1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL WRIT PETITION NO.2586 OF 2008 Manik Anant Patil ...Petitioner vs. The State of Maharashtra ...Respondent Mr.S.V.Kotwal i/b Mr.M.S.Mohite for the petitioner Ms S.V.Gajare A.P.P. For State CORAM :A.S.OKA,J. DATE : JULY 1, 2009 JUDGMENT : 1 The submissions of the learned counsel for the petitioner were heard on the last date. With a view to appreciate the submissions, it will be necessary to refer facts of the case in brief. 2 An offence was registered with Nalasopara Police station alleging commission of offence under section 302 of the Indian Penal Code. One Navleen Kumar was allegedly murdered on the terrace of the building in which she was residing. It is stated that the deceased was a social worker who was working for the welfare of the Tribal community F.I.R was filed by her maid servant. 3 Initially investigation was carried out by the local 2 police station and thereafter the same was taken over by the State C.I.D. An application was made by the present petitioner under section 167 (2) of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) for grant of compulsory bail on the ground that though the petitioner was arrested on 30th July 2004, charge sheet was not filed within the statutory period of 90 days. An order was passed on 2nd November 2004 granting bail in favour of the petitioner under section 167 (2) of the said Code of 1973. 4 An application purporting to be an application under section 439(2) of the said Code of 1973 was filed by the respondent no.3 State before the learned Special Judge under Maharashtra Organized Crime Act,1999 (hereinafter referred to as the said Act of 1999). It must be stated here that on 8th October 2004, the Special Inspector of General Police, C.I.D. Maharashtra State, Pune accorded sanction to apply the provisions of the said Act of 1999. In the application for cancellation of bail filed by the respondent, the cancellation of bail was sought on the ground that the concerned Investigating Officer viz. Deputy Superintendent of Police of State C.I.D, Mumbai who was appointed under the aforesaid order dated 8th October 2004 desires to carry out investigation. In fact, the said application was signed and verified by the said Officer. It was pointed out in the said application 3 that earlier, the charge sheet for the original offence under section 302 of the Indian Penal Code was filed on 25th April 2003. It is asserted in the application that after filing of the charge sheet, the Investigating Officer found that there is evidence available on the record to show that the provisions of the said Act of 1999 were applicable. 5 By the impugned Judgment and order dated 25th November 2008, the bail granted to the petitioner under the order dated 2nd November 2004 was canceled. 6 The petitioner has taken an exception to the impugned order on various grounds. The first submission is that there was no ground made out for invoking section 439 (2) of the said Code of 1973. The submission is that once a compulsory bail under section 167 (2) of the said Code has been granted, on the ground of subsequent filing of the charge sheet, bail cannot be cancelled. He invited my attention to the order passed by the learned Magistrate granting bail under section 167 (2) of the said Code of 1973. He pointed out that the order refers to the order dated 8th October 2004 which accorded sanction to apply the provisions of the said Act of 1999. He submitted that after taking a note of the said fact, the learned Magistrate had granted bail. He, therefore, submitted that the fact that sanction was granted for 4 applying the said Act of 1999 will not make any change in circumstance requiring interference with the order granting bail. He submitted that the impugned order cancelling the bail is perverse. He relied upon the decision of the Apex Court in the case of Mohamed Iqbal Madar Sheikh and others vs. State of Maharashtra[(1996) 1 SCC 722. He submitted that once the bail is granted under section 167 (2) of the said Code of 1973, accused shall be deemed to have been released under Chapter XXXIII of the said Code of 1973 and merely because subsequently the charge sheet has been submitted against the accused for offence under the said Act of 1999 is no ground to cancel the bail. 7 The learned A.P.P has supported the impugned order by relying upon the affidavit of the concerned Officer. Reliance has been placed on the decision of this court in the case of Sarang Arvind Goswamy Vs. State of Maharashtra [2005 (3) Mh.L.J. Page 774]. The learned A.P.P submitted that no interference is called for. 8 I have carefully considered the submissions. The petitioner was arrested on 30th July 2004. An application was filed on 1st November 2004 on the ground that statutory period of 90 days has lapsed from the date of arrest and the charge sheet has not been filed. It must be stated here that the sanction was accorded on 8th 5 October 2004 for applying the provisions of the said Act of 1999. Under the said order, the Dy.S.P.Mr.Kathe of State C.I.D, Mumbai was appointed as an Investigating Officer. On the record of the petition reports dated 14th October 2008 addressed to the learned Magistrate as well as the learned Special Judge under the said Act of 1999 have been annexed. It is stated in the reports that the said Dy.S.P.Mr.Kathe State C.I.D, Mumbai has been appointed for the investigation for offence under MCOC Act as a consequence of sanction accorded by order dated 8th October 2004. 