Judgment Shiveshwar Prasad Sinha, J. This is an application on behalf of two persons for issue of a writ of habeas corpus for their release from jail custody. 2. Both the petitioners were accused of having caused the death of the wife of one Madhu Jha and in [hat connection they had been arrested. This court by its order, dated the 9th August, 1973, passed in Criminal Misc. No. 1634 of 1973 granted them bail. These petitioners are then alleged to have miss used the privilege of bail by causing death of one Jainarain Jha, who was said to be the main witness for the prosecution in the case in which they were charged with the murder of the wife of the said Madhu Jha At the instance of the State this court, by its order, dated the 16th July, 1975, passed in Criminal Misc. No. 1905 of 1974 cancelled the bail of the petitioner. Petitioner No. I then surrendered on the 29th October, 1975 and petitioner no. 2 on the 8th April, 1976. The latter case for the murder of the said Jainarain Jha is Benipatti P.S. Case No. 21 dated the 24th July. 1974. On the 10th June, 1976, both the petitioners filed an application that charge-sheet had already been submitted in the latter case which may be called for. A copy of the order-sheet of the Court of the Chief Judicial Magistrate. Madhubani in G. R. 781 of 1973, arising out of the said Benipatti P.S. Case 21, dated the 74th July, 1974 has been flied as annexure "2" to the petition. It is not clear from the said order-sheet as to what particular steps were taken by the Court on the said petition, it only appears that the Court ordered to call for the charge sheet from the office of the Court Sub-Inspector, Madhubani. There is no further order with regard to the remand of the petitioners having been made on that date. Then the order-sheet, dated the 23rd June. 1976, shows that these two petitioners, though in custody were not produced before the Court and the case was ordered to be put up for further orders on the 22nd July, 1976. There is no further order with regard to the remand of the petitioners having been made on that date. Then the order-sheet, dated the 23rd June. 1976, shows that these two petitioners, though in custody were not produced before the Court and the case was ordered to be put up for further orders on the 22nd July, 1976. On this date, the Court learnt that these two petitioners were lodged in Bhagalpur Central Jail and a petition had been filed on their behalf to take necessary steps for their production before the Court. The Court ordered for issue of letter to the Superintendent Central Jail. Bhagalpur to produce the petitioners on the date fixed and for getting them transferred to Madhubani Sub-Jail. The case was then ordered to be put up on the 27th August, 1976 These two petitioners were not produced before the Court even on the 27th August, 1976, and naturally, no order for remand was passed in respect of these two petitioners. The case was then adjourned to the 30th August, 1976, on which date again these petitioners were Dot produced and no order of remand against them was recorded by the court. In this way the case got adjourned from date to date until the 24th September, 1976 till when the petitioners were still in the Bhagalpur Jail and had not been produced before the Court at Madhubani. On the last mentioned date, namely, on the 24th September, 1976, the Court ordered the case to be put up on the 17th November, 1976. 2. During this while, an information was given to the Court by the Assistant Public Prosecutor that charge-sheet in the case had since been received. It however, appears from the order, dated the 15th September, 1975, passed in the case that the original chargesheet some how or other got lost and. therefore, the investigation officer had been directed to submit a duplicate of the charge-sheet. On these facts, this application has been filed before this Court. 3. The detention of the petitioners in jail has been challenged on two grounds: (i) There being no order of remand, after the petitioners were lodged in the Bhagalpur Jail, between the 23rd June, 1976 and the 24th September, 1976. On these facts, this application has been filed before this Court. 3. The detention of the petitioners in jail has been challenged on two grounds: (i) There being no order of remand, after the petitioners were lodged in the Bhagalpur Jail, between the 23rd June, 1976 and the 24th September, 1976. their detention was illegal, and (ii) there is no prescribed authority which could remand an accused after the investigation is over, but cognizance had not been taken in the case. From the facts, as stated above, it is clear that charge-sheet has been submitted but there is no order taking cognizance in the case. According to learned counsel for the petitioners, the provisions of section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') will not apply because the stage of investigation was over and the provisions of section 309 of the Code would not apply because no court had got seisin of the case by taking cognizance. I will take up the first reason challenging the detention first. From the facts stated above, it is clear that no order of remand of the petitioners has been passed after the 23rd J line, 1976, and yet they are being detained in prison. Annexure "2" to the petition, which is the order-sheet of the Chief Judicial Magistrate, Madhubani in the case clearly indicates this. Even this illegality, however, would not have mattered if the State had produced any existing valid order in operation against the petitioners today when we heard this matter. The Supreme Court in the case of Talib Hussain Vrs. State of Jammu & Kashmir has observed that in habeas corpus proceeding the court has to consider the illegality of the• detention on the date of hearing. 