ORDER
1. The petitioner has applied for a writ in the nature of Habeas Corpus under [SECTION] of the [ACT] for directing his release from his allegedly illegal detention in Bhagalpur. The facts necessary to he stated for deciding the only point urged by Shri [ENTITY] appearing as Amiens curiae in this case are these:
That on 24-8-1965 the petitioner was arrested at Makandpnr by a Police Officer who had no warrant of arrest with him and was taken to Special Central Jail, Bhagalpur, with a custody warrant. He was arrested under [SECTION] of the [ACT] (hereinafter called the Code) and while in jail custody, on 25-8-65, he was served with a copy of order no. 20480 dated 25-8-65 passed by the District Magistrate, Bhagalpur. The point pressed in support of the application is that the service of the detention order, while the petitioner was already in jail, was illegal and detaining him in pursuance of that order was mala fide and ultra vires as it was hit by the principle of, what is known as. double detention.
In support of this contention, reliance was placer! upon two Supreme Court decisions in [PRECEDENT] and [PRECEDENT]. Tt was also submitted on behalf of the detenu that following these two decisions, a number of detenus were directed to be released by various Benches of this Court by orders made in their respective writ applications, to wit, [PRECEDENT].
2. The learned Additional Government pleader in answer to the rule raised a point before us which does not seem to have been raised and decided in the earlier decisions of this Court including the one just referred to above. He submitted on the authority of the decisions in [PRECEDENT], [PRECEDENT] and [CASE NUMBER]-1 decided by a Bench of this Court on 28th September, 1964 (Pat) that a person could not be detained in jail custody by order of the Sub-Divisional Magistrate or any other Magistrate in purported exercise of the powers under [SECTION] of the [ACT].
The learned Counsel submitted that this was a special power conferred upon a police officer to arrest a person who to the knowledge of that officer has a design to commit a cognizable offence. In such a situation, the police officer can arrest the person without orders from a Magistrate and without a warrant, if it appears to such an officer that commission of the offence cannot he prevented otherwise than by his arrest. Unless a case is instituted by the police, First Information Report is drawn up or an investigation is started the person charged with the commission of an offence cannot be sent to jail custody by a Magistrate in purported exercise of power under [SECTION] of the Code as under that provision of law the Magistrate has no such power. His power to send the man to Jail custody during the pendency of the investigation is to be found in [SECTION] of the Code. The argument seems to be sound and there does not appear to be any flaw in this. The Magistrate cannot send a person to jail custody if that person has been arrested by a police officer in exercise of his powers under [SECTION] of the Code and no further action has been taken by way of institution of a case or the like.
In that view of the matter, further submission made by the learned Additional Government Pleader is that the detention of the petitioner in purported exercise of the powers under [SECTION] of the Code was ultra vires and without jurisdiction, That being so, on the authority of the decision of the Supreme Court in Smt. [ENTITY] Shamrao v. State of Maharashtra, [PRECEDENT] he submitted that service of the detention order in question on the detenu on the 25th August, 1965 cannot he held to be illegal. We merely want to observe in regard to the second submission that it is attractive and seems to have force. We would, however, like to point out one point of distinction between the instant case and that of [ENTITY] decided by the Supreme Court, not with a view to finally reject the argument put forward on behalf of the State but only in order to show that the point is debateable and not free from difficulty.
The "point of distinction is this. Rightly or wrongly, the petitioner was sent to jail custody by the Magistrate in his purported exercise of his power under [SECTION] of the Code as is the uncontroverted statement of the petitioner in his petition. We do not know for what length of time he was sent to jail custody in exercise of that power. We do not know whether the ultra vires and illegal order of the Magistrate was recalled or cancelled by him or any superior authority. That being so, we only know this that the petitioner was in (ail custody, may be, in pursuance of the illegal order of the Magistrate and at that point of time, it is doubtful whether the service of the detention order on him in jail was justified or legal.
In [ENTITY]'s case, the order of detention which had been passed by the subordinate officer and had been reported to the Government for approval was not approved and after cancelling it, the State Government made another order of detention which was served on the detenu while she was in Jail having been detained in pursuance of the earlier order passed by the officer concerned. In that situation, the Supreme Court observed that it would be an empty formality to allow the appellant to go out of jail on the revocation of the earlier order and to send her again to jail in pursuance of the later order made by the State Government. Here, as we have pointed out, the order of the Magistrate sending the petitioner to jail in purported exercise of his powers under [SECTION] of the Code was undoubtedly, as contended on behalf of the State, ultra vires and illegal. Nonetheless the order was there. It had not been cancelled or recalled and the petitioner was in jail in pursuance of that order.
In such a situation without there being the revocation of the order it would not be free from difficulty to apply the principles of [ENTITY]'s case, [PRECEDENT] on all fours. So as at present advised, we would not like to depart from the decisions which have been given in several earlier cases and orders for release of the detemies on similar facts have been made. Following those decisions and orders, although as stated earlier, the point raised before us was not argued and decided and we have also not finally decided it, we would hold that the detention of the petitioner is illegal. We would accordingly allow the application and direct his release forthwith unles he is wanted in connection with any other case.