to the District Magistrate. Meanwhile, I request that they may not be released on bail as they are required under D. I. Rules.
It is manifest from this report that the police officers concerned did not find sufficient material in support of his previous report and, therefore, he requested the Sub-divisional Magistrate not to grant bail to the petitioners until fresh materials were compiled to detain them under the Defence of India Rules. In view of the report dated the 23rd October, 1964, the Sub-divisional Magistrate ought to have straightway dropped the proceedings under Section 151, Code of Criminal Procedure; but it is unfortunate that he, or the Magistrate who was acting during his absence, did not even consider the petition of the petitioners for bail.
4. Mr. K. P. Varma, who appears for the State however, submitted that inasmuch as the petitioners have been released on bail under the orders of the learned Sessions Judge, the present applications have become infructuous. He submitted that there was no question of any action under Section 491, Code of Criminal Procedure or under Article 226 of the Constitution for releasing the petitioner when they are already on bail. But in spite of their release on bail, the petitioners are still subject to the direction of the Magistrate. The Magistrate may cancel their bails and then, for the time being, they may be sent to the prison. The sureties may refuse to continue as such for the production of the petitioners and then the petitioners will again be taken into custody. Even if the sureties continue to assure the production of the petitioners and the bails are not cancelled, the petitioners would have to attend the Magistrate’s court on all the dates. In other words, even if a person is released on bail, he must be considered to be detained in the constructive custody of the Court through surety as his liberty is subject to restraint, and he has to be produced before the Court by the surety whenever required. This view is supported by several decisions cited by Mr. Radha Raman; but it will be sufficient to refer to the decisions in Sandal Singh v. District Magistrate and Supdt., Dehra Dun AIR 1934 All 148 and Zahir Ahmad v. Ganga Prasad AIR 1965 All 4.
5. Section 491, Code of Criminal Procedure, empowers this Court to direct that a person illegally or improperly detained in public or private custody be set at liberty. The power of this Court under Article 226 of the Constitution is still greater. On the facts stated above, it is manifest that, to say the least, the petitioners had been improperly detained after the 23rd October, 1964, and even though they were released on bail on the 5th November, 1964, the continuance of the proceeding affects to some extent their liberty.
6. In the circumstances, the two proceedings under Section 131, Code of Criminal Procedure which are now pending before the Sub-divisional Magistrate, Jamui, are quashed and the applications are accordingly allowed.
S.F. Singh, J.
7. I agree.