Supreme Court of India
SADHWI PRAGYNA SINGH THAKURversusSTATE. OF MAHARASHTRA
- Citation
- 2011 INSC 706
- Decided
- 23 September 2011
- Disposal
- Dismissed
- Bench
- M PANCHAL
Holding
The appellant was arrested on 23 October 2008, the charge‑sheet was filed within 90 days of the first remand order, there was no violation of Article 22(2) or Section 167(2), and consequently bail was not warranted.
Summary
The appellant, Sadhwi Pragnya Singh Thakur, was alleged to have been arrested on 10 October 2008 in connection with the Malegaon bomb blast and claimed that she was not produced before a magistrate within 24 hours, violating Article 22(1) and 22(2) of the Constitution, and that the charge‑sheet was filed after the 90‑day period prescribed under Section 167(2) of the CrPC. The Special Judge and the High Court rejected her bail application, holding that she was actually arrested on 23 October 2008, produced before the Chief Judicial Magistrate on 24 October 2008, and that the charge‑sheet was filed within 90 days of the first remand order. The Supreme Court examined whether the date of arrest or the date of first remand governs the 90‑day period, the relevance of Section 160 notice, and whether procedural breaches alone can merit bail after a charge‑sheet is filed. It concluded that the appellant’s claim of arrest on 10 October was unsupported, there was no violation of Article 22(2), the charge‑sheet was timely, and bail could not be granted. The appeal was dismissed.
Issues considered
- The correct date of the appellant's arrest and whether it was on 10 October 2008 or 23 October 2008.
- Whether the 90‑day period for filing a charge‑sheet under Section 167(2) CrPC starts from the date of arrest or from the date of the first remand order.
- Whether non‑issuance of a notice under Section 160 CrPC bars the filing of a bail application.
- Whether alleged illegal detention and torture by ATS affect the entitlement to bail.
- Whether bail can be granted on the ground of procedural breach after a charge‑sheet has been filed.
Legislation cited
- Code of Criminal Procedure, 1973s. 160, s. 167(2), s. 50-A
- Constitution of Indias. Article 22(1), s. Article 22(2)
- Maharashtra Control of Organised Crime Act, 1999s. 21(2)(b), s. 21(4)
- Narcotic Drugs and Psychotropic Substances Acts. 37
Subjects
bailSection 167(2) CrPCArticle 22MCOCAdefault bailarrest dateremand orderprocedural breachillegal detentionAnti‑Terrorist Squad
Judgment
[2011] 14 (ADDL.) S.C.R. 617
SADHWI PRAGYNA SINGH THAKUR A
v.
STATE. OF· MAHARASHTRA
(Criminal Appeal No. 1845 of 2011)
SEPTEMBER 23, 2011
B
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
BAIL:
Bomb blast - Arrest of appellant - Bail application on the c
ground that the arrest of appellant violated the mandate of
Article 22(1) and 22(2) of the Constitution and also on the
ground that no charge sheet was filed within 90 days· as
contemplated ul s.167(2), Cr.P.C. - Special court and High
Court rejected the bail application - On appeal, held: The case 0
of appellant that she was arrested on October 10, 2008 and
charge sheet was filed on January 20, 2009, which was beyond
90th day from date of first remand order was not established
and was rightly rejected by lower courts - Appellant was
arrested on October 23, 2008 and was produced before the E
Magistrate the next day on which date the appellant was
remanded to Police custody till November 3, 2008 - Both the
courts below concurrently so held which is well founded and
is not liable to be .interfered with - Code of Criminal
Procedure, 1973 - s.167(2) - Constitution of India, 1950· - F
Article 22(2) - MCOC Act.
Grant of bail - Consideration for - Held: Considerations
for grant of bail at the stage of investigation and after the
charge sheet is filed are different - ·Once a person is arrested
and is in judicial custody, the prayer for bail will have to be G
considered on merits - Prayer for bail cannot be automatically
granted on establishing that there was procedural breach
irrespective of the merits of matter.
