Sadhwi Pragyna Singh
Thakur Vs. State of Maharashtra
J U D G M E N T
J.M. PANCHAL, J.
appeal, by grant of special leave, challenges the judgment dated March 12, 2010
rendered by the learned single Judge of the High Court of Judicature at Bombay in
Criminal Application No. 3878 of 2009 by which prayer made by the 2 appellant
to enlarge her on bail on the ground of violation of the mandate of Article
22(1) and 22(2) of the Constitution of India and also on the ground of non-filing
of charge sheet within 90 days as contemplated by Section 167(2) of the Code of
Criminal Procedure, is rejected.
appellant claims to be the original resident of Surat. According to her she renounced
material world and became Sadhwi in a religious ceremony, which was performed
at Prayag, Uttar Pradesh and has settled herself at Jabalpur, Madhya Pradesh, in
the premises offered by one Agrawal family. On September 29, 2008 a bomb blast
took place at about 9.30 PM in Azad Nagar locality of Malegaon city, killing six
persons and injuring more than hundred persons. With reference to the said bomb
blast A.C.R. I-130/08 is registered with Azad Nagar Police Station on September
30, 2008 against unknown persons under Sections 302, 307, 324, 427 and 153 of Indian
Penal Code as well as under Sections 3, 4 and 5 of Explosive Substances Act and
Sections 16, 18 and 23 of Unlawful Activities (Prevention) Act, 1957.
The initial investigations
revealed that the explosion was carried out by making use of a two wheeler (scooter)
on which the bombs were fitted and blasted with the help of a timer. In
October, 2008 the investigation of the case was transferred to Anti Terrorists Squad
(ATS), Mumbai headed by ACP Mohan Kulkarni. The investigation by the ATS revealed
that the scooter had its origin in Gujarat. The name of dealer to whom manufacturer
had sold the same was traced. On October 7, 2008 team headed by P.I. Sawant went
to Surat to contact the two wheeler dealer to ascertain the name of the person
to whom the scooter was sold. After contacting the dealer, it was learnt that
the two wheeler was sold by the dealer to the appellant and it was registered
at R.T.O., Surat, and its registration number being GJ 5 JR 1920.
It was also learnt that
the appellant was staying in an Ashram at Jabalpur. P.I. Sawant made a call to the
appellant to know about her vehicle. The appellant told P.I. Sawant that she
had sold the same long back. P.I. Sawant was not satisfied with the explanation
given by the appellant. Therefore, he asked the appellant to come down to Surat.
The appellant expressed her inability to go to Surat and asked P.I. Sawant to
come to Jabalpur, but P.I. Sawant refused to do so and insisted that the
appellant should come to Surat.
Therefore, the appellant
arrived at Surat Railway Station on October 10, 2008. After reaching Surat Railway
Station, the appellant straightaway went to the residence of her disciple Mr.
Bhim Bhai. At about 10 AM P.I. Sawant met the appellant and revealed to the appellant
that her two wheeler had been used in Malegaon blast and it was planted with
explosives. The appellant told P.I. Sawant that she had sold the two wheeler in
October, 2004 to one Mr. Sunil Joshi for Rs.24,000/- and she had also signed
R.T.O. TT transfer form and had no control over the vehicle. P.I. Sawant
repeatedly asked the appellant as to how that vehicle reached Malegaon and how it
was used to blast bombs, to which the appellant could not give satisfactory answers.
P.I. Sawant, therefore, disbelieved the appellant and asked her to accompany
him to Mumbai. Initially, P.I. Sawant had suggested to the appellant to take
her father along with her, but the appellant had declined the said offer on the
ground that physical condition of her father was not well.
The appellant expressed
her desire to be accompanied by her disciple and P.I. Sawant had granted the same.
The appellant with her disciple Bhim Bhai reached Mumbai in the vehicle belonging
to P.I. Sawant at 11.30 PM The case of the appellant is that she was taken to
Kala Chowki office of ATS whereas the case of P.I. Sawant is quite different. On
October 11, 2008 repetitive questions were put to the appellant pointing out
her alleged involvement in Malegaon blast to which the appellant had said that she
had no connection with the blast.
According to the
appellant on October 12, 2008, A.T.S. team became aggressive and asked Bhim
Bhai to beat the appellant and when Bhim Bhai refused to do so, he was beaten up
and, therefore, 6Bhim Bhai had reluctantly complied the order by beating the appellant.
According to the appellant on October 13, 2008 the appellant was beaten up day
and night and subjected to vulgar abuse by senior officers. The case of the
appellant is that on October 15, 2008 the appellant and her disciple were taken
in ATS vehicle to Hotel Rajdoot in Nagpada and kept in room No. 315 and were made
to sign hotel entry register. According to the appellant, money was paid by the
ATS and while in hotel the appellant was asked to call from mobile No. 9406600004
to her friends and acquaintances to say that she was fine.
The case of the
appellant is that she developed bad health due to custodial violence and had acute
abdominal and kidney pain as a result of which she was admitted in a hospital known
as Shushrusha Hospital at Dadar. According to her after half an hour her disciple
Bhim Bhai was also brought to the hospital and admission form of the appellant and
other documents were got signed by him. The case of the appellant is that
officer Khanwilkar deposited money at the hospital and the 7disciple of the appellant
left hospital after which his whereabouts are not known to the appellant.
