Judgment Surendra Narain Jha, J. 1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) for grant of bail to the petitioner who is an accused in a case under Section 307/34 of the Indian Penal Code and 27 of the Arms Act. 2. The prosecution case, in short, is that on 20-11-1983 at about 2-35 P. M. one Devendra Prasad Singh made a Fardbeyan alleging, inter alia, that at about 12 noon the same day while he was standing near the gate of the Hospital, the petitioner came to him and the informant asked the petitioner whether he would pay the money to one Bipin or not, on which the petitioner replied in negative as a result of which an altercation took place between the two. It was further alleged that thereafter the petitioner went to his house and came back with a rifle accompanied by his two brothers. Further allegation is that the petitioners younger brother aimed to fire a pistol at the informant, but the pistol could not be fired and the informant caught hold of the pistol, but another brother snatched the same. Thereafter, it is alleged that the petitioner fired from his rifle which hit in the stomach of the informant. On the basis of this Fardbeyan, the first information report was drawn up and a case was instituted and after investigation, charge-sheet was submitted on 26-5-1984 on the basis of which cognizance was taken. 3. The petitioner, having come to know about the institution of the case, surrendered before the Additional Chief Judicial Magistrate Barh, on 29-12-1983 and prayed for bail which was rejected and the petitioner was remanded to jail custody. Thereafter, the petitioner moved an application for bail before the Sessions Judge, Patna, which was numbered as Criminal Miscellaneous (Bail) Case No. 28 of 1984 and the learned Sessions Jugde, pending disposal of the said bail application, by order dated 6-1-1984 granted provisional bail to the petitioner to enable him to appear at the B. Com. Thereafter, the petitioner moved an application for bail before the Sessions Judge, Patna, which was numbered as Criminal Miscellaneous (Bail) Case No. 28 of 1984 and the learned Sessions Jugde, pending disposal of the said bail application, by order dated 6-1-1984 granted provisional bail to the petitioner to enable him to appear at the B. Com. Examination, and the period of provisional bail was extended from time to time and after expiry of the period of provisional bail, the petitioner surrendered before the Session Judge, Patna, on -9 7-1984 on which date, the learned Sessions Judge, who, after hearing the bail application, on merit, rejected the prayer for bail vide order dated 9-7-1984 and remanded the petitioner to jail custody with a direction to produce the petitioner before the court concerned on 23-7-1984. It is relevant to mention here that the petitioner moved this Court for bail in Criminal Miscellaneous No. 7013 of 1984, which was also dismissed on merit vide order dated 13-8-1984. Now, the the present application has been filed purely on the point of law which was neither raised nor considered by this Court at the time of the dismissal of the petitioners earlier bail application, mentioned above. 4. Learned Counsel appearing on behalf of the petitioner submitted that the petitioners detention after 23-7-1984 was illegal and violative of the mandatory provisions of Section 309 (2) of the Code and thus the petitioner is entitled to be realeased from the custody forthwith. 5. In order to appreciate the point raised by the learned Counsel, it is essential to look into the provisions of Section 309 of the Code, which lays down "(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (2) If the Court, after taking cognizance of an offence, or oommencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it 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 to custody under this section for a term exceeding fifteen days at a time : "xx xx xx XX XX xx XX XX XX XX XX XX" I am not concerned with the other provisos and the explanations 1 and 2 of tne section. 6 From the plain reading of this provision, it appears that if an inquiry or trial of any proceeding is adjourned for some reason, the court may remand the accused if he is in custody. But the remand order will not exceed the period of fifteen days at a time. 7. It was argued on behalf of the petitioner that the petitioners detention after 23-7-1984 was illegal, because the petitioner had neither been produced before any court nor any remand order authorising the petitioners further detention has been passed till date. Therefore, he must be released forthwith because of his illegal detention. In support of his contention, the learned counsel relied on a decision of this Court in Jitendra Mishra & others V/s. The State of Bihar, 1976 BBCJ 644 and also on a Bench decision of this Court in Chandradeep Rai and anothers V/s. The State of Bihar, 1976 BBCJ 645 . In the case of Jitendra Mishra (supra), the same point was pressed and his Lordship Uday Sinha, J. observed "......In view of the fact that the petitioners were not produced