:1: :1: :1: HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1483 OF 2005. WRIT PETITION NO. 1483 OF 2005. WRIT PETITION NO. 1483 OF 2005. 1. Dilip Pandurang Kamath, Aged 44 years, Occu: Service, R/o: RNA Park, A-1, 302, Vashi Naka, Chembur, Mumbai 400 074. 2. Abdul Rasheed Sikandarsab Kulkarni, Aged: 47 years, Occu: Advocate, R/o: Flat No.201, Shahid Apartments No.16, "C" Street, Haines Road, Fraser Town, Bangalore 560 005. 3. Chenna Boyanna Krishna Yadav, Aged: 41 years, Occu: Advocate/ Ex-MLA, R/o: H. No. 18-5-757, Lal Darwaza, Hyderabad 500 253 (A.P.) 4. Gokul Bhagaji Patil, Aged 54 years, Occu: Service, R/o: Ganesh Darshan, 2nd Floor, Chaitanya Sankul, Badlapur, Shirgaon, MIDC Road, Dist: Thane. 5. Mohammed Chand Mulani, Aged 61 years, Occu: Retired ACP, Resident No. 667, Besides Aroh Mangal Karyalaya, Datta Nagar, Ambegaon, Katraj, Pune. (Presently lodged in Yerwada Central Prison Pune.) ..PETITIONERS. (Orig. Accused Nos. 44,49,53,58 & 61.) Versus. The State of Maharashtra, (In the instance of Bund Garden Police Station, Pune, in C. R. No. 135/2002) Through: CBI, Kitab Mahal, Mumbai. ..RESPONDENTS. --- :2: :2: :2: Shri. S. R. Chitnis, i/b S/Shri. Sachin Kivansara and M. Rupender, for Petitioners Nos. 1 to 4. Shri. Amin H. Solkar for Petitioner No.5. Shri. Raja Thakare and Shri. A. M. Chimalkar, Advocates for the respondent - C.B.I. Shri. D. S. Mhaispurkar, A. P. P. for the State. CORAM: S.B.MHASE & CORAM: S.B.MHASE & CORAM: S.B.MHASE & S.R.SATHE, JJ S.R.SATHE, JJ S.R.SATHE, JJ. DATE: October 14, 2005. DATE: October 14, 2005. DATE: October 14, 2005. ORAL JUDGMENT (PER S.B.MHASE,J.). ORAL JUDGMENT (PER S.B.MHASE,J.). ORAL JUDGMENT (PER S.B.MHASE,J.). 1. The Petitioners have approached this Court invoking jurisdiction of this Court under Article 226 of the Constitution of India and thereby seeking the writ of habeas corpus. The petitioenrs are original accused Nos. 44, 49, 53, 56 and 61 respectively in Special Case No. 2 of 2003, pending before the Special Court ( MCOC Court) at Pune, which arises from Crime No. 135 of 2002 registered with Bandgarden Police station. The Said offence was registered and charge sheet was filed under sections 255, 256, 257, 258, 260, 263-A, 419, 420, 467, 468, 471, 472, 473 and 474 of the IPC, Sections 3(1)(2), 3(2), 3(4), 3(5), 4 & 24 of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter, in short, referred to as "the MCOC Act".), Section 63(a) of the Bombay Stamp Act and Section 13(a) & 13(d) of the Prevention of Corruption Act. This case is commonly known in the media and the public as "The Telgi Stamp Scam Case". Petitioenr :3: :3: :3: No.1 (original accused No. 44) was arrested on 13.6.2003 and was taken in judicial custody by order dated 10th July 2003 and the Charge sheet was filed against him on 15.9.2003. The Petitoner No.2 (original Accused No.49) was arrested on 5.8.2003, he was remanded to judicial custody on 22.8.2003, the charge sheet against him was filed on 5.9.2003. The petitoner No.3 (original accused No. 53) was arrested on 6.9.2003, was remanded to judicial custody on 26.9.2003, and the charge sheet against him was filed on 29.12.2003. The Petitioner No.4 (original accused No.56) was arrested on 18.10.2003 and was remanded to the judicial custody on 3.11.2003, the charge sheet was filed against him on 29.12.2003. Petitioner No. 5 (original accused No. 61) was arrested on 4.12.2003 and was remanded to the judicial custody on 16.12.2003, charge-sheet against him was filed on 3.2.2004. Since then, these accused are in judicial custody pending the trial. 2. The above-referred dates will show that, initially, the judicial custody was granted on the respective dates under section 167 of the Code of Criminal Procedure, 1973 and from the date of the filing of the charge-sheets, since congnizance has been taken, the Petitioners are in judicial :4: :4: :4: custody/remand granted as per the provisions of Section 309(2) of the Code of Criminal Procedure, 1973. All these accused - petitioners, after their arrest, from time to time have applied for bail on merit before the Special Court (MCOC Court), Pune. After hearing them, their bail applications were rejected by the Special Court. When this petition was pending simultaneously, the Petitoners have filed bail applications before the learned Single Judge of this Court, the same are as under: . (a) Petitioner No.1 Bail Application No.4319 of 2004. . (b) Petitioner No.2 bail application No.4869 of 2004. . (c) Petitioner No.3 bail application No.4853 of 2004. . (d) Petitioner No.4 bail Application No.4004 of 2004. . (e) Petitioner No.5 bail application No.3885 of 2004. . It is reported that while this petition was being heard, the application of the petitioner No.1 for bail was rejected by the learned Single Judge. 