The case pleaded by
the appellant is that she was formally arrested on October 23, 2008, but
reasons of her arrest were not communicated to her nor the names of her relations
were ascertained from her to inform them about her arrest. The grievance made
by the appellant is that no legal assistance was made available to her and on October
24, 2008 she was produced before learned Chief Judicial Magistrate, Nasik,
where the police custody was sought which was granted upto November 3, 2008. According
to her, her relations knew about her arrest only through media when news about her
arrest appeared in the newspapers on October 25, 2008.
Jha, brother-in-law of the appellant and her sister met A.T.S. officers to permit
them to meet the appellant but were not allowed to do so. According to the appellant,
they could meet her on November 2, 2008 when the appellant was allowed to sign
Vakalatnama of a lawyer engaged by her sister. The 8claim of the appellant is
that on November 1, 2008 she was subjected to a polygraphic test without her
permission. The case pleaded by the appellant is that on November 3, 2008, she was
produced before learned Chief Judicial Magistrate, Nasik and her police custody
was sought but the same was declined by the learned Magistrate and she was remanded
to judicial custody.
According to the appellant
her advocate moved an application seeking her medical examination, and demanding
an enquiry into her illegal detention as well as treatment meted out to her.
The advocate also prayed to direct BSNL to furnish outgoing call details from mobile
of the appellant on October 15, 2008. The case pleaded by the appellant is that
on November 3, 2008 the appellant got opportunity to have a dialogue with her advocate
and she narrated atrocities committed by ATS on her. According to her, she filed
a detailed affidavit-cum-complaint before the learned Chief Judicial Magistrate
on November 17, 2008 and prayed to take action against police officers. 9 On November
20, 2008, the provisions of Maharashtra Control of Organised Crime Act, 1999
were invoked on the basis of permission granted by DIG, ATS, but application filed
by ATS seeking police custody of the appellant was rejected on November 24,
to the appellant she was under detention from October 10, 2008 and though the 90th
day was to expire on January 09, 2009 the charge-sheet was filed on January 20,
2009. Therefore, the appellant filed an application for bail before the learned
Special Judge under Section 167(2) Cr.P.C. and 21(4) MCOCA and also under
Section 439 Cr.P.C. Subsequently, according to the appellant, opening part of the
application was amended to read as an application for grant of Bail under Section
21(2)(b) of MCOCA.
It is relevant to note
that the above application was not an application for bail on merits, but on the
plea that charge sheet was required to be filed within 90 days from the date of
arrest and as no charge sheet was filed within 90 days, she was entitled to
bail under Section 21(2)(b) of MCOCA / Section 167(2) Cr.P.C. The case of the respondent
is that the charge sheet was filed on January 20, 2009 which was 89th day from the
date of first remand order i.e. October 24, 2008.
The respondent had filed
reply to the above application on 05.05.2009. The learned Special Judge
rejected the said Bail Application by order dated July 09, 2009. Thereupon, the
appellant filed Criminal Application No. 3878 of 2009 in the High Court of
Mumbai. This was a petition under Sections 401 and 439 Cr.P.C against the order
of the learned Special Judge. Prayer (b) was to set aside the order dated July 09,
2009 and, therefore, it was essentially a Revision Petition. The main ground on
which bail was sought was that charge sheet was required to be filed within 90 days
from the date of her arrest but it was filed beyond 90 days from the date of
arrest which was on October 10, 2008. Most of the other grounds pleaded were challenging
the correctness of the findings of the learned Special Judge. The application
filed in the High Court was rejected by judgment dated March 12, 2010 which has
given rise to the present appeal.
Court has heard the learned counsel for the parties at great length and in
detail. This Court has also considered the documents forming part of the present
judgment delivered by the learned Special Judge indicates that the appellant had
failed to make out a case that she was in police custody from October 10, 2008 to
October 22, 2008. The High Court has also held that the appellant was not arrested
by the police on October 10, 2008 and has upheld the case of the respondent-State
that the appellant was arrested on October 23, 2008. Normally, concurrent findings
of facts are not interfered with in an appeal arising by grant of special leave.
However, the appellant
has made grievance that her rights guaranteed under Article 22(1) and 22(2) of
the Constitution were violated by not producing her before the learned Magistrate
within 24 hours of her arrest which was effected on October 10, 2008 and,
therefore, in order to find out whether there is any violation of the rights guaranteed
under Article 22(1) and 22(2) of the Constitution, this Court has undertaken
exercise of ascertaining whether the appellant was arrested, as claimed by her,
on October 10, 2008 or whether she was arrested on October 23, 2008, as claimed
by the respondent.
Mahesh Jethmalani, learned senior counsel for the appellant, argued that all the
facts and circumstances pertaining to visit of the appellant to Surat on October
08, 2008 and her submission to the ATS custody at Surat on that day and the complete
restraint on her freedom of movement from that day onwards by the ATS till October
23, 2008, unambiguously disclose that the appellant had been arrested by the ATS
on October 10, 2008 and was illegally detained in their custody till October 24,
132008 when the appellant was produced before the learned Chief Judicial Magistrate,
It was argued by the learned
counsel that the High Court failed to realise that the appellant was a stranger
to Mumbai and had come to Mumbai from Surat at the instance of ATS without having
any knowledge of the geography of Mumbai and, particularly, the location of lodging
houses around the ATS office and, therefore, the High Court should not have
held that between October 10, 2008 and October 23, 2008 while in Mumbai the appellant
resided at lodging houses in Mumbai. According to the learned counsel, it was stated
on oath by the appellant that throughout the period from October 10, 2008 to October
23, 2008 she was in illegal detention in the ATS office located at Kala Chowki,
Mumbai and, therefore, onus should have been shifted to ATS to establish the fact
that the appellant had resided at lodging houses in Mumbai.
