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Malegaon bomb blast – 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.-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

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 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 1845 OF 2011

 (Arising out of S.L.P. (Criminal) No. 5908 of 2010)

Sadhwi Pragyna Singh Thakur ... Appellant

 Versus

State of Maharashtra ...Respondent

 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 

 2

 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 appellant claims 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 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 persons and injuring more than 

hundred persons. With reference to the said bomb 

blast A.C.R. I-130/08 is registered with Azad Nagar 

Police Station on September 30, 2008 against 

unknown persons under Sections 302, 307, 324, 427 

 3

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. 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.

 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 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 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 that the appellant was 

staying in an Ashram at Jabalpur. P.I. Sawant made a 

 4

call to the appellant to know about her vehicle. The 

appellant told P.I. Sawant that she had sold the same 

long back. 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.I. Sawant 

refused to do so and insisted that the appellant should 

come to Surat. 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. 

Bhim Bhai. At about 10 AM P.I. 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 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. 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 

 5

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 the 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 

Bhim Bhai to beat the appellant and when Bhim Bhai 

refused to do so, he was beaten up and, therefore, 

 6

Bhim Bhai had reluctantly complied the order by 

beating the appellant. According to the appellant on 

October 13, 2008 the appellant was beaten up day and 

night and subjected to vulgar abuse by senior officers. 

The case of the 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 

mobile No. 9406600004 to her friends and 

acquaintances to say that she 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 Bhim 

Bhai was 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 

 7

disciple of the appellant left hospital after which his 

whereabouts are not known to the appellant.

 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 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 her arrest only through media 

when news about her arrest appeared in the 

newspapers on October 25, 2008. Thereupon 

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 meet her on November 2, 

2008 when the appellant was allowed to sign 

Vakalatnama of a lawyer engaged by her sister. The 

 8

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.

 9

 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.

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, 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.

 It is relevant to note that the above application 

was not an application for bail on merits, but on the 

plea that charge sheet was required to be filed within 

 10

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 is 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 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 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 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 

 11

findings of the learned Special Judge. The application 

filed in the High Court was 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 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 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 

 12

 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 08, 2008 and her submission to 

 the ATS custody at Surat on that day and the 

 complete restraint on her freedom of movement from 

 that day 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, 

 13

2008 when the appellant was produced before the 

learned Chief Judicial Magistrate, Nasik. It was 

argued by 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 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 

detention in the ATS office located at Kala Chowki, 

Mumbai and, therefore, onus should have been 

shifted to ATS to 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 

 14

allegedly resided were produced by the ATS nor was 

it explained how the hotel bills could have been paid 

by the appellant and, 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 

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 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 

 15

she was produced before the learned Chief 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 

 16

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 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 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 arrest and her right to 

engage a lawyer, but on the contrary till 

November 2, 2008, ATS had denied to the appellant 

 17

 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, 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 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 High Court.

8. On re-appreciation of the evidence 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. 

 18

 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 

 19

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 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 affidavit is to the effect 

 that the appellant travelled from Jabalpur to Ujjain 

 and arrived at Surat on October 10, 2008 and 

 stayed with her disciple, Bhim Bhai Pasricha. Para 

 20

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 Officer told the appellant to take her 

father along with her but due to his old age the 

appellant suggested that her disciple Bhim 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 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 as an 

accused. Further the appellant was not arrested on 

October 10, 2008 is made clear by her own 

 21

 statement in Para 9 - "It is significant to mention 

 that I was not formally arrested on October 10, 

 2008". 

