Service of a detention order on a person who is already in jail custody is illegal.

1. The petitioner has applied for a writ in the nature of Habeas Corpus under Article 226 of the Constitution of India for directing his release from his allegedly illegal detention in Bhagalpur. The facts necessary to he stated for deciding the only point urged by Shri Shyam Prasad Mukherjee appearing as Amiens curiae in this case are these:

That on 24-8-1965 the petitioner was arrested at Makandpnr by a Police Officer who had no warrant of arrest with him and was taken to Special Central Jail, Bhagalpur, with a custody warrant. He was arrested under Sec.151 of the Code of Criminal Procedure (hereinafter called the Code) and while in jail custody, on 25-8-65, he was served with a copy of order no. 20480 dated 25-8-65 passed by the District Magistrate, Bhagalpur. The point pressed in support of the application is that the service of the detention order, while the petitioner was already in jail, was illegal and detaining him in pursuance of that order was mala fide and ultra vires as it was hit by the principle of, what is known as. double detention.

In support of this contention, reliance was placer! upon two Supreme Court decisions in Rameshwar Shaw V/s. District Magistrate, Burd-wan, AIR 1964 SC 334 and Makhan Singh V/s. State of Punjab, ATR 1964 SC 1120. Tt was also submitted on behalf of the detenu that following these two decisions, a number of detenus were directed to be released by various Benches of this Court by orders made in their respective writ applications, to wit, Sabita Gupta V/s. State of Bihar, Cr. W. J. C. 77 of 1965 D/-23-9-1965 (Pat).

2. The learned Additional Government pleader in answer to the rule raised a point before us which does not seem to have been raised and decided in the earlier decisions of this Court including the one just referred to above. He submitted on the authority of the decisions in Shravan Kumar Gupta V/s. Superintendent District Jail, Mathura, AIR 1957 All 189, Durga Bagchi V/s. Supdt., Bankipur Jail, 1964 BLJR S47 and Criminal Misc. No. 574 of 196-1 decided by a Bench of this Court on 28th September, 1964 (Pat) that a person could not be detained in jail custody by order of the Sub-Divisional Magistrate or any other Magistrate in purported exercise of the powers under Sec.131 of the Code of Criminal Procedure.

The learned Counsel submitted that this was a special power conferred upon a police officer to arrest a person who to the knowledge of that officer has a design to commit a cognizable offence. In such a situation, the police officer can arrest the person without orders from a Magistrate and without a warrant, if it appears to such an officer that commission of the offence cannot he prevented otherwise than by his arrest. Unless a case is instituted by the police, First Information Report is drawn up or an investigation is started the person charged with the commission of an offence cannot be sent to jail custody by a Magistrate in purported exercise of power under Sec.151 of the Code as under that provision of law the Magistrate has no such power. His power to send the man to Jail custody during the pendency of the investigation is to be found in Section 167 of the Code. The argument seems to be sound and there does not appear to be any flaw in this. The Magistrate cannot send a person to jail custody if that person has been arrested by a police officer in exercise of his powers under Sec.151 of the Code and no further action has been taken by way of institution of a case or the like.

In that view of the matter, further submission made by the learned Additional Government Pleader is that the detention of the petitioner in purported exercise of the powers under Sec.151 of the Code was ultra vires and without jurisdiction, That being so, on the authority of the decision of the Supreme Court in Smt. Godavari Shamrao V/s. State of Maharashtra, AIR 1964 SC 1128 he submitted that service of the detention order in question on the detenu on the 25th August, 1965 cannot he hel