It was contended that
no bills of the stay of the appellant in the lodging houses where she had allegedly
resided were produced by the ATS nor was it explained how the hotel bills could
have been paid by the appellant and, therefore, the case of the respondent that
between October 10, 2008 and October 23, 2008 the appellant had resided at
lodging houses in Mumbai should have been disbelieved. The learned counsel emphatically
pleaded that no notice was issued to the appellant under Section 160 of the Code
of Criminal Procedure, 1973 requiring her attendance before Mr. Sawant to interrogate
her and in view of the requirements of the proviso to sub-section(1) of the
Section 160, the appellant could not have been summoned at police station for the
purpose of interrogation and, therefore, it was evident that the appellant was
in illegal custody and detention of the ATS between October 10, 2008 and October
The learned counsel emphasised
that the circumstances pertaining to the case of the appellant from October 7,
2008, when she was first contacted in Jabalpur till October 23, 2008 when 15she
was produced before the learned Chief Judicial Magistrate, Nasik, leave no room
for doubt on any judicious appreciation of the facts that the appellant was
manifestly illegally detained by the ATS. What was stressed was that because of
third degree methods adopted by the officers of ATS, the appellant had to be admitted
in hospital and, therefore, the High Court committed obvious error in coming to
the conclusion that the appellant was not in illegal custody of the ATS, Mumbai
from October 10, 2008 to October 23, 2008.
After referring to the
two separate complaints : one filed by Mr. Dharmendra Bairagi and another filed
by Mr. Dilip Nahar before the learned Judicial Magistrate First Class, Indore against
the officers of A.T.S. Mumbai, in which allegations about their kidnapping, beating,
illegal custody etc. from October 14, 2008 to November 3, 2008 are made, the
learned counsel for the appellant submitted that in the complaints it is also
stated that the appellant who was kept in a room adjoining the room in which 16they
were confined, was also beaten up day and night by the accused named in the
complaints and they had heard screams of the appellant and, therefore, the case
of illegal arrest and custody from August 10, 2008 as pleaded by the appellant
should be accepted by this Court.
The learned counsel
read out affidavit dated November 17, 2008 filed by the appellant wherein it
was mentioned that she was in illegal custody of ATS from October 10, 2008 and
was produced before the learned Chief Judicial Magistrate on October 23, 2008
which according to the learned counsel indicate violation of provisions of Article
22(1) and 22(2) of the Constitution. According to the learned counsel after the
appellant was finally arrested on October 23, 2008, ATS had not made any effort
to comply with the provisions of Section 50-A of the Code of Criminal Procedure
nor the ATS had enlightened the appellant about the grounds/reasons of her arrest
and her right to engage a lawyer, but on the contrary till November 2, 2008,
ATS had denied to the
appellant 17 access to any lawyer and also to her relations when she was at Kala
Chowki Police Station though she was remanded to police custody for eight days on
October 24, 2008 and, therefore, case of illegal custody, as pleaded by the appellant,
should have been accepted by the Court. It was pointed out that the first
meeting of the appellant with her immediate relation, i.e., her sister took place
only on the evening of Sunday, i.e., November 2, 2008, when a blank Vakalatnama
tendered by her sister was allowed to be signed in the ATS Police Station at Kala
Chowki and, therefore, the case of illegal custody pleaded by the appellant could
not have been disbelieved by the High Court.
re-appreciation of the evidence on record this Court finds that the case of the
appellant that she was arrested on October 10, 2008 is not correct and has been
rightly rejected by the learned Special Judge as well as by the High Court, in view
of the following circumstances.
The appellant was arrested
on October 23, 2008 and was produced before the CJM, Nasik on October 24, 2008
on which date the appellant was remanded to Police custody till November 3, 2008.
On the said date, there was no complaint made to the learned CJM that the appellant
was arrested on October 10, 2008 nor there was any complaint about the ill-treatment
meted out to her by the officers of A.T.S. Mumbai. Also there was no challenge
at any time to the order of remand dated October 24, 2008 on the ground that
the appellant was not produced before the learned C.J.M. within 24 hours of her
The appellant was next
produced before the learned C.J.M., Nasik on November 3, 2008. On that date an application
was filed that she was picked up on October 10, 2008 and was illegally detained
at the ATS Office, Mumbai. The reply was filed on behalf of the respondent on that
very date denying the said allegation. The order of remand dated November 3,
2008, noticed the allegation and thereafter the appellant was remanded to judicial
custody till November 17, 2008. This order was also not challenged by the
detailed affidavit was filed by the appellant on November 17, 2008 setting out in
detail the events from October 10, 2008 up to October 23, 2008. A perusal of the
said affidavit shows that even if all the allegations in the said affidavit are
taken on their face value, a case of arrest on October 10, 2008 is not made out.
Paragraph 3 of the said affidavit states that on October 7, 2008 when the appellant
was at Jabalpur Ashram, she had received a call from the police about her LML
Freedom Motor Cycle and that the Police insisted that she should come to Surat as
the Police Officer "wanted to question me at length about it".