10. According to the appellant, she, Bhim Bhai 

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. The 

record shows that after reaching Mumbai at midnight 

i.e. the beginning of the October 11, 2008, the 

appellant and Bhim 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 

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 dates 

 22

and left after interrogation 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 

 23

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 

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 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 

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 shows that all 

 24

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 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 Bhim Bhai Pasricha, 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 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 Hospital between October 

17, 2008 and October 20, 2008 which is evident from 

the payments made to the said hospital. It may be 

 25

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 to foot the bill of the two hospitals 

does not inspire confidence of this Court because 

firstly her disciple Bhim Bhai 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 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 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 

 26

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 October 20th, 

21st and 22nd, 2008 the appellant was allowed to 

go. In para 36 the Rejoinder which is reply to 

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. Dharmendra 

Bairagi and Mr. Dilip Nahar support the case of 

the appellant that she was illegally detained by 

 27

 the officers of A.T.S. Mumbai 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 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 

 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 

 is that there was no female Police with her either 

 in the lodges or in the hospitals which cannot be 

 ignored. After detailed discussion of the 

 28

 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 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 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 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 

 29

 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 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 

 30

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 argument of 

the appellant is that absence of a written notice 

requiring her attendance for 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. 

 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 questioning 

and nothing more. The High Court has noticed that 

 31

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 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 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 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 

 32

Mumbai on her own volition. Every single act and 

movement is of her own volition and no force 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 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 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 

 33

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 allegation of any 

 torture in Police custody. 

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 

 34

 Bhim Bhai Pasricha to beat her. No injury was 

 found 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 :-

 "I am not concerned with allegations of 

 ill-treatment and harassment, as also 

 alleged torture, in as much as I am 

 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 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 37 of the NDPS Act. 

 Considerations for grant of bail at the stage of 

 investigation and after the charge sheet is filed 

 35

 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 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 

 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. 

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 

 36

 the date of first remand. In any event, right in 

 this 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 

 37

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 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 Satyanarayana and Others vs. State 

of Andhra Pradesh (1986) 3 SCC 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 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 

 38

 of the reported decision. Chaganti 

 Satyanarayana and Others (Supra) has been 

 subsequently followed in the following four 

 decisions of this Court :

 (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 :

 "The period of 90 days or 60 days has to 

 be computed from the date of detention 

 as per the orders of the 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 SCC 432, Para 5. 

(3) State of Maharashtra Vs. Bharati Chandmal 

Varma (Mrs) (2002) 2 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 

 39

to custody. The 90 days limitation is as such one 

relating to the power of 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 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 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 

 40

 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 

 41

"if already not availed of" used by this court in the 

decision rendered in case 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 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. 

 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 sheet was not filed within 90 

 days, before the consideration of the same and 

 42

 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. 

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. 

 As held earlier 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 produced before the learned 

CJM, Nasik. As such there is no violation of either 

Article 22(2) of the Constitution or Section 167 Cr.P.C.

 In the grounds seeking bail either before the Trial 

Court or before the High Court, bail was not sought for 

 43

on the ground of violation of Article 22(2) of the 

Constitution but it was confined 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 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 

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. 

 44

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 similar case came before this Court 

 from this very District V.L. Rohlua v. Dy. 

 Commr. Aijal Dist. Writ Petitin No.238 of 

 1970, D/- 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 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."

 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 

 45

 he was arrested by the Civil Police and 

 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 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 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 custody. He has since 

 been remanded to jail custody from 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 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, that he was 

 tortured, that the detention order was 

 vague and that as the remand order 

 46

expired on July 18, 1970, his 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 

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 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 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 longer than 15 

 47

 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 

 Nagaland v. Rattan Singh (1996) 3 SCR 

 830. Only the 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 

 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 

 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 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 

 48

 available after the Magistrate 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 715 relied upon by the learned counsel for 

 the appellant was 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 the police. 

 Similarly, the decision relied upon in the case In 

the matter of Madhu Limaye and Others (1969) 1 

SCC 292 is not relating to arrest and detention 

without being produced before the Magistrate, but is 

relating to non-communication of the grounds of 

 49

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 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 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 

 50

 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. 

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 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 

 51

 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. 

 31. The result of the above discussion is that this 

 Court does not find any merits in the present 

 appeal and the same is liable to be dismissed. 

 Therefore, the appeal fails and is dismissed. 

 ....................................J.

 (J.M. PANCHAL)

 .....................................J.

 (H.L. GOKHALE)

New Delhi;

September 23, 2011.52

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