ORDER (1-9-1970) - By majority we hold that the custody of Mr. Raj Narain is valid and that he is not entitled to release on his fresh petition. We shall give our reasons later.

Judgment

HIDAYATULLAH, C.J.I. :- (11-9-1976) Mr. Raj Narain M. P. was arrested on August 20, 1970 under Ss. 107/117, Criminal Procedure Code, and was remanded to jail custody under warrant issued by the City Magistrate, Lucknow. A petition for a writ of habeas corpus for his release is pending in this Court, and under our orders, August 22, 1970, he has been transferred to Tihar Central Jail Delhi His original remand, as ordered by the City Magistrate, was till August 28, 1970.

2. On August 28, 1970, we were informed at 4 P. M. that his remand would expire at midnight of the 28th St 1970 and that the Superintendent, Central Jail, Delhi would not be able to detain Mr. Raj Narain thereafter. The following intimation from the Superintendent - was received in this connection by the Registry:

"Sub: Production of Shri Raj Narain, M. P. in the SC Writ Petition No. 315 of 1970.Sir,

I have the honour to state, that Shri Raj Narain; M. P. was received in this jail on transfer from District Jail Lucknow, for production in SC in connection with his Writ Petition in the nature of Habeas Corpus He was produced in the Court on 25th, 26th and 27th August, 1970. Now it has been ordered by the SC dated 27-8-70 that he is not to be produced in the Court and that he may be kept in Delhi. Orders of the Court are reproduced below :

"Shri Raj Narain s petition is not to be listed tomorrow and he is not to be produced in Court tomorrow. He may however be kept in Delhi."

2. Judicial remand of Shri Raj Narain has been granted upto 28 8-70 by the City Magistrate and Magistrate 1st Class, Lucknow, vide enclosure copy of the order dated 21-8-70 In other words his judicial remand expires today. You are, therefore, requested kindly to intimate whether Shri Raj Narain is to be kept in Delhi Jail after 28-8-70 as per your orders or his further judicial remand is to be taken from the said Court.

Clarification sought may kindly be given today per bearer.

Yours faithfully."

The Court, thereupon, made the following order :

"It has been represented to us by the Superintendent of Jail that Mr. Raj Narain s remand expires at midnight and that as he has been ordered to be kept in Delhi, it would be necessary for us to say in whose custody and under whose orders he has to be detained. A similar situation had arisen in the case of Mr. Madhu Limaye when his remand expired and he bet came a free man, because we could not keep him under our orders in detention beyond the period originally fixed by the Magistrate. The same situation has arisen now and we can only make this order that he shall remanded back to the custody to which he belongs and that he may be taken to 11. P. if so desired, to be produced before us an the next date of hearing to be fixed in this case. If the fresh remand order is not received by the Superintendent of the Jail by midnight, the petitioner shall not be detained as directed by this Court, and he shall be set at liberty at midnight."

3. The same day a wireless message was received by the Superintendent, Tihar Central Jail from the District Magistrate Lucknow. It stated :

"Habeas Corpus Petition No. 315|70 Date 28-3-70. Shri Raj Narain M. P. remanded to further jail custody upto September 1st (I-9-70) under orders of C. M. Lucknow dated 28-8-70. Note in the Jail Warrant and inform him " The following day the message was corrected to read September tenth instead of September first. The City Magistrate Lucknow also telegraphed to the Superintendent, Tihar Central Jail the following message:

"........Reference Habeas Corpus Petition No. 315/70 dated August 28, 1970 Tiem (sic) P. M. Shri Raj Narain M. P. remanded to further jail custody upto September Ten Nineteen Seventy. Note in the jail warrant and inform him."

Simultaneously this Court was formed by District Magistrate that remand of