before the Magistrate between 9-12-1975 and 1-9-1976, the detention of the petitioners in Jail must be held to be illegal. It is unfortunate that the petitioners, whose application for bail had been rejected by this Court earlier in Cr. Misc. It is unfortunate that the petitioners, whose application for bail had been rejected by this Court earlier in Cr. Misc. No. 989 of 1976 on 19-3-1976, have to be released on bail because of the failure of the authorities in producing the petitioners before the learned Magistrate..." Similarly, the Division Bench of this Court in the case of Chandradeep Rai (supra) held that "although after having heard learned Counsel for the petitioners on the merit of the application for baii, we are not inclined to grant the prayer, but in view of the illegality pointed out above, the detention of the petitioners in jail cannot be allowed to continue", and, therefore, their Lordships enlarged the petitioners on bail on the ground of illegal detention. 8. Learned Counsel for the petitioner, in the instant case, submitted that after the expiry of the period of provisional bail granted by the Sessions Judge, the petitioner surrendered before the Sessions Judge on 9-7-1984 and on that date, his bail application was rejected on merit and he was remanded to jail custody with a direction to produce the petitioner before the court concerned on 25-7-1984. The learned counsel argued that the petitioner was neither produced on 23-7-1984 nor thereafter, as would appear from the photo-stat of the order, as contained in annexure 3 appended to this application and no remand order authorising the petitioners further detention has been passed as required under 309 (2) of the Code. 9. When this application was filed, a report was called for from the Additional Chief Judicial Magistrate, Barh, with regard to the statements made in paragraphs 11, 12 and 14 of the present application and the report has been received which is at flag A. kept on the record. From this report, it appears that the petitioner was not produced before the court concerned on 23-7-1984. The learned Additional Chief Judical Magistrate has further stated in his report relating to the statements made in paragraph 11 of this application as follows : "It is not possible for me to say as to whether the petitioner was produced before the C.J.M., Patna, on 23-7-1984 or not". With regard to the statement made in paragraph 12 of this application, the learned Additional Chief Judicial Magistrate, Barh, has reported that from the records of the case, it appears that after 9-7-1984, the next date in the fixed was 9-9-1984. With regard to the statement made in paragraph 12 of this application, the learned Additional Chief Judicial Magistrate, Barh, has reported that from the records of the case, it appears that after 9-7-1984, the next date in the fixed was 9-9-1984. On that date, the record of the case was not put up due to strike of the N.G.Es. and the petitioner was also not produced before his Court on 10-9-1984. He further reports that due to strike, the cases were not entered in the case diary on the next date fixed. However, a general date for all the cases was adjourned to 22-9-1984. But, on that date also, the record was not put up before him due to strike nor the accused petitioner was produced before him. As regards the statement made in paragraph 14 of this application, the learned Additional Chief Judicial Magistrate reported that it was not to his knowledge as to whether the petitioner was taken and kept in custody after rejection of his bail petition by the learned Sessions Judge. Although there was specific direction of the learned Sessions Judge to produce the petitioner before the concerned court, yet the jail authorities have utterly failed in complying with the order of the learned Sessions Judge, Patna. On On the basis of this report, the learned Counsel for the petitioner submitted that the Petitioner is in illegal detention since 23-7-19b4, as there was non-compliance of the provisions of Section 309 (2) of the Code, he may be released on bail forthwith. 10. Learned Counsel appearing on behalf of the State submitted that if the detention of the petitioner is illegal, as contended by the learned Counsel for the petitioner, an application for a writ in the nature of habeas corpus and not an application for bail under Section 439 of the Code would lie. In support of his contention, the learned Counsel for the State relied on the decision in Baban Lal Yadav and others V/s. State of Bihar, 1981 BBCJ 171 where it was held in cases where the detention is illegal and the release is asked for, a writ under Article 226 of the Constitution would lie and not a petition for bail. I am tempted to quote the following passage from the said decision "If the detention of the petitioners is illegal as contended by Mr. I am tempted to quote the following passage from the said decision "If the detention of the petitioners is illegal as contended by Mr. Saran, an application for writ in the nature of the habeas corpus and