It is important to note
that according to the appellant, she herself was asked to come to Surat as the
Police only wanted to question her. Para 4 of the affidavit is to the effect that
the appellant travelled from Jabalpur to Ujjain and arrived at Surat on October
10, 2008 and stayed with her disciple, Bhim Bhai Pasricha. Para 6 speaks of her
interrogation whereas para 8 speaks of the Police Officer telling the appellant
that she would have to accompany him to Mumbai for "further
interrogation" and that she would be free to go to the Ashram thereafter. Para
9 is to the effect that the Police Officer told the appellant to take her
father along with her but due to his old age the appellant suggested that her disciple
Bhim Bhai Pasricha could accompany her to Mumbai. Paras 8 and 9 make it clear that
the appellant had understood that her coming to Surat and going to Mumbai were for
She further states,
"Even though no formal summons to attend as a witness was served upon me to
make myself available for interrogation in Mumbai........ I agreed to accompany
the ATS team to Mumbai". This makes it clear that the appellant understood
that her going to Mumbai was for interrogation and in her capacity as a potential
witness and not as an accused. Further the appellant was not arrested on
October 10, 2008 is made clear by her own statement in Para 9 - "It is significant
to mention that I was not formally arrested on October 10, 2008".
to the appellant, she, Bhim Bhai Pasricha and others reached Mumbai on the night
of October 10, 2008. In para 10 she had claimed that for the next two days she was
detained and interrogated by the ATS team in Mumbai. There is no manner of
doubt that this statement is factually incorrect. The record shows that after reaching
Mumbai at midnight i.e. the beginning of the October 11, 2008, the appellant and
Bhim Bhai Pasricha stayed in Hotel Satguru from October 11th to 15th, 2008. This
is noticed by the learned Special Judge. It is also so stated by the respondent
in the reply sent to the National Human Rights Commission which is produced on
the record of the case.
The relevant entry in
the station diary for October 11, 2008 also mentions about the stay of the appellant
in a lodge. The fact that the appellant and her companion attended the office of
A.T.S. on the 11th and on subsequent dates and left after interrogation is also
recorded in the station diary for 11th to 15th October, 2008. In para 11 of the
affidavit it is mentioned by the appellant that during interrogation the police
had asked Bhim Bhai Pasricha to beat her with sticks etc.
This would show that
Bhim Bhai Pasricha was with the appellant. If a person is arrested, the person is
isolated from others and is completely deprived of his/her personal liberty. A
person who is arrested and kept in police custody is not provided any companion.
The averments in the affidavit would show that disciple Bhim Bhai Pasricha was all
along with the appellant, which would negate her case that she was illegally arrested
and detained by the police.
para 14 of the affidavit, the appellant had stated that on 15th the appellant and
Bhim Bhai Pasricha had stayed in Hotel Raajdoot in room nos. 314 and 315. Para 16
of the affidavit is to the effect that within few hours of shifting to Hotel
Raajdoot the appellant became unwell and she was admitted in Shushrusha
Hospital. According to the appellant, she had undergone treatment in the hospital
for 3-4 days and since her condition had not improved, she was taken to another
hospital known as Dr. Vaze's Hospital. What is important is that in para 17 of
the affidavit, the appellant has clearly and expressly averred as under: -
"I say that no
female constable was by my side either in Hotel Rajdoot or in either of the two
hospitals". This statement of appellant is very important in as much as
this clearly shows that the appellant was alone and was not under custody or detention
of police. If this was a case of arrest of the appellant, a police constable would
have always been around, which is not the case. This positive averment of the
appellant belies her plea raised later on about her arrest on August 10, 2008. The
Hospital documents of the Shushrusha Hospital would show that the appellant was
admitted in the hospital on October 15, 2008 and was discharged on October 17,
It also shows that
all 24the medical investigation reports were handed over to the patient's relative.
If it was a case of arrest and police admitting the appellant to the hospital, all
hospital records would have been handed over to the Police and the appellant
also would have been handed over to the police which is not the case. The letter
dated November 20, 2008 of Doctor P.K. Solanki of the chest clinic shows that the
appellant was brought to the hospital by Bhim Bhai Pasricha, described as a
relative of the appellant. If the appellant was under arrest she would have
been brought to the hospital by the police and doctor would have so recorded it,
in medical papers which is not the case.
The doctor only
records that a Police Officer merely had called up for the same patient i.e. made
enquiries about the condition of the patient. The doctor has further recorded
that the appellant was transferred to another hospital namely Vaze Hospital for
further treatment. The appellant was in Vaze Hospital between October 17, 2008
and October 20, 2008 which is evident from the payments made to the said hospital.
It may be 25mentioned that hospital receipts are in the name of the appellant
and not in the name of police.
Her case that she was
in police custody and she did not have sufficient means to foot the bill of the
two hospitals does not inspire confidence of this Court because firstly her
disciple Bhim Bhai was never in custody of the police and secondly panchnama prepared
at the time of the arrest of the appellant on October 23, 2008 mentions the articles
seized from the appellant including one hundred notes, each of which was of
denomination of rupees one hundred i.e. in all Rs. 10,000/-. It is no where
pleaded by the appellant that the said amount did not belong to her. Even if it
is assumed that amount mentioned in the bills of the two hospitals was paid by the
police such payment itself would not indicate illegal arrest and custody of the
so far as October 21st and 22nd, 2008 are concerned the appellant has not given
any specific details except claiming that she was brought back to the ATS
Office. This appears to 26be factually incorrect. In para 18 of the report sent
to the National Human Rights Commission it has been specifically stated by the respondent
that after being discharged from Vaze Hospital on October 20, 2008 the
appellant had checked into Hotel Parklane. As per the records of the said
hotel, the appellant remained in the said Hotel till she was arrested on October
Further in paras 18
and 19 of the counter affidavit to the SLP it has been specifically stated that
the appellant checked into Hotel Parklane after being discharged from Vaze hospital.
