Pramod Kumar Saxena vs Union Of India & Ors

(d) Issue appropriate order to treat the petitioner in custody, in cases where petitioner has not been produced, from the date of service of production warrant on the petitioner and adjust the same 3

for the purpose of bail u/s. 436A of Cr.P.C.

(e) Pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case".

3. The case of the petitioner is that, he

is an under-trial prisoner lodged in District

Jail, Bareilly since more than ten years i.e.

since August, 1998. He has approached this

Court for enforcement of fundamental rights

guaranteed under Articles 14, 19, 20 and 21 of

the Constitution of India.

4. It is the case of the petitioner that

he has been implicated as an accused in as many

as 48 cases in six different States for

commission of offences punishable under

Sections 406, 409 and 420 read with Section

120B of the Indian Penal Code, 1860 (IPC) and

also under Section 138 of the Negotiable

Instruments Act, 1881.

5. According to the petitioner, there is

a Company known as "Imperial Forestry 4

Corporation Ltd." (hereinafter referred to as

`the Company'). It was incorporated on April

19, 1990. The petitioner was the Managing

Director of the said Company. In the course of

business, the Company had opened Branch Offices

at several places. The petitioner asserted that

he resigned from the office as the Managing

Director on October 30, 1994 and later on he

also resigned as Director of the Company from

February 15, 1998.

6. It was the case of the petitioner that

when he was functioning as the Managing

Director or as the Director of the Company,

there was no complaint of any kind from any of

the investors either for non-clearance of

cheques issued to them or for non-payment of

dues of the depositors by the Company. Later

on, however, financial position of Investment

Companies became precarious throughout the

country. Investors became suspicious and they

rushed to companies for refund of money and for

return of their deposits which resulted in 5

Financial Companies being collapsed. The

petitioner, since he was Managing Director and

Director in past, was also joined as one of the

accused in several cases. The petitioner has

annexed along with the present writ petition,

48 cases which have been filed against him in

six different States.

7. According to the writ petitioner, he

was arrested in August, 1998 and till today he

is in jail. The petitioner stated that in some

of the cases he has not at all been produced

before the Magistrate. Resultantly, he could

not even apply for bail. The trials have not

commenced although so many years have passed.

In some other cases, though the charges have

been framed, hundreds of witnesses are likely

to be examined and it would take several years

in completion of the cases. In some other

cases, prosecution witnesses have not turned up

and concerned Courts have issued either

bailable or non-bailable warrants to secure the

presence of witnesses. In few cases, though the 6

petitioner was ordered to be enlarged on bail,

in view of pendency of other cases, even though

the petitioner is ready and willing to abide by

the terms and conditions imposed by the

Magistrate for release on bail, he is unable to

come out of jail.

8. The petitioner further stated that he

has not committed any offence. According to

him, he had resigned as Managing Director as

well as Director since long and, as such, no

case can be filed nor any offence has been made

out against him. It is only because the cases

are not tried and decided that he is in jail.

9. Alternatively, it was submitted by the

petitioner that even if the petitioner will be

convicted in some of the cases for some

offences, he would be ordered to undergo

imprisonment which may be for some time.

Unfortunately, as an under-trial prisoner, he

has completed more than ten years in jail. He

is, therefore, constrained to approach this

Court for protection of his fundamental rights 7

by an appropriate direction from this Court to

the respondents so that he may be able to come

out of jail as also make arrangement for his

defence.

10. On May 18, 2007, notice was issued by

this Court. Considering the fact that the

petitioner was in jail, the Registry was

directed to place the matter for final hearing.

Accordingly, the matter has been placed before

us on August 18, 2008.

11. The respondents have filed affidavits.

Respondent No.1-Union of India, in its

affidavit through Under Secretary of the

Ministry of Home Affairs, Government of India,

New Delhi stated that no allegations have been

leveled against the Union of India nor specific

prayer has been sought against the Union.

12. It was also stated that by the Code of

Criminal Procedure (Amendment) Act, 2005,

Section 436A came to be inserted which provides

that an under-trial prisoner other than the one

accused of an offence for which death has been 8

prescribed as one of the punishments, has been

under detention for a period extending to one-

half of the maximum period of imprisonment

provided for the alleged offence, he should be

released on his personal bond, with or without

sureties.

