JUDGMENT H.N. Seth, J. - This petition by Hari Prasad Dubey, for a writ of Habeas Corpus, is dated 8-11-1974 and has been forwarded to this Court from he Naini Central Jail, Allahabad. 2. Petitioner's case is that he was illegally arrested on 22-7-1974 and was never produced before any competent Magistrate. Thereafter he was illegally detained in the District Jail, Farrukhabad from 22nd July 1974 to 5th October 1974 when he was transferred to the Naini Central Jail. He claims that his detention in the Naini Central Jail is illegal. 3. According to the counter affidavit filed in the case, the petitioned was arrested on 22nd July 1974 as he had committed an offence punishable under Section 3 of the Police Incitement to Disaffection Act read with Rule 43 of the Defence of India Rules. Immediately thereafter the reason for his arrest was communicated to the petitioner. The petitioner was then produced before the Additional Munsif Magistrate, Farrukhabad on 22nd July 1974 who, after perusing the record made the order remanding the petitioner to jail custody. Subsequently, orders, remanding the petitioner to jail custody were passed from time to time and the last such order was made on 18th September 1974. The police submitted the charge sheet against the petitioner on 8th of September 1971 which along with other papers was received in court on 3rd October 1974. 4. It appears that in the meantime, on a request made by the Superintendent of Police and at the intervention of the District Magistrate, Fatehgarh, the Inspector General of Prisons, acting under paragraph 128 of the Jail Manual, made an order transferring the petitioner from the District Jail, Fatehgarh to the Naini Central Jail. Accordingly, the petitioner arrived at the Naini Central Jail and was detained there with effect from 6th October 1974. After the petitioner had made the present application for a writ of Habeas Corpus through the Superintendent, Naini Jail on 8th November 1974, but before this Court could issue any directions thereon on 3rd January 1975, the petitioner was sent back to the District Jail, Fatehgarh on 28th December 1974 for being produced before the Munsif Magistrate, in connection with the criminal case, on 4th January 1975. Somehow, when the Munsif Magistrate took up the case on 4-1-1975 the fact that the petitioner was lodged in the District Jail, Fatehgarh was not brought to his notice. Somehow, when the Munsif Magistrate took up the case on 4-1-1975 the fact that the petitioner was lodged in the District Jail, Fatehgarh was not brought to his notice. The prosecuting agency also did not take steps to produce the petitioner before the Munsif Magistrate who issued fresh orders to the Superintendent, Central Jail directing him to produce the petitioner before him on 5th April 1975. In the meantime, on 3rd January 1975 this Court made an order on the Habeas Corpus petition, dated 8th November 1974, requiring the learned Government Advocate to file a return showing the authority under which the petitioner was being detained in the Naini Central Jail, Allahabad. Presumably, in order to comply with the direction issued by this Court, the petitioner was again sent back to the Naini Central Jail on 21st January 1975 and is being detained there since then. 5. It is admitted in the counter affidavit filed by Sri Zaheerul Hasan on 29th January 1975, that the last order of remand authorising petitioner's detention in jail custody was made by the Munsif Magistrate on 18-9-1974 Supplementary counter affidavit, filed by one S. N. Jayant Station Officer, Police Station, Mohamdabad shows that further orders authorising petitioner's detention could not be obtained as after that date the petitioner could not be produced in person before the learned Munsif Magistrate. However, after the decision of the Supreme Court, in the case of Lakshman Rao v. Judicial Magistrate, AIR 1971 SC 186 , was brought to the notice of the prosecution, it was discovered that an order of remand could be obtained from a Magistrate even if the person in custody was not actually produced before him. Accordingly, on 8th March, 1975, an application was made before the learned Munsif Magistrate, Farrukhabad praying that he should authorise the detention of the petitioner in jail custody for a further period of 14 days. On that application the learned Magistrate made the following order on 8th March, 1975 : "Issue fresh B Warrant against the accused Har Prasad Dube alias Tyagi with D.O. to Superintendent, Central Jail, Naini to transfer the accused to Central Jail, Fatehgarh after the decision of Habeas Corpus writ by Hon'ble High Court. The accused is remanded to jail custody for the period of 14 days i.e. upto 22-3-1975." 6. The accused is remanded to jail custody for the period of 14 days i.e. upto 22-3-1975." 6. It thus appears that the respondents concede that there was, after the expiry of the period mentioned in the remand order dated 18-9-1974, no authority of any Magistrate authorising the detention of the petitioner in the jail custody either at Farrukhabad or "at Naini, They however seek to justify the present detention of the petitioner in the Naini Central Jail under the order of the Munsif Magistrate made on 8th March, 1975. 7. Before dealing with the question whether the present detention of the petitioner in the Naini Central Jail can be justified under the order dated 8-3-1975, passed by Munsif Magistrate, Farrukhabad, we would first of all like to deal with the question whether the petitioner was being validly detained at the Naini Central Jail on the 8th November 1974 when he presented the present application for a writ of Habeas Corpus through the Superintendent of the Central Jail, Naini. As stated above, the respondents admit that there is no order of any Magistrate authorising the detention of the petitioner in the Naini Central Jail. According to them the petitioner had been remanded to the custody of the District Jail, Fatehgarh on 22nd July 1974 under the orders made by a competent Magistrate. If the Magistrate, before whom the petitioner had been produced, had authorised the detention of the petitioner in the District Jail, Farrukhabad he could be detained