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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 3850 OF 2007
1. Rajesh @ Raju Narayan Amin Poojari
2. Rafik Moddin Shaikh .. Applicants
V/s
The State of Maharashtra .. Respondent
Mr.A.P. Mundargi i/b Mr.P.P. Runwal for the applicants.
Mr.D.P. Adsule, A.P.P. for the respondent.
CORAM : D.G. KARNIK, J.
DATE : 27TH JUNE 2008
JUDGMENT:
JUDGMENT
1. By this application under section 167(2) and
section 439 of the Code of Criminal Procedure, the
applicants seek bail in connection with the crime
registered under C.R. No.281 of 2006 at Wagle Police
Station, District Thane for the alleged offences
punishable under section 395, 397 and 342 of the Indian
Penal Code and section 3(1)(ii), 2 and 4 of the
Maharashtra Control of Organized Crimes Act, 1999 (for
short “the MCOC Act”).
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2. The applicants along with another had previously
filed application nos.719, 803 and 807 of 2007 for bail
before the Sessions Judge and the Special Court
constituted under section 5 of the MCOC Act. All the
bail applications were rejected by the Special Court by
a common order dated 13th September 2007. The
applicants have therefore approached this court for
bail.
3. The only ground on which the bail was prayed
before the
Special Court was that the charge
sheet/challan was not filed before the Special Court
within the stipulated period of 180 days from the date
of the arrest and the first remand to custody of the
applicants. The very ground is pressed for bail before
me.
4. The applicants were arrested on 25th September
2006 for the alleged offences under sections 395, 397
and 342 of the I.P.C. Thereafter the provisions of the
MCOC Act were applied and on 10th January 2007 they were
shown as arrested under the MCOC Act. The charge
sheet/challan was filed against the applicants on 20th
March 2007 in the Court of JMFC, Thane – a Court which
had no jurisdiction to try the applicants for an offence
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under the MCOC Act. It is not clear whether the charge
sheet was returned by the JMFC, Thane whether it was
transmitted by the magistrate to the special Court, or
returned to the police who then filed it in the Special
Court. The undisputed fact, however, is that the charge
sheet/challan was filed or came to the Special Court
constituted under the MCOC Act on 30th June 2007, that
is beyond the period of 180 days of the arrest and first
remand to police custody of the applicants. The
applicants, therefore, moved the Special Court for bail
on the ground that the charge sheet/challan was not
filed in
the competent court within 180 days of their
arrest. The Special Court, however, rejected the
application holding that filing of a charge sheet before
the JMFC, Thane on 20th March 2007 was a technical
mistake and as the investigation was completed and the
charge sheet was filed in the court, though having no
jurisdiction,the Court cannot take a rigid approach when
such a mistake was committed.
5. The only question that arises for my
consideration is: whether the applicants are entitled
to bail on account of non-filing of the charge
sheet/challan in the competent court within the
statutory period?
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6. Sub-section (2) of section 167 of the Criminal
Procedure Code (for short “the Code”) provides that the
magistrate to whom an accused person is forwarded may,
whether he has or has no jurisdiction to try the case,
from time to time authorise the detention of the accused
in such custody as such magistrate thinks fit for a term
not exceeding 15 days in the whole, and if he has no
jurisdiction to try the case or commit it for trial, and
considers further detention unnecessary, he may order
the accused to be forwarded to a magistrate having such
jurisdiction. Proviso to sub-section (2) of section 167
provides
that the magistrate may authorise detention of
an accused person otherwise than in custody of the
police, beyond the period of 15 days, if he is satisfied
that the adequate ground exists for doing so, but no
magistrate shall authorise the detention of the accused
person in custody under this paragraph for a total
period exceeding 90 days, where the offence committed is
an offence punishable with death, imprisonment for life
or imprisonment for a term not less than 10 years, and
60 days where the investigation relates to any other
offence. The proviso further provides that on expiry of
the period of 90 days or 60 days as the case may be, the
accused person shall be released on bail if he is
prepared to furnish bail.
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7. Sub-section (2) of section 167 of the Code has
been amended in relation to its application in the State
of Maharashtra by sub-section (2) of section 21 of the
MCOC Act. The amendment provides that reference to 15
days and 60 days in section 167(2) of the Code. shall
be construed as 30 days and 90 days respectively. The
amendment further adds additional proviso to sub-section
(2) which provides further that if it is not possible to
complete the investigation within the said period of 90
days, the Special Court shall extend the said period
(i.e. period of detention in judicial custody) upto 180
days on the report of a public prosecutor indicating the
progress of investigation and the specific reasons for
the detention of accused beyond the said period of 90
days. Thus, in respect of an offence under the MCOC
Act, a Judicial Magistrate is empowered to allow
detention of the person accused in police custody upto
30 days and in judicial custody (inclusive of the period
of police custody) for a total period not exceeding 90
days. Power has been conferred on the Special Court
appointed under the MCOC Act to extend the period of
custody beyond the period of 90 days but not exceeding
180 days. The power to extend the period of judicial
custody beyond 90 days and upto 180 days, however,
cannot be exercised by a judicial magistrate but can be
exercised only by the Special Court appointed under the
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MCOC Act.
