P. K. BHASIN, J, J.

( 1 ) IT is an old saying that "necessity is the mother of invention" and the same can be said to be applicable in these matters. Having failed to get an order of bail from two Courts the petitioner who is presently lodged in Tihar jail in connection with two criminal cases, has invented a novel way of seeking his release on bail by filing these two writ petitions under Article 226 of the constitution of India for a writ of habeas corpus instead of invoking Section 439 of the Code of Criminal Procedure.

( 2 ) FEW facts only need to be noticed by us for disposing of both the petitions which were heard together since common question of law is raised therein. The petitioner was arrested by the Crime Branch on 07-05-2006 in connection with a case under Sections 420/467/468/471/120-B IPC registered vide fir No. 162/06 dated 21-02-2006 at police station Dwarka. The investigation of that case was later on taken over by the Crime Branch. The complainant and the petitioner were at one time office bearers of a Housing Society in Dwarka. The complainant, inter-alia, alleged forging of his signatures on some documents of the Society by the petitioner and some other persons for wrongful gains. They are alleged to have grabbed many Housing Societies, inter-alia, by forging signatures of some members of the Society and selling their memberships. The petitioner claims that, in fact, the complainant has resorted to forgery of valuable documents of the Society and also committed criminal brach of trust while he was the treasurer of the Society and he also enrolled fake members.

( 3 ) PRIOR to the registration of the afore said FIR No. 162/06 another case on almost similar allegations had been registered on 26-09-2005 at police station Dwarka vide FIR No. 427/2005 against the present petitioner and other persons in respect of some other Housing Society in Dwarka. The complainant of that case was an office bearer of that Society and the present petitioner was its Project Manager. Allegations and counter allegations of forgery of Society records have been made in the said earlier case also. Investigation of that case was also taken over by the Crime Branch. The petitioner and his associates are allegedly involved in many criminal cases of different kinds of frauds pertaining to many Housing Societies. The petitioner who was arrested on 07-05-2006 in case of FIR No. 162/2006 was formally arrested in the case of fir No. 427/05 on 29-05-2006 by the Crime Branch after seeking permission from the Court concerned.

( 4 ) CHARGE-SHEET was filed in Court on 05-07-2006 in the case pertaining to fir No. 162/06 in which the petitioner had been arrested on 07-05-2006. On 11-07-2006 both these writ petitions were filed by the petitioner. In the writ petition (Crl.) No. 1568 of 2006 it was alleged that even though a charge-sheet had been filed in Court by the police on 05-07-2006 in the case of FIR No. 162/06 but the learned Magistrate did not take cognizance in the matter on that day and adjourned the case to 19th July, 2006 for filing of the report of the handwriting expert and while adjourning the case the petitioner was remanded to further judicial custody. It is the grievance of the petitioner that after the filing of the challan in Court the learned Magistrate could not have remanded the petitioner to judicial custody without first taking cognizance and since no cognizance was taken on 05-07-2006 the remand of the petitioner and his detention in jail thereafter was without the authority of law. It is also the case of the petitioner that the learned Magistrate had the power to remand the petitioner to judicial custody only upto a period of sixty days from the date of his arrest as provided under Section 167 (2) Cr. P. C. and after the filing of the challan the only provision under which the petitioner could be remanded to further judicial custody was under Section 309 Cr. P. C. but that provision comes into operation only after taking