* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3878 OF 2009 Sadhwi Pragya Singh Thakur ............Applicant V/S. State of Maharashtra Through Anti Terrorist Squad (ATS) Mumbai-400 008. ...............Respondent --------- Shri. Mahesh Jethmalani, Senior Counsel i/by. Shri. Ganesh Sovani, adv.for applicant. Shri. Amit Desai with Mrs. Rohini Salian, Special P.P. with Shri. P.A. Pol, for the State. CORAM :- S.C. DHARMADHIKARI, J. ORDER RESERVED ON : 8 th FEBRUAR Y, 2010. ORDER PRONOUNCED ON : 12 th MARCH, 2010. P.C. :- 1. Heard learned counsel for the parties. * 2 * 2. The Applicant is original accused no.1 in MCOC Case No. 1 of 2009 on the file of Special Court-1, MCOC, Greater Bombay. She applied for bail before the Special Judge by moving an application being Bail Application No. 2 of 2009. The bail was sought under the provisions of Section 21(2)(b) of the Maharashtra Control of Organised Crimes Act (for short `the MCOCA ). The bail was also sought under Section 167(2) of the ’ Code of Criminal Procedure, 1973. That application having been rejected by the order dated 9/07/2009, the applicant-original accused no.1 has approached this court seeking bail. 3. Before setting out the grounds on which the relief is sought, it would be worthwhile setting out a few facts. 4. Bail Application No. 2 of 2009, copy of which is annexed at page-89/98 of the paper-book was filed before the trial court on 14/01/2009. It is the case of the applicant- Sadhvi Pragyasingh Thakur that she is formerly a resident of District-Bhind, State of Madhya Pradesh. She has renounced the material world and became a Sadhvi on/or about 31/01/2007, pursuant to a religious ceremony conducted at Prayag (Allhabad), State of Uttar Pradesh. 5. It is her case that thereafter she has been residing at Jabalpur in the State of Madhya Pradesh in a rented accommodation. She was * 3 * residing in this accommodation which belongs to one Agarwal family. She has been conducting her religious and spiritual activities from that place with the help of her disciples, associates etc. 6. A bomb blast took place within the jurisdiction of Azad Nagar Police Station at Malegaon on 29/09/2008. Six persons died and dozens were injured. A crime was registered initially against unknown persons (C.R. No. I/130 of 2008) under Sections 302, 307, 324, 427, 153(A) of IPC and Sections 3, 4 and 5 of The Explosive Substances Act, so also, Sections 6, 18 and 23 of The Unlawful Activities Prevention Act, 1967. The investigations in this C.R. were initially carried out by the local police station in Malegaon. Subsequently, the investigation of this crime was entrusted to the Anti Terrorism Squad, Mumbai (`ATS for short). Therefore, the C.R. ’ was renumbered as C.R. No. I-18 of 2008. 7. It is the case of the applicant that the allegations in the C.R. are that a vehicle (two wheeler LML Freedom) was used by the perpetrators – of the crime. This vehicle was depicting the number plate bearing registration number MH-15-P-4275. However, this vehicle actually bears registration number GJ-5-JR-1920. It is the prosecution s case that both ’ engine and Chassis numbers were tampered with beyond recognition. However, with the help of advanced technology and scientific aid, the * 4 * prosecution was able to collect the original registration number. It is alleged that the details revealed that the said vehicle belonged to the applicant. The applicant is therefore arrayed as accused no.1 in the crime. 8. In paragraph-7 of the application for bail filed in the trial court, the applicant states as under : . “ That, the applicant was officially arrested on 23/10/2008 by the Opponent ATS and was produced before the Learned Chief Judicial Magistrate, Nasik on 24.10.2008 and the police custody remand of the applicant along with two other accused was sought by the investigation agency, which was granted till 03/11/2008. Marked and annexed hereto as `Exhibit-A is the copy of the remand application dated 24/10/2008 ’ filed by the ATS before the learned Nasik court.” 