8. In Central Bureau of Investigation v. Anupam
Kulkarni – (1992) 3 SCC 141, the Supreme Court
reiterated that a judicial magistrate cannot order
detention of an arrested accused in the police custody
for a period exceeding 15 days and judicial custody
(inclusive of the period of police custody if any
earlier ordered) for a period exceeding 90 days as
provided under section 167 of the Code. In view of the
amendment to section 167 of the Code by section 21 the
MCOC Act,
a judicial magistrate is entitled to order
detention of a person in police custody for a period not
exceeding 30 days in the whole and in judicial custody
(inclusive of police custody, if any, earlier ordered)
for a period not exceeding 90 days. It is only the
Special Court which can order further detention of the
accused in judicial custody (inclusive of police
custody, if any, ordered earlier) for a total period not
exceeding 180 days. During this period of 180 days, the
investigation in respect of any offence under the MCOC
Act, howsoever serious the offence may be, has to be
completed and a charge sheet/challan has to be filed in
the Special Court failing which the accused is required
to be released on bail if he is prepared to furnish
bail.
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9. Article 21 of the Constitution of India confers
right to life and liberty. Article 22 of the
Constitution of India and section 57 of the Code mandate
that no police officer shall detain in custody a person
arrested for a period longer than 24 hours exclusive of
time necessary for the journey from the place of arrest
to the magistrate’s court. The Courts generally
disfavour police custody except where it is so
specifically by law to ensure liberty guaranteed by the
Constitution. Of course, the liberty can be curtailed
during
the period of trial for an offence, but that too
in accordance with law. The law requires not only the
investigation to be completed within 60 or 90 days as
the case may be in respect of offences under the Indian
Penal Code and within a period of 180 days in respect of
offences under the MCOC Act, but also requires the
charge sheet/challan to be filed within such period. In
the event the investigation is not completed and/or
charge sheet/challan is not filed within the aforesaid
period, the proviso to sub-section (2) of section 167 of
the Code comes into play and requires the accused person
to be released on bail if he is prepared to and
furnishes bail. It is in this background that one must
look to the facts of the case.
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10. In the present case, the charge sheet was filed
before the JMFC, Thane on 20th March 2007. Long before
that, the provisions of the MCOC Act were made
applicable. Approval under section 23(1)(a) of the MCOC
Act was accorded by the Additional Commissioner of
Police on 21st December 2006 and sanction under section
23(2) of the MCOC Act was also accorded with by the
Additional Director General of Police and Additional
Commissioner of Police on 20th March 2007. Only after
such sanctions were obtained, the charge sheet/challan
was filed before the JMFC, Thane on 20th March 2007.
Thus the
police authorities were very well aware that
the applicants were being prosecuted for offences under
the MCOC Act. In fact, if the applicants were not being
prosecuted under the MCOC Act, and as they were willing
to furnish bail, they could not have been detained in
custody without filing of a charge sheet/challan beyond
24th December 2006 when the period of 90 days from the
date of the arrest/first remand order dated 25th March
2007 expired. In the circumstances, by no stretch of
imagination, it can be said that the police committed a
bona fide mistake in filing the challan/charge sheet
before the JMFC, Thane. Admittedly, the JMFC, Thane had
no jurisdiction to try the applicants under the MCOC Act
and the jurisdiction vested only in the Sessions Judge,
Thane who was appointed as the Special Court under the
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MCOC Act. The finding of the Special Judge that the
police committed a bona fide mistake in filing of charge
sheet before the JMFC, Thane, therefore, cannot be
sustained.
11. The learned Special Judge in his order has
referred to and relied upon a decision of this Court in
Saquib Abdul Hamid Nachan – 2007 (4) LJSOFT (URC) 8. In
my view, the said decision has no application to the
facts and circumstances of the present case. That was a
case arising out of offence under section 302 read with
34 of the I.P.C.
ig and the Arms Act. Investigation was
taken over by the Crime Branch, Thane and was handed
over to DCB, CID, Mumbai. The investigating officer
filed a charge sheet in the 37th Court of Metropolitan
Magistrate on 15th November 1993 which was within 90
days from the date of arrest. The magistrate then
committed the case to the Sessions Court, Mumbai which
set aside the order of committal and directed the
Metropolitan Magistrate, Bhiwandi to return the charge
sheet to the I.O. to file it with the JMFC, Mumbai,
holding that he had jurisdiction to try the case. It
was in these circumstances held that filing of the
charge sheet before one magistrate instead of another
was held to be merely an irregularity. That was not a
case under the MCOC Act. Therein admittedly a
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Magistrate had the jurisdiction to try the offence and
the question was which of the Magistrate had the
jurisdiction to pass the committal order. Sections 190
192 of the Code provide for transfer of a case from one
magistrate to another. However, under the MCOC Act, a
Magistrate has no jurisdiction to try an accused for an
offence punishable uner MCOC Act and trial as well as
filing of the charge sheet/challan must be done before
the Special Court. Further more, second proviso to
section 167 of the Code, added by section 21 of the MCOC
Act, confers the jurisdiction to extend the period of
custody
beyond 90 days and upto 180 days only with the
Special Court. The JMFC is devoid of any jurisdiction.
In the circumstances, the observations made in that case
can be of no assistance to the State.
11. In my view, therefore, the applicants are
entitled to bail as the challan/charge sheet was not
filed before the Special Court within the statutory
period of 180 days of the arrest and first order of
remand to police custody. Accordingly, I direct that
the applicants be released on bail on furnishing
personal bond of Rs.50,000/- each with two sureties in
the like amount.
(D.G. KARNIK, J.)
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