RANAWAT, J. - (1.) THIS application was filed on behalf of Sripat and six others under sec. 491 Cr. P. C.
(2.) THE allegations of the petitioners were that they were arrested by the police for charges under sec. 396 and 436 read with sec. 146 I. P. G. and they were challaned to the court of the Extra Magistrate, Dholpur. Somehow before the 1st of October, 1952, the District Magistrate, Bharatpur, transferred the case from the case of Extra Magistrate Dholpur, to the court of Special Magistrate, Bharatpur, and they were detained without any order of remand from the 1st of October, 1952, onwards and prayed that they be ordered to be released. This application was directed against the Sub-Divisional Magistrate, Dholpur, and the Government of Rajasthan. Replies have been filed by the Sub-Divisional Magistrate, Dholpur, and it has been admitted that from the 1st October, 1952, up to the 12th March, 1953, no proper order of remand was made by any Magistrate as after the case had been transferred to the court of the Special Magistrate that court was abolished and this case was ordered to be transferred by the Government to the court of the City Magistrate, Bharatpur. Somehow by the inadvertence of the Law Department of the Government, the orders were not communicated to the court of the City Magistrate, Bharatpur, and he could not, therefore, proceed to make any order according to law, regarding the petitioners. On the 12th March, 1953, this case was again sent back to the court of Sub-Divisional Magistrate, Dholpur, and thereafter proper orders of remand were made by him. The proceedings in the case are also now being conducted and it is expected that the case would see its end early. The learned counsel, who appears for the petitioners has admitted that Chhotey has been released on bail and orders for the detention of Raghu-nath and Manpal were legal. He does not therefore want to press the cases of these three persons. He whoever contends that the detention of Sripat Genda, Sirmor and Liladar was illegal from the 1st of October, 1952, up to the 12th of March, 1953. It has been argued by him that even though the detention of these persons after the 12th of March, 1953, is perfectly legal they should be ordered to be released as they had been detained without any authority of law from the 1st of October, 1952 up to the 12th of March, 1953. The case of Ramnarayan Singh vs. The State of Delhi (l) has been cited in support of this argument. Mr. Ram Avtar on behalf of the opposite party has argued that even though the detention might have been illegal between the 1st of October, 1952 and 12th of March, 1953, yet as the detention of these persons thereafter has been perfectly in accordance with law, they cannot now claim to be released under sec. 491 Cr. P. C. He has referred to the case of Basant Chandra Ghose vs. Emperor (2) (AIR 1945 Federal Court, 18.) in which Spens C. J. has observed as follows : - "if at any time before the court directs the release of the detenu, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the court can direct the release of the petitioner. " It may be noted that in Ramnarayan Singh vs. The State of Delhi (1) (AIR 1953 Supreme Court. 257.) the Supreme Court of India has made the following observations on which the learned counsel of the petitioners has placed his reliance : - "it has been held by this Court that in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. " It is urged with reference to this observation of the Supreme Court by the learned counsel of the petitioners that as on the date of the return the detention of the four petitioners was illegal they are entitled to an order of release in their favour. In Ramnarayan Singh's case (1) (AIR 1953 S. C. 257.) no proper orders regarding the detention Dr. S. P. Mukerjee were produced by the opposite side and whatever papers were produced before the under very suspicious circumstances. The court therefore refused to look into these documents regarding the validity of further detention of the accused persons. Their Lordships in this connection have observed as follows: - "in a question of habeas corpus when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine, would be of vital importance, but they were not produced, notwithstanding the clear direction contained in our order of 10th March. The Court records produced before us do not contain any order of remand made on 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to 11th. The Solicitor-General appearing on behalf of the Government explains that these slips of paper, which would be of crucial importance to the case, were with a police officer who was present in Court yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore they were filed before the Registrar at 5-20 P. M. We cannot take notice of documents produced in such circumstances, and we are not satisfied that there was any order of remand committing the accused to further custody till 11th March". These observations make it clear that documents relating to further custody of the accused persons were not looked into by the Supreme Court as they were produced under very suspicious circumstances. It was, therefore, not necessary for the Court to consider the question as to whether the accused persons were to be ordered to be released in spite of certain valid orders regarding their detention passed subsequent to the date of the return. Their Lordships in that case simply said that in habeas corpu proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. Nothing was said as there were no valid orders of detention before the Court regarding validity of further detention of the accused persons. The Supreme Court case therefore is clearly distinguishable on the ground that in that case no proper orders of further detention of the accused persons were before the Court and the question regarding legality of further detention of the accused persons therefore did not arise. The decision of the Federal Court which has been cited by the learned Government Advocate is applicable to the facts of this case. In that case a proper order of detention was made by the Governor of Bihar in course of the habeas corpus proceedings and Spens C. J. observed that as the subsequent order of detention was proper it was not necessary for the Court to examine the validity of the first order of detention which had been replaced by a new one passed under Ordinance No. 3 of 1944. We are in respectful agreement with the observations of Spens C. J. and as in the present case it is admitted that after the 12th of March, 1953, the petitioners have been detained under proper orders of remand, it is not necessary for this Court under these circumstances to make an order of release in favour of the petitioners. It is really very unfortunate in this case that the petitioners were detained in custody for a considerable length of time without any proper order of remand. The reason probably was that after the case was transferred to the court of the Special Magistrate, somehow or other that court was abolished and the Law Department did not communicate to the City Magistrate of Bharatpur that the case had been transferred to his court. That Magistrate, therefore, could not take proper steps to proceed with the enquiry in this case. However, after the 12th of March, 1953, the case was again transferred to the court of the Sub-Divisional Magistrate, Dholpur, and thereafter proper order of remand have been made. It is now expected that no further delay would be caused in this case. This application is therefore dismissed. . ;