9. It is thereafter alleged that when the applicant was produced before the learned Chief Judicial Magistrate, Nasik she had no opportunity to engage services of a lawyer. She was informed by the ATS about her right to avail the same. Moreover, she was extremely frightened due to the treatment meted out to her by the ATS. She could not muster enough courage to say anything. She was not aware of legal formalities and therefore when she was again produced seeking fresh police custody * 5 * remand on 3/11/2008 that she could engage the services of an advocate. The said advocate brought out many things on record and after her brief dialogue and discussion with the advocate, it is her case that she was in custody of the ATS right from 10/10/2008 when she was taken from Surat alongwith her associate and illegally detained at ATS Office, Kalachowki, Mumbai till 24/10/2008, whereafter, she was taken to Nasik for the first time. 10. The above are the allegations in paragraph-9 and 10 of her application for bail filed in the trial court. Thereafter, in paragraph-11 she lists out non-compliance with Section 50-A of CrPC and states that there have been other lapses and she has sought an enquiry into the same. She states that the Chief Judicial Magistrate, Nashik was pleased to transmit the applicant to judicial custody until 17/11/2008. She was then sent to Byculla Jail, Mumbai and on the following day i.e. on 18/11/2008 her Narco Analysis Test was to be conducted in Mumbai. Thereafter, her judicial custody was extended until 29/11/2008 and a remand application was made in that behalf on 17/11/2008 by the ATS. It is alleged that on 17/11/2008 the applicant placed eight page detailed affidavit on record of the trial court narrating the nature, extent and enormity of ill-treatment, torture by ATS when she was detained from 11/10/2008 to 23/10/2008. * 6 * 11. I am not concerned with the allegations of ill-treatment and harrassment, so also, alleged torture, inasmuch as, I am informed that a separate application in that behalf is made and is presently pending before the Human Rights Commission. 12. It is alleged that on/or about 20/11/2008, the ATS invoked the provisions of MCOCA against all the accused alongwith the applicant. They were brought from Nashik Jail to Mumbai on 23/11/2008. It is stated that the ATS sought police custody remand of the applicant and some other accused, but, this request was rejected by the trial court and the applicant is remanded to judicial custody. Her judicial custody is being extended from time to time. 13. In paragraphs-17 to 21 of the application for bail filed in the trial court, the following is alleged :- 17. “ That, thereafter, the applicant s magisterial custody is being ’ extended from time to time and when she was produced on 05.01.2009, before the MCOCA Special Court, the applicant s judicial ’ custody has been extended till 20/01/2009. 18. That, as the applicant has been picked by the Opponent ATS from 10/10/2008, on the guise of interrogating her in connection with her vehicle, etc. and was told that she would be let off, once * 7 * her interrogation was over at the hands of higher ups of the ATS officials. 19. That, the applicant has been in the custody of ATS, since 10/10/2008. No remand for custody was obtained by the ATS from 10/10/2008 to 24/10/2008. The applicant was therefore in the custody of the ATS without authority of law. Manifestly, the applicant was in unlawful custody/illegal detention from 10th to 24th October, 2008. 20. That, however, since 10/10/2008 the applicant had been lodged at ATS Kalachowkie office and she was officially shown to have arrested on 23/10/2008 and was produced for the remand for the first time before the Ld. CJM, Nasik on 24/10/2008. 21. That, the applicant has briefly narrated the manner as to when and how she was picked at Surat, Gujrat on 10/10/2008 by the ATS in her three page application submitted through her advocate on 3/11/2008 at the first available opportunity after engaging the advocate and also at length in her extensive affidavit dated 17/11/2008 that was submitted before the learned CJM, Nasik.” 14. It is her case that the ATS has not denied that she was illegally detained from 10/10/2008 till 24/10/2008 and her further case that she sought legal assistance, which was given to her for the first time in * 8 * November, 2008. She states that the ATS has denied specifically in writing, the allegations levelled in the applications dated 3/11/2008 and in the affidavit dated 17/11/2008. 15. It is her case that going by the provisions of Section 21(2)(b) of the MCOCA and it being the 95th day from the date, when she was taken in custody by the ATS on 10/10/2008, her further detention is impermissible in law. Thereafter, she is entitled to be released on bail by default of the Investigating Agency in not filing a report as is envisaged by Criminal Procedure Code. Therefore, Section 167(2) as applicable to a case under MCOCA and she be enlarged on bail on such terms as the trial court deems fit and proper. 16. As is stated, this application was filed on 14/01/2009. 17. Mr. Mohan Kulkarni, Assistant Commissioner of Police, ATS, Mumbai filed reply to this application on 5/02/2009. This reply was filed after the ATS came to be served with a copy of the application and the annexures thereto. 