VERY IMPORTANT POINT
While in the contextual facts, a petition under article 32 is maintainable but the petitioners are not entitled to any relief particularly and order in the nature of anticipatory bail by reason of available materials on record on regards the issue of infraction of Article 21.

Headnote:Constitution of India-Articles 21 and 32 -Several writ petitions filed in which petitioners were involved in the commission of various economic offences-Invoking the jurisdiction of Supreme Court under Article 32 praying for an order in the nature of an anticipatory bail by reason of the alleged deprivation of liberty without there being any sanction of law-Whether these petitions are maintain able under Art. 32? (Yes)-Whether petitioners are entitled to any relief based on Art. 21? (No)-Consolidation of cases indicated-Writ petitions dismissed with certain exceptions-(Cr.P.C. 1973-Section 438-IPC 1860-Section 420 r/w 120B-Negotiable Instruction Act, 1881-Section 138-Prevention of Corruption Act).
       Held : The above noted are the writ petitions filed in this court invoking the jurisdiction under Article 31 of the Constitution and this Bench is confronted with the twin issue for consideration of two issues mentioned, the 1st issue pertains to the Maintainability of the petition under Article 32 and Secondly, an order in the nature of an anticipatory bail ought to be made available to the petitioners herein by reason of the deprivation of the liberty without there being any sanction of law. The incidental issue as regards the consolidation of proceeding though raised certain eye-brows from the depositors but the same would be dealt with later in this judgment Presently however, turning on to the first of the twin issues namely, maintainability of the petition, be it noticed that any person complaining of infraction of any fundamental right guaranteed by the Constitution is at liberty to move this Court but the rights that could be invoked under Article 32 must ordinarily be the rights of the petitioner himself who complains of the infraction of such rights and approaches the Court for relief and the proper subject for investigation would however be as to the nature of the rights that is stated to have been infringed. This Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan & Others (1997 (11) SCC 121) reiterated the oft noted phraseology that judicial review is a basic structure of the Constitution and every citizen has a fundamental right to redress the perceived legal injury throughy judicial process. This Court went on to record: "…..the Constitutional Court, therefore, has a constitutional duty as sentinal on the qui vive to enforce the right of a citizen when he approaches the court for perceived legal injury, provided he estadlishes that he has a right to rewmedy…" The Constitutional Bench decision of this Court in D.A.V. College, Bhatinda, etc. v. State of Punjab and Others (1971 (2) SCC 261) has the following to state as regards the maintainability of the petition under Article 32 of the Constitution.
       "…..a petition under Article 32 in which petitioners make out a prima face case that their fundamental rights are either threatened or violated will be entertained by this court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place.....".
       Incidentally, the power of judicial review being implicit in written constitution, question of there being any fetter for such review would not arise and specially in the 21 century there ought not to be thwarting of such a right nor even any hesitancy in that regard. Be it noticed herein that maintainability of the writ petition is an issue de hors the ultimate result in the petition -presently the justice oriented approach and set-up a standard in accordance therewith ought to be the guiding factor so far as the law courts are concerned. Refusal to entertain cannot be in tune with the present approach and rather acts contra. The requirement is a prima facie satisfaction on the basis of the available pleadings as to whether the judicial review prayed for under Article 32 needs consideration, if it does, there cannot be any doubt as regards its maintainability. Let us, therefore, analyse the situation in totality and consider the plea as emphasised by the petitioners herein. The records depict that thousands of innocent persons have fallen a pray in the methodology of working of finance companies and firms but does that mean and imply a denial of an opportunity of being heard or considered - the answer however, cannot possibly be in the affirmative. Doctrine of natural justice warrants a fair opportunity - we do not wish even to adumbrate the issue of natural justice here but the fact remains the writ petitioners herein have come up with a petition on the ground that they are not been able to obtain benefit of the justice delivery system, reasons of which need not be dealt with presently but the factum of not being able to obtain the benefit and thereby it has been alleged that Article 21 stands violated: In our view, judicial review or in other words maintainability of the petition under Article 32 cannot possibly be doubted in any way and as such we are unable to record our concurrence with the submissions of the respondents in the matter. Let us however, try and analyse the grievance of the petitioners and consider as to whether mere is any substance in such a grievance. Shortly put the petitioners grievance, which stands identical in all the writ petitions, stand out to be that though the petitioners were favoured with an order of bail in one case but is being detained by reason of production warrant in another matter and resultantly the petitioners are languishing in the jails being deprived of the order of grant of bail - this aspect of the matter has been stated to be violative of Article 21. In our view, however, the situation as noticed above does not ipso facto render it violative of Article 21. Article 21 of the Constitution postulates deprivation of life or personal liberty except according to the procedure established by law. Admittedly, the protection of personal liberty stands expanded to make the right to life under Article 21 more meaningful, the language of the Article itself records an exception indicating thereby that a person may be deprived of his liberty in accordance with procedure established by law and it is in this sphere the courts will scrupulously observe as to whether