3. It is worthwhile to mention that from the date of arrest till the filing of the petition, the Special Court has granted remand from time to time. However, these orders are not subject of challenge in this petition. On the contrary, all these proceedings :5: :5: :5: upto May 2005 have been accepted to be valid by the Petitioners. 4. As the charge-sheet has been filed against the petitioners under the MCOC Act, the cases of the Petitioners are triable by the Special Court within whose local jurisdiction the offence was committed or before the Special Court constituted for trying such offence. Section 6 of the MCOC Act makes a provision in respect of the exclusive jurisdiction of the Special Court to try the cases under the said Act. Section 5 of the said Act contemplates that the Government may, by notification in the official gazette, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. It is further provided in sub-section (3) of Section 5 that such Special Court shall be presided over by a Judge to be appointed by the State Government with the concurrence of the Chief Justice of the Bombay High Court. The said provision further states that the State Government may also appoint, with the concurrence of the Chief Justice of the Bombay High Court, additional Judges to exercise jurisdiction in a Special Court. Sub-section (4) provides that person to be appointed as a Judge or additional Judge of a :6: :6: :6: Special Court shall be Sessions Judge or Additional Sessions Judge. Sub-section (5) of Section 5 regulates the business of the Special Court. It provides that where the additional Judge or Judges are appointed in Special Court, the Judge of the Special Court may from time to time, by general or special order in writing provide for distribution of the business of the Special court amongst himself and additional Judge or additional Judges and also for the disposal of the urgent business in the event of his absence or the absence of any additional Judges. . Thus, on reading these provisions, it is made clear that the business of the Special Court shall be regulated by a general or special order made by the Special Judge, and the said general or special order may be pertaining to the distribution of the business of the Special Court amongst the Special Judge and Additional Judges of the Special Court. It may or shall also provide for the disposal of the urgent business in the absence of the Special Judge or any of the additional Judges. Suffice it to say at this stage that, for the purposes of this petition, in the absence of the Special Judge, it is the Special Judge who is going to remain absent, who will entrust the business of his Court by order made in writing :7: :7: :7: under these sections to any of the additional Special Judge of the Special Court. The Special Judge can also make an order as to how the business in the absence of any of the Judge or Additional Judge of the Special Court is to be carried out. 6. Admittedly, at Pune the Special Court was constituted by the Government for conducting the cases under the MCOC Act. Apart from constituting the Special Court, and appointing the Special Judge for the Special Court, the government has also appointed two additional Judges for the Special Court. 