18. It is stated that the charge-sheet has been filed on 20/01/2009. It is the case of the prosecution that the applicant-accused was arrested on 23/10/2008. She was produced before the Chief Judicial Magistrate, Nashik in ATS C.R. No. 18 of 2008 on 24/01/2008. The specific case of * 9 * the prosecution is that the charge-sheet came to be filed on the 89th day from the first date of remand. Therefore, the same is within the period provided in law. 19. It is the case of the prosecution that on 29/09/2008 at about 21.35 hrs, there was a bomb explosion opposite Shakeel Goods Transport Company between Anjum Chowk and Bhiku Chowk, Malegaon. The said blast took place on account of an explosive device fitted in LM-Freedom Motor Cycle, as a result of which 6 persons were killed. About 101 persons received injuries of varied degrees. It is the prosecution s case ’ that since it was the holy month of Ramzan and on 30/09/2008, the holy festival of Hindus namely Navratri Utsav was to commence, the conspirators caused a bomb blast with an apparent intent to terrorize the people, to cause loss of life and property and disruption of supplies and services essential to the life, to create communal rift and to endanger internal security of the State. The experts of the Forensic Science Labrotary (FSL), Nashik opined that the exhibits collected from the place of offence contained cyclonite (RDX) and ammonium nitrate and which are also used as high explosives. The investigations also revealed that the registration number of the vehicle used in the crime is bogus. The Chassis and Registration number of the motor cycle were found to be erased. * 10 * 20. The original engine number was traced. It was successfully restored by the FSL, Nasik. The further investigations revealed the original registration number reproduced herein above. The registration of the vehicle was found in the name of the applicant-accused no.1 and then residing in Surat in the State of Gujarat. The details of the investigation and the role of the applicant in the crime have been highlighted in paragraphs-5 and 6 of the affidavit-in-reply. 21. The reply of the prosecution to paragraphs-8 and 10 of the bail application filed in the trial court is that the applicant was arrested on 23/10/2008. She was fully informed about her rights in law and her family members were not informed about her arrest because she on her own stated that she has renounced family ties. All procedural provisions were complied with and she was produced before the Chief Judicial Magistrate, Nasik on 24/10/2008 and her police custody remand was sought. The prosecution specifically denied that the applicant was in the custody of ATS at Kalachowki Office from 10/10/2008 to 24/10/2008. It is denied that they lodged her in Kalachowki Office of ATS. It is the prosecution s case that the applicant was asked to attend the ATS office ’ for inquiry and she was allowed to go. It is stated by the prosecution that the applicant is making false allegations against the officers of ATS * 11 * and this is nothing but an after thought and concocted story. It is stated that the applicant accused was arrested and produced as above and from the first date of remand upto 20/01/2009, only 89 days have been completed and on the 89th day, charge-sheet has been filed. Therefore, there is no question of the applicant being released on bail for default of the prosecution for allegedly not filing the charge-sheet as contemplated under Section 167(2) CrPC. 22. Although, this was the case in the bail application and on affidavit, so also, considering the response of the prosecution as above, it was expected that the application for bail before the trial court would be argued on this basis. However before the trial court, the applicant argued that she was in custody of ATS from 10/10/2008 and contrary to Section 167 CrPC and Article 22 of the Constitution of India, she was detained, there is no remand sought until 24/10/2008, there is difference between arrest and custody. Therefore, when custody commences, from the moment the accused is called to the police station, the period of 90 days must be calculated from such date. When such is the fact situation, then, the prosecution s version should not be accepted. Several decisions of the ’ Hon ble Supreme Court were cited. ’ 23. On the other hand, the Special Public Prosecutor argued on * 12 * the basis of the stand taken by the prosecution in the reply. 