Reportable

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

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  

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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  

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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  

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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,  

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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  

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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  

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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.

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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  

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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  

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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  

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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,  

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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  

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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  

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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  

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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  

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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.  

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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  

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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  

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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  

20

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  

21

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  

22

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  

23

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  

24

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  

25

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  

26

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  

27

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  

28

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  

29

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  

30

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  

31

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  

32

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  

33

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  

34

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  

35

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  

36

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  

37

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  

38

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  

39

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  

40

“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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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