Pramod Kumar Saxena Vs.
Union of India & Ors.  INSC 1601 (19 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO. 58 OF 2007
PRAMOD KUMAR SAXENA ... APPELLANT VERSUS
C.K. THAKKER, J.
We have heard the learned counsel appearing in the case. On the facts and in
circumstances of the case, the writ petition has been taken up for final
present petition is filed by the petitioner under Article 32 of the
Constitution. The prayer clause reads thus;
2 "It is
therefore, most respectfully prayed that this Hon'ble Court may graciously be
pleased to:- (a) Issue appropriate writ in the nature of Mandamus or any
direction or order to release the petitioner on bail in connection with the
cases as mentioned in Annexure P-14 forthwith on execution of personal bond
with or without sureties; and (b) Issue appropriate writ in the nature of
mandamus or any direction or order directing that if the petitioner is arrested
in connection with any criminal case in capacity of Managing Director of
Imperial Forestry Corporation Ltd., the arresting officer shall release him on
bail on his executing the personal bond to the satisfaction of arresting
and (c) Issue
appropriate writ in the nature of Mandamus or any direction or order directing
the respondents to evolve a mechanism to ensure the presence of the petitioner
in all the cases as well as speedy disposal of all the cases pending against
the petitioner within a fixed time frame;
(d) Issue appropriate
order to treat the petitioner in custody, in cases where petitioner has not
been produced, from the date of service of production warrant on the petitioner
and adjust the same 3 for the purpose of bail u/s. 436A of Cr.P.C.
(e) Pass such other
order or orders as this Hon'ble Court may deem fit and proper in the facts and
circumstances of the case".
case of the petitioner is that, he is an under-trial prisoner lodged in
District Jail, Bareilly since more than ten years i.e. since August, 1998. He
has approached this Court for enforcement of fundamental rights guaranteed
under Articles 14, 19, 20 and 21 of the Constitution of India.
is the case of the petitioner that he has been implicated as an accused in as
many as 48 cases in six different States for commission of offences punishable
under Sections 406, 409 and 420 read with Section 120B of the Indian Penal
Code, 1860 (IPC) and also under Section 138 of the Negotiable Instruments Act,
to the petitioner, there is a Company known as "Imperial Forestry 4
Corporation Ltd." (hereinafter referred to as `the Company'). It was
incorporated on April 19, 1990. The petitioner was the Managing Director of the
said Company. In the course of business, the Company had opened Branch Offices
at several places. The petitioner asserted that he resigned from the office as
the Managing Director on October 30, 1994 and later on he also resigned as
Director of the Company from February 15, 1998.
was the case of the petitioner that when he was functioning as the Managing
Director or as the Director of the Company, there was no complaint of any kind
from any of the investors either for non-clearance of cheques issued to them or
for non-payment of dues of the depositors by the Company. Later on, however,
financial position of Investment Companies became precarious throughout the
country. Investors became suspicious and they rushed to companies for refund of
money and for return of their deposits which resulted in 5 Financial Companies
being collapsed. The petitioner, since he was Managing Director and Director in
past, was also joined as one of the accused in several cases. The petitioner
has annexed along with the present writ petition, 48 cases which have been
filed against him in six different States.
to the writ petitioner, he was arrested in August, 1998 and till today he is in
jail. The petitioner stated that in some of the cases he has not at all been
produced before the Magistrate. Resultantly, he could not even apply for bail.
The trials have not commenced although so many years have passed.
In some other cases,
though the charges have been framed, hundreds of witnesses are likely to be
examined and it would take several years in completion of the cases. In some
other cases, prosecution witnesses have not turned up and concerned Courts have
issued either bailable or non-bailable warrants to secure the presence of
witnesses. In few cases, though the 6 petitioner was ordered to be enlarged on
bail, in view of pendency of other cases, even though the petitioner is ready
and willing to abide by the terms and conditions imposed by the Magistrate for
release on bail, he is unable to come out of jail.
petitioner further stated that he has not committed any offence. According to
him, he had resigned as Managing Director as well as Director since long and,
as such, no case can be filed nor any offence has been made out against him. It
is only because the cases are not tried and decided that he is in jail.
it was submitted by the petitioner that even if the petitioner will be
convicted in some of the cases for some offences, he would be ordered to
undergo imprisonment which may be for some time.
