- (1.) S. N. Sahay, J. This is a petition for issuing a writ of habeas corpus for the release of the petitioner, who is under detention in connection with Case Crime No. 566 of 1994 under Section 302/307, I. P. C. of P. S. Kotwali Nagar, district Faizabad.
(2.) THE facts of the case which are not in dispute are that on 28-6-1994 at 8. 30 a. m. a report was lodged by Mahatam Yadav against the petitioner Virendra Singh and one Dinai at P. S. Kotwali Nagar, Faizabad in connection with the murder of Ram Sewak Singh. THE aforesaid case crime was regis tered by the police on the basis of the said report against the persons named in the report, namely, petitioner and Dinai. On 21-7-1994 the petitioner was arrested at his residence in district Azamgarh by Sri Surya Bali Singh, Ins-pector-Incharge alongwith S. I. Kulbhushan Tewari and S. I. Indra Prakash Singh and certain others. THE arrest was made at 4. 00 a. m. THE petitioner was brought by the police party to P. S. Kotwali Nagar on the same day at 4. 00 p. m. and was thereafter lodged in District Jail, Faizabad after obtaining the order of the Magistrate and since then the petitioner is under detention in jail. Learned counsel for the petitioner has urged that the petitioner was detained at P. S. Kotwali Nagar, Faizabad on 21-7-1994 from 4. 00p. m. to 4. 50 p. m. and was thereafter produced before the Chief Judicial Magistrate for remand. The necessity for taking the petitioner to the Chief Judicial Magistrate from the Kotwali in the manner suggested by the petitioner was that by that time the court was closed after court hours. According to the petitioner, the Chief Judicial Magistrate refused to grant any remand and hence the petitioner was thereafter taken to the Additional Chief Judicial Magistrate for the purposes of remand. However, the petitioner was not produced before him and without completing the formalities of law, learned Additional Chief Judicial Magistrate granted remand from 21 -7-94 to 3-8-94. These facts are denied by the respondents and it is stated in the counter-affidavit that the petitioner was actually produced before the learned Addi tional Chief Judicial Magistrate and remand was granted by him after perusing the relevant papers and satisfying himself that remand was necessary. Learned counsel for the petitioner has referred to the remand order, a copy of which has been filed as Annexurc-1 to the writ petition. It shows that under the signatures of the Additional Chief Judicial Magistrate, the date if mentioned as 21-7-91. Learned counsel has argued on the be his of this entry in the remand order that the learned Additional Chief Judicial Magis trate did not apply his mind and did not consider the relevant papers and passed the remand order in a mechanical way. It is stated in the counter-affidavit that figure '91' below the signatures of the Additional Chief Judicial Magistrate is merely a slip of pen and no adverse inference can be drawn on the basis of that entry. We see no reason to disbelieve the averments made in the counter-affidavit regarding the production of the petitioner and neces sary papers before the Additional Chief Judicial Magistrate concerned, who granted remand for the period from 21-7-94 to 3-8-94. In our opinion, the allegation made by the petitioner cannot hold water in the face of the aver ments made in the counter affidavit. The first contention of the petitioner has no force.
(3.) THE second contention of the petitioner is that the charge-sheet has been submitted against the accused persons and the enquiry is pending before the Chief Judicial Magistrate. Further remand has been granted by the Chief Judicial Magistrate and in that connection the custody warrant has also been issued by him. A copy of the custody warrant has been filed as Annexure CA-1 to the counter affidavit sworn by Sri Chunni Lal, District Jailor, Faizabad. In the said custody warrant it is mentioned that the accused is remanded to judicial custody and shall be detained in jail during and until the conclusion of trial and shall be produced in the court on the dates endorsed on the said warrant. THE exact words of the custody warrant may be quoted as below : Learned counsel for the petitioner has contended that since the enquiry proceedings are still pending, learned Chief Judicial Magistrate had no jurisdiction to grant a remand for the period during the trial and until the conclusion of trial. Ho has submitted that this will be against the provisions of Section 209, Cr. P. C. Learned Additional Government Advocate has tried to argue that the word 'vicharan' clearly refers to the stage of enquiry and does not refer to the stage of trial. But we are not inclined to accept this contention, for, the word 'vicharan' as, in Hindi, assumed a technical meaning now and it is used for the word 'trial'. There is force in the contention of the learned counsel for the peti tioner that at the stage at which the above mentioned custody warrant dated 16-8-94 was issued, it could not be predicted by the learned Chief Judicial Magistrate that the case will necessarily be committed to the Court of Session, although there was a great possibility of it in view of the fact that the case against the accused persons is one under Section 302/307, I. P. C. Accord ing to the learned counsel, the learned Chief Judicial Magistrate could not have legitimately issued the custody warrant for keeping the petitioner in jail during and until conclusion of the trial at that stage, till the committal order had been passed. We do not wish to express any final and concluded opinion on this point. Even if it is accepted for the sake of arguments that the contention of the learned counsel for the petitioner is well founded, we think that the detention of the petitioner cannot be held to be illegal merely on the ground that a direction was giving in the remand order for keeping the petitioner in jail during and until the conclusion of trial. This direction was followed by another direction in the same remand order that the accused shall be produced in the court on the dates endorsed on the custody warrant, troth these directions go together and are to be read as such. Even if one part of the direction is without jurisdiction, nothing has been said with regard to the other part of the direction and if the other direction, namely, production of the accused on the dates endorsed on the custody warrant is valid and legal, it cannot be said that the detention of the petitioner in jail on the basis of that custody warrant is also illegal. The two directions are separable and the second direction being valid, it clearly implies that the accused was to be detained in jail from the date he was sent to jail till the date he was required to be produced before the court. Therefore, we do not find any substance in the second contention of the learned counsel for the petitioner also.;