13. It was also stated by the deponent

that `prisons' is a State subject covered by

Entry 4 of List II of the Seventh Schedule to

the Constitution. It is, therefore, the State

authorities to undertake administration of

prisons under the Indian Prisons Act, 1894.

State Governments have also framed Jail Manuals

and appropriate Government is required to take

appropriate action in accordance with law.

14. An affidavit is also filed by the

State of U.P. through Deputy S.P., E.O.W.,

Meerut, U.P. In the said affidavit, it was

stated that the petitioner was Managing

Director of Imperial Forestry Corporation Ltd.

and was actively associated with the day to day

running of the business of the Company. The 9

Company had opened several Branches and

Divisional Offices, inter alia, in the State of

U.P. and appointed Marketing Managers along

with the team of Sale Executives who used to

collect money from the public by issuing Fixed

Deposit Receipts (FDRs). The petitioner, in the

said capacity amassed crores of rupees from

public at large. When the maturity amount was

not paid to the investors, several First

Information Reports (FIRs) came to be lodged

against the petitioner and that is how criminal

cases were filed.

15. The deponent had also given list of

some of the cases pending in the State of U.P.

It is in the above circumstances that the

petitioner was sent to jail and is unable to

come out.

16. As held by this Court, mere long

period of incarceration in jail would not be

per se illegal. If the petitioner has committed

offences, he has to remain behind bars. Such

detention in jail even as an under-trial 1

prisoner would not be violative of Article 21

of the Constitution. If the petitioner has

committed non-bailable offences and in

connection with those offences, he is in jail,

the custody can never be said to be unlawful or

contrary to law and he is not entitled to be

enlarged on bail.

17. Similar affidavit is filed by C.O.

City, Dehradun, Uttarakhand stating therein

that various complaints were filed against the

petitioner and in pursuance thereof, the

petitioner has been taken into custody.

18. We have heard learned counsel for the

parties.

19. The learned counsel for the petitioner

submitted that the petitioner has been in jail

since more than a decade. Various cases have

been instituted against him in six States. Even

though the petitioner has been ordered to be

enlarged on bail in some of the cases, he is

unable to come out since in other cases, either

the investigation is in progress or the 1

petitioner has not been produced before the

Magistrate for trial. Even if the petitioner is

convicted in some of the cases for some

offences, he may have to remain in jail only

for few years. Therefore, even if it is assumed

for the sake of argument that the petitioner

will be convicted, incarceration suffered by

the petitioner by now might be more than the

sentence which could be imposed on him. It was,

therefore, submitted that an appropriate

direction may be issued so that the petitioner

may be released on bail.

20. The petitioner has also invited our

attention to Section 436A of the Code which

provides maximum period for which an under-

trial prisoner may be detained. It was,

therefore, submitted by the learned counsel for

the petitioner that during the pendency and

final disposal of criminal cases, the

petitioner may be ordered to be enlarged on

bail on his executing personal bond. 1

21. The learned counsel for the

respondent, on the other hand, submitted that

systematic fraud has been committed by the

petitioner and he has cheated several innocent

investors at various places. Crores of rupees

had been collected by him in the capacity of

Managing Director of the Company. It was only

when he refused to refund the amount that

criminal cases have been filed against him for

which the petitioner alone is responsible.

Since the offences said to have been committed

by the petitioner are non-bailable, the police

authorities had arrested him and he is taken in

custody in accordance with law. No grievance,

therefore, can be made by the petitioner

against lawful action taken by the

investigating authorities. If it is so, the

petitioner cannot invoke Article 21 of the

Constitution. Even if the petitioner is ordered

to be enlarged on bail in some of the cases,

other cases pending against him cannot be

ignored.

1

22. It was further submitted that the

petitioner forgets that he can be convicted in

several cases for the offences with which he is

charged. All those cases are different,

distinct and independent. In that case,

obviously, he may have to remain in jail for

several years.

23. Regarding applicability of Section

436A of the Code, it was stated that firstly,

the said provision came to be inserted by an

Amendment Act of 2005 which came in force in

June, 2006 and as such, it has no application

to the present case. But, even if the said

provision applies to the case of the

petitioner, in view of several cases at various

places committed by the petitioner, he would

not get the benefit of the aforesaid provision.

