M.M.MURTAZA HUSAIN,J. - (1.) THIS is a petition under Art. 226 of the Constitution for the issue of a writ of habeas corpus.
(2.) IT is stated in the petition that the petitioner was arrested in connec­tion with a case under Sees. 302/307/149/148/147 I.P.C. on April 10, 1976. The charge-sheet was filed against the petitioner and other co-accused in the Court of the C.J.M., Allahabad on May 21,1976 and the case was committed to the court of Sessions on July 28,1976. The petitioner is detained in Naini Central Jail, Allahabad since his arrest on April 10, 1976. It is clear from the petition and the affidavit filed in support of it and the order of commitment dated July 28, 1976 that no order of remand has been passed by the C.J.M., Allahabad for the custody of the petitioner in jail after the commitment of the case to the court of Sessions on July 28,1976. The petitioner is, therefore, detained in Naini Central Jail, Allahabad. It may be mentioneed that three days time without any order of remand passed by the C.J.M., Allahabad, was granted to the learned counsel for the opposite parties, namely the State of U. P. and the Superintendent, Naini Central Jail, Allahabad, to file their counter affidavit, but no counter affidavit has been filed on their behalf. The Superintendent, Naini Central Jail, Allahabad had no power to detain the petitioner in jail either in the discharge or in the pur­ported discharge of his official duty in the absence of an order of remand by the Magistrate as his power to detain him in jail was dependent on the exis­tence of an order of remand by the Magistrate. He has thus acted as a private person in detaining the peti­tioner in jail and the detention of the petitioner is clearly illegal. We are fortified in our view by the under-men­tioned observations of Beg, J. in the case of A. D. M., Jabalpur v. S. Shukla (AIR 1976 SO 1207 at p. 1311.) : "So long as the executive authori­ties of the State purport to act under the Act, their preliminary objection against further hearing will prevail unless, of course, the officer purpor­ting to detain had, in fact, not been invested at all with any authority to act in which case the detention would, in my opinion, be on the same footing as one by a private person who has no legal authority whatsoever to detain."
(3.) IT is well settled that there is no question of infringement of fundamen­tal rights under Art. 21 of the Constitu­tion where the detention is by a private person and not under the authority or orders of the State. The suspension of enforcement of Art. 21 by the presi­dential order is, therefore, of no conse­quence in the present case.;