It is further averred that after questioning on October 20th, 21st and 22nd,
2008 the appellant was allowed to go. In para 36 the Rejoinder which is reply to
what is stated in paras 18 and 19 of the counter affidavit, there is no specific
denial of the above averment.
The contention that the
averments made in the complaints filed by Mr. Dharmendra Bairagi and Mr. Dilip Nahar
support the case of the appellant that she was illegally detained by the officers
of A.T.S. Mumbai and subjected to third degree interrogation cannot be accepted
because the averments made in the complaints are untested and no action, till
date, is taken by the learned Judicial Magistrate, on those complaints.
above facts would clearly show that there was no arrest of the appellant on October
10, 2008 as is sought to be claimed now. The appellant was called for
interrogation which is not equivalent to her arrest and detention. All throughout
between October 10, 2008 and prior to her arrest on October 23, 2008 her disciple,
Bhim Bhai Pasricha was with her. The averments made by the appellant indicate that
the appellant had stayed in three different lodges and was admitted in two
different hospitals along with Bhim Bhai Pasricha.
Her own specific case
is that there was no female Police with her either in the lodges or in the
hospitals which cannot be ignored. After detailed discussion of the 28 materials
on the record, both, the Trial Court and High Court have held that the case of
her arrest on October 10, 2008 is not made out by the appellant. In paragraph
19, the appellant herself has stated that she "was finally arrested on 23.10.2008
and produced before the learned Chief Judicial Magistrate, Nasik on 24.10.2008".
This is her specific case
namely that she was arrested on October 23, 2008. However, at a later stage, before
the learned Special Judge in her application for default bail dated January 14,
2009, the word "finally" was changed to "officially" and before
the High Court it was sought to be pleaded that the appellant was "formally"
arrested instead of the expression "finally" arrested on October 23,
findings recorded by the learned Special Judge as well as by the High Court that
the appellant was not arrested on October 10, 2008 but was arrested on October 23,
2008 and was thereafter produced before the learned Chief 29 Judicial Magistrate,
Nasik are concurrent findings of facts. This Court does not find substance in the
contention that the appellant was arrested on October 10, 2008 and therefore the
findings recorded by the learned Special Judge and the High Court are liable to
be interfered in this appeal which arises by grant of special leave.
It was agreed by the learned
counsel for the appellant that if this Court comes to the conclusion that the
appellant was arrested on October 23, 2008 then the charge sheet was submitted within
90 days from the date of first order of the remand and therefore there would neither
be breach of provisions of Section 167(2) of the Criminal Procedure Code nor would
there be breach of Articles 22(1) and 22(2) of the Constitution. As this Court
has come to the conclusion that the appellant was arrested on October 23, 2008,
the appeal is liable to be dismissed.
violation of Section 160 of Criminal Procedure Code and allegations of torture etc.
are argued by the learned counsel for appellant at length and, therefore, this
Court proposes to advert to the same at this stage itself. According to the appellant
there was no written notice requiring her attendance to appear for any
investigation or interrogation. The further argument of the appellant is that absence
of a written notice requiring her attendance for interrogation would establish that
she was kept in illegal custody by officers of A.T.S., Mumbai. However,
according to the prosecution, she had agreed to come to Surat and Bombay and therefore
the point of issuance or non-issuance of notice u/s 160 Cr.P.C. is not
relevant. This issue has been considered in detail by the High Court.
The High Court has
held that "assuming that she was called for interrogation and questioned
by the ATS without any order or notice, still, such attendance is only for interrogation
and questioning and nothing more. The High Court has noticed that the appellant
was not detained or taken into custody but was only questioned and was
thereafter allowed to go. It was also noticed that she had stayed in different
lodges and was in hospitals and was free to move around and contact everybody. According
to the High Court, the appellant was in touch with her disciple and was using her
mobile phone which was not disputed.
The High Court has
observed that once the applicant's movements were not restricted nor was she
confined to the ATS Office after interrogation, then it is difficult to hold
that in the garb of interrogating and questioning her she was taken into
custody by the ATS. The High Court has explained that assuming that the custody
and arrest are synonymous terms, yet in the facts of this case, it is not possible
to conclude that the appellant was in custody and was arrested by the ATS.
After recording above conclusions, the High Court has ultimately observed that assuming
that the appellant was not told by an order in writing to attend the office of A.T.S.
at Kala Chowki, Mumbai, yet it is clear that she accompanied the officer of A.T.S.
from Surat to 32Mumbai on her own volition.
Every single act and
movement is of her own volition and no force was used. High Court, therefore,
did not go into the wider question as to whether the non-compliance with 160(1)
including its proviso would enable the appellant to apply for release on bail. It
may be stated that the prosecution has produced and relied upon written
intimation dated October 10, 2008 and entries from the Station Diary to show that
Section 160 of Cr.P.C. was substantially complied with but it is not necessary
to refer to the same in detail as this Court broadly agrees with the view taken
by High Court mentioned above. Essentially Section 160 of Cr.P.C. deals with
the procedure to be adopted by Police Officer at pre-arrest stage.
Once a person is arrested
and is in judicial custody the prayer for Bail will have to be considered on merits.