9 It is true that while dealing with the application under section 167 (2) of the said Code of 1973, the fact that the sanction was granted was brought to the notice of the learned Magistrate. However, it will be necessary to refer to what has been observed by the learned Magistrate: ...It also makes it crystal clear that the default investigation agency to complete the investigation within 90 days will give a right to the accused to get himself released on bail. At this juncture another submission of the learned A.P.P Shri Londhe deserves to be considered. He argued that once the provisions of the MCOC Act is applied the court of magistrate become functous officio and cannot deal with the application of bail. However, 6 on perusal of the provisions of the MCOC Act the cognizance of the offence under MCOC Act has been barred and the cognizance has to be by a Special Court. For the present we are not on the point of seeking cognizance and on the point of the right of the accused to get himself released on the basis of indifisible right to get bail. The procedure as regards the cognizance has been prescribed u/s 9 of the Act. Accordingly, upto the point of cognizance this court is very much competent to pass any orders... 10 In fact, in the earlier part of the order, the learned Judge has noted the submission made by the learned A.P.P that under the provisions of section 21 of the said Act of 1999, instead of 90 days, period of 180 days have been provided. After noting this argument, the learned Magistrate has observed that cognizance of the offence under the said Act of 1999 has to be taken by the Special Court under the said of 1999 and the procedure as regards taking the cognizance has been prescribed by section 9 of the said Act of 1999. Therefore, he observed that till the cognizance is not taken under section 9 of the said Act of 1999, he was entitled to consider the case for grant of bail under section 167 (2) of the said Code on completion of period of 90 days. Thus, what has been observed by the learned Magistrate in substance is that the petitioner was 7 arrested in connection with the offence under section 302 of the Indian Penal Code and when the application under section 167 (2) of the said Code of 1973 was made, cognizance of the case was not taken by the Special Court in accordance with the section 9 of the said Act of 1999 and therefore, as the period of 90 days had expired, he was under an obligation to relese the petitioner under section 167 (2) of the said Code. 11 It will be necessary to refer at this stage to the impugned order passed by the court. The learned Judge has referred to the petition filed by the wife of the petitioner who has been co-accused in the same case which was filed in this court and which came to be dismissed. The learned Judge has referred to the what has been observed by this court while dismissing the petition. In the said petition, the applicability of the provisions of the said Act of 1999 was challenged by the wife of the petitioner. The petition filed by the wife of the petitioner was dismissed. The learned Judge has quoted the observations in the Judgment of this court recording the role played by the petitioner in the offence. 12 As stated earlier, though the learned Magistrate was informed about the grant of sanction regarding applicability of the provisions of the said Act of 1999, he proceeded to grant bail under section 167 (2) of the 8 said Code on the ground that the Special Court had not taken cognizance. 13 At this stage, it will be necessary to refer to the decision of the Apex Court in case of Mohamed Iqbal Madar Sheikh and others (supra) relied upon by the counsel for the petitioner. This was a case where the challenge before the Apex Court was to an order rejecting prayer for bail by the designated court under the TADA. In the facts of the case, after investigation, charge sheet was submitted under the various provisions of TADA. The Apex Court also considered the fact that subsequently TADA was no longer in force. The Apex Court also considered the argument that the benefit of the proviso (a) to section 167 (2) of the said Code of 1973 could not have been availed of. It will be necessary to refer to what has been held by the Apex Court in the said decision. Paragraph 12 of the said decision reads thus : 12 During hearing of the appeal, it was pointed out by the counsel appearing on behalf of the appellants that some courts in order to defeat the right of the accused to be released on bail under proviso (a) to section 167 (2) after expiry of the statutory period for completion of the investigation, keep the applications for bail pending for some days so that in the meantime, charge-sheets are submitted. Any such act on the part of any court cannot be approved. If an accused charged wikith any kind of offence becomes entitled to be released on bail under provisio (a) to section 167 (2), pending till the charge-sheets are submitted so that the right which had 9 accrued is extinguished and defeated. So far the present case is concerned, we are informed by the counsel for the appellants that a petition for grant of bail on merit had been filed which was rejected on 22-3-1993. But admittedly no petition for grant of bail after the expiry of the statutory period for the submission of the charge-sheet had been filed. There is no statement that any application for grant of bail had been filed on behalf of the appellants under provisio (a) to section 167 (2) after the expiry of the statutory period which application was kept pending till 30-8-1993. Now the appellants have forfeited their right to be released on bail under proviso (a) to section 167(2) as they are in custody on basis of orders for remand passed under provisions of the Code. The learned A.P.P placed reliance on the decision of this court in case of Sarang Arvind Goswamy (supra). This was a case where an order cancelling bail granted in favour of the applicant (before this court) was challenged by filing an application under section 482 of the said Code. The main reason why the bail granted in favour of the applicant was cancelled was that subsequent to the order granting bail, further offence was added against the applicant under the provisions of the said Act of 1999. A submission was made before this court that prior to applicability of the provisions of the said Act of 1999, bail was granted in favour of the applicant in connection with the same crime. Reliance was placed on various decisions of this court and Apex Court laying down grounds on which bail could be cancelled. Relying upon the said Judgments, it was submitted that the 10 provisions of the said Act of 1999 is based on the past criminal record of the applicant including the case in which he was granted bail. It were submitted that the offence under the said Act of 1999 was invoked mainly on the basis of the offence already registered against the applicant. In paragraph 9, this court dealt with the said argument and rejected the same. This court noted that in the case before it the applicant was arrested for an offence which was originally registered as an offence under the Indian Penal Code and by order granting bail, he was released on bail even before filing of the charge sheet. This court noted that the offence under the said Act of 1999 could be registered by the police only after formal approval was granted by the authority. This was a case where the applicant was released on bail before the sanction was accorded under the said Act of 1999. After considering this fact, this court noted that only after grant of bail, sanction under the said Act of 1999 was accorded and therefore, this court observed that in view of the applicability of the said Act of 1999, the applicant will have to be taken in custody and he can be released on bail only after the applicant makes out a case under section 21 of the said Act of 1999. Relevant part of the paragraph 9 of the decision of this court reads thus : ...The fact that the offences under the provisions of 11 MCOCA are founded on the previous offences will make no difference. Be that as it may, once more offence was registered against the applicant on 21st February 2005 with the Bund Garden Police Station, Pune. Accordingly, the prosecution approached the Court for cancellation of bail by a formal application on 25th February 2005 on the assertion that now provisions of MCOC Act have been applied against the applicant, as a consequence of which the bail in favour of the applicant relating to the offences under Indian Penal Code and Arms Act will be of no avail. Instead the applicant will have to be taken into custody in relation to the newly registered offence under MCOC Act and the applicant can be released on bail only if the applicant was to satisfy the rigours of the provisions of the Special enactment. This stand of the prosecution has found favour with the Sessions Court as can be seen from the order which is impugned in this application. If this is the course adopted in the present case, in my opinion, it is not only because of the subsequent development which has come on record but also by necessity of law, in view of the stringent provisions of MCOC Act... 14 A distinction was sought to be made by the learned counsel for the applicant by pointing out that in the said case after the bail was granted for offences under Indian Penal Code, the sanction was accorded for applying 12 the provisions under the said Act of 1999 and in this case, the sanction was accorded prior to grant of compulsory bail by the learned Magistrate and the said fact has been noted by the learned Magistrate. It must be noted here that the learned Magistrate came to the conclusion that he was granting compulsory bail for the offence under section 302 of the Indian Penal Code as on that date cognizance was not taken by the Special Court of the offences under the said Act of 1999. What has been held by this court in the case of Sarang Goswamy (supra) is that once the provisions of the said Act of 1999 are applied, the accused has to to be taken in custody in as much as when the said Act of 1999 is made applicable, before granting bail, the stringent conditions imposed under section 21 of the said Act of 1999 have to be fulfilled and only thereafter accused can be released on bail. In the present case though sanction was accorded earlier, when bail was granted, the Special Court had not taken cognizance of the offence under the said Act of 1999. After cognizance was taken by the Special Court, the bail granted earlier was of no avail. The issue which is involved in this case did not arise for consideration of the Apex Court in the case of Mohamed (supra). 15 In the circumstances, the view taken by this court in the said case of Sarang Goswamy(supra) will certainly 13 apply to the facts of this case. 16 In the circumstances, there is no need to interfere with the impugned order and the petition is accordingly rejected. 17 At this stage, the learned counsel for the petitioner prays that ad-interim order passed by this court on 10th December 2008 may be extended by a period of four weeks from today. He states that at present the petitioner has been released on parole and he will have to surrender on 10th July 2009. 18 Due to pressure of heavy work, a copy of this order may not be available at an early date. In any case, the petitioner is in custody in connection with the other case. Hence, it is directed that ad-interim order dated 10th December 2008 will continue to operate till 11th August 2009. JUDGE