TMI Blog2011 (9) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. - CRIMINAL APPEAL NO. 1845 OF 2011 (Arising out of S.L.P. (Criminal) No. 5908 of 2010) - - - Dated:- 23-9-2011 - PANCHAL, J.M. AND GOKHALE, H.L, JJ. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 24,000/- and she had also signed R.T.O. TT transfer form and had no control over the vehicle. P.I. Sawant repeatedly asked the appellant as to how that vehicle reached Malegaon and how it was used to blast bombs, to which the appellant could not give satisfactory answers. P.I. Sawant, therefore, disbelieved the appellant and asked her to accompany him to Mumbai. Initially, P.I. Sawant had suggested to the appellant to take her father along with her, but the appellant had declined the said offer on the ground that physical condition of her father was not well. The appellant expressed her desire to be accompanied by her disciple and P.I. Sawant had granted the same. The appellant with her disciple Bhim Bhai reached Mumbai in the vehicle belonging to P.I. Sawant at 11.30 PM The case of the appellant is that she was taken to Kala Chowki office of ATS whereas the case of P.I. Sawant is quite different. On October 11, 2008 repetitive questions were put to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 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, 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. On November 20, 2008, the provisions of Maharashtra Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had failed to make out a case that she was in police custody from October 10, 2008 to October 22, 2008. The High Court has also held that the appellant was not arrested by the police on October 10, 2008 and has upheld the case of the respondent-State that the appellant was arrested on October 23, 2008. Normally, concurrent findings of facts are not interfered with in an appeal arising by grant of special leave. However, the appellant has made grievance that her rights guaranteed under Article 22(1) and 22(2) of the Constitution were violated by not producing her before the learned Magistrate within 24 hours of her arrest which was effected on October 10, 2008 and, therefore, in order to find out whether there is any violation of the rights guaranteed under Article 22(1) and 22(2) of the Constitution, this Court has undertaken exercise of ascertaining whether the appellant was arrested, as claimed by her, on October 10, 2008 or whether she was arrested on October 23, 2008, as claimed by the respondent. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief 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 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 Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urs 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant including one hundred notes, each of which was of denomination of rupees one hundred i.e. in all ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49. This principle has been reiterated in the following decisions of this Court : (1) State of M.P. vs. Rustam and Others 1995 Supp. (3) SCC 221, para 4, (2) Dr. Bipin Shantilal Panchal vs. State of Gujarat (1996) 1 SCC 718 para 4. It may be mentioned that this judgment was delivered by a Three Judge Bench of this Court. (3) Dinesh Dalmia vs. CBI (2007) 8 SCC 770 para 39, and (4) Mustaq Ahmed Mohammed Isak and others vs. State of Maharashtra (2009) 7 SCC 480 para 12. In Uday Mohanlal Acharya vs. State of Maharashtra (2001) 5 SCC 453, a Three Judge Bench of this Court considered the meaning of the expression if already not availed of used by this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 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 sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to arrest and detention without being produced before the Magistrate, but is relating to non-communication of the grounds of 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 ₹ 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 remand passed by the learned CJM/Special Judge. The appellant did not challenge the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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