617 H
618 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A CODE OF CRIMINAL PROCEDURE, 1973:
s.167(2) - Held: The right uls.167(2) 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
8 - The said right would be lost if charge sheet is filed and would
not survive after the filing of the charge sheet - After the filing
of the charge sheet, if the accused is to be released on bail,
it can be only on merits.
Relevant date of counting 90 days for filing charge sheet
C - Held: Is the date of first order of the remand and not the date
of arrest.
CONSTITUTION OF IND/A, 1950: Article 22(2) - Held:
Right u/Article 22(2) is available only against illegal detention
o 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.
A bomb blast took place on September 29, 2008 in
Malegaon city killing six persons and injuring more than
E hundred persons. The initial investigations revealed that
the bomb was planted on a scooter. The investigation of
the case was transferred to Anti Terrorists Squad (ATS).
The investigation conducted by police official 'S' revealed
that the scooter belonged to the appellant who was
F originally resident of Surat and had renounced material
world and become Sadhwi in a religious ceremony and
was settled in Jabalµ,ur. The police official 'S' called up
the appellant to enqilik about the scooter. The appellant
told him that she had sold the scooter long back. 'S' was
G not satisfied with the explanation and asked her to come
down to Surat. The appellant came to Surat. 'S' repeatedly
asked the appellant as to how that vehicle reached
Malegaon and how it was used in the bomb blasts to
which the appellant could not give satisfactory answers.
H 'S' disbelieved her and asked her to accompany her to
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 619
MAHARASHTRA
Mumbai. 'S' suggested to her to take her father along with A
her but she declined the said offer on the ground of ill
health of her father. She expressed her desire to be
accompanied by her disciple. 'S' granted the same. The
appellant with her disciple 'BB' reached Mumbai in a
vehicle belonging to 'S'. The case of the appellant was 8
that she was taken to ATS office on 11th October, 2008
and interrogated. On 12th October 2008, the ATS team
became more aggressive and asked 'BB' to beat the
appellant and when 'BB' refused, he was beaten up and
so he reluctantly complied with the order by beating the C
appellant. On· 13th October 2008, she was beaten up
whole day and subjected to vulgar abuses. On 15th
October 2008, she and the disciple was taken to the Hotel
Rajdoot. Thereafter she developed bad health and was
admitted in hospital.
D
On November 20, 2008, the provisions of
Maharashtra Control of Organised Crime Act, 1999 were
invoked. The appellant filed an application for bail before
the Special Judge under Section 167(2), Cr.P.C. and 21(4)
MCOCA and also under Section 439 Cr.P.C. The Special E
Judge rejected the said bail application. The appellant
unsuccessfully filed an application before the High Court.
·In the instant appeal, it was contended for the
appellant that she was under detention from October 10,
F
2008 and though the 90th day expired on January 09,
2009 the charge-sheet was filed on January 20, 2009; that
there was violation of Section 160, Cr.P.C.; that there was
no written notice requiring her attendance to appear for
any investigation or interrogation and absence of such G
written notice established her illegal custody by officers
of A.T.S., Mumbai. The case of the respondent-State was
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; and that the appellant had agreed to
H
620 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A come to Surat and Bombay and therefore the point of
issuance or non-issuance of notice under Section 160,
Cr.P.C. was not relevant.
