jpc ba802-11.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO. 802 OF 2011 Rajkumar Ramdas Yadav ... Applicant Versus The State of Maharashtra ... Respondent Mr. Sudeep Pasbola a/w Mr. Akhilesh Singh, for the applicants Mrs. R. V. Newton, APP for the State. Mr. Prakash Krushnarao Pasalkar, PSI, Crime Branch, Thane. CORAM:- A.M. THIPSAY, J. DATED :- 1st July, 2011. P.C. : 1. Heard Mr. Pasbola, the learned Advocate for the applicant and Mrs. Newton, the learned APP for the State. 2. The applicant is accused No.3 in CR No. I-206/2010, registered at Vartaknagar Police Station, Thane. 3. The case of the prosecution, in brief, is that on 5/6/2010, a report was lodged by one Vinod Vasant More at the said Police Station, that one Shankar Dagle alias Chavan and Anil Krishna (accused Nos. 1 and 2) had shown revolver to him and made him drink some sedative, after which he become unconscious. That, the said two accused, thereafter, took away the vehicle of the first informant. The applicant is said to be the receiver of the said robbed vehicle. jpc ba802-11.sxw 2 4. This application is pressed on the ground that the applicant was entitled to be released on bail statutorily and that his application for bail was wrongly rejected by the Special Court. 5. The relevant facts and dates are as under: The applicant was arrested on 16/9/2010. (According to Mr.Pasbola, he was actually arrested on 8/9/2010 but was falsely shown arrested only on 16/9/2010. In the facts and circumstance of the case I do not wish to go into that aspect, being not necessary for determination of the question before me). The two other accused had already been arrested and the charge sheet had been filed against them on 7/9/2010 itself. It was in respect of the offences punishable under Sections 392, 328, 411 and 506 read with Section 34 of the Indian Penal Code. After the arrest of the applicant, a supplementary charge sheet came to be filed on 13/12/2010. Thereafter, it appears that, prior approval for registering a case under Section 23(1) of the Maharashtra Control of Organised Crime Act (MCOC Act) was obtained and the case in respect of an offence punishable under the MCOC Act was registered in respect of the same facts. Pursuant to the application of the provisions of the MCOC Act, the applicant and other two accused came to be re-arrested on 5/1/2011. On 4/4/2011, the applicant and the other accused made an application to the Special Court on the ground that they were entitled to be released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure ('the Code' for short) as the period of 90 days was over and the jpc ba802-11.sxw 3 investigation had not been completed. The learned judge of the Special Court, however, rejected the said application by his order dated 20/4/2011. 6. It is an admitted position that no charge sheet had been filed till that date. Proviso to Section 167(2) of the Code mandates the release of an accused person, if the investigation would not be completed within a period stipulated by that proviso. The Magistrate is not permitted to authorize detention of an accused beyond the period provided in the said proviso. Under section 21 of the MCOC Act, such period can be extended. Clause (b) of sub-section (2) of section 21 of the MCOC act, reads as under: "Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days, on the report of the Public Prosecutor indicating the Progress of the Investigation and the Specific reasons for the detention of the accused beyond the said period of ninety days." 7. It is not in dispute, in the present case, that no application, for detention of the accused persons beyond the period of 90 days, had been made by the public prosecutor. In any case, the Special Court had not extended the said period of 90 days. Once this was so, the applicant was entitled to be released on bail. 8. I have gone through the order passed by the learned Special Judge. The reasonings and approach of the leaned Judge in the matter cannot be approved. jpc ba802-11.sxw 4 9. Since the investigation was not complete even after the expiry of a period of 90 days from the date on which the applicant was produced before the Court and detained in custody, the applicant was entitled to be released on bail, in view of the proviso to sub- section (2) of Section 167 of the Code. 10. Mrs. Newton, the learned APP, submits that now, i.e. on 28/6/2011, the charge sheet has been filed with respect to the offences punishable under the MCOC Act. In my opinion, merely because the charge sheet has now been filed, the right accrued to the applicant to get released on bail cannot be defeated. The applicant had rightly asked for his release on bail before the Special Court and his prayer was wrongly turned down by the learned Special Judge. The applicant is, therefore, entitled to be released on bail. 11. The Application is allowed. 12. The applicant is ordered to be released on bail in the sum of Rs. 50,000/-(Rupees fifty thousand only)with one surety in like amount, on the condition to attend the Crime Branch, Wagle Estate Unit, Thane and make himself available for investigation/interrogation, as and when required by the Investigating Officer. (A.M. THIPSAY, J.)