In the absence of a lawful authority, the rearrest and detention of a person is illegal and the remedy under Article 226 of the Constitution is applicable.

Judgment

KAUPUR, J. :

The State of Bihar has brought this appeal against the judgment and order of the High Court of Patna and it arises out of proceedings under Art. 226 of the Constitution and S. 491 of the Criminal Procedure Code for a writ of habeas corpus in the matter of detention of one Bipat Gope. The present respondent was the petitioner in the High Court.

2. Bipat Gope, a resident of the district of Patna, was convicted under S. 323 and S. 324 read with S. 511 of the Indian Penal Code and sentenced on November 29, 1957, to six months rigorous imprisonment by the High Court on appeal against acquittal under S. 417 of the Code of Criminal Procedure but he was not taken into custody till January 6, 1958 and even then he was kept under armed guard in the Patna Medical College Hospital in one of the paying, wards, on the ground that he was seriously ill. On an application by the respondent and on the recommendation of the appropriate medical authority Bipat Gope was released by the District Magistrate on March 11, 1958 under the rules of the Jail Manual when his unexpired period of imprisonment was four months and three days. The contention of the appellant State is that he was released under R. 549 which is the rule providing for conditional release of prisoners but the respondent challenges the factum of release under this Rule. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so notices were issued to them by an order dated April 27, 1958 to show cause why their surety bonds should not be forfeited. By the same order non-bailable warrant for arrest was ordered to be issued.

3. On April 29, 1958, Bipat Gope moved a petition under Art. 226 against the order of the District Magistrate and the High Court directed on May 1, 1953, that Bipat Gope should appear on Monday following which was May 5,1958, when the petition was to be taken up for preliminary hearing.

4. On May 1, 1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed an opportunity to present his case to the High Court and to avoid his maltreatment at the hands of the police of which he was apprehensive. There is no order on the record showing what the District Magistrate did but from the respondent s petition in the High Court it appears that the application before the District Magistrate was taken up by the Senior Deputy Collector, Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition on Bipat Gope filed in the High Court was withdrawn on May 2, 1958.

5. The High Court heard the petition filed by the respondent on May 5, 1958, and after some amendments were made the petition was allowed and Bipat Gope was ordered to be released from custody. The High Court held that the order of release by the District Magistrate of Patna above referred to was an order for his unconditional release and therefore he could not be rearrested. It is against that order that the State has come to this Court by special leave, its application under Art.134(1) (c) having been dismissed by the High Court.

6. On the petition under Art. 226 filed by the respondent, the High Court issued a rule calling upon the appellant State to show cause why a writ of habeas corpus should not issue. It is unfortunate that no return was filed by the State and it is not clear from the record as to how exactly or under what authority Bipat Gope was taken into custody and under what authority the jailor was detaining him in jail. The order of the District Magistrate shows that a non-bailable warrant was ordered to be issued. The petition of the respondent shows that Bipat Gope was arrested under the order of the Senior Deputy Collector; what authority the Senior Deputy Collector had of ordering Bipat Gope s rearrest is not clear from this reco