1. Seven persons have filed a joint application that this Court should issue directions in the nature of habeas corpus under Section 491 of the Code of Criminal Procedure to produce the petitioners before this Court and to set them at liberty.
2. Although the evidence adduced by the petitioners is very unsatisfactory, in that they have filed only one affidavit, and that by a person who had no acquaintance with the facts to which he has sworn, yet two allegations relied on by the petitioners seem to be true and are not denied by the learned Public Prosecutor The first is that they were remanded to the Central Jail, Trichinopoly, instead of to the Central Jail, Madura, which is the Jail to which prisoners are normally remanded when under trial in the Courts of the Madura district, including that of the Stationary Sub-Magistrate of Madura, in whose Court the petitioners were being tried. The other complaint of the petitioners is that the provisions of Sections 167 and 344 cf the Code of Criminal Procedure were not complied with, in that they were not brought to Court when the Magistrate issued fresh orders for the remand of the petitioners to custody.
3. On the first point, it seems to us that no illegality or irregularity was committed Section 167 empowers a Magistrate having jurisdiction to remand a prisoner to such custody as he thinks fit. Section 344 does not use the words ' as he thinks fit ' with regard to the order of remand ; but there is nothing in the section which suggests that after a charge sheet has been filed, the Magistrate has not the same freedom with regard to the custody to which he commits the accused as he had before a charge sheet was filed. The learned advocate for the petitioners has referred to the wording of Section 29 of the Prisoners' Act, as indicating that the only person who can transfer a prisoner from one Jail to another within the small Province is the Inspector-General of Prisons ; but by its very wording Section 29 of the Prisoners' Act does not apply to an under-trial prisoner ; nor are we dealing with a transfer of a prisoner. Whenever an accused is brought before the Court and the Court issues an order of remand, the Magistrate has complete freedom, as far as we can see, to remand the accused to whatever custody he thinks fit.
4. On the second point, it does seem certain that an illegality was committed by the Magistrate in issuing an order of remand without having the prisoners produced before him and asking them whether they wished anybody to represent their cause and giving them an opportunity of showing cause why they should not be further remanded. We trust that the Sub-Magistrate issued this order through oversight and because, as he later said, the prisoners were at Trichinopoly and he did not have much notice that a request for a further remand would be made. However that may be, we agree with the learned counsel for the petitioners that an illegality involving a breach of the provisions of the Criminal Procedure Code was committed ; and we trust that our order will serve as a warning to the Magistrate not to repeat this illegality.
5. The only point that remains to be considered is what order, if any, it is necessary, for us to pass. The learned counsel for the petitioners finds himself unable to give any reason why the prisoners should be released on account of the Magistrate's omission. The Magistrate has posted the cases to this day ; and he has specifically ordered that the petitioners and their co-accused should be produced before him. Now that the Magistrate is fully aware of what is required of him under the law, we have no doubt that his order on this occasion will be a legal one. If it is not, the petitioners have the same freedom as before to approach this Court to set the illegality right.
6. The petition is dismissed.