Dismissing the appeal, the Court
B HELD: 1.1. The courts below upheld the case of the
respondent-State that the appellant was arrested on
October 23, 2008 and not on October 10, 2008 as alleged
by the appellant. Normally, concurrent findings of facts
are not interfered with in an appeal arising by grant of
c special leave. However, the appellant had made
grievance that her rights guaranteed under Article 22(1)
and 22(2) of the Constitution were violated by not
producing her before the Magistrate within 24 hours of
her arrest which was effected on October 10, 2008 and,
o therefore, in order to find out whether there was any
violation of the rights guaranteed under Article 22(1) and
22(2) of the Constitution, this Court undertook exercise
of ascertaining whether the appellant was arrested, as
claimed by her, on October 10, 2008 or whether she was
E arrested on October 23, 2008, as claimed by the
respondent. [Para 6] [636-A-C]
1.2. On re-appreciation of the evidence on record,
this Court found that the case of the appellant that she
was arrested on October 10, 2008 was not correct and
F was rightly rejected by the Special Judge as well as by
the High Court. 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
G said date, there was no complaint made to the 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
H October 24, 2008 on the ground that the appellant was
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 621
MAHARASHTRA
not produced before the C.J.M. within 24 hours of her A
arrest. The appellant was next produced before the 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 B
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 riot challenged
by the appellant. A detailed affidavit was filed by the c
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 showed that even if all the
allegations in the said affidavit were taken on their face
value, a case of arrest on October 10, 2008 was not made 0
out. It is clear from the language of the affidavit 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 E
statement in Para 9 - "It is significant to mention that I was
not formally arrested on 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 was
factually incorrect. The record showed that after reaching F
Mumbai at midnight i.e. the be.ginning of the October 11,
2008, the appellant and 'BB' stayed in Hotel Satguru from
October 11th to 15th, 2008. The relevant entry in the
station diary for October 11, ·2008 aiso mentions about the
stay of the appellant in a lodge. The fact that the appellant G
and her companion attended the office of A.T'.S~ on the
11th and on subsequent dates and left after interrogation
was also recorded in the station diary for 11th to 15th
October, 2008. In para 11 of the affidavit it was mentioned
by the appellant that during interrogation the police had H
622 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A asked 'BB' to beat her with sticks etc. This would show
that 'BB' 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
s companion. The averments in the affidavit would show
that disciple 'BB' was all along with the appellant, which
would negate her case that she was illegally arrested and
detained by the police. In para 17 of the affidavit, the
appellant clearly and expressly averred that no female
c constable was by her side either in Hotel Rajdoot or in
. either of the two hospitals. This statement of appellant
was very important in as much as this clearly showed
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
0
around, which is not the case. This positive averment of
the appellant belied her plea raised later on about her
arrest on August 10, 2008. The Hospital documents of the
Shushrusha Hospital showed that the appellant was
admitted in the hospital on October 15, 2008 and was
E discharged on October 17, 2008. It also showed that all
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
F appellant also would have been handed over to the
police which is not the case. The letter of the doctor of
the chest clinic showed that the appellant was brought
to the hospital by 'BB', described as a relative of the
appellant. If the appellant was under arrest she would
G have been brought to the hospital by the police and
doctor would have so recorded it, in medical papers
which was not the case. The doctor only recorded that a
Police Officer merely had called up for the same patient
i.e. made enquiries about the condition of the p~tient. The
H doctor further recorded that the appellant was transferred
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 623
MAHARASHTRA
to Vaze Hospital for further treatment. The appellant was A
in Vaze Hospital between October 17, 2008 and October
20, 2008 which is evident from the payments made to the
said hospital. The hospital receipts were 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 B
means to foot the bill of the two hospitals did not inspire
confidence of this Court because firstly her disciple
'BB'was never in custody of the police and secondly
panchnama prepared at the time of the arrest of the
appellant on October 23, 2008 mentioned the articles c
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 was no where pleaded
by the appellant that the said amount did not belong to
her. Even assuming that amount mentioned in the bills
0
of the two hospitals was paid by the police such payment
itself would not indicate illegal arrest and custody of the
appellant. [Paras 8-11) [638-G-H; 639-A-H; 640-A-H; 641-
A-H; 642-A-G]
1.3. In so far as October 21st and 22nd, 2008 were E
concerned the appellant had not given any specific
details except claiming that she was brought back to the
ATS Office. This appeared to be factually incorrect. In para
18 of the report sent to the National Human Rights
Commission it was specifically stated by the respondent F
that after being discharged from Vaze Hospita~ 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. It was averred in the affidavit that G
after questioning on October 20th, 21st and 22nd, 2008
the appellant was allowed to go. These facts would.