24. On the basis of this material, the trial court made the following observations : 28. “ First the admitted positions. In her application, the applicant has not given details of how she came to Mumbai and about the alleged ill-treatment that was mitigated to her by the police when was allegedly illegally detained from 11/10/2008 upto 23/10/2008. She has only stated that that is narrated in her 8 page detailed affidavit dated 17/11/2008. Similarly, in the application she has not mentioned about being admitted in the two hospitals, which fact she has narrated in her affidavit dated 17/11/2008 before the CJM,. Nashik. Her first complaint in time is her application dated 3/11/2008 given to the CJM, Nashik in which she alleged in paragraph-2 that she was picked up by ATS men from Surat, Gujarat on 10/10/2008 and brought to Mumbai and was illegally detained at Kalachowki ATS office, Mumbai. As against this, in her affidavit dated 17/11/2008 in paragraph 9, she specifically admits that she agreed to accompany the ATS team to Mumbai alongwith her disciple Bhimbhai Pasricha she left Surat with the ATS Officer at 5.15 p.m. and reached Bombay on the very night of 10/10/2008 and was taken straight away to the ATS office. In this connection, the station diary entry reveals that she reached the ATS office at 1.40 hrs on 11/10/2008, i.e. in the night of 10/10/2008. Hence, there is no question of producing the case diary of 10/10/2008 about which the applicant s’ advocates contended. 29. It is also an admitted position from the side of the applicant * 13 * that on 15/10/2008, she and her disciple were kept in rooms no. 315 and 314 of Hotel Rajdoot, on doubt at the behest of the ATS and on that day itself she was admitted in the Shushrusha Hospital at Dadar. The discharge card of that hospital shows that she was admitted there from 15/10/2008 upto 17/10/2008. The papers of investigation annexed with the discharge card shows several investigations including C.T. Scan (brain), USG of abdomen and pelvis, C.T. Scan of chest, abdomen and pelvis and ECG on 15th and 16th. It is also admitted position that she was admitted in the Vaze Hospital where as per her own contention in paragraph-17 of the Affidavit, she stayed for 2-3 days. In the same paragraph she contended that no female police constable was by her side either in Hotel Rajdoot or in either of the two hospitals. 30. It is also an admitted position that her disciple Bhimbhai Pasricha accompanied her from Surat to Mumbai and was with her continously upto 13/10/2008. It is her contention that on 14/10/2008 she was taken out for examination at a far away place from ATS and on that day she did not meet him. It is an admitted position that on 15/10/2008, she and Bhimbhai Pasricha was taken by the ATS vehicle to Hotel Rajdoot and thereafter, when she was admitted in the Shurusha Hospital, Bhimbhai Pasricha came there and filled her hospital admission forms, etc. She has however mentioned that after some time Bhimbhai Pasricha left the hospital alongwith the ATS men and thereafter, she had no contact with him.” 25. The trial court therefore concluded that the applicant has not disputed * 14 * that firstly her disciple Bhimbhai Pasricha was also in the custody of the ATS, and secondly she and he were not restrained from going anywhere or contacting any person. There is not a single statement or allegation in the application made and affidavit filed (dated 3rd November and 17th November, 2008) that she and Bhimbhai were directed not to leave Mumbai without intimation or orders of ATS. The rest of the version is with regard to her ill-treatment, with which I am not concerned. The trial court further observed that it is not the applicant s case that Bhimbhai ’ was in the custody of the police or that he was confined or not allowed to move freely or telephone anybody. This damages her case of illegal detention from 10/10/2008 till 15/10/2008. In paragraph-52 of the trial court order, reference is made to the treatment in private hospitals ’ between 15/10/2008 to 20/10/2008. Therefore, the trial court concluded that she has failed to make out a case that she was in custody of the police from 10/10/2008 to 22/10/2008. The trial court, then refers to the original station diaries in paragraph-34 of the impugned order and subsequently deals with the decisions cited. Finally, the trial court refers to the legal provisions in paragraph-42 of the impugned order and concludes that the application is liable to be rejected. It is this conclusion of the trial court which is challenged and the bail application is argued * 15 * before me on this basis. 