Prayer for Bail cannot be automatically granted on establishing that there was
procedural breach irrespective of, the merits of matter. The appellant has not claimed
bail on merits. Therefore, even if assuming that procedure mentioned 33in Section
160 was not followed, the prayer of bail cannot be granted at this stage. The reliance
on the decision Nandini Satpathy vs. P.L. Dani and another AIR 1978 SC 1025, by
the appellant is misconceived. In the said case, the Court quashed the proceedings,
mainly having regard to the nature of allegations and the context in which such
allegations were made.
far as allegations of torture etc. are concerned. this Court finds that when the
appellant was produced before the Chief Judicial Magistrate, Nasik on October 24,
2008, there was no allegation of any ill treatment by the Police. When the appellant
was again produced on November 3, 2008, there was no allegation of any torture
in Police custody.
of ill treatment in the Police custody was made for the first time, in the
affidavit dated November 17, 2008, a perusal of which would show that it is not
believable as primarily it has been alleged that the Police made her companion 34
Bhim Bhai Pasricha to beat her. No injury was found on her body by any of the doctors
in the two hospitals. The High Court has noticed that the allegations of ill treatment
are pending examination before the National Human Rights Commission and in Para
11 the High Court has recorded as under :- "I am not concerned with allegations
of ill-treatment and harassment, as also alleged torture, in as much as I am informed
that a separate application in that behalf is made and is pending before the
National Human Rights Commission".
far as merits of the case are concerned under the Criminal Procedure Code, bail
has to be only on consideration of merits, except default bail which is under
Section 167(2). Section 21 of the MCOC Act is to the effect that unless the
Court is satisfied that the accused is not guilty of the offence alleged, bail
shall not be granted, which is similar to Section 37 of the NDPS Act. Considerations
for grant of bail at the stage of investigation and after the charge sheet is filed
In the present case, charge
sheet has been filed on January 20, 2009 and the application for bail before
the High Court, if it is to be treated as not merely a revision from the order of
the learned Special Judge declining bail but also as a fresh application, is an
application dated August 24, 2009, after the filing of the charge sheet on
January 20, 2009 and therefore filed after right, if any, under Section 167(2) is
lost and having regard to the provisions of Section 21 of the MCOC Act the
appellant is not entitled to grant of bail, apart from the fact that no
argument had been addressed on the merits of the case and only technical pleas under
Section 167(2) of the Criminal Procedure Code and Article 22(2) of the
Constitution have been taken.
far as Section 167(2) of the Criminal Procedure Code is concerned this Court is
of the firm opinion that no case for grant of bail has been made out under the said
provision as charge sheet was filed before the expiry of 90 days from 36 the date
of first remand. In any event, right in this regard of default bail is lost once
charge sheet is filed.
This Court finds that
there is no violation of Article 22(2) of the Constitution, because on being arrested
on October 23, 2008, the appellant was produced before the Chief Judicial Magistrate,
Nasik on October 24, 2008 and subsequent detention in custody is pursuant to
order of remand by the Court, which orders are not being challenged, apart from
the fact that Article 22(2) is not available against a Court i.e. detention pursuant
to an order passed by the Court.
appellant has not been able to establish that she was arrested on October 10,
2008. Both the Courts below have concurrently so held which is well founded and
does not call for any interference by this Court.
this Court has come to the conclusion that the appellant has not been able to
establish that she was arrested on October 10, 2008, even if it is assumed for
the sake of argument that the appellant was arrested on October 10, 2008 as
claimed by her and not on October 23, 2008 as stated by the prosecution, she is
not entitled to grant of default bail because this Court finds that the charge sheet
was filed within 90 days from the date of first order of remand. In other
words, the relevant date of counting 90 days for filing charge sheet is the date
of first order of the remand and not the date of arrest.
This proposition has been
clearly stated in the Chaganti Satyanarayana and Others vs. State of Andhra Pradesh
(1986) 3 SCC 141. If one looks at the said judgment one finds that the facts of
the said case are set out in paragraphs 4 and 5 of the judgment. In paragraph 20
of the reported decision it has been clearly laid down as a proposition of law
that 90 days will begin to run only from the date of order of remand.
This is also evident
if one reads last five lines of Para 24 of the reported decision. Chaganti Satyanarayana
and Others (Supra) has been subsequently followed in the following four decisions
of this Court :
(1) Central Bureau of
Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J. Kulkarni (1992)
3 SCC 141, para 9 placitum d-e, para 13 placitum c where it has been authoritatively
laid down that : "The period of 90 days or 60 days has to be computed from
the date of detention as per the orders of the Magistrate and not from the date
of arrest by the police".
(2) State through State
through CBI vs. Mohd. Ashraft Bhat and another (1996) 1 SCC 432, Para 5. (3) State
of Maharashtra Vs. Bharati Chandmal Varma (Mrs) (2002) 2 SCC 121 Para 12, and
(4) State of Madhya Pradesh vs. Rustom and Others 1995 Supp.
(3) SCC 221, Para 3. Section
167(2) is one, dealing with the power of the learned Judicial Magistrate to
remand an accused 39to custody. The 90 days limitation is as such one relating to
the power of the learned Magistrate. In other words the learned Magistrate
cannot remand an accused to custody for a period of more than 90 days in total.
Accordingly, 90 days would start running from the date of first remand.
It is not in dispute in
this case that the charge sheet is filed within 90 days from the first order of
remand. Therefore, the appellant is not entitled to default bail.
is yet another aspect of the matter. The right under Section 167(2) of Cr.P.C. to
be released on bail on default if charge sheet is not filed within 90 days from
the date of first remand is not an absolute or indefeasible right. The said right
would be lost if charge sheet is filed and would not survive after the filing of
the charge sheet. In other words, even if an application for bail is filed on
the ground that charge sheet was not filed within 90 days, but before the consideration
of the same and before being released on bail, if charge sheet is filed, the
said right to be released on bail would be lost.