It was, therefore, submitted that the petition

deserves to be dismissed.

24. Having heard learned counsel for the

parties and having gone through the writ

petition along with annexures as also counter- 1

affidavits, we are of the view that on the

facts and in the circumstances of the case, the

petitioner deserves some relief from this

Court. True it is that as per the allegation of

the prosecution, various offences have been

committed by the petitioner and those cases are

pending at difference places. But other equally

important fact also cannot be overlooked that

he is in jail since more than ten years. Prima

facie, the submission of the learned counsel

for the petitioner is well-founded that only if

the petitioner comes out of jail that he may be

able to make arrangement for repayment of

amount and also to defend cases registered

against him.

25. The learned counsel, in this

connection, invited our attention to a two

Judge Bench decision of this Court in V.K.

Sharma v. Union of India & Ors., (2000) 9 SCC

449. In V.K. Sharma, the petitioner was an

accused in a large number of cases punishable

under Sections 406, 409, 420 read with Section 1 120B, IPC in several States. There also, in

spite of securing bail orders in his favour in

some of the cases, the petitioner had to remain

in jail in view of production warrants issued

by other Courts. The petitioner, in that case

too, approached this Court by filing a petition

under Article 32 of the Constitution alleging

violation of his fundamental right guaranteed

under Article 21 of the Constitution, seeking

an appropriate writ, direction or order that he

should be released on bail and all the cases

pending in different States against the

petitioner be consolidated in one and the same

Court through investigation by Central Bureau

of Investigation (CBI) in all cases. This Court

considered the rival contentions of the

parties. It did not think proper to grant all

reliefs sought by the petitioner, but granted

the following reliefs to him;

1. If the petitioner is arrested in connection with any criminal case in his capacity as Managing Director/ Director of JVG group of companies the 1

arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer.

2. Such relief shall be made after getting an assurance from him that he will be present in the court concerned on the days when his case is posted. However, we make it clear that it is open to the petitioner to apply to the court concerned for exempting him from personal appearance on condition that a counsel on his behalf would be present on such posting dates and he would not dispute his identity as the particular accused in that case, and further that he would make himself available on any date when his presence is imperatively needed in that court.

3. We permit the petitioner to move the appropriate high courts for bringing all the cases pending in different courts within the territorial jurisdiction of that high court to one single court or more than one court (depending upon the number of cases or the width of the area of the State is concerned).

4. This order will come into effect only if the petitioner would surrender his passport in this Court. Shri Shanti Bhushan, learned senior counsel expressed a doubt that petitioner would have already surrendered his passport before another court pursuant to the order passed. In that case he 1

can satisfy the Registrar General of this Court by an affidavit of the situation and the Registrar General can intimate the jail authorities concerned of that position.

5. We make it clear that it is open to the investigating agency in any case to move for cancellation of bail if any such investigating agency finds that petitioner is misusing the liberty granted by this order.

(emphasis supplied)

26. This Court thus in V.K. Sharma granted

certain relief keeping in view the fact that

the accused was in jail since about sixteen

months. The Court further held that if the

petitioner would be arrested in any criminal

case in his capacity as Managing

Director/Director of the Company, the Arresting

Officer would release him on his executing bond

to the satisfaction of the Arresting Officer.

27. The learned counsel for the

respondents, however, referred to a decision of

a three Judge Bench of this Court in State of

Punjab & Anr. V. Rajesh Syal, (2002) 8 SCC 158. 1

In Rajesh Syal, the respondent was a former

Director of a Company. The Company collected

huge amount from general public for purchasing

land and promised that the amount would be

returned after expiry of maturity period fixed

through cheques. Monies were not repaid and

complaints were made to the State. The

Vigilance Department of the State lodged

various FIRs against the respondent.

28. According to the prosecution case,

crores of rupees had been collected by the

Company from the general public. Proceedings

were initiated by the accused by filing an

application under Section 482 of the Code in

the High Court for quashing of criminal

proceedings. A prayer was also made that all

cases be tried by one Court. Support was sought

from V.K. Sharma. Though in the decision of

V.K. Sharma, this Court had stated that the

order could not be treated as a `precedent',

the High Court, by treating the order as a

`precedent' allowed the petition of the accused 1

and transferred different cases pending in the

State of Punjab against the accused to a Court

of Special Judge. The said action was

challenged by the State in this Court.

