REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO. 58 OF 2007

PRAMOD KUMAR SAXENA … APPELLANT

VERSUS

UNION OF INDIA & ORS. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. Rule.   We  have  heard  the  learned

counsel appearing in the case. On the facts and

in circumstances of the case, the writ petition

has been taken up for final hearing.

2. The present petition is filed by the

petitioner  under  Article  32  of  the

Constitution. The prayer clause reads thus;

“It  is  therefore,  most  respectfully prayed  that  this  Hon’ble  Court  may graciously be pleased to:-

(a) Issue  appropriate  writ  in  the nature  of  Mandamus  or  any direction or order to release the petitioner on bail in connection with  the  cases  as  mentioned  in Annexure  P-14  forthwith  on execution of personal bond with or without sureties; and

(b) Issue  appropriate  writ  in  the nature  of  mandamus  or  any direction or order directing that if the petitioner is arrested in connection with any criminal case in capacity of Managing Director of  Imperial  Forestry  Corporation Ltd., the arresting officer shall release  him  on  bail  on  his executing the personal bond to the satisfaction of arresting officer; and

(c) Issue  appropriate  writ  in  the nature  of  Mandamus  or  any direction or order directing the respondents to evolve a mechanism to  ensure  the  presence  of  the petitioner  in  all  the  cases  as well as speedy disposal of all the cases  pending  against  the petitioner  within  a  fixed  time frame;

(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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

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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-

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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)

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