ORDER

A.K. Patnaik C.J. and Shri Fakhru-ddin, J. – Heard Mr. Shailendra Dubey, learned counsel for the petitioner and

Mr. Pramod Verma, learned Additional Advocate General for the State of Chhat-tisgarh.

2. This is a habeas corpus petition for release of Shubhkaran Dwivedi, brother of the petitioner. The facts as stated in the petition are that Shubhkaran Dwivedi who was in District Jail, Sultanpur (Uttar Pradesh) was produced before the learned Chief Judicial Magistrate, Ambikapur, on 26-12-2003 in connection with Crime No. 416/2003 under Sections 302, 201, 120-B of the Indian Penal Code and Sections 25/27 of the Arms Act registered at Police Station City Kotwali, Ambikapur (Chhattisgarh). Thereafter, the Chief Judicial Magistrate sanctioned the police remand of Shubhkaran Dwivedi up to 30-12-2003 and thereafter extended the remand up to 5-1-2004 and fixed 19-1-2004 for his production but he was not produced by the Police before the learned Chief Judicial Magistrate.

3. Mr. Dubey, learned counsel for the petitioner submitted that under Section 167 of the Code of Criminal Procedure, the Magistrate has to authorise the detention of an accused person for any particular period and in the absence of such authorisation by the Magistrate, the detention of the accused will be ille-

gal. He submits that in this case the detention of Shubhkaran Dwivedi was authorised by the Chief Judicial Magistrate only up to 19-1-2004 and any detention of Shubhkaran Dwivedi beyond 19-1-2004 is illegal.

4. On 17-1-2005, this Court after perusing the letter dated 14-6-2004 sent by the Superintendent, District Jail, Sultanpur (Uttar Pradesh)-respondent No. 4, directed the Registry of this Court to send communication to the Superintendent, District Jail, Sultanpur (Uttar Pradesh)-respondent No. 4 asking him to send full facts of the case in which Shubhkaran Dwivedi is languishing in jail of Sultanpur (Uttar Pradesh) and pursuant to the said order dated 17-1-2005, the respondent No. 4 has communicated some copies of papers which show that Shubhkaran Dwivedi has been detained in custody at Sultanpur Jail in connection with several criminal cases.

5. Mr. Dubey, learned counsel for the petitioner submits that in the event Shubhkaran Dwivedi is released from custody in connection with the aforesaid cases pending in Uttar Pradesh, he may not be released from custody on account of Crime No. 416/2003 under Sections 302, 201, 120-B of I.P.C. and Sections 25/27 of the Arms Act even though no order has been passed by the learned Chief Judicial Magistrate, Ambikapur, autho-rizsing the detention of Shubhkaran Dwivedi beyond 19-1-2004.

6. We find a lot of force in the aforesaid submission of Mr. Dubey. The record of the learned Chief Judicial Magistrate, Ambikapur has been called for and is before this Court. We called upon Mr. Pramod Verma, learned Additional Advocate General to go through the said records and tell the Court as to whether any order has been passed by the Chief Judicial Magistrate from which the Court can come to the conclusion that the detention of Shubhkaran Dwivedi has been authorised beyond 19-1-2004.

7. Mr. Verma, learned Additional Advocate General submitted that the records of the Chief Judicial Magistrate produced before the Court would show that the Chief Judicial Magistrate has passed orders for production of Shubhkaran Dwivedi in connection with crime No. 416/2003 but despite the said orders passed by the Chief Judicial Magistrate, Ambikapur, Shubhkaran Dwivedi is not being produced before the Chief Judicial Magistrate. According to Mr. Verma, the fact that orders have been passed by the Chief Judicial Magistrate, Ambikapur for production of Shubh-

karan Dwivedi would show that the

detention of Shubhkaran Dwivedi has been authorised by the Magistrate beyond 19-1-2004.

8. On a perusal of the records of Chief Judicial Magistrate in crime No. 416/2003 it appears to us that no express order has been passed by the Magistrate for detention of Shu