Judgment

DUA, J.:- The petitioner, A Lakshmanrao, an Advocate practising at Narasipatnam in the district of Visakhapatnam in the State of Andhra Pradesh has applied under Article 32 of the Constitution for a writ of habeas corpus on the following averments:

2. The petitioner, while going home from the Court, was arrested on 17th July, 1970 at about 12.30 in the afternoon. He was not shown any warrant at the time of his arrest He was produced before a Judicial Magistrate, First Class, on 18th July and remanded to judicial custody under Section 167 (2), Criminal P. C. for 15 days. At the time of remand he was informed by the Magistrate that he was accused of offences under Sections 120-B, 121-A, 122 read with 302 and 395, I P. C. in Crime No. 3 of 1970 (known as Parvatipuram Naxalite Conspiracy Case). The crime had been registered in January, 1970 in which more than 148 persons were sought to be proceeded against The names of only 148 accused persons were specifically mentioned. The petitioner and one Dr. C. Ramadass were not specifically named. They were apparently included in the expression "others". On 30th March, 1970 a report was filed by the Investigating Officer describing it as a preliminary charge-sheet in which it was stated that the investigation in the case had not been completed and several accused persons had yet to be traced. This report, according to the averments, does not fall under Section 173 (1), Criminal P. C Even in this preliminary charge-sheet the names of the Petitioner and Dr. Ramadass were not included. On 1st August when the period of the petitioner s first remand expired again no charge-sheet was separately filed against him and Dr. C. Ramadass The prosecution, however, sought extension of the period of remand. When the petitioner objected to further remand a second preliminary chargesheet was presented to the Court on that very day specifically including the petitioner s name. His remand was there upon extended upto 6th August and thereafter upto 20th August. On 20th August he was not produced in the Court because of want of escort and the order of remand was made in his absence. He has expressed ignorance about the period of this remand.

3. The present petition dated 22nd August, 1970 was forwarded to this Court through the Superintendent, Central Jail. Rajahmundry (Andhra Pradesh.). The petitioner challenges the remand orders from the 1st August onwards and claims that his detention is illegal and that he is entitled to be set at liberty. The remand order dated 20th August, 1970 which was made in his absence because he could not be produced before the Court on the ground of lack of escort is challenged on the further ground that the law does not permit remand orders without the actual production of the accused before the Court.

4. According So the petitioner who himself argued his case, Section 344 (1-A). Criminal P. C. does not contain any guidelines for the Court in the matter of remand orders and he added that this section is otherwise too inapplicable to the investigation stage of criminal cases. When his attention was drawn to the explanation to Section 344, according to which the likelihood of further evidence being obtained by the remand in cases of suspicion against an accused person, raised by the evidence already obtained, he contended that the explanation could not as a matter of law serve to extend the scope of the substantive provision contained in sub-section(1-A). On this premise the petitioner questioned the vires of Section 344 (1-A) and (2) and the explanation.

5. In the counter affidavit sworn by the Judicial Magistrate in whose Court the case against the petitioner is pending, while referring to the proceedings held on 1st August, 1970. it is affirmed that the petitioner and Dr. C Ramadass were produced in Court and it was submitted by them that since their names had not been shown in the preliminary charge-sheet the Court had no power to extend the period of remand On that very da