Sadhvi Pragya Singh Thakur vs State of Maharashtra
The petition challenged the judgment rendered by the learned single Judge of the High Court of Judicature at Bombay 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, was rejected.
The appellant claimed to be the original resident of Surat. According to her she renounced material world and became Sadhwi in a religious ceremony, which was performed at Prayag, Uttar Pradesh and had settled herself at Jabalpur, Madhya Pradesh, in the premises offered by one Agrawal family.
On September 29, 2008 a bomb blast took place at about 9.30 PM in Azad Nagar locality of Malegaon city, killing six persons and injuring more than hundred persons. With reference to the said bomb blast A.C.R. I-130/08 was 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 and 5 of Explosive Substances Act and Sections 16, 18 and 23 of Unlawful Activities (Prevention) Act, 1957.
According to the appellant she was under detention from October 10, 2008 and though the 90th day was to expire on January 09, 2009 the charge- sheet was filed on January 20, 2009. Therefore, the appellant filed an application for bail before the learned Special Judge under Section 167(2) Cr.P.C. and 21(4) MCOCA and also under Section 439 Cr.P.C. Subsequently, according to the appellant, opening part of the application was amended to read as an application for grant of Bail under Section 21(2)(b) of MCOCA. The application was not an 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 / Section 167(2) Cr.P.C. The case of the respondent 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. The learned Special Judge rejected the said Bail Application. Thereupon, the appellant moved the High Court of Mumbai which was a petition under Sections 401 and 439 Cr.P.C against the order of the learned Special Judge. The petition was dismissed.
The judgment delivered by the learned Special Judge indicate 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 held that the appellant was not arrested by the police on October 10, 2008 and upheld the case of the respondent-State that the appellant was arrested on October 23, 2008. The appellant contended 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 was any violation of the rights guaranteed under Article 22(1) and 22(2) of the Constitution, the Supreme Court undertook 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.
After detailed re-appreciation of the evidence on record the Supreme Court found that the case of the appellant that she was arrested on October 10, 2008 was not correct and had been rightly rejected by the learned 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 said date, there was no complaint made to the learned CJM that the appellant was arrested on October 10, 2008 nor there was any complaint about the ill-treatment meted out to her by the officers of A.T.S. Mumbai. Also there was no challenge at any time to the order of remand dated October 24, 2008 on the ground that the appellant was not produced before the learned C.J.M. within 24 hours of her arrest.
The appellant was next produced before the learned C.J.M., Nasik on November 3, 2008. On that date an application was filed that she was picked up on October 10, 2008 and was illegally detained at the ATS Office, Mumbai. The reply was filed on behalf of the respondent on that very date denying the said allegation. The order of remand dated November 3, 2008, noticed the allegation and thereafter the appellant was remanded to judicial custody till November 17, 2008. This order was also not challenged by the appellant.
The Court held that there was no arrest of the appellant on October 10, 2008 as claimed by the appellant. The Court observed that the appellant was called for interrogation which was not equivalent to her arrest and detention. All throughout between October 10, 2008 and prior to her arrest on October 23, 2008 her disciple, Bhim Bhai Pasricha was with her. The averments made by the appellant indicate that the appellant had stayed in three different lodges and was admitted in two different hospitals along with Bhim Bhai Pasricha. Her own specific case was that there was no female Police with her either in the lodges or in the hospitals which could not be ignored. After detailed discussion of the materials on the record, both, the Trial Court and High Court had held that the case of her arrest on October 10, 2008 was not made out by the appellant. Thus the Supreme Court came to the conclusion that the appellant was arrested on October 23, 2008, the appeal was liable to be dismissed.
Then the Supreme Court adverted to the alleged violation of Section 160 of Criminal Procedure Code and allegations of torture etc. The Court observed that prayer for bail could not be automatically granted on establishing that there was procedural breach irrespective of, the merits of matter. The appellant had not claimed bail on merits. Therefore, even if assuming that procedure mentioned in Section 160 was not followed, the prayer of bail could not be granted at this stage. [Nandini Satpathy vs. P.L. Dani and anr AIR 1978 SC 1025 was distinguished by the Court].
The Supreme Court observed that bail had to be only on consideration of merits, except default bail 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, 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 different.
In the present case, charge sheet had been filed on January 20, 2009 and the application for bail before the High Court, if it was to be treated as not merely a revision from the order of the learned Special Judge declining bail but also as a fresh application, was 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) was lost and having regard to the provisions of Section 21 of the MCOC Act the appellant was not entitled to grant of bail, apart from the fact that no argument had been addressed on the merits of the case and only technical pleas under Section 167(2) of the Criminal Procedure Code and Article 22(2) of the Constitution had been taken.
As far as Section 167(2) of the Criminal Procedure Code was concerned the Court came to the conclusion that no case for grant of bail had 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, such right of default bail was lost once charge sheet was filed. The Court found that there was 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 was pursuant to order of remand by the Court, which orders were not being challenged, apart from the fact that Article 22(2) was not available against a Court i.e. detention pursuant to an order passed by the Court.
Though the Supreme Court had come to the conclusion that the appellant had not been able to establish that she was arrested on October 10, 2008, even if it was 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 was not entitled to grant of default bail because the Supreme Court found 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 was the date of first order of the remand and not the date of arrest. [Chaganti Satyanarayana and Others vs. State of Andhra Pradesh (1986) 3 SCC 141]. It had been followed in the following decisions of the Supreme Court : (1) Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J. Kulkarni (1992) 3 SCC 141; (2) State through State through CBI vs. Mohd. Ashraft Bhat and another (1996) 1 SCC 432 (3) State of Maharashtra Vs. Bharati Chandmal Varma (Mrs) (2002) 2 SCC 121 and (4) State of Madhya Pradesh vs. Rustom and Others 1995 Supp. (3) SCC 221.
As there was no dispute that the charge sheet was filed within 90 days from the first order of remand. Therefore, the appellant was not entitled to default bail. The Supreme Court further observed that right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said 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. On the issue the Court followed the Constitution Bench decision in Sanjay Dutt vs. State (1994) 5 SCC 410, followed in decisions : (1) State of M.P. vs. Rustam and Others 1995 Supp. (3) SCC 221 (2) Dr. Bipin Shantilal Panchal vs. State of Gujarat (1996) 1 SCC 718 (3) Dinesh Dalmia vs. CBI (2007) 8 SCC 770 and (4) Mustaq Ahmed Mohammed Isak and others vs. State of Maharashtra (2009) 7 SCC 480.
The Court also observed 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 could not 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 was based on the averment by the appellant that she was arrested on October 10, 2008. But the Court came to the conclusion that 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 showed 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 was 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, the Supreme Court was of the opinion that question of violation of Article 22(2) did not arise. The Appeal was thus dismissed.