clearly show that there was no arrest of the appellant on
October 10, 2008. In paragraph 19, the appellant herself
has stated that she "was finally arrested on 23.10.2008 H
624 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A and produced before the CJM on 24.10.2008". This was
her specific case namely that she was arrested on
October 23, 2008. However, at a later stage, before the
Special Judge in her application for default bail dated
January 14, 2009, the word "finally" was changed to
B "officially" and before the High Court it was sought to be
pleade,9 that the appellant was "formally" arrested
instead bf the expression "finally" arrested on October
2~; .,.2008. The findings recorded by the Special Judge as
well as by the High Court that the appellant was not
c ~rrested on October 10, 2008 but was arrested on October
23, 2008 and was thereafter produced before the CJM are
concurrent findings of facts. There was no substance in
the contention that the appellant was arrested on October
10, 2008 and therefore the findings recorded by the
Special Judge and the High Court are not liable to be
0
interfered in this appeal. [Paras 12-14] [642-H; 643-A-C-
E; 644-A-D]
2.1. The issue whether the issuance or non-issuance
of notice under Section 160 Cr.P.C. was relevant or not
E was considered in detail by the High Court. The High
Court noticed that the appellant was not detained or
taken into custody but was only questioned and was
thereafter allowed to go. The High Court observed that
once the applicant's movements were not restricted nor
F 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 explained that assuming that the
custody and arrest are synonymous terms, yet in the
G facts of this case, it was not possible to conclude that the
appellant was in custody and was arrested by the ATS.
Every single act and movement was of her own volition
and no force was used. The High Court, therefore, did not
go into the wider question as to whether the non-
H compliance with Section 160(1) including its proviso
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 625
MAHARASHTRA
would enable the appellant to apply for release on bail. A
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 had not B
claimed bail on merits. Therefore, even if assuming that
procedure mentioned in Section 160 was not followed,
the prayer of bail cannot be granted at this stage. [Para
14] [645-C-H; 646-A-C] .
Nandini Satpathy vs. P,L. Dani and another AIR 1978 SC C
1025: 1978 (3) SCR 608 - held inapplicable.
2.2. So far as allegation of torture was concerned, it
was found that when the appellant was produced llefore
the CJM on October 24, 2008, there was no allegation of D
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. Allegation of
ill treatment in the Police custody was made for the first
time, in the affidavit dated November 17, 2008, a perusal E
of which would show that it was not believable as
primarily it was alleged that the Police made her
companion 'BB' to beat her. No injury was found on her
body by any of the doctors in the two hospitals. [Paras
15, 16] [646-E-G] F
2.3. So far as merits of the case are concerned under
the Criminal Procedure CodP., 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 G
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 are
H
626 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A different. In the instant case, charge sheet was 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 Special Judge declining bail but also
as a fresh application, was an application dated August
B 24, 2.009, 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 was not
entitled to grant of bail. As far as Section 167(2), Cr.P.C.
c was concerned, no case for grant of bail was made out
under the said provision as charge sheet was filed before
the expiry of 90 days from the date of first remand. In any
event, right in this regard of default bail is lost once
charge sheet is filed. There was no violation of Article
22(2) of the Constitution, because on being arrested on
0
October 23, 2008, the appellant was produced before the
CJM on October 24, 2008 and subsequent detention in
custody was pursuant to order of remand by the Court,
which orders were not being challenged, apart from the
E fact that Article 22(2) is not available against a Court i.e.