only in that custody. If for some reason it was felt that petitioners detention in the District Jail, Fatehgarh, was not apt and that it was desirable that he should be detained in some other custody, the respondents should have taken steps to obtain the orders of the Magistrate concerned before altering his custody. If for some reason it was felt that petitioners detention in the District Jail, Fatehgarh, was not apt and that it was desirable that he should be detained in some other custody, the respondents should have taken steps to obtain the orders of the Magistrate concerned before altering his custody. It appears that at the instance of the Superintendent of Police and the District Magistrate, Fatehgarh, the Inspector General of Prisons purported to exercise his powers under paragraph 128 of the Jail Manual of the Uttar Pradesh which runs thus :- "The transfer of convicts from one prison to another within the State shall be directed by the Inspector General, subject to the orders and control of the State Government." and directed that the petitioner be transferred from the District Jail, Fatehgarh to the Central Jail, Naini perusal of paragraph 128 of the Jail Manual clearly indicates that the power under that paragraph can be exercised by Inspector General of Prisons only in respect of transfer of convicts from one jail to the other jail. That power could not be exercised by him in respect of an under-trial prisoner who had been placed by a Magistrate, acting under Section 167 of the Code of Criminal Procedure, in a specific custody. Accordingly, the order made by the Inspector General of Prisons authorising petitioner's detention at the Central Jail, Naini was without any authority and as such petitioner's detention at the Naini Central Jail, Oct 8th November 1974, was without any authority. 8. An under trial prisoner can be detained in custody only under a valid order of remand passed by a Magistrate. To begin with, when a person, who is arrested by the police is brought before the Court, appropriate orders remanding him to proper custody could be made in accordance with the provisions of Section 167 of the Code of Criminal Procedure. This section authorises a Magistrate to make order for detention of person in jail custody pending investigation. But after the case reaches the stage of enquiry trial, further order for remanding a person to custody can be made only under Section 309 of the Code of Criminal Procedure, relevant portion of which runs thus :- 309(1).... This section authorises a Magistrate to make order for detention of person in jail custody pending investigation. But after the case reaches the stage of enquiry trial, further order for remanding a person to custody can be made only under Section 309 of the Code of Criminal Procedure, relevant portion of which runs thus :- 309(1).... (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn, any inquiry or trial, may from time to time for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody : Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Now, in this case, it is admitted that before passing the order dated 8th March, 1975, the last order of remand was made on 18-9-1974. Under that order the detention of the petitioner in jail custody could at most be justified for a period of 15 days from the date of the making of the order (see Section 167, Cr.P.C.). Accordingly, neither the Superintendent, District Jail, Fatehgarh, nor the Superintendent, Central Jail, Naini had any authority to detain the petitioner in their respective jails after 23rd September 1974 and upto 8th March 1975. The detention of the petitioner in Naini Central Jail on 8-3-1975 was therefore illegal. 9. It is true that on 8th March 1975, the Magistrate purported to exercise his power of remanding the accused person to custody during trial, for a period of 15 days, and authorised the detention of the petitioner in jail custody upto 22nd March 1975. The detention of the petitioner in Naini Central Jail on 8-3-1975 was therefore illegal. 9. It is true that on 8th March 1975, the Magistrate purported to exercise his power of remanding the accused person to custody during trial, for a period of 15 days, and authorised the detention of the petitioner in jail custody upto 22nd March 1975. Apart from the question whether under Section 309 of the Code of Criminal Procedure, it is open to a Magistrate to make a general order directing that an under-trial be detained in jail custody, without specifying the particular jail wherein he is to be detained, a question on which we refrain to express any opinion, we find that an order under Section 309 of the Code, remanding an accused to custody can be made only when after taking cognizance of an offence or commencement of a trial, the Magistrate finds it necessary or advisable to postpone the commencement of or adjourn any enquiry or trial, and that the accused is at that time in custody. The custody contemplated by Section 309 (2) must, in the circumstances, mean legal custody. The power under Section 309(2), Cr.P.C. to remand an under trial to custody cannot be exercised if at the time of making of the order the under trial is not in legal custody. We have already shown that on 8th March 1975, when the learned Magistrate passed the order authorising petitioner's detention in jail custody upto 22nd March 1975, he was not in legal custody. Accordingly, on that date, the order remanding the petitioner to custody under Section 309, Cr.P.C. could not be validly made by the learned Magistrate. 10. In this view of the matter, it will have to be held that the present detention of the petitioner in the Central Jail, Naini is illegal and the petition has to be allowed. 11. We would however like to make it clear that the order allowing this petition will not stand in the way of the authorities or the competent court to take the petitioner in custody in accordance with law and after strictly following the procedure prescribed under the Code of Criminal Procedure. 12. Subject to the aforementioned observation, the writ petition succeeds and is allowed with costs. The respondents are directed to release the petitioner from their custody forthwith.