I.P. Vasishth, J.
1. The petitioner who is under detention in connection with the trial of a murder case registered against him as Crime No. 50 of 1994, Police Station Khandasa, District Faizabad, seeks intervention of this Court under Article 226 of the Constitution of India for release by way of a writ of habeas corpus on the averments that his detention was unauthorised and illegal. It was pleaded that on taking the cognizance of the matter on the basis of a charge-sheet filed on 27-6-1994 the Chief Judicial Magistrate, Faizabad cancelled the warrant under Section 167, Cr.P.C. and remanded the petitioner to judicial custody on the basis of a warrant prepared under Section 309, Cr.P.C. even though no specific order was passed on the order-sheet. Thereafter the case was fixed for 9-7-94 and again for 11-7-1994 but the petitioner was not produced in court on 9-7-1994, that he was produced on 11-7-1994 but no specific order regarding detention was passed on the order-sheet and that even though he was produced in court on later dates and also supplied with the copies under Section 207, Cr.P.C. yet neither the commitment proceedings were concluded nor any specific orders passed on the order-sheet authorising the detention. It was contended that since the requisite documents under Section 207, Cr.P.C. were given to the petitioner on 5-8-1994, therefore, the detention under Section 309, Cr.P.C. also came to an end at that very moment in the absence of a legal authorisation on the order-sheet because on the supply of documents under Section 207, Cr.P.C. the learned Magistrate had to do nothing except to pass order of commitment. The incidence of petitioner's detention is not disputed by the respondents. The only bone of contention revolves around the validity and legality of the detention.
2. The learned counsel for the petitioner made a strenuous effort to impress upon us the necessity of petitioner's production before the Chief Judicial Magistrate at the time of taking cognizance of the case on 29-6-1994 because it was on that date that the earlier warrant under Section 167, Cr.P.C. was cancelled and detention was ordered under Section 309, Cr.P.C. The relevant order in this context is Annexure-1 which incidentally contains a clerical error showing the date of passing the order as 29-7-1994 instead of 29-6-1994 (it is common ground that the order was actually passed on 29-6-1994 and not 29-7-1994 as depicted in this document). It was argued that the orders passed subsequent thereto in the petitioner's absence were illegal and that otherwise too his detention under Section 309, Cr.P.C. could not be authorised for a period of more than fifteen days at a time. Reliance was placed on the cases of Mustaq alias Mustafa v. Jail Superintendent, Lucknow, 1993 UP Cri R 392; Ran Vijai Singh v. Superintendent, District Jail, Faizabad, 1993 UP Cri R 394; Vashisht Muni v. Superintendent, District Jail, Faizabad, 1993 Lucknow LJ 165 and Wali Mohammad v. State of U.P., 1994 Lucknow LJ 148.
3. The parties are not at issue on the point of validity and withdrawal of the remand order under Section 167, Cr.P.C. by the learned Magistrate at the time of taking cognizance on 27-6-1994 when the charge-sheet was filed and on 29-6-1994 when the accused appeared before him. What irritated the petitioner was that he was not produced in court on 27-6-1994 and that the cognizance was taken in his absence. The submission is devoid of force because under the scheme of Criminal Procedure Code it is the case on which the cognizance is taken by the learned Magistrate and not of the accused. The order Annexure-1, dated 29-6-1994 (wrongly shown as dated 29-7-1994) reveals in unambiguous terms that all the accused including the petitioner were called from the judicial lock-up after taking cognizance of the case on 27-6-1994 and that they were actually produced before him on 29-6-1994. Of course that order also refers to the issuance of petitioner's detention under Section 309, Cr.P.C. but then the Court was to look into the substance rather than the format of the order; a simple misquotation of any provision of procedural law would not vitiate the entire process. After taking* cognizance of the case triable by a Court of Sessions, the learned Magistrate was required to ensure the compliance of Section 207, Cr.P.C. by way of furnishing certain copies to the accused and till the completion of such proceeding, he could order their detention in judicial lock up by virtue of Section 209, Cr.P.C. as applicable to the State of Uttar Pradesh. Of course there is a general provision enabling such arrangement even under Section 309, Cr.P.C. but in its wisdom the Legislature incorporated certain amendments in the relevant provisions of Section 209, Cr.P.C. in so far as they apply to the State of Uttar Pradesh. For the proper appreciation of the point in issue we would like to reproduce the provisions as they exist on the book in consequence to Section 6 of U.P. Act No. 16 of 1976 :-
"209. Commitment of case to Court of Session when offence is triable exclusively by it - When in a case instituted on a police report "or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall
(a) as soon as may be after complying with the provisions of Section 207, commit the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody until commitment of the case under Clause (a) and thereafter during and until the conclusion of trial"
4. A bare perusal of the aforesaid Clause (b) would leave no manner of doubt that the learned Magistrate could remand the petitioner to custody not only on the completing the commitment proceedings but also during the pendency of such proceedings and that such detention could be extended even until the conclusion of trial. Section 309, Cr.P.C. is of a general amplitude whereas Section 209 as amended in the State of Uttar Pradesh comes in the nature of a special law. It is besides the point that instead of an erroneous impression of its destroying the general provision of Section 309, Cr.P.C. it actually supplements it. The case law relied upon by the learned counsel for the petitioner is thus distinguishable in as much as it does not take note of the scope and play of the aforesaid amended provision of Section 209, Cr.P.C. in its application to the State of Uttar Pradesh.
5. In so far as the absence of the accused at the time of taking the cognizance by the learned Magistrate and even at the time of passing the remand order on 9-7-1994 is concerned there is ample judicial authority for the proposition that having regard to the facts and circumstances of each case, mere absence would not vitiate the detention. For ready-hand reference one can look into the cases of A. Lakshman Rao v. Judicial Magistrate, Parvatipuram,
and Urooj Abbas v. State of U.P., 1973 Cri LJ 1458. Similarly the absence of a specific order authorising detention by way of a formal warrant of detention could not invalidate an otherwise valid detention as held earlier by this Court in the cases of Rajdeo Shukla v. State of Uttar Pradesh, 1994 Lucknow LJ 163 and Sundar Lal v. State, 1983 (2) All Cri C 140 : 1983 Cri LJ 736.
6. The gist of the matter is that the cause of detention does not lie in the procedural law, it rather originates from the domain of petitioner's requirement in connection with the trial of a non-bailable criminal case punishable under substantive law. In view thereof remand is merely in the nature of Court's Command to the jail authorities to keep his person in custody. The only requirement would, therefore, be that such command by way of warrant is in categorical terms regarding the identity of the accused, particulars of the crime case and the necessity of his production on a specified date in a given court.
7. Thus in the totality of the circumstances we find no force or merit in the petitioner's grouse against his detention and, as such, dismiss the petition.
8. At the time of hearing, the learned counsel for the petitioner had submitted that during the meanwhile the Juvenile Magistrate, Faizabad conducted an inquiry and on finding the petitioner a juvenile, transferred his custody to the Children Jail, Faizabad as per his order dated 30-9-1994. This is a verifiable fact and it is expected that the State will take appropriate steps to see that the order of the learned Juvenile Magistrate, if not avoided in accordance with law is duly complied with.