Reportable
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1845 OF 2011
(Arising out of S.L.P. (Criminal) No. 5908 of 2010)
Sadhwi Pragyna Singh Thakur ... Appellant
Versus
State of Maharashtra ...Respondent
J U D G M E N T
J.M. PANCHAL, J.
Leave granted.
2. This 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.
3. The 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
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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
4
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
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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,
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Bhim 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
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disciple 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. Thereupon
Bhagwan 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
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claim 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,
2008.
4. According 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
10
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
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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.
5. This 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 appeal.
6. The 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
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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.
7. Mr. 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,
13
2008 when the appellant was produced before the
learned Chief Judicial Magistrate, Nasik. 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
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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 23,
2008. 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
15
she 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
16
they 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.
8. On 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.
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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 arrest.
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
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November 17, 2008. This order was also not
challenged by the appellant.
9. A 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
20
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 interrogation only. 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
21
statement in Para 9 - "It is significant to mention
that I was not formally arrested on October 10,
2008".
10. According 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
22
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.
11. In 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
23
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, 2008. It also shows that all
24
the 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
25
mentioned 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
appellant.
12. In 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
26
be 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 23, 2008. 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
27
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.
13. The 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, 2008.
14. The 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. However, alleged
violation of Section 160 of Criminal Procedure Code
30
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
31
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
32
Mumbai 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
33
in 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.
15. So 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.
16. Allegation 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".
17. So 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
35
are different. 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.
18. As 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.
19. The 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.
20. Though this Court has come to the conclusion
that the appellant has not been able to establish
37
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
38
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
39
to 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.
21. There 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
40
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
41
"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 747.
22. It 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 placitum c-d.
23. From 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
42
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.
24. According 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
this Court. 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
43
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.
44
25. 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 grounds : (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
46
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."
26. The 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.
27. The 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 of
49
arrest. 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 compensation.
28. In 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).
29. At the time when the appellant moved for bail she
was in judicial custody pursuant to orders of
50
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.
30. The 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
51
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.
31. The 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.
....................................J.
(J.M. PANCHAL)
.....................................J.
(H.L. GOKHALE)
New Delhi;
September 23, 2011.
52
