- (1.) G. P. Mathur, J.- This Habeas Corpus petition has been aying that this Court may issue a direction to the respondents lo set the petitioner at liberty forthwith,
(2.) IT appears that a FIR under Sections 307 and 376, I. P. C was lodged at police station Kishunpur, district Fatehpur, on the basis of which a case has been registered as case crime No. 36 of 1994. The petitioner Gulab Khatik was arrested in connection with the aforesaid case. The petitioner applied for bail but his bail application has been rejected by the learned Session Judge, Fatehpur. The Habeas Corpus petition has been filed on the ground that there is no legal remand order either by the learned Magistrate or by the learned Sessions Judge which may authorize the detention and, therefore, the detention of the petitioner is wholly illegal. Learned Counsel has submitted that prior to committal of the case no proper order of remand was passed by the learned Magistrate. Similarly after the case was committed to the Court of Sessions the learned Sessions Judge concerned has also not passed any legal or valid order of remand. In support of his submission the learned Counsel has placed reliance on Ram Narain v. State of Delhi, AIR 1953 SC 277; Khatri v. State of Bihar, AIR 1981 SC 928; State of U. P v. Lakshmi Brahmin, AIR 1983 of 439; Vashishtha Muni v. Superintendent, District Jail Faizabad, 1993 U. P Criminal Rulings 159 and Rajesh Misra v. State of U. P. 1994 ACC 197, 1994 UP Cr. R 132. A copy of the order-sheet of the Court of Magistrate has been filed as Annexure-I to the Habeas Corpus petition. The order-sheet, dated 17-8-1994 shows that on the said date copies of the documents were furnished to the accused as required under Section 207 of the Criminal Procedure Code and the learned Magistrate also passed an order commit ting the case to the Court of Sessions. In the committal order there was a further direction that accused shall remain in custody during and until the conclusion of the trial. This order has been passed in accordance with Section 209 (b) of the Criminal Procedure Code which provides that the Magistrate, while committing the case to the Court of Sessions, shall, subject to the provisions of the Code of Criminal Procedure relating to bail, remand the accused to custody during and until the conclusion of the trial. It is, therefore, clear that on 17-8-1994 an order has been passed directing that the petitioner shall remain in custody during and until the conclusion of the trial. In view of this order, it cannot be held that the petitioner is being detained without any authority of law or that his detention is illegal in any manner.
(3.) THE contention of the learned Counsel that no proper order of remand was passed by the learned Magistrate under Section 167, Cr. P. C loses all significance on account of the subsequent order, dated 17- 8-1994 by which the case has been committed to the Court of Sessions and an order of remand was also passed. It has been held by a Full Bench of this Court. In Surjeet Singh v. State of U. P. , 1984 ALJ 375, that the word 'custody' in Section 309 (2), Cr. PC. means imprisonment, both legal and illegal and the court is competent to remand the accused to custody under Section 309 (2), Cr. PC. even if there is any illegal imprisonment. It has been further held that the court can thus rectify its mistake and transform its illegal imprisonment into a legal imprisonment. In our opinion, the same principle will also apply to the present case and even if there was no legal or valid order of remand under Section 167, Cr. PC. the subsequent order passed under Section 209 (b), Cr. PC. would rectify the mistake and the order of remand passed on 17-8-1994 will transform his illegal custody into legal custody. THErefore, even assuming that prior to 17-8-1994 there was no legal order of remand, the present detention of the petitioner cannot be held to be invalid. Regarding the second contention that the learned Sessions Judge has not passed any order of remand, we are of the opinion that Section 309, Cr. P. C gives an additional power to the trial Court to pass an order of remand while postponing or adjourning the case. Even if no proper order of remand is passed under Section 309 (2), Cr. P. C. It will make no difference if legal or valid order of remand had been passed by the Committing Magistrate under Section 209 (b) of the Criminal Procedure Code. Since in the present case, we are of the opinion that a valid order of remand was passed by the Magistrate on 17-8- 1994 we are not going into the question as to whether the learned Sessions Judge has passed any valid order of remand or not as that would necessitate summoning of the record which would delay the proceedings.;