detention pursuant to an order passed by the Court. The
appellant was not able to establish that she was arrested
on October 10, 2008. Both the courts below concurrently
so held which was well founded and did not call for any
interference by this Court. Even assuming that the
F appellant was arrested on October 10, 200S as claimed by
her and not on October 23, 2008, she is not entitled to
grant of default bail beca Jse 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
G filing charge sheet is the date of first order of the remand
and not the date of arrest. Section 167(2) is one, dealing
with the power of the CJM to remand an accused to
custody. The 90 days limitation is as such one relating to
the power of the CJM. In other words the Magistrate
H cannot remand an accused to custody for a period of
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 627
MAHARASHTRA
more than 90 days in total. Accordingly, 90 days would A
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. [Paras 17-20] [647-
B-H; 648-A-E; 649-C-D] B
Chaganti Satyanarayana and Others vs. State of Andhra
Pradesh (1986) 3 SCC 141: 1986 (2) SCR 1128; Central
Bureau of Investigation, Special Investigation Cell-I, New
Delhi vs. Anupam J. Kulkarni (1992) 3 SCC 141: 1992 (3) C
SCR 158; State through CBI vs. Mohd. Ashraft Bhat and
another (1996) 1 SCC 432: 1995 (6) Suppl. SCR 300; State
of Maharashtra Vs. Bharati Chandmal Varma (Mrs) (2002) 2
SCC 121: 2001 (5) Suppl. SCR 422; State of Madhya
Pradesh vs. Rustom and Others 1~95 Supp. (3) SCC 221:
1995 (1) SCR 897 - relied on. D
3. There is yet another aspect of the rnatter. The right
under Section 167(2) of Cr.P.C. to be released oil bail on
default if charge sheet is not filed within 90 days from the
date of first remand is not an absolute or indefeasible E
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 F
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. [para 21] [649-E-G]
Sanjay Dutt vs. State (1994) 5 SCC 410; State of MP.vs. G
Rustamand Others 1995 Supp. (3) SCC 221; Dr. Bipin
Shanti/al Panchal vs. State of Gujarat (1996) 1 sec 718;
Dinesh Dalmia vs. CBI (2007) 8 sec 770; Mustaq Ahmed
Mohammed Isak and others vs. State of Maharashtra (2009)
7 sec 480 - relied on. H
628 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 4. 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
B produced before the CJM, Nasik. As such there is no
violation of either Article 22(2) of the Constitution or
Section 167 Cr.P.C. 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
c 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
0 custody by the 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. [para 24] [651-A-F]
Uday Mohan/al Acharya vs. State of Maharashtra (2001)
E · 5 SCC 453; Union of India vs. Thamisharasi and Others
(1995) 4 SCC 190; Saptawna vs. The State of Assam AIR
(1971) SC; V. L. Roh/ua vs. Deputy Commissioner, Aijal,
District Mizo (1970) 2 SCC 908 - referred to.
F 5. 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
available after the Magistrate remands the accused to
custody. Right under Article 22(2) is available only
G 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. [Para 26] [654-F-G]
Manoj vs. State of MP. (1999) 3 SCC 715: 1999 (2) SCR
H 402; In the matter of Madhu Limaye and Others (1969) 1
SADHWI PRAGYNA SINGH THAKUR v. STATE OF · 629
MAHARASHTRA
SCC 292: 1969 (3) SCR 154; Bhim Singh, MLA vs. State of A
J & K and Others (1985) 4 SCC 677; Khatri and Others (II)
vs. State of Bihar and Others (1981) 1 SCC 627: 1981 (2)
SCR 408; The State of Bihar vs. Ram Naresh Pandey and
another AIR 1957 SC 389: 1957 SCR 279 - relied on.
