( 1. ) THIS is a petition under Articles 226 and 227 of the Constitution of India filed by the three petitioners, namely Raju alias Rajkumar, Santosh and Mahesh for issuance of a writ of Habeas Corpus on the following averments:

( 2. ) ALL the three petitioners were arrested on 6-4-1989 by Garha Police, in Crime No. 240/89 for an alleged offence under section 376/34 of the Indian Penal Code. They were produced before the Chief Judicial Magistrate, Jabalpur, who by a warrant issued on 7-4-1989 remanded them to judicial custody till 20-4-1989. Thereafter on 20-4-1989 as well as on several subsequent dates, the petitioners were produced before the Chief Judicial Magistrate who granted judicial remands from time to time in the absence of the petitioners and, therefore, it is alleged that their detention is illegal and they are entitled to be set at liberty by issuance of a writ of Habeas Corpus.

( 3. ) THE respondent/state had filed the return on 30-6-1989 through Shri C. D. Madan, Superintendent, Central Jail, Jabalpur, as Officer-in-charge of this case, candidly admitting that the petitioners were not produced before the Court on 20-4-1989; 4-5-1989; 18-5-1989 and 15-6-1989 due to non-availability of Police-guard to escort them before the Court concerned. It has been, however, stated that the petitioners were produced before the Magistrate concerned on 1-6-1989, the date on which charge sheet was filed on basis of which learned Magistrate took cognisance of the offence, supplied the copies of challan papers to the accused persons and remanded them to jail custody till 15-6-1989. On these premises, it has been submitted that the petition deserves to be dismissed.

( 4. ) SHRI R. K. Swarnkar, learned counsel for the petitioners, placing his reliance on the provisions contained in Clause (b) of sub-section (2) of section 167 of the Code of Criminal Procedure (Act No. 2 of 1974), 1974 (for brevity, referred to as the code), vehemently urged before us that if the Police or judicial remand is granted by any Magistrate authorised to do so, without the accused being physically produced before such Magistrate, the remand and detention of the accused, both will be illegal, and the accused would be entitled to be set at liberty by a writ of habeas corpus. He submitted that in the present case none of the petitioners was produced before the Magistrate on various dates as stated above on which the judicial remands were granted and, therefore, their detention is illegal and they deserve to be set at liberty. This argument was sought to be supported by two Single Bench decisions of this Court rendered in Subhash v. State of M. P. , 1988 MPLJ 508= 1988 J. LJ. 444, and Satish and Anr. v. State of M. P. , Cr. R. No. 572 of 1988, decided on 19-1-1989. As against this, Shri B. P. Singh, learned Government Advocate, appearing for the respondent/state submitted that there are occasions when the physical production of the accused becomes impossible on account of the non-availability of the escorts and for that reason the order of remand does not become illegal.

( 5. ) BEFORE we plunge into the aforesaid controversy we would first like to expose the ambit and scope of grant of habeas corpus writs and the relevant provisions dealing with the remands of accused and undertrial prisoners.

( 6. ) THE writ of Habeas Corpus is one of those celebrated writs which provide an expeditious procedure to test the propriety of official detention of a person and a protection to his personal liberty. Before the Constitution of India dawned on the blooming horizon of India, the power of issuance of a writ of habeas corpus was a part of the Old Code of Criminal Procedure, 1898, in the shape of section 491, which now stands repealed by the new Code of 1974, which is denuded with any such provision because of Article 226 (1) of the Constitution of India which confers comprehensive powers on the High Courts including the power to issue writs in the nature of Habeas Corp