JUDGMENT B.N. Katju, J. - This is a petition under Article 226 of the Constitution for the issue of a writ of habeas corpus. 2. It is stated in the petition that the Petitioner was arrested in connection with a case under Sections 302/307/149/148/147 I.P.C. on 10-4-1976. The chargesheet was filed against the Petitioner and other co-accused in the Court of the C.J.M., Allahabad on 21-5-1976 and the case was committed to the court of Sessions on 28-7-1976. The Petitioner is detained in Naini Central Jail, Allahabad since his arrest on 10-4-1976. 3. It is clear from the petition and the affidavit filed in support of it and the order of commitment dated 28-7-1976 that no order of remand has been passed by the C.J.M., Allahabad for the custody of the Petitioner in jail after the commitment of the case to the court of Sessions on 28-7-1976. The Petitioner is, therefore, detained in Naini Central Jail, Allahabad. It may be mentioned that three days time without any order of remand passed by the C.J.M., Allahabad, was granted to the learned Counsel for the opposite parties, namely the State of U.P. and the Superintendent, Naini Central Jail, Allahabad, to file their counter affidavit', but no counter affidavit has been filed on their behalf. The Superintendent, Naini Central Jail, Allahabad had no power to detain the Petitioner in jail either in the discharge or in the purported discharge of his official duty in the absence of an order of remand by the Magistrate as his power to detain him in jail was dependent on the existence of an order of remand by the Magistrate. He has thus acted as a private person in detaining the Petitioner in jail and the detention of the Petitioner is clearly illegal. We are fortified in our view by the under-mentioned observations of Beg, J. in the case of Additional District Magistrate, Jabalpur Vs. Shivakant Shukla, AIR 1976 SC 1207 : So long as the executive authorities of the State purport to act under the Act, their preliminary objection against further hearing will prevail unless, of course, the officer purporting to detain had, in fact, not been invested at all with any authority to act in which case the detention would, in my opinion, be on the same footing as one by a private person who has no legal authority whatsoever to detain. It is well settled that there is no question of infringement of fundamental rights under Article 21 of the Constitution there the detention is by a private person and not under the authority or orders of the State. The suspension of enforcement of Article 21 by the presidential order is, therefore, of no consequence in the present case. 4. The detention of the Petitioner in jail is therefore clearly illegal. We have no hesitation in saying that this is a glaring example of gross carelessness on the part of the C.J.M., Allahabad in not passing necessary orders for remanding the Petitioner to jail custody. 5. This petition is accordingly allowed and the Petitioner is directed to be set at liberty forthwith. It will, however, be open to the learned C.J.M., Allahabad to issue a fresh warrant for the arrest of the Petitioner and remand him to jail custody in accordance with law.