TaxTMI 
TaxTMI 
2021 (10) TMI 1281
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....roduced before the Magistrate on 09.03.2021 in the morning at about 10.00 a.m., thereby showing that his right under Article 22(2) of the Constitution stood violated. As per the said Article of the Constitution, every person who is arrested and detained in custody, has to be produced before the nearest Magistrate within a period of 24 hours. It is contended that the said right of the Applicant was violated, thereby showing that his liberty was curtailed without adhering to procedure established by law and that, therefore, his right under Article 21 of the Constitution of India, stood violated. 3. Mr. Poulekar, the learned Counsel appearing for the Applicant, in order to support the aforesaid contention, invited attention of this Court to the panchanama dated 07.03.2021, executed by the concerned Officer of the Respondent no.1. It was brought to the notice of this Court that the panchanama records that at 6:25p.m., the team of Respondent no.1 reached the house of the Applicant. It is recorded that there was some resistance, wherein the Officer of the Respondent no.1 suffered minor injuries and that the Applicant and another person were taken into control. The panchanama records how....
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....ate of Maharashtra (2011) 10 SCC 445, for the reason that the said judgment has been held to be per incuriam by a coordinate Bench of the Hon'ble Supreme Court in the case of Union of India, through Central Bureau of Investigation vs. Nirala Yadav alias RajaRam Yadav alias Deepak Yadav (2014) 9 SCC 457 and by a three Judge Bench of the Hon'ble Supreme Court in the case of M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485. 6. It was submitted on behalf of the Applicant that, once the said ground of violation of Article 21 and 22(2) of the Constitution was raised on behalf of the Applicant on 08.03.2021 itself before the Magistrate, even if subsequently an order was passed sending the Applicant to judicial custody, the right that accrued to the Applicant could not be denied to him. According to the learned Counsel for the Applicant, the present case is squarely covered by judgment of this Court in the case of Suaibo Ibow Casamma vs. Union of India 1994(1) Bom CR 64, wherein this Court in identical circumstances, held that the Applicant was entitled to be released on bail due to violation of his rights under Articles 21 and 22(2) of the Const....
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.... of the Cr.P.C., was distinct from violation of right under Article 21 and 22(2) of the Constitution of India. It was further submitted that if the Applicant claimed violation of any such right, he could have filed a Writ Petition before this Court to raise such a grievance, but, in the face of the order passed by the Special Court sending him to judicial custody on 09.03.2021, no such ground was available for the Applicant to seek bail. 8. In the present case, before considering the position of law and apply the same to the facts of the present case, it needs to be first examined as to whether the Applicant is justified in claiming that he was detained on 07.03.2021 itself. In this regard, the contents of the panchanama dated 7th/8th March, 2021 assume significance. 9. A perusal of the panchanama shows that the Respondent no.1 has recorded that the house of the Applicant was raided at about 6:25 p.m. on 07.03.2021. It is recorded that when the Applicant and the other accused person saw the team of Respondent no.1 at the door, they resisted entry as a result of which, one of the Officers of the Respondent no.1 suffered minor injuries. It is significant that in the panchanama itse....
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....shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for the journey from the place of his arrest to the Court of Magistrate and that in no case such a person shall be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. There is no explanation whatever as to why the petitioner was not produced before the Magistrate in the city of Bombay before 5.30 a.m. on 3rd November, 1991. Admittedly, he was produced before the Magistrate much later i.e. to say on 4th November, 1991 at 3 a.m. as contended by petitioner at 11 a.m. on 4th November, 1991 as contended by the respondents. In my view, the detention of the petitioner beyond the permissible limit of 24 hours is in clear violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. ... 22. Looking to the above facts and circumstances, Shri Patwardhan has rightly impressed upon me the necessary of making a few general observations in the larger interests of upholding the rule of law. Having regard to the settled position in law and having regard to the scheme of the provisions of Section 1....
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....stage, it becomes necessary to examine as to whether the learned Additional Public Prosecutor is justified in contending that the judgment in the case of Pragyna Singh Thakur (supra), can be relied upon and since the Applicant failed to challenge the order passed by the Special Court sending him to judicial custody, he could not later claim that he was entitled to bail due to violation under Article 22(2) of the Constitution. Specific reliance is placed on paragraph 63 and 67 of the said judgment, which read as follows: "63. 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 available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate a....
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.... lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three- Judge Bench decision in Mustaq Ahmed Mohammed Isak's case. We are disposed to think so, as the two-Judge Bench has used the words "before consideration of the same and before being released on bail", the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches. 46. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharya's case. The learned Judge dissented with the majority as far as interpretation of the expression "if not already availed of" by stating so:- (SCC p.481, paras 29- 30) "29. My learned brother has referred to the expression "if not already availed of" referred to in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression "availed of" does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default b....
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....eking extension of time for filing of the charge-sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub-Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have n....
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....ased on bail, the said right to be released on bail would be lost" or "can only be on merits", must be held per incuriam." 15. The above quoted portions of the said latter judgments of the Hon'ble Supreme Court show that even in the context of the right to default bail, it has been held that once the accused files an application for grant of default bail, such a prayer is to be considered by the concerned Court even if subsequently an application is filed on behalf of the prosecution for extension of time to file chargesheet. It has been specifically held that even if the Magistrate adjourns the proceedings and procrastinates, it would not frustrate the legislative mandate to which the accused would be entitled. This clearly indicates that if the accused moves the Magistrate on the first opportunity to vindicate his rights, the same cannot be frustrated by holding that subsequently an order has been passed sending the Applicant/Accused to judicial custody. 16. In the present case, a perusal of the documents shows that on 08.03.2021 itself, an application for bail was moved on behalf of the Applicant before the Magistrate. In the said application, a specific ground was taken regar....
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....and rejecting the said contention raised on behalf of the Applicant. 20. The learned Additional Public Prosecutor was also not justified in contending that the said ground could not be raised by the Applicant in the bail application and that if he wanted to raise a grievance concerning violation of Articles 21 and 22 of the Constitution of India, he should have moved a Writ Petition before this Court at the relevant time. The judgment in the case of Suaibo Ibow Casamma (supra) clearly covers the position of law in favour of the Applicant, because in almost identical circumstances, this Court not only entertained the bail application, but allowed the same on the specific ground of violation of the rights available to the Applicant under Articles 21 and 22 of the Constitution. Hence, it is found that the Applicant is entitled for grant of bail on the sole ground raised in the present application. 21. But, at the same time, this Court cannot be oblivious of the fact that the Applicant is alleged to be involved in serious offences under the NDPS Act. The reply filed on behalf of the State demonstrates that he has criminal antecedents and there are at least four cases registered and p....