After the filing of
the charge sheet, if the accused is to be released on bail, it can be only on
merits. This is quite evident from Constitution Bench decision of this Court in
Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b)]. The reasoning is
to be found in paras 33 to 49. This principle has been reiterated in the following
decisions of this Court : (1) State of M.P. vs. Rustam and Others 1995 Supp.
(3) SCC 221, para 4, (2) Dr. Bipin Shantilal Panchal vs. State of Gujarat
(1996) 1 SCC 718 para 4.
It may be mentioned that
this judgment was delivered by a Three Judge Bench of this Court. (3) Dinesh Dalmia
vs. CBI (2007) 8 SCC 770 para 39, and (4) Mustaq Ahmed Mohammed Isak and others
vs. State of Maharashtra (2009) 7 SCC 480 para 12. In Uday Mohanlal Acharya vs.
State of Maharashtra (2001) 5 SCC 453, a Three Judge Bench of this Court
considered the meaning of the expression
"if already not availed
of" used by this court in the decision rendered in case of Sanjay Dutt and
held in para 48 and held that if an application for bail is filed before the charge
sheet is filed, the accused could be said to have availed of his right under Section
167(2) even though the Court has not considered the said application and
granted him bail under Section 167(2) Cr.P.C. This is quite evident if one refers
para 13 of the reported decision as well as conclusion of the Court at page
is well settled that when an application for default bail is filed, the merits of
the matter are not to be gone into. This is quite evident from the principle laid
down in Union of India vs. Thamisharasi and Others (1995) 4 SCC 190 para 10
the discussion made above, it is quite clear that even if an application for
bail is filed on the ground that charge sheet was not filed within 90 days, before
the consideration of the same and before being released on bail if charge sheet
is filed, the said right to be released on bail, can be only on merits. So far as
merits are concerned the learned counsel for the appellant has not addressed
this Court at all and in fact bail is not claimed on merits in the present
appeal at all.
to the appellant, she was arrested on October 10, 2008 and was not produced within
24 hours of her arrest and, therefore, she is entitled to be released from
custody. As held earlier the plea that the appellant was arrested on October 10,
2008 and was in police custody since then is factually found to be incorrect by
The appellant was arrested
only on October 23, 2008 and within 24 hours thereof, on October 24, 2008 she
was produced before the learned CJM, Nasik. As such there is no violation of either
Article 22(2) of the Constitution or Section 167 Cr.P.C. In the grounds seeking
bail either before the Trial Court or before the High Court, bail was not
sought for on the ground of violation of Article 22(2) of the Constitution but
it was confined only to the plea that charge sheet was not filed within 90 days
and, therefore, this issue cannot be gone into in the S.L.P. more particularly
in view of weighty observations made by this Court in para 14 of Chaganti Satyanarayana
and Others (Supra) wherein it is clearly laid down that an enquiry as to exactly
when the accused was arrested is neither contemplated nor provided under the Code.
Even if it is assumed
for the sake of argument that there was any violation by the police by not
producing the appellant within 24 hours of arrest, the appellant could seek her
liberty only so long as she was in the custody of the police and after she is
produced before the Magistrate, and remanded to custody by the learned Magistrate,
the appellant cannot seek to be set at liberty on the ground that there had been
non-compliance of Article 22(2) or Section 167(2) of the Cr.P.C. by the police.
In Saptawna vs. The State of Assam AIR (1971) SC 813, this Court has observed as
under in paras 2 and 3 of the reported decision : "2. The learned counsel
for the petitioner says that the petitioner is entitled to be released on three
(1) The original date
of arrest being January 10, 1968 and the petitioner not having been produced before
a Magistrate within 24 hours, the petitioner is entitled to be released;
(2) The petitioner having
been arrested in one case on January 24 1968 and he having been discharged from
that case, he is entitled to be released; and
(3) As the petitioner
was not produced for obtaining remand he is entitled to be released. 3. A
similar case came before this Court from this very District V.L. Rohlua v. Dy. Commr.
Aijal Dist. Writ Petitin No.238 of 1970, D/- 29-9-1970 (SC) (reported in 1971 Cri
LJ (N) 8) and the first point was answered by a Bench of five Judges thus :
"If the matter had
arisen while the petitioner was in the custody of the Armed Forces a question might
well have arisen that he was entitled to be released or at least made over to the
police. However, that question does not arise now because he is an undertrial prisoner.
" It seems to us
that even if the petitioner had been under illegal detention between January 10
to January 24, 1968 - though we do not decide this point - the detention became
lawful on January 24, 1968 when 45 he was arrested by the Civil Police and produced
before the Magistrate on January 25, 1968. He is now an undertrial prisoner and
the fact that he was arrested in only one case does not make any difference. The
affidavit clearly states that he was also treated to have been arrested in the
other cases pending against him."
Again a Constitution Bench
of this Court has made following observations in paragraphs 5, 6 and 8 of V.L. Rohlua
vs. Deputy Commissioner, Aijal, District Mizo (1970) 2 SCC 908. "5. The State
authorities have produced the order-sheets from the cases. From them it appears
that the petitioner was charged in the Court of the Additional District
Magistrate on March 3, 1968, and was kept in judicial custody. He has since been
remanded to jail custody from time to time. On July 28, this Court in the
habeas corpus petition ordered his production in Court and appointed Mr. Hardev
Singh, Advocate, as amicus curiae. 6. The petitioner then filed a second affidavit
on August 3, 1970. In that affidavit he has alleged that he was handed over to the
Civil Authorities by the Armed Forces after 2 months from his arrest, his confessional
statement was obtained at gun-point, that no order was served on him under the Assam
Maintenance of Public Order Act, 1953, that he was tortured, that the detention
order was vague and that as the remand order expired on July 18, 1970, his further
detention became illegal. 8. From the order-sheets produced before us it is
clear that the petitioner was first produced before the Magistrate on March 3, 1968.