B
6. At the time when the appellant moved for bail she
was in judicial custody pursuant to orders of remand
passed by the CJM/Special Judge. The appellant did not
challenge the orders of remand dated October 24, 2008,
November 3, 2008, November 17, 2008 and subsequent C
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. The plea that Article
22(2) of the Constitution was violated is based on the
averment by the appellant that she was arrested on D
October 10, 2008. Factually this plea was not 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 E
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 F
facts and circumstances of the case, the question of
violation of Article 22(2) did not arise. [Paras 29, 30] [655-
G-H; 656-A-C]
Case Law Reference:
G
1978 (3) SCR 608 held inapplicable Para 14
1986. (2) SCR 1128 relied on Para 20,
24
H
630 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 1992 (3) SCR 158 relied on Para 20
1995 (6) Suppl. SCR 300 relied on Para 20
2001 (5) Suppl. SCR 422 relied on Para 20
1995 (1) SCR 897 relied on Para21
B
1996 (1) SCR 193 relied on Para 21
2007 (9) SCR 1124 relied on Para 21
2009 (8) SCR 465 relied on Para 21
c
2001 (2) SCR 878 relied on Para 21 ·
1995 (3) SCR 905 relied on Para 22
AIR (1971) SC 813 relied on Para 25
D (1970) 2 sec 90s relied on Para 25
1999 (2) SCR 402 relied on Para 27
1969 (3) SCR 154 relied on Para 27
E (1985) 4 sec 677 relied on Para 27
1981 (2) SCR 408 relied on Para 28
1957 SCR 279 relied on Para 28
. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
F
No. 1845 of2011.
From the Judgment and Order dated 12.3.2010 of the High
Court of Bombay in Criminal Appeal No. 3878 of 2009.
G S.8. Sanyal, Ganesh Sovani, Anand De, Rajashree N.
Reddy and Dr. Sushil Balwada for the Appellant.
A. Mariarputham, P.K. Dey, Padmalakshmi Nigam, Asha
Gopalan Nair, Shreekant N. Terdal, Yusuf Khari and Rohini
Saliyan for the Respondent.
H
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 631
MAHARASHTRA
The Judgment of the Court was delivered by A
J.M. PANCHAL, J. 1. 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 8
Application No. 3878 of 2009 by which prayer made by the
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 C
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 religio_us ceremony, which was performed at o
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 E
persons and injuring more than hundred perso,ns. With
reference to the said bomb blast A.C.R. 1-130/08 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 F
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. G
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 H
632 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
a· 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 thal
the appellant was staying in an Ashram at Jabalpur. P.I. Sawanl
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.
C 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.1. Sawant refused
to do so and insisted that the appellant should come to Surat.
Therefore, the appellant arrived at Surat Railway Station on
0
October 10, 2008. After reaching Surat Railway Station, the
appellant straightaway went to the residence of her disciple Mr.
Shim Bhai. At about 10 AM P.1. 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
E 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. TI 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
F 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 tier father along with her,
but the appellant had declined the said offer on the ground that
G 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.1. Sawant at 11.30 PM The case of the appellant is that
H she was taken to Kala Chowki office of ATS whereas the case
SADHWI PRAGYNA SINGH THAKLR v. STATE OF 633
MAHARASHTRA [J.M. PANCHAL, J.]
of P.I. Sawant is quite different. On October 11, 2008 repetitive A
questions were put to th~ 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 Shim Shai to beat the appellant and s
when Shim Shai refused to do so, he was beaten up and,
therefore, Shim Shai had reluctantly complied the order by
beating the appellant. According to the appellant on October
13, 2008 the appellant w9s beaten up day and night and
subjected. to vulgar abuse by senior officers. The case of the c
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
0
mobile No. 9406600004 to her friends and acquaintances to
say that sh~ 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 Shim Shai was E
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 disciple of the appellant left hospital after which
his whereabouts are not known to the appellant. F
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 G
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 H
634 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A her arrest only through media when news about her arrest
appeared in the newspapers on October 25, 2008. Th~reupon
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
B meet her on November 2, 2008 when the appellant was allowed
to sign Vakalatnama of a lawyer engaged by her sister. The
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,
c 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
0
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
E 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.
F 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.