7. Shri. Shembole was appointed as the Judge of the Special Court by Government of Maharashtra with the concurrence of the Chief Justice of the Bombay High Court by issuing notification dated 4th March 2002. So also, by another notification, Shri. B. N. Deshpande and Shri. V. V. Borikar were appointed as the Additional Judges of the Special Court constituted under the MCOC Act. The case of the Petitioners was being dealt with by the Judge of the Special Court Shri. Shembole and all the orders till 5.5.2005, including the judicial custody remand order under section 309(2) of the Code of Criminal Procedure, were passed by Shri. Shembole. It appears from the :8: :8: :8: order-sheet that on 8.4.2005, the case was resumed before the Judge of the Special Court, when one of the Petitioners was produced on video conference and the rest of the petitioners were not produced through Video Conference and the case was adjourned to 5.5.2005. There is no dispute on the fact that on this date, the judicial custody remand was granted by the Judge of the Special Court till 5.5.2005. However, the whole controversy, according to the Petitioners, is about the proceedings that has taken place on 5.5.2005. 8. We have already stated in the above paragraph that there were three Judges of the Special Court established under the MCOC Act. However, Shri. Shembole before whom this case bearing MCOC Special Case No.2 of 2003 was pending was not available on 5.5.2005, i.e., the date till which the judicial custody remand order was granted by the said Judge, as stated earlier. Therefore, it was further necessary to pass the appropriate judicial custody remand orders under section 309(2) of the Code of Criminal Procedure on the said date. However, Shri.Shembole was on summer vacation from 2.5.2005 till 15.5.2005. Additional Judge of the Special Court, Shri. B.N.Deshpande, was also on judicial leave (Summer :9: :9: :9: Vacation) from 2.5.2005 till 15.5.2005. It is further to be noted that the Second Additional Judge of the Special Court, Shri. V.V.Borikar, who then also was the 4th Additional District & Sessions Judge, Pune was also on Earned Leave from 5.5.2005 to 7.5.2005 and the charge of the said court was kept with Shri. P. P. Birajdar, the 5th Additional District & Sessions Judge, Pune. It is an admitted fact that Shri. P.P.Birajdar, 5th Additional District & Sessions Judge, Pune was not the Judge and/or additional Judge appointed by the Government of Maharashtra under section 5 of the MCOC Act and therefore, he was not supposed to preside over and try the case under the MCOC Act. However, the charge came to Shri. Birajdar in view of the standing order No. Gen-B-16/ii/46/93 dated 26th June 1993, which gives a general power to the District Judge to make an arrangement about the business of the court when one of the Judge/court proceeds on leave and/or summer vacation. We have ascertained by making an enquiry through the Registry with the Special court that the Special Court has not passed any general or specific orders as contemplated by sub-section (5) of Section 5, which provision has already been dealt with in the above paragraphs. Under these circumstances, the above case, namely, MCOC Special Case No. 2 of 2003 was placed before :10: :10: :10: Shri. P. P. Birajdar, the 5th Additional District & Sessions Judge, Pune. On this date, none of the accused who were in judicial custody were produced before Shri. Birajdar, the 5th Additional District & Sessions Judge, Pune, since the Video Conferencing facility was not available in the court of Shri.P.P.Birajdar. On behalf of the respondent, Police Officer preferred an application, stating that the counsel for the CBI - Shri. Raja Thakare was busy in the High Court and requested to adjourn the matter. On this application, Shri. P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune passed an order of "Other Side to Say", upon which the Advocate for one of the accused - Mr. Telgi has stated that he has no objection to grant adjournment. However, Shri.P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune did not pass any order as to whether the adjournment is granted or not and the application remained as it is. On this date, it appears from the order-sheet, that the case was posted to 8.6.2005. From the order-sheet, it is not clear whether the judicial custody remand of the accused, and more specifically of the petitioners, was extended under section 309 of the Code of Criminal Procedure. However, now it is an admitted position by the respondent that on 5.5.2005, except the presentation :11: :11: :11: of the application by the CBI for the adjournment, no business was transacted before Shri. P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune. The case was simply put before him and he put the same case, after passing certain