Unfortunately, as an
under-trial prisoner, he has completed more than ten years in jail. He is,
therefore, constrained to approach this Court for protection of his fundamental
rights 7 by an appropriate direction from this Court to the respondents so
that he may be able to come out of jail as also make arrangement for his
May 18, 2007, notice was issued by this Court. Considering the fact that the
petitioner was in jail, the Registry was directed to place the matter for final
matter has been placed before us on August 18, 2008.
respondents have filed affidavits.
of India, in its affidavit through Under Secretary of the Ministry of Home
Affairs, Government of India, New Delhi stated that no allegations have been
leveled against the Union of India nor specific prayer has been sought against
was also stated that by the Code of Criminal Procedure (Amendment) Act, 2005,
Section 436A came to be inserted which provides that an under-trial prisoner
other than the one accused of an offence for which death has been 8 prescribed
as one of the punishments, has been under detention for a period extending to
one- half of the maximum period of imprisonment provided for the alleged
offence, he should be released on his personal bond, with or without sureties.
was also stated by the deponent that `prisons' is a State subject covered by
Entry 4 of List II of the Seventh Schedule to the Constitution. It is,
therefore, the State authorities to undertake administration of prisons under
the Indian Prisons Act, 1894.
have also framed Jail Manuals and appropriate Government is required to take
appropriate action in accordance with law.
affidavit is also filed by the State of U.P. through Deputy S.P., E.O.W.,
Meerut, U.P. In the said affidavit, it was stated that the petitioner was
Managing Director of Imperial Forestry Corporation Ltd. and was actively
associated with the day to day running of the business of the Company. The
Company had opened several Branches and Divisional Offices, inter alia, in the
State of U.P. and appointed Marketing Managers along with the team of Sale
Executives who used to collect money from the public by issuing Fixed Deposit
Receipts (FDRs). The petitioner, in the said capacity amassed crores of rupees
from public at large. When the maturity amount was not paid to the investors,
several First Information Reports (FIRs) came to be lodged against the
petitioner and that is how criminal cases were filed.
deponent had also given list of some of the cases pending in the State of U.P.
It is in the above
circumstances that the petitioner was sent to jail and is unable to come out.
held by this Court, mere long period of incarceration in jail would not be per
se illegal. If the petitioner has committed offences, he has to remain behind
bars. Such detention in jail even as an under-trial 1 prisoner would not be
violative of Article 21 of the Constitution. If the petitioner has committed
non-bailable offences and in connection with those offences, he is in jail, the
custody can never be said to be unlawful or contrary to law and he is not
entitled to be enlarged on bail.
affidavit is filed by C.O. City, Dehradun, Uttarakhand stating therein that
various complaints were filed against the petitioner and in pursuance thereof,
the petitioner has been taken into custody.
have heard learned counsel for the parties.
learned counsel for the petitioner submitted that the petitioner has been in
jail since more than a decade. Various cases have been instituted against him
in six States. Even though the petitioner has been ordered to be enlarged on
bail in some of the cases, he is unable to come out since in other cases,
either the investigation is in progress or the 1 petitioner has not been
produced before the Magistrate for trial. Even if the petitioner is convicted
in some of the cases for some offences, he may have to remain in jail only for
few years. Therefore, even if it is assumed for the sake of argument that the
petitioner will be convicted, incarceration suffered by the petitioner by now
might be more than the sentence which could be imposed on him. It was,
therefore, submitted that an appropriate direction may be issued so that the
petitioner may be released on bail.
petitioner has also invited our attention to Section 436A of the Code which
provides maximum period for which an under- trial prisoner may be detained. It
was, therefore, submitted by the learned counsel for the petitioner that during
the pendency and final disposal of criminal cases, the petitioner may be
ordered to be enlarged on bail on his executing personal bond.
learned counsel for the respondent, on the other hand, submitted that
systematic fraud has been committed by the petitioner and he has cheated
several innocent investors at various places. Crores of rupees had been
collected by him in the capacity of Managing Director of the Company. It was
only when he refused to refund the amount that criminal cases have been filed
against him for which the petitioner alone is responsible.
Since the offences
said to have been committed by the petitioner are non-bailable, the police
authorities had arrested him and he is taken in custody in accordance with law.
No grievance, therefore, can be made by the petitioner against lawful action taken
by the investigating authorities. If it is so, the petitioner cannot invoke
Article 21 of the Constitution. Even if the petitioner is ordered to be
enlarged on bail in some of the cases, other cases pending against him cannot
was further submitted that the petitioner forgets that he can be convicted in
several cases for the offences with which he is charged. All those cases are
different, distinct and independent. In that case, obviously, he may have to
remain in jail for several years.
applicability of Section 436A of the Code, it was stated that firstly, the said
provision came to be inserted by an Amendment Act of 2005 which came in force
in June, 2006 and as such, it has no application to the present case. But, even
if the said provision applies to the case of the petitioner, in view of several
cases at various places committed by the petitioner, he would not get the
benefit of the aforesaid provision.