G
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,
~009. Therefore, the appellant filed an application for bail
.H 6efore the learned Special Judge under Section 167(2) Cr.P.C.
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 635
MAHARASHTRA [J.M. PANCHAL, J.]
and 21(4) MCOCA ·and also under Section 439 Cr.P.C. A
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 MCOQA.
It is relevant to note that the above application was not an B
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 I Section
167(2) Cr.P.C. The case of the respondent is that the charge C
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 D
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 E
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 F
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 G
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 H
636 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B her rights guaranteed under Article 22(1) and 22(2) of the
Constitution were violated by not producing her bdore the
learned Magistrate within 24 hours of her arrest which was
effected 011 October 10, 2008 and, therefore, in order to find
out whether there is any violation of the rights guaranteed under
C 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.
D 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 A TS custody at Surat on that day and the
complete restraint on her freedom of movement from that day
E 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, 2008 when the appellant was produced before
the learned Chief Judicial Magistrate, Nasik. It was argued by
F 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
G 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
H detention in the ATS office located at Kala Chowki, Mumbai
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 637
MAHARASHTRA [J.M. PANCHAL, J.]
and, therefore, onus· should have been shifted to ATS to A
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, B
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 c
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 D
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 she was
produced before the learned Chief Judicial Magistrate, Nasik, E
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 F
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 M.r. Dharmendra Bairagi and another
filed by Mr. Dilip Nahar before the learned Judicial Magistrate G
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 H
638 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A in a room adjoining the room in which 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
B 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
c 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
0
arrest and her right to engage a lawyer, but on the contrary till
November 2, 2008, ATS had denied to the appellant 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,
E 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
F 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 Hi~h
Court.
G 8. On re-appreciation of the eviaence 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.
H
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 639
MAHARASHTRA [J.M. PANCHAL, J.]
The appellant was arrested on October 23, 2008 and was A
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- B
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. c
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 oil behalf of the respondent on that very date D
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 appellant.
E
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 1O,' F
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 pqlice about her"LML
Freedom Motor Cycle and that the Police insisted that she
~hould come to Surat as the Police Officer "wanted to question G
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 affidav_it is to
the effect that the appellant travelled from Jabalpur to Uliain and
arrived at Surat on October 10, 2008 and stayed with her H
640 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A disciple, Shim 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
B Officer told the appellant to take her father along with her but
due to his old age the appellant suggested that her disciple
Shim 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
C 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
0
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".
E 10. According to the appellant, she, Bhim Shai 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.
F The record shows that after reaching Mumbai at midnight i.e.
the beginning of the October 11, 2008, the appellant and Shim
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
G 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
H dates and left after interrogation is also recorded in the station
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 641
MAHARASHTRA [J.M. PANCHAL, J.J
diary for 11th to 15th October, 2008. In para 11 of the affidavit A
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 B
person who is arrested and kept in police custody is not
provided any companion~ The averments in the affidavi! would
show that disciple Bhim Bhai Pasricha wa.s all along with the
appellant, which would negate her case that she was illegally
arrested and detained by the police. c
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 D
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 E
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 F
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 G
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 H
642 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A shows that all 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
s 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 Shim Shail'asricha, 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
c 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
0
Hospital between October 17, 2008 and October 20, 2008
which is evident from the payments made to the said hospital.
It may be 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
E to foot the bill of the two hospitals does not inspire confidence
of this Court because firstly her disciple Shim Shai 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
F 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
G 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.
H This appears to be factually incorrect. In para 18 of the report
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 643
MAHARASHTRA [J.M. PANCHAL, J.]
· sent to the National Human Rights Commission it has been A
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 B
.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 1s 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 c
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. Dharrnendra
Bairagi and Mr. Dilip Nahar support the case of the appellant
that she was illegally detained by the officers of A.T.S. Mumbai
0
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 E
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 F
averrnents 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 G
detailed discussion of the 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 H
644 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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
B 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
C 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 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
D 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
E 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.
