# 14 (ADDL.) S.C.R. 617 SADHWI PRAGYNA SINGH THAKUR v. STATE. OF· MAHARASHTRA

- **Citation:** [2011] 14 S.C.R. 617
- **Court:** Supreme Court of India
- **Decided:** 2011-09-23
- **Case number:** Criminal Appeal No. 1845 of 2011
- **Bench:** J.M. Panchal, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-617-sadhwi-pragyna-singh-thakur-v-state-of-maharashtra-27570
- **Pages:** 40

## Headnote

BAIL:
A
B
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

## Text

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[2011] 14 (ADDL.) S.C.R. 617
SADHWI PRAGYNA SINGH THAKUR
v.
STATE. OF· MAHARASHTRA
(Criminal Appeal No. 1845 of 2011)
SEPTEMBER 23, 2011
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
BAIL:
A
B
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.
On November 20, 2008, the provisions of
Maharashtra Control of Organised Crime Act, 1999 were
invoked. The appellant filed an application for bail before
D
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,
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
F
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
0
appellant, a police constable would have always been
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; 641A-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
0 Special Judge and the High Court are not liable to be
interfered in this appeal. [Paras 12-14] [642-H; 643-A-CE; 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 nonH 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
0
22(2) of the Constitution, because on being arrested on
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] [647B-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 noncompliance 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.
6. At the time when the appellant moved for bail she
B
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] [655G-H; 656-A-C]
Case Law Reference:
1978 (3) SCR 608
1986. (2) SCR 1128
held inapplicable
Para 14
relied on
Para 20,
24
G
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
B
1995 (1) SCR 897
relied on
Para21
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
F
. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
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
H
Saliyan for the Respondent.
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.
0
Therefore, the appellant arrived at Surat Railway Station on
October 10, 2008. After reaching Surat Railway Station, the
appellant straightaway went to the residence of her disciple Mr.
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 A TS 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
A TS 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
0
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
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
G
Control of Organised Crime Act, 1999 were invoked on the
basis of permission granted by DIG, ATS, but application filed
by A TS seeking police custody of the appellant was rejected
on November 24, 2008.
4. According to the appellant she was under detention from
October 10, 2008 and though the 90th day was to expire on
January 09, 2009 the charge-sheet was filed on January 20,
~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 A TS 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.