It was, therefore,
submitted that the petition deserves to be dismissed.
heard learned counsel for the parties and having gone through the writ petition
along with annexures as also counter- 1 affidavits, we are of the view that on
the facts and in the circumstances of the case, the petitioner deserves some
relief from this Court. True it is that as per the allegation of the
prosecution, various offences have been committed by the petitioner and those
cases are pending at difference places. But other equally important fact also
cannot be overlooked that he is in jail since more than ten years. Prima facie,
the submission of the learned counsel for the petitioner is well-founded that
only if the petitioner comes out of jail that he may be able to make
arrangement for repayment of amount and also to defend cases registered against
learned counsel, in this connection, invited our attention to a two Judge Bench
decision of this Court in V.K. Sharma v. Union of India & Ors., (2000) 9
SCC 449. In V.K. Sharma, the petitioner was an accused in a large number of
cases punishable under Sections 406, 409, 420 read with Section 1 120B, IPC in
several States. There also, in spite of securing bail orders in his favour in
some of the cases, the petitioner had to remain in jail in view of production
warrants issued by other Courts. The petitioner, in that case too, approached
this Court by filing a petition under Article 32 of the Constitution alleging
violation of his fundamental right guaranteed under Article 21 of the
Constitution, seeking an appropriate writ, direction or order that he should be
released on bail and all the cases pending in different States against the
petitioner be consolidated in one and the same Court through investigation by
Central Bureau of Investigation (CBI) in all cases. This Court considered the rival
contentions of the parties. It did not think proper to grant all reliefs sought
by the petitioner, but granted the following reliefs to him;
1. If the petitioner
is arrested in connection with any criminal case in his capacity as Managing
Director/ Director of JVG group of companies the arresting officer shall
release him on bail on his executing a bond to the satisfaction of the
2. Such relief shall
be made after getting an assurance from him that he will be present in the
court concerned on the days when his case is posted.
However, we make it
clear that it is open to the petitioner to apply to the court concerned for
exempting him from personal appearance on condition that a counsel on his
behalf would be present on such posting dates and he would not dispute his
identity as the particular accused in that case, and further that he would make
himself available on any date when his presence is imperatively needed in that
3. We permit the
petitioner to move the appropriate high courts for bringing all the cases
pending in different courts within the territorial jurisdiction of that high
court to one single court or more than one court (depending upon the number of
cases or the width of the area of the State is concerned).
4. This order will
come into effect only if the petitioner would surrender his passport in this
Court. Shri Shanti Bhushan, learned senior counsel expressed a doubt that
petitioner would have already surrendered his passport before another court
pursuant to the order passed. In that case he 1 can satisfy the Registrar
General of this Court by an affidavit of the situation and the Registrar
General can intimate the jail authorities concerned of that position.
5. We make it clear
that it is open to the investigating agency in any case to move for
cancellation of bail if any such investigating agency finds that petitioner is
misusing the liberty granted by this order.
Court thus in V.K. Sharma granted certain relief keeping in view the fact that
the accused was in jail since about sixteen months. The Court further held that
if the petitioner would be arrested in any criminal case in his capacity as
Managing Director/Director of the Company, the Arresting Officer would release
him on his executing bond to the satisfaction of the Arresting Officer.
learned counsel for the respondents, however, referred to a decision of a three
Judge Bench of this Court in State of Punjab & Anr. V. Rajesh Syal, (2002)
8 SCC 158.
1 In Rajesh Syal,
the respondent was a former Director of a Company. The Company collected huge
amount from general public for purchasing land and promised that the amount
would be returned after expiry of maturity period fixed through cheques. Monies
were not repaid and complaints were made to the State. The Vigilance Department
of the State lodged various FIRs against the respondent.
to the prosecution case, crores of rupees had been collected by the Company
from the general public. Proceedings were initiated by the accused by filing an
application under Section 482 of the Code in the High Court for quashing of
criminal proceedings. A prayer was also made that all cases be tried by one
Court. Support was sought from V.K. Sharma. Though in the decision of V.K. Sharma,
this Court had stated that the order could not be treated as a `precedent', the
High Court, by treating the order as a `precedent' allowed the petition of the
accused 1 and transferred different cases pending in the State of Punjab
against the accused to a Court of Special Judge. The said action was challenged
by the State in this Court.
the relevant provisions of the Code, particularly relating to framing of charge
and conduct of trial, this Court held that in the light of various provisions
and the scheme of the Code, no direction could be given by a Court to
consolidate all cases against the accused and to be tried by one Court. Such a
direction would be contrary to express provisions of the Code. Even in exercise
of inherent powers under Section 482, the High Court could not direct an
authority to act contrary to law. The Court also observed that this Court has
ample jurisdiction to pass orders under Article 142 of the Constitution for
doing complete justice between the parties in any case or matter but it is
doubtful whether in exercise of the said power, such an order could be passed.
