There is a lacuna in the CrPC as it does not provide for the stage in between the submission of the final form and the stage of Section 209 or 309. The Magistrate has no inherent power to remand an accused to custody in the absence of any law providing for that.

MADAN MOHAN PRASAD, J.

1. An application under Ss. 439 and 440 of the Cr. P. C. (hereinafter called the Code) was filed by the petitioner which, with the permission of this Court has now been converted into an application under Art. 226 of the Constitution of India with a prayer for issuance of a writ for the release of the petitioner from illegal detention.

2. It is stated that an occurrence resulting in the death of one person took place on the 23rd of April, 1976 in respect of which a first information report wag lodged. After investigation the police submitted final form on the 28th of June, 1976 as against this petitioner, which was received by the Magistrate on the 30th of June, 1976. Meanwhile, however, this petitioner had surrendered before the Magistrate on the 7th of May, 1976. Unsuccessfully though, he made several attempts to get an order of release on bail at all levels including this Court, his bail application to this Court having been rejected on merits on the 14th of Septem1976. An application thus, based on different grounds, for an order for bail was filed in this Court on the 25th of November, 1976. The day next it was admitted by a learned single Judge of this Court who, in view of the importance of the argument pressed in support of the application, directed it to be heard by a Division Bench. It appears that it was placed before one such Bench but could not be disposed of and ultimately it has come to us for decision.

3. It has been alleged that it would appear from the order sheet of different dates that the petitioner was not produced, even though he had surrendered, and was kept in custody on many dates on which orders of remand were passed in his absence and only on the production of the custody warrant. This state of affairs continued until the 30th October, 1976. When the application was placed before us, we directed copies of the further orders passed thereon to be sent to us in order to have materials on which to decide as to whether on the date of hearing of this application the order of remand was legal and proper. It appears from the subsequent orders passed that the petitioner was not produced from custody, even on the subsequent dates fixed and in his absence, orders of remand to custody were passed. Meanwhile, it may be mentioned, on the 6th of Dec. 1976 when this application was placed before us for hearing, and finding that the matter would be protracted, we considered it in the interest of justice to pass an ad interim order of release of the petitioner on his furnishing bail of Rs. 5,000.00 with two sureties of the like amount. As a result thereof the petitioner was enlarged on bail, though temporarily. Thus it was only on the 13th of Dec. 1976 that the petitioner appeared before the Magistrate. The Magistrate, however, did not pass any order on that date except that, in the absence of the records of this case, he directed the case to be placed before him on the 7th of Jan. and 25th of Jan. 1977. The orders passed subsequently are, therefore, irrelevant to the question as to whether the petitioner wag remanded to custody by any proper and legal order.

4. The fact that the petitioner has been granted ad interim bail does not, however, relieve us from deciding the question as to whether his detention, if he had not been granted bail by this court, was valid. The interim order of bail could not, therefore, be treated as one which would affect the merits of the case.

5. Learned counsel for the petitioner has urged only one point in support of his argument that the petitioners detention is invalid and that is, that there is no provision of law in the Code, which enables a Magistrate to pass an order of remand after submission of final form under S. 173 (2) of the Code and before taking cognizance of the offence disclosed by the aforesaid report under Sec.190 of the Code.

6. Admittedly, in the present case final form has been submitted. Admittedly, again, cognizance of the offence has