The physical production of an accused before the Magistrate for the purpose of extending his remand is not inflexibly mandatory and that failure to do so does not vitiate the order of remand.

S. S. Sandhawalia, C. I.,-

Whether the physical production of an accused before the Magistrate is inflexibly mandated 'for extending his remand to custody, and the failure to do so would vitiate the ORDER :-is the significant question necessitating this reference to the "Division Bench.

2. The facts relevant to the aforesaid issue may be noticed with relative brevity. The petitioner has preferred the present habeas corpus petition on the allegation 'that he was arrested on the charge of murder under section 302 read with section 34 of the Indian Penal Code on the 29th of April, 1985 and was remanded to jail custody by the Sub-divisional Judicial Magistrate, at Biharsharif Thereafter his remand was extended from time to time. The petitioner's grievance is that he was not physically produced before the Judicial Magistrate at Biharsharif on the 23rd December, 1985, 6th January, 20th of January 1986 3rd of February, 1986 and 4th of February, 1986, When ORDER :s for extending his remand in custody were passed by the Magistrate. Inter aila, it is the case that the production of the petitioner for the extension, of his remand was mandatory and this, having not been done, the ORDER :of further custody stands vitiated.

3. In the affidavit filed on behalf of the first informant in the case, apart from highlighting the heinousness of the offence, it is averred that the petitioner is a hardened criminal and is an accused in several cases including Sessions Trial Case No. 315 of 1981, G. R. 103 of 1978 and G. R. 57 of 1978 which are also pending against the petitioner for trial. In view of this, obvious difficulty and an impossibility arise when the petitioner accused is to be produced On the same date in more than one case. It has been averred that on the 23rd of December, 1985 and 6th of January. 1986 the petitioner was produced before Shri' A. P. Verma, Sub-divisional Judicial Magistrate. Biharsharif Nalanda, and Shri Pathan respectively and further on the same day, i.e., 6th of January, 1986 he was also produced before the 2nd Additional District and Sessions Judge, Nalanda On the 4th of February, 1986 the petitioner was produced before the 2nd Additional District and Sessions Judge and consequently could' not be produced in the court of the Magistrate; Again it was pointed out that on the 20th of February, 1986 the petitioner accused was sick as was indicated by the medical report and, therefore, could not be produced in court, on that day. Lastly it is pointed out that the accused petitioner was actually produced before the Magistrate on the 4th of March 1986 when his named was extended and any earlier irregularity, if at all, with regard to the remand would stand cured.

4. It may be, recalled that on the 3rd of March, 1986 the issue of interim relief was strenuously presses before us. It was contended that since the petitioner admittedly was not produced, his further remand to custody would be vitiated. Learned counsel for the State at the stage was unable to pinpoint any provision 'of Jaw or precedent exempting production of an accused for the purposes of further remand. In, that view of the matter, the accused was directed to be released forthwith on his' furnishing a bail bond in the sum of rupees ten thousand. It is not in dispute that in pursuance of that ORDER :the petitioner has been released.

5. We are inclined to the view that the crucial question herein stands concluded by 'binding precedent and it is, therefore, unnecessary to elaborate' the matter on principle. In Raj Narain v. Superintendent Central Jail New Delhi arid another (AIR 1971 SC 178) this very issue came up pointedly before a Bench of seven Judges. By a majority of 5/2 it was held therein that the presence of the prisoner before the Magistrate was not inflexibly necessary for the extension of his is remand. Chief Justice Hidayatullah. speaking for the majority, observed as under :

"There is no reason why we should ORDER :the release of Mr. Raj Narain when