F
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 and allegations of torture etc. are
G 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
H interrogation. The further argument of the appellant is that
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 645
MAHARASHTRA [J.M. PANCHAL, J.]
absence of a written notice· requiring her attendance for A
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. B
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 C
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 D
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 E
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 F
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 Mumbai on her own volition. Every
single act and movement is of her own volition and no force G
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 H
646 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
8 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
C claimed bail on merits. Therefore, even if assuming that
procedure mentioned 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
0
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 .
E 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.
F 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 Shim Bhai Pasricha to beat her. No injury was found
G 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:-
H "I am not concerned with allegations of ill-treatment and
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 647
MAHARASHTRA [J.M. PANCHAL, J.]
harassment, as also alleged torture, in as much as I am A
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 8
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 C
37 of the NDPS Act. Considerations for grant of bail at the
stage of investigation and after the charge sheet is filed 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 D .
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 E
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.
F
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
the date of first remand. In any event, right in this regard of G
default bail is lost once charge sheet is filed. Tliis 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 H
648 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
8
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. Th0ugh this Court has come to the conclusion that the
C 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
o 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
E Satyanarayana and Others vs. State of Andhra Pradesh
(1986) 3 sec 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
F 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 :
G (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 :
H "The period of 90 days or 60 days has to be computed
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 649
MAHARASHTRA [J.M. PANCHAL, J.]
from the date of detention as per the orders of the A·
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 sec 432, Para 5. (3) State of
Maharashtra Vs. Bharati Chandmal Varma (Mrs) (2002) 2 8
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 to custody.
The 90 days limitation is as .such one relating to the power of C
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 D
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 E
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, F
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 G
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 Shanti/al Panchal vs. State of H
650 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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.
B
In Uday Mohan/al 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
C 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
D 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.
E 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
F 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.
G
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.
H
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 651
MAHARASHTRA [J.M. PANCHAL, J.]
As held earlier the plea that the appellant was arrested on A
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) B
of the Constitution or Section 167 Cr.P.C.
In the grounds. seekfng bail either bef?re 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 C
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 D
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 E
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.
F
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) G
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 H
652 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B
No.238of1970, DI- 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
c 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."
D
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 he was arrested by the Civil Police and
E
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
F 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
G 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
H
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 653
MAHARASHTRA [J.M. PANCHAL, J.]
custody. He has since been remanded to jail custody from A
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 8
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, C
that he was tortured, that the detention order was vague ·
and that as the remand order expired on July 18, 1970,
nis 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 D
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 E
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 F
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 G
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 petitkmer was in the custody of the Armed Forces a
question might Well have arisen that he was entitled to be H
654 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B longer than 15 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
Naga/and v. Rattan Singh (1996) 3 SCR 830. Only the
c 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
D
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
E
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
F 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 available after the Magistrate
G 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
H
SADHWI PRAGYNA SINGH THAKUR v. STATE OF 655
MAHARASHTRA [J.M. PANCHAL, J.]
715 relied upon by the learned counsel for the appellant was a 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 B
the police.
Similarly, the decision relied upon in the case In the matter
of Madhu Limaye and Others (1969) 1 sec 292 is not relating
to arrest and detention without being produced before the
Magistrate, but is relating to non-communication of the grounds C
of arrest. Further the decision-in Bhim Singh, MLA vs. State
of J & K and Others (1985) 4 sec 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 D
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 sec 627 persons were in jail without being produced
before the Judicial Magistrate. It was not a case where the E
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 F
relating to Article 22(2).
29. At 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, G
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
~lice. H
656 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B 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
c not make out a case of her arrest on October 10, 2008. Having
regard to the totality of the facts and.circumstances of th~ 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
D does not find any merits in the present appeal and the same
is liable to be dismissed. Therefore, the appeal fails and is
dismissed.
D.G. Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "bail"Sign in to search