abs 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 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"). - 2 - 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 - 3 - 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? - 4 - 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. - 5 - 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 - 6 - 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. - 7 - 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. - 8 - 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 - 9 - 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. 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 - 10 - 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.)