26. Shri. Jethmalani, learned Senior Counsel appearing on behalf of the applicant submitted that the application for bail is being pressed on three grounds, firstly, the applicant was in illegal custody from 10/10/2008 to 23/10/2008 for a total period of 13 days. The prosecution may urge that the applicant was arrested and produced before the concerned Magistrate on 24/10/2008, but the facts, as set out would demonstrate that the applicant was called from Jabalpur to Surat. At Surat, Shri. Salvi, officer of ATS came and questioned her and thereafter directed her to go to the office of ATS at Kalachowkie, Mumbai. The applicant had to accompany the said officer and that is how she came to Mumbai. At Mumbai also, the applicant was not free to move every where as is being falsely alleged. The applicant was in illegal custody and that is evident from the fact that she was not allowed to reside anywhere, except, within the vicinity or neighbourhood of the ATS office. The ATS had complete information and knowledge about the applicant and her associate/disciple. It was the ATS which directed her to reside in a hotel nearby. Even when the applicant was not well and was admitted to hospital, it is the ATS which was approached and it is only after intimation to them that medical treatment could be administered. Therefore, this is nothing but illegal * 16 * detention of the applicant contrary to the statutory mandate. Inviting my attention to Sections 41, 44, 46, 57, 60 and Section 167 of the Code of Criminal Procedure, Shri. Jethmalani submits that this period, where the applicant was detained in custody without authority of law should be taken into account and once that period is taken into account for computation of 90 days period stipulated for filing of the charge-sheet, then, the applicant is entitled to bail. 27. Assuming without admitting that this period cannot be taken into consideration for computing the period of 90 days, then, it is evident that once the applicant is in illegal custody and not produced before the Magistrate within 24 hours from 10/10/2008, then, going by the plain language of Article 22(1)(2) of the Constitution of India, the arrest is wholly illegal and unconstitutional. The only consequence of such unlawful, illegal, so also, unconstitutional arrest, is the release of the applicant on bail. In these circumstances, even on the second ground the applicant is entitled to be released on bail. The third ground on which the bail can be granted to the applicant is that assuming without admitting that she was not in illegal custody, but, arrested on 23/10/2008 as is urged by the prosecution, even, then she was summoned for interrogation and investigation at the ATS office, Mumbai. Inviting my attention to Section * 17 * 160 of CrPC and particularly the proviso thereto, Shri. Jethmalani submits that a person can be summoned for investigation only after complete compliance is made with the provision. If the person summoned is a woman, then, all the more the proviso has to be adhered. If it is demonstrated that there is violation of Section 160, then, the only consequence that can result from such an action is release of the applicant on bail. The applicant has been summoned without any notice and without adhering to the proviso, she has been interrogated at the ATS office in Mumbai. The proviso does not permit such a course of action in the case of a woman. Assuming that the section applies to an accused and even an accused can be summoned, even then, if there is non- compliance with Section 160 CrPC, the consequence is that the applicant is entitled to be released on bail. Shri. Jethmalani, submits that, all this has been clearly set out in the application and affidavit of the applicant, copy of which is annexed at page-70 of the paper-book. Shri. Jethmalani, has invited my attention to paragraphs-3, 9,10, 19 and 27 at pages-70 to 72 and 76, so also, page-78 of the paper-book and submits that the stand of the prosecution that the applicant was attending the office of the ATS pursuant to a notice is not at all tenable. It lacks in bonafides. The document purported to be a notice under Section 160 CrPC is suspicious. * 18 * It is not signed and acknowledged by the applicant. Furthermore, it is in marathi. It is complete fabrication and a cooked up document. In any event, it is violation of the proviso to Section 160 because it does not permit interrogation of a woman at the ATS Headquarters/office. In these circumstances, even on the third ground the applicant is entitled to be enlarged on bail. 28. On facts, Shri. Jethmalani was at pains to point out that there is no substance in the contentions raised by the prosecution before the trial court. There are no details about the local accommodation produced by the prosecution. If the version, that the applicant had on her own put herself up