1£, on the date of hearing it cannot be said that the aggrieved party wrongfully deprived of his personal liberty and his detention was contrary to law, a writ of habeas corpus could not issue. Necessarily, therefore, a duty lay upon the State to show to this Court that the detention of the petitioners on the date on which we were hearing the habeas corpus matter was valid under an order duly passed. No such order, however, has been produced. It cannot be again said that a citizen's liberty cannot be left at the mercy of illegalities. No such order, however, has been produced. It cannot be again said that a citizen's liberty cannot be left at the mercy of illegalities. If a person has to be detained, his detention must be on valid orders. 1n the instant case, as the facts show, there is no order of remand passed against the petitioners for a period of over three months and yet they are being detained in jail custody. Law can not countenance such illegalities and, therefore, notwithstanding the fact that the allegations against the petitioners are of a pretty serious nature, they being accused of one murder and then accused of trying to obliterate the evidence against them by being accused of another murder. Normally, such person do not deserve to be out on bail. Notwithstanding such a factual position, since their continuance in detention is illegal, such illegality cannot be allowed to be perpetrated by this Court. The petitioners are, therefore, entitled to a writ of habeas corpus and to be released from jail custody. 4. In the view which I have expressed above, the second reason urged by the petitioners need not be considered. I may, however, observe that the question raised by the learned counsel fur the petitioners is of some importance on which an authoritative decision may be necessary. There are some decisions of this Court-One in the case of Chandradip RltI: Vs. The State of Bihar and another in the case of Deoki Yadav vrs. The State of Bihar (Criminal Misc. No. 4533 of 1976 Order No. 11, dated the 29th November, 1976), which seem to accept the view advanced by the learned counsel for the petitioners. The contention to the contrary, however, is that there is no interim gap between the conclusion of investigation and the taking of cognizance in a case. The stage of investigation continue until the result of the investigation, in the shape of charge-sheet, is accepted by taking cognizance. So that until taking of cognizance, the Magistrate, to whom a case is for awarded under section 167 of the Code, can authorise the detention of the accused person and thereafter the Court in seisin of the case can authorise such detention, in terms of section 309 (2) of the code. So that until taking of cognizance, the Magistrate, to whom a case is for awarded under section 167 of the Code, can authorise the detention of the accused person and thereafter the Court in seisin of the case can authorise such detention, in terms of section 309 (2) of the code. I he other contention, in the alternative, is that, there is an interim gap between the conclusion of investigation and the asking of cognizance and the Code has omitted to prescribe an authority which could remand an accused during this period, such omission was a mere accidental omission in the statute, which a court could supply in the course of administration of justice. It is purely a procedural matter a remedial measure, not affecting the substantive rights of the parties, nor creating an offence. 5. I have just noted these arguments because they may be of help in case the question raised by the learned counsel for the petitioners ever comes up for an authoritative decision. I however, do not feel called upon to express any opinion on the second reason advanced by the learned counsel for the petitioners because on the grounds of the first reason itself the petitioners are entitled to the issue of a writ of habeas corpus for being released from detention. 6. It is, accordingly, ordered that the petitioners be released forthwith from jai I custody, unless they are required to be detained in connection with any other case. It is, however, observed that after cognizance has been taken if the court below is of the opinion that the petitioners remaining outside detention may be hazardous to the safety of the society and to a fair trial of the cases against then the court will be at liberty to arrest them and put them back in detention. The application is, accordingly allowed. Medini Prasad Singh. J. I agree. Application allowed.