That was roughly two
months after his arrest by the Armed Forces. Under Section 5 of the Armed
Forces (Assam and Manipur) Special Powers Act, he had to be made over to the
officer in-charge of the nearest police station with the least possible delay,
together with a report of the circumstances occasioning the arrest. What is the
least possible delay in a case depends upon the facts, that is to say, how, where
and in what circumstances the arrest was effected. From the affidavit of Mr.
Poon, it prima facie appears that the petitioner is connected with the Mizo hostiles
who are waging war against India.
It was, therefore,
necessary to question him about his associates, his stores of arms and like
matters. The difficulty of the terrain, the presence of hostile elements in the
area must be considered in this connection. Although it seems to us that the Armed
Forces delayed somewhat his surrender to the Civil Authorities, which is not the
intention of the law, there is not too much delay. If the matter had arisen while
the petitioner was in the custody of the Armed Forces a question might well have
arisen that he was entitled to be released or at least made over to the police.
However, that question does not arise now because he is an undertrial prisoner.
The only question is one of remand.
Here, too, if the
matter had been for the application of the Rules of the Code of Criminal Procedure,
no remand could have been longer than 15 47 days at a time. The fact of the matter,
however, is that the Criminal Procedure Code is not applicable by reason of the
Sixth Schedule to the Constitution in this area. This was laid down in State of
Nagaland v. Rattan Singh (1996) 3 SCR 830. Only the spirit of the Criminal Procedure
Code applies. In this view of the matter we cannot insist on a strict compliance
with the provisions of Section 344 of the Code of Criminal Procedure.
The petitioner had to
be kept at Dibrugarh for want of space at Aijal. Long distances, difficult terrain
and hostile country, are considerations to take into account. The period each time
was slightly longer than 15 days but not so unconscionably long as to violate
the spirit of the Code. There was a gap when the petitioner was in the custody of
this Court but no request was made for his release then. Now he is on a proper remand
and in fact has been remanded to the custody of the Magistrate by us. We cannot
now hold his detention to be illegal."
decisions relied upon by the learned counsel for the appellant do not support the
plea that in every case where there is violation of Article 22(2) of the Constitution,
an accused has to be set at liberty and released on bail. Whereas, an accused
may be entitled to be set at liberty if it is shown that the accused at that
point of time is in illegal detention by the police, such a right is not 48 available
after the Magistrate remands the accused to custody. Right under Article 22(2)
is available only against illegal detention by police. It is not available against
custody in jail of a person pursuant to a judicial order. Article 22(2) does
not operate against the judicial order.
decision in Manoj vs. State of M.P. (1999) 3 SCC 715 relied upon by the learned
counsel for the appellant was a case where the accused was not produced before
the Magistrate in the second case and, therefore, was directed to be released. It
was not a case where the person was produced before the learned Magistrate and remanded
to custody and then directed to be released because there was infraction by the
police. Similarly, the decision relied upon in the case In the matter of Madhu Limaye
and Others (1969) 1 SCC 292 is not relating to arrest and detention without being
produced before the Magistrate, but is relating to non-communication of the grounds
Further the decision
in Bhim Singh, MLA vs. State of J & K and Others (1985) 4 SCC 677, relied
upon by the learned counsel for the appellant was a case where the person had already
been released on bail and the Court finding that there was infraction of law by
the police directed an amount of Rs.50,000/- to be paid to him by way of
Khatri and Others (II) vs. State of Bihar and Others (1981) 1 SCC 627 persons were
in jail without being produced before the Judicial Magistrate. It was not a
case where the persons were in Jail after being remanded to custody by the
Judicial Magistrate. Similarly the decision in The State of Bihar vs. Ram
Naresh Pandey and another AIR 1957 SC 389 was one relating to withdrawal from the
prosecution when the learned Magistrate is required to apply his mind and not
one relating to Article 22(2).
the time when the appellant moved for bail she was in judicial custody pursuant
to orders of remand passed by the learned CJM/Special Judge. The appellant did not
challenge the orders of remand dated October 24, 2008, November 3, 2008, November
17, 2008 and subsequent orders. In the absence of challenge to these orders of remand
passed by the competent court, the appellant cannot be set at liberty on the
alleged plea that there was violation of Article 22(2) by the police.
plea that Article 22(2) of the Constitution was violated is based on the averment
by the appellant that she was arrested on October 10, 2008. Factually this plea
has not been found to be correct. The appellant was in fact arrested only on October
23, 2008. The affidavit filed by the appellant on November 17, 2008, on a
careful perusal shows that the appellant was not arrested on October 10, 2008. Prayer
in the said application did not ask for being set at liberty at all and only
ask for an enquiry. Finding recorded by both the Courts i.e. the Trial Court and
the High Court is that the appellant could not make out a case of her arrest on
October 10, 2008. Having regard to the totality of the facts and circumstances of
the case, this Court is of the opinion that question of violation of Article 22(2)
does not arise.
result of the above discussion is that this Court does not find any merits in the
present appeal and the same is liable to be dismissed. Therefore, the appeal
fails and is dismissed.
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