not an application for bail under Section 439 of the Code will lie. Therefore, the application for bail under Section 439 of the Code must be dismissed as not maintainable." While holding this, his Lordship C. Tiwary, J. noticed the decision in Jitendra Mishra and others V/s. The State of Bihar (supra). In that case, the accused was ordered to be released on bail, but according to Iris Lordship, this question whether an application for a writ in the nature of habeas eorpus or an application for bail under Section 439 of the Code lie in such a case was neither raised nor considered by the learned Single Judge in that case. Similarly I have examined the decision in the case of Chandradeep Rai and another V/s. The State of Bihar (supra). In this case also, I find that neither this point as to the maintainability was raised nor was it considered by the Division Bench while enlarging the petitioners on bail. Therefore, in my opinion, these two cases relied on by the learned Counsel for the petitioner do not help him on the question of maintainability. 11 Now, adverting to the question of maintainability of this application under Section 439 of the Code. I feel it relevant to refer to the decision in Baban Lal Yadavs case (supra). In that case, his Lordship has explained the word custody occurring in Section 439 (1) (a) of the Code, which means legal and proper custody and, therefore, an application for bail under Section 439 lies in a case where the accused person is in legal custody. 12. Learned Counsel for the petitioner tried to impress upon me that custody means custody and there is nothing like lawful custody. He relied on a decision of the Supreme Court in Niranjan Singh and another V/s. Prabhakar Rajaram Kharote and. others, 1980 Cri LJ 426 where the term custody has been explained. In that case, their Lordships agreed that no person accused of an offence can move the court for bail under Section 439 of the Code unless he is in custody. others, 1980 Cri LJ 426 where the term custody has been explained. In that case, their Lordships agreed that no person accused of an offence can move the court for bail under Section 439 of the Code unless he is in custody. According to the said decision, a person can be said to be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody, but he can be stated to be judicial custody when he surrenders before the Court and submits to its directions. From a reading of the said decision, it is apparent that power under Section 439 of the Code can be invoked when a person is said to be in a judicial or valid custody, it cannot be disputed that after submission of the charge-sheet and before the conclusion of enquiry or trial, the Magistrate can remand the accused only under sub-section (2) of Section 309 of the Code. In a criminal proceeding, if the accused is in custody, the Magistrate has to pass a remand order for a term not exceeding fifteen days at a time. The passing of remand order is a must. Is no remand order is passed, in accordance with law, the detention can be said to be an illegal detention, and the petitioner is entitled to be released forthwith, Now, the question is whether he should be released on an application under Section 439 of the Code or he should be released on all application under Article 226 of the Constitution. This question was raised, as I have already stated above, in the case of Baban Lal Yadavs case (supra) and this Court held that in case of illegal detention the application under Section 439 of the Code is not maintainable. 13. Taking all the facts and circumstances into consideration and the point involved in this application, I am also of the opinion that if a person is in illegal detention, he can invoke the power of this Court under Articie 226 of the Constitution for issuance of a writ in the nature of habeas corpus and he cannot be released on an application under Section 439 of the Code when once such an application, filed by the petitioner has already been dismissed by this Court on merit. It is pertinent to observe here that it is well known that even an application of habeas corpus where challenge on behalf of the petitioner is made that his detention in custody is without any authority of law, that question has to be examined with reference to the date fixed for return of the rule. The detention of any person may illegal at the initial stage, but if this Court finds on the date fixed for the return of the rule that such detention is legal and in accordance with law, then such an application for a writ in the nature of habeas corpus has also to be dismissed. In the instant case, if the petitioner feels that he is in illegal detention and once his application for bail under Section 439 of the Code has already been dismissed by this Court on merit, in my view, he may move for his release under Article 226 of the Constitution, In my opinion, relying on the decision in the case of Baban Lal Yadav (supra) the present application for bail under Section 439 of the Code is not maintainable and it is dismissed as such.