the same stands differently and contra as regards the procedure established by law and in the event it is not so done, it would be a plain exercise of judicial power to grant redress to the petitioner. While there is no difficulty in appreciating the grievance and grant of relief in a given case but facts are too insufficient however, to come to a conclusion as regards the infraction of Article 21. Production warrants have been spoken of without any details whatsoever therefor - the reason offered is dial the petitioners, in fact, are not in the know of things being behind the prison bars and it starts pouring in from all parts of the country and in the factual backdrop, as noticed above it is a well-neigh impossibility to come to a finding as regards the infraction of Article 21 and since in the factual matrix, no infraction can be identified and thus question of sustaining the plea of infringement of Article 21 would not arise. In any event the liberty of the petitioners cannot said to have been trifled within the absence of due process of law. Deprivation, if any cannot claimed to be not in accordance with due process of law. On the score of anticipatory bail, it is trite knowledge that Section 438 of the Crl.P. Code is made applicable only in the event of there being an apprehension of arrest - The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all cognizable offences, and on the wake of the aforesaid question relieving the petitioners from unnecessary disgrace and harassment would not arise. In that view of the matter and since no infraction can be identified, the petition also cannot be sustained as regards the issue of anticipatory bail under section 438. A large number of decisions have been releid upon as regards this long incarceration. We do however, feel it expedient to deal with some of them at this juncture since more or less identical issues have been dealt with in those judgments. The first in the line of decisions referred to is in regard to Kartar Singh v. State of Punjab (1994 (3) SCC 569) wherein this court in paragraph 351 of the report stated:
       "No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in case like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution."
       The fact situation of the matter under consideration does not warrant further discussion more so by reason of the fact that the collective interest of the community is said to be affected. The decision thus does not lend any assistance to the petitioners herein. The decision of this Court in Supreme Court Legal Aid Committee Representing Undertnal Prisoners v. Union of India &. Ors. [1994 (6) SCC 731 ] and the directions contained therein has no relevance in the instant case, as such we need not dilate on the issue or with the decision any further. In Shaheen Welfare Association v. Union of India & Ors. [1996 (2) SCC 616]; R.D. Upadhyay v. State of A.P. & Ors. [1996 (3) SCC 422] and in "Common Cause" A Registered Society through its Director v. Union of India & Ors. [1996 (4) SCC 33] and the direction issued to the High Courts to deal with the pending criminal proceedings regarding the offences involving corruption, misappropriation of public funds, cheating etc. for disposal of the cases on priority basis does not in fact have any impact in the present context - though, however, we also deem it fit to issue similar directives in the matter under consideration irrespective of the factum of our finding on infraction of Article 21 as also under Section 438 of the Code. It is no doubt true that this Court earlier on two occasions in Writ Petition (Crl.) No. 256/99 and Writ Petition (Crl.) Nos. 72-75/2000, has granted the relief that in the event of the arrest of the petitioner in connection with any criminal case in his capacity as Managing Director/Director of the Group of companies, the arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer. This order obviously tantamounts to an order, invoking the provisions of Section 438 of the Code of Criminal Procedure. The Court adopted the aforesaid procedure to find out a solution in the peculiar situation and being of the opinion that even though the accused is able to get orders for bail from different Courts, where cases are pending, but in view of the large number of cases against the accused throughout the country, it has physically not become possible to release the accused from the custody. If an accused facing a charge under Sections 406, 409, 420 and 120-B is ordinarily not entitled to invoke the provisions of Section 438 of the Criminal Procedure Code unless it is established that such criminal accusation is not a bone fide one, it is difficult to conceive that an accused who is involved in thousands of cases in different parts of the country by cheating millions of countrymen, can be given benefit of the privilege of anticipatory bail as a matter of routine, as was done in the two cases, on the basis of which the present batch of cases have been filed. In the manner in which these white-collared crimes are committed and the extent to which it has pervaded the society at large, we are of the considered opinion that the two cases decided by this Court earlier would not be of universal application and cannot be used as a precedent for availing of the privilege in the nature of an anticipatory bail. The Court itself was conscious of the peculiar situation and. therefore, noticed that the Court is exercising its discretion in the peculiar nature and facts of the case. We do not agree with the proposition that an accused being involved in large number of criminal cases in different parts of the country, if is not able to be released from custody even on getting bail orders in some cases, itself would tantamount to violation of the right of a citizen under Article 21 of the Constitution. The object of Article 21 is to prevent encroachment upon personal liberty by the Executive save in accordance with law and in conformity with the provisions thereof. It is, therefore, imperative that before a person is deprived of his life or personal liberty, the procedure established by law must strictly be followed and must not be departed from, to the disadvantage of the person affected. In each case where a person complains of the deprivation of his life or personal liberty, the court, in exercise of its constitutional power of judicial review, has to decide whether there is a law authorising such deprivation and whether