GULAB KHATIK Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J.- This Habeas Corpus petition has been aying that this Court may issue a direction to the respondents lo set the petitioner at liberty forthwith,

(2.) IT appears that a FIR under Sections 307 and 376, I. P. C was lodged at police station Kishunpur, district Fatehpur, on the basis of which a case has been registered as case crime No. 36 of 1994. The petitioner Gulab Khatik was arrested in connection with the aforesaid case. The petitioner applied for bail but his bail application has been rejected by the learned Session Judge, Fatehpur.

(3.) THE contention of the learned Counsel that no proper order of remand was passed by the learned Magistrate under Section 167, Cr. P. C loses all significance on account of the subsequent order, dated 17- 8-1994 by which the case has been committed to the Court of Sessions and an order of remand was also passed. It has been held by a Full Bench of this Court. In Surjeet Singh v. State of U. P. , 1984 ALJ 375, that the word 'custody' in Section 309 (2), Cr. PC. means imprisonment, both legal and illegal and the court is competent to remand the accused to custody under Section 309 (2), Cr. PC. even if there is any illegal imprisonment. It has been further held that the court can thus rectify its mistake and transform its illegal imprisonment into a legal imprisonment. In our opinion, the same principle will also apply to the present case and even if there was no legal or valid order of remand under Section 167, Cr. PC. the subsequent order passed under Section 209 (b), Cr. PC. would rectify the mistake and the order of remand passed on 17-8-1994 will transform his illegal custody into legal custody. THErefore, even assuming that prior to 17-8-1994 there was no legal order of remand, the present detention of the petitioner cannot be held to be invalid.