A person who is not in lawful custody can ask for bail.

J. M. L. SINHA, J.

( 1 ) THIS is an application for bail Under Section 439 of the Code of Criminal Procedure.

( 2 ) SRI Virendra Saran, who has argued this bail application, has not said anything touching the merits of the case in order to canvass for bail. His argument was that the detention of the applicant has all along been unlawful and consequently, the applicant should be released on bail. In order to appreciate the contention raised by Sri Virendra Saran, it will be necessary to mention a few dates.

( 3 ) THE applicant surrendered himself in the court of the Munsif Magistrate, Budaun on 10th of January, 1976. The Magistrate took him into custody and sent him to jail. On 24th of January, 1976, the investigating officer applied for, and was granted, fourteen days remand. On 6-2-1976 the investigating officer obtained a further remand of fourteen days. A charge-sheet was submitted on 20th of February, 1976, and on 7th of April, 1976, the applicant was committed to the Court of Session. Sometime during the pendency of the case in the court of the First Additional Sessions Judge, Budaun, the applicant was released on parole. On the expiry of the period of parole, he surrendered himself in the Court of the Additional Sessions Judge on 9th of October, 1976, on which date he was remanded to jail custody by a warrant signed by the Additional Sessions Judge.

( 4 ) NOW, the contention raised by Sri Virendra Saran is :

(i) that the custody of the applicant at no stage was lawful, and (ii) that even if any valid order remanding the applicant to custody at some later stage was passed, that would not render the custody of the applicant lawful unless the applicant was in lawful custody on the date on which the subsequent order was passed.

( 5 ) AS already indicated earlier, the applicant had not been arrested by the police. He surrendered in the Court of the Munsif Magistrate by himself on 10th of January, 1976 and the Magistrate remanded him to jail custody. The order passed by the Magistrate on 10th of January, 1976 remanding him to jail custody could not. be an order Under Section 167, Cr. P. C. because Section 167 applies only when a person is arrested and detained in custody by the police. No other provision of law could be cited under which the Magistrate could remand the applicant to jail custody on 10th of January, 1976. It was for the first time on 24th of January, 1976, that the police asked for a remand and the Magistrate granted the same for a period of fourteen days. This remand order could as well not be an order Under Section 167 of the Code of Criminal Procedure, for, on 24th of January, 1976, when the police applied for remand, the applicant was not in police custody. The point whether such a remand could fall Under Section 167, Cr. P. C. came in for consideration in the case of Hari Bansh Sahai v. State Government of U. P. (Habeas Corpus Writ Petition No 10652 of 1975, decided by Honble H. N. Seth and G. D. Srivastava, JJ. on 15-121975) (All) and it was observed : Now, as regards the subsequent production of the petitioner, the difficulty is that at the time of his subsequent production, the petitioner was not in police custody. On the contrary, he had been brought from jail. A plain reading of the opening words of Sub-section (i) will indicate that this sub-section comes into play only when a person has been arrested and is detained in police custody. It cannot apply to a case where the person is already confined in jail. It is, therefore, obvious that the order dated 24th January, 1971 passed by the Magistrate at the instance of the investigation officer remanding the applicant to custody was not a valid order.

( 6 ) ACCORDING to the supplementary counter-affidavit filed today, the applicant was further granted a remand for fourteen days on 6th of February, 1976. For the same reason for which the order dated 24th January, 1976 was not a valid order, I hold that the order dated 6th February, 1976 sanctioning remand of

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