2011 (9) TMI 1078 - SC - Indian Laws

Bail application - Non-filing of charge sheet - violation of the mandate of Article 22(1) and 22(2) of the Constitution of India - Held that - 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 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. 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 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.

Summary

Issues Involved:
1. Violation of Article 22(1) and 22(2) of the Constitution of India.
2. Non-filing of charge sheet within 90 days as per Section 167(2) of the Code of Criminal Procedure.
3. Allegations of illegal detention and torture by the Anti-Terrorist Squad (ATS).

Detailed Analysis:

1. Violation of Article 22(1) and 22(2) of the Constitution of India:

The appellant claimed that her arrest on October 10, 2008, and subsequent detention by the ATS without being produced before a Magistrate within 24 hours violated her rights under Article 22(1) and 22(2) of the Constitution. However, both the Special Judge and the High Court held that the appellant was not arrested on October 10, 2008, but on October 23, 2008. The Supreme Court re-appreciated the evidence and found that the appellant was indeed arrested on October 23, 2008, and was produced before the Chief Judicial Magistrate, Nasik, on October 24, 2008. The Court noted that there was no complaint about the alleged ill-treatment or illegal detention when the appellant was produced before the Magistrate on October 24, 2008, and November 3, 2008. The Court concluded that there was no violation of Article 22(1) and 22(2) as the appellant was produced before the Magistrate within 24 hours of her arrest on October 23, 2008.

2. Non-filing of Charge Sheet within 90 Days as per Section 167(2) of the Code of Criminal Procedure:

The appellant argued that the charge sheet was not filed within 90 days from her arrest on October 10, 2008, and thus she was entitled to bail under Section 167(2) of the Code of Criminal Procedure. The respondent contended that the charge sheet was filed on January 20, 2009, which was within 90 days from the date of the first remand order on October 24, 2008. The Supreme Court held that the 90-day period begins from the date of the first remand order, not the date of arrest. Since the charge sheet was filed within 90 days from the first remand order, there was no breach of Section 167(2). The Court referred to the precedent set in Chaganti Satyanarayana and Others vs. State of Andhra Pradesh, which established that the 90-day period for filing the charge sheet starts from the date of the Magistrate's remand order.

3. Allegations of Illegal Detention and Torture by the Anti-Terrorist Squad (ATS):

The appellant alleged that she was illegally detained and tortured by the ATS from October 10, 2008, to October 23, 2008. The Court found these allegations unsubstantiated. The appellant's own affidavit indicated that she was not formally arrested on October 10, 2008, and that she voluntarily accompanied the ATS officers for interrogation. The Court noted that the appellant stayed in different hotels and hospitals during this period and was accompanied by her disciple, Bhim Bhai Pasricha, which negated the claim of illegal detention. The Court also observed that no female constable was with the appellant during her stays in hotels and hospitals, further indicating that she was not in police custody. The Court concluded that the appellant's allegations of torture and illegal detention were not credible and were not supported by any medical evidence or contemporaneous complaints.

Conclusion:

The Supreme Court dismissed the appeal, holding that the appellant was not arrested on October 10, 2008, but on October 23, 2008, and was produced before the Magistrate within 24 hours, thus complying with Article 22(1) and 22(2) of the Constitution. The charge sheet was filed within 90 days from the date of the first remand order, in compliance with Section 167(2) of the Code of Criminal Procedure. The allegations of illegal detention and torture were found to be unsubstantiated. Therefore, the appellant was not entitled to bail on the grounds claimed.