29. Considering the relevant provisions of

the Code, particularly relating to framing of

charge and conduct of trial, this Court held

that in the light of various provisions and the

scheme of the Code, no direction could be given

by a Court to consolidate all cases against the

accused and to be tried by one Court. Such a

direction would be contrary to express

provisions of the Code. Even in exercise of

inherent powers under Section 482, the High

Court could not direct an authority to act

contrary to law. The Court also observed that

this Court has ample jurisdiction to pass

orders under Article 142 of the Constitution

for doing complete justice between the parties

in any case or matter but it is doubtful

whether in exercise of the said power, such an

order could be passed. The Court held that 2

direction as to consolidation of cases pending

in different Courts for different offences to

be tried in a single Court issued in V.K.

Sharma was not in consonance with law. V.K.

Sharma was, therefore, expressly overruled.

30. Narinderjit Singh Sahni & Anr. v.

Union of India & Ors., (2002) 2 SCC 210 was

also referred to. In that case, this Court held

that if an accused commits an offence, he has

to remain in jail and he cannot make complaint

to this Court under Article 32 of the

Constitution on the ground of so called

infraction of Article 21.

31. So far as Section 436A is concerned,

it may be stated that by the Code of Criminal

Procedure (Amendment) Act, 2005, the said

section came to be inserted, which reads as

under;

"436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been 2

specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."

32. In the statement of objects and

reasons it was stated;

There had been instances, where under-trial prisoners were detained in jail for periods beyond the maximum 2

period of imprisonment provided for the alleged offence. As remedial measure section 436A has been inserted to provide that where an under-trial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishments, has been under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It has also been provided that in no case will an under-trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.

33. The learned counsel for the

respondents are, prima facie, right in

submitting that no retrospective effect has

been given to the said provision and as such

Section 436A does not directly apply to the

facts of the case.

34. In our opinion, however, the hard

reality equally important also cannot be lost

sight of the fact that the petitioner is in

jail since more than ten years. It would,

therefore, be appropriate if limited relief is 2

granted to the petitioner. So far as

consolidation of cases and trial of all the

cases in one Court is concerned, as observed

hereinabove, such relief cannot be granted.

V.K. Sharma, wherein such relief was granted,

has been expressly overruled by Rajesh Syal. We

are, therefore, of the view that the petitioner

is not entitled to such relief.

35. On overall facts and circumstances, in

our opinion, the ends of justice would be

served if we partly allow the petition and

issue the following directions:

1. If the petitioner will apply for bail, an

appropriate Court will release him on bail

on his executing a bond to the

satisfaction of such Court.

2. If the petitioner is not arrested but is

likely/required to be arrested, the

Arresting Officer shall release him on 2

bail on his executing a bond to the

satisfaction of the Arresting Officer.

3. The above relief will be granted to the

petitioner only in those cases where he is

arrested in his capacity as Managing

Director/Director of Imperial Forestry

Corporation Ltd.

4. Such relief will be allowed to the

petitioner on his giving an assurance/

undertaking that he will remain present in

the court concerned as and when his case

is posted for hearing or his presence is

required.

5. It is open to the petitioner to apply to

the Court concerned for exempting him from

personal appearance. The Court will pass

an appropriate order on such application

on such terms and conditions as the Court

deems fit.

2

6. If the petitioner is having a passport with

him, he will surrender his passport to

police authorities. The police authorities

will retain the same till the final

disposal of all the cases.

7. It is open to the investigating agency in

any case to move a competent Court for

cancellation of bail/modification of

conditions, if any such investigating

agency finds that petitioner is misusing

the liberty granted by this Court.

8. The above directions have been issued by

us in special circumstances keeping in

view the fact that the petitioner is in

jail since more than ten years.

36. We may make it clear that the above

order is passed without prejudice to the rights

and contentions of the parties.

2

37. The writ petition is accordingly

partly allowed to the extent indicated above.

.........................................................J. (C.K. THAKKER)

NEW DLEHI, .........................................................J. SEPTEMBER 19, 2008. (D.K. JAIN)