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2011 (9) TMI 1078
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....n 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 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 cont....
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....ai to beat the appellant and when Bhim Bhai refused to do so, he was beaten up and, therefore, 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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....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 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 ....
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....y the ATS on October 10, 2008 and was illegally detained in their custody till October 24, 2008 when the appellant was produced before the learned Chief Judicial Magistrate, Nasik. It was argued by 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 allegedly resided were produced by the ATS nor was it explained how the hotel bil....
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....S 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 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, theref....
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....rived at Surat on October 10, 2008 and stayed with her disciple, Bhim Bhai Pasricha. Para 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 statement in Para 9 - "It is significant to mention that I was not....
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....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 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 ....
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....bove 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 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 materials on the record, both, the Trial Court and....
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...., 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 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 a....
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....w that it is not believable as primarily it has been alleged that the Police made her companion 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 are different. In the present case, charge sheet has been filed on J....
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....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 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 Prades....
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....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 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 rel....
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....nt 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 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 D....
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....e 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. Wher....