The Court held that 2 direction as to consolidation of cases pending in
different Courts for different offences to be tried in a single Court issued in
V.K. Sharma was not in consonance with law. V.K. Sharma was, therefore,
Singh Sahni & Anr. v. Union of India & Ors., (2002) 2 SCC 210 was also
referred to. In that case, this Court held that if an accused commits an offence,
he has to remain in jail and he cannot make complaint to this Court under
Article 32 of the Constitution on the ground of so called infraction of Article
far as Section 436A is concerned, it may be stated that by the Code of Criminal
Procedure (Amendment) Act, 2005, the said section came to be inserted, which
reads as under;
period for which an undertrial prisoner can be detained.-- Where a person has,
during the period of investigation, inquiry or trial under this Code of an
offence under any law (not being an offence for which the punishment of death
has been 2 specified as one of the punishments under that law) undergone
detention for a period extending up to one-half of the maximum period of
imprisonment specified for that offence under that law, he shall be released by
the Court on his personal bond with or without sureties:
Provided that the
Court may, after hearing the Public Prosecutor and for reasons to be recorded
by it in writing, order the continued detention of such person for a period
longer than one-half of the said period or release him on bail instead of the
personal bond with or without sureties:
Provided further that
no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of
imprisonment provided for the said offence under that law.
computing the period of detention under this section for granting bail, the
period of detention passed due to delay in proceeding caused by the accused
shall be excluded."
the statement of objects and reasons it was stated;
There had been
instances, where under-trial prisoners were detained in jail for periods beyond
the maximum 2 period of imprisonment provided for the alleged offence. As remedial
measure section 436A has been inserted to provide that where an under-trial
prisoner other than the one accused of an offence for which death has been
prescribed as one of the punishments, has been under detention for a period
extending to one-half of the maximum period of imprisonment provided for the
alleged offence, he should be released on his personal bond, with or without
sureties. It has also been provided that in no case will an under-trial
prisoner be detained beyond the maximum period of imprisonment for which he can
be convicted for the alleged offence.
learned counsel for the respondents are, prima facie, right in submitting that
no retrospective effect has been given to the said provision and as such
Section 436A does not directly apply to the facts of the case.
our opinion, however, the hard reality equally important also cannot be lost
sight of the fact that the petitioner is in jail since more than ten years. It
would, therefore, be appropriate if limited relief is 2 granted to the
petitioner. So far as consolidation of cases and trial of all the cases in one
Court is concerned, as observed hereinabove, such relief cannot be granted.
V.K. Sharma, wherein
such relief was granted, has been expressly overruled by Rajesh Syal. We are,
therefore, of the view that the petitioner is not entitled to such relief.
overall facts and circumstances, in our opinion, the ends of justice would be
served if we partly allow the petition and issue the following directions:
1. If the petitioner
will apply for bail, an appropriate Court will release him on bail on his
executing a bond to the satisfaction of such Court.
2. If the petitioner is
not arrested but is likely/required to be arrested, the Arresting Officer shall
release him on 2 bail on his executing a bond to the satisfaction of the
3. The above relief will
be granted to the petitioner only in those cases where he is arrested in his
capacity as Managing Director/Director of Imperial Forestry Corporation Ltd.
4. Such relief will be
allowed to the petitioner on his giving an assurance/ undertaking that he will
remain present in the court concerned as and when his case is posted for
hearing or his presence is required.
5. It is open to the
petitioner to apply to the Court concerned for exempting him from personal
appearance. The Court will pass an appropriate order on such application on
such terms and conditions as the Court deems fit.
6. If the petitioner is
having a passport with him, he will surrender his passport to police authorities.
The police authorities will retain the same till the final disposal of all the
7. It is open to the
investigating agency in any case to move a competent Court for cancellation of
bail/modification of conditions, if any such investigating agency finds that
petitioner is misusing the liberty granted by this Court.
8. The above directions
have been issued by us in special circumstances keeping in view the fact that
the petitioner is in jail since more than ten years.
may make it clear that the above order is passed without prejudice to the
rights and contentions of the parties.
writ petition is accordingly partly allowed to the extent indicated above.