in the given case, the procedure prescribed by such law is reasonable, fair and just, and not arbitrary, whimsical and fanciful. On account of liberal interpretation of the words life and liberty- in Article 21, the said Article has now come to be invoked almost as a residuary right, even to an extent which the founding fathers of the Constitution never dreamt of. In a country like ours, if an accused is alleged to have deceived millions of countrymen, who have invested their entire life s saving in such fictitious and frivolous companies promoted by the accused and when thousands of cases are pending against an accused in different parts of the country, can an accused at all complain of infraction of Article 21, on the ground that he is not being able to be released out of jail custody in view of different production warrants issued by different Courts. Issuance of production warrants by the Court and the production of accused in Courts in cases where he is involved is a procedure established by law and consequently, the accused cannot be permitted to make a complain of infraction of his rights under Article 21. In our considered opinion, it would be a misplaced sympathy of the Court on such white-collared accused persons whose acts of commission and omission has ruined a vast majority of poor citizens of this country. Though we agree that in a given case, Court may be justified in directing release of the accused, taking a stock of the entire situation in the case. While, therefore, we agree with the submissions of the counsel for the petitioners-accused that an accused could maintain a petition under Article 32, but the Court would not be justified in directing the release of such accused under a blanket order like the one, which has been relied upon by the counsel for the accused persons and such a course of action would perpetrate gross injustice. We are, therefore, unable to agree with the method adopted by this Court in Writ Petition (Crl.) No.256/99 and Writ Petition (Crl.) Nos.72-75/2000 since in our opinion to adopt the method would be giving a premium to the accused persons. Right of an accused to have speedy trial is now recognised as a right under Article 21. Even it has been extended to investigation of offences against child offenders in the case of Sheela Barse and Anr. vs. Union of India and Ors. (AIR 1986 SC 1773). The procedural fairness required by Article 21, including the right to a speedy trial, has, therefore to be observed throughout and to be bume in mind. In course of hearing, we had requested the learned Additional Solicitor General to evolve a scheme for expeditious disposal of criminal cases of the nature with which we are concerned in the present batch of cases. But no concrete proposal came till the conclusion of the hearing of these matters. While, therefore, we are not granting any relief to the accused persons on the reasons already indicated, we would commend upon the Central Government to evolve certain formula or procedure, so that the accused will not complain of undue harassment on account of protraction of their cases and the persons deceived who have filed complaints, will be satisfied with the early conclusions of the trial. True, there are certain orders passed by this Court wherein special directions have been given but this Court while passing the orders have not only been extremely careful but was cautious enough to record therein that the order was passed on the special facts and the circumstances in the issue and the same ought not to be treated as a precedent - on the wake of recording of such a caution and the order being in the specific facts of the matter in issue, question of the same being treated as a judicial precedent would not arise, in any event in the view as noticed herein above, the said orders as a matter of facts have lost its significance. As regard the issue of a single-offence, we are afraid that the fact-situation of the matter under consideration would not permit to lend any credence to such a submission. Each individual transaction brought about by the allurement of the financial companies, since the parties are different, the amount of deposit is different as also the period for which the deposit was effecte. It has all the characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence. In almost all the petitions there has been a prayer for exemption from personal appearance - we are afraid that such a direction cannot be had from this Court since it is within the powers of the Magistrate and in his judicial discretion to dispense with the personal appearance of an accused and as such be it provided here that it would be open to the party to apply to the concerned trial/sessions court for such exemption and in the event of there being such an application, the same be disposed of in accordance with the law. (see in this context the decision of this Court in M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim & Apparels Ltd. & Ors. (JT 2001 (7) SC 127). Another prayer which has been made in almost all the petitions is that the investigations of all cases should be transferred to the CBI. Such a prayer has been rejected in the earlier orders as relied upon by the petitioners herein and as such we do not feel it expedient to dilate on the issue excepting recording our concurrance with the earlier view expressed and thereby rejecting the same. (Paras 44 to 61)
       Held finally : In that view of the matter, we conclude that while in the contextual facts, a petition under Article 32 is maintainable but the petitioners are not entitled to any relief by reason of insufficiency of available materials on record as regards the issue of infraction of Article 21. In regard to the prayer for consolidation the petitioner would be at liberty to approach the High Court in accordance with law. Similar is the situation as regards the orders of the Consumer Forum and the petitioner in the normal course of events would be at liberty to ventilate the grievance if any, before the Appellate Forum in accordance with law. By reason of the above, the writ petitions fail and are dismissed excepting to the extent as specifically noticed above. Be it placed on record that observations made in this judgment and order ought not to be treated as having any effect in the trial and each matter be dealt with in accordance with law and uninfluenced by the factum of rejection of these writ petitions. (Paras 62 to 64)

JUDGMENT

Banerjee, J.-This batch of writ petitions under Article 32 of Constitution by reason of supposed infraction of Article 21, moved before this Court for the grant of an order for bail in nature as prescribed under Section 438 Cr.P. Code, and in line with the orders dated 28.3.2000 in W.P. (Crl.) No.256 of 1999 and dated 5.5.2000 in W.P. (Crl.) Nos 72-75 of 2000 passed earlier by this Court. To crystalize the issue, the orders as passed earlier ought to be noticed at this juncture. The first of the two orders read as below: (JVO Group of Companies : Writ Petition (Crl.) No. 256 of 1999)

It is not possible for us to order that all his cases pending in different States should be consolidated into one and brought before one court. That would impose unwarranted and unnecessary hardships on the witnesses and investigating agency spread over to those different States. Nor are we inclined to order the Central Bureau of Investigation to take up the investigation in respect of all cases., 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 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.

In view of the above order we direct the jail authorities of the jail in which he is presently kept to release him forthwith on Registrar General of this Court intimating the jail authorities regarding the surrender of his passport as indicated above.

It is needless to say that this order will not be treated as a precedent and is passed only on the peculiar facts and circumstances of this case. The Writ Petition is disposed of accordingly."

2. This Court also on a petition under Article 32 of the Constitution in Kuber Group of Companies (Writ Petition Nos.72-75 of 2000 being the 2nd order as noticed hereinbefore) also passed a similar order to the following effect:

"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 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 him self available on any date when his presence is imperatively/needed in that court.

4. This order will come into effect

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2001 Supreme(SC) 1433

VERY IMPORTANT POINT While in the contextual facts, a petition under article 32 is maintainable but the petitioners are not entitled to any relief particularly and order in the nature of anticipatory bail by reason of available materials on record on regards the issue of infraction of Article 21.

Cases Referred (10)

VERY IMPORTANT POINT
While in the contextual facts, a petition under article 32 is maintainable but the petitioners are not entitled to any relief particularly and order in the nature of anticipatory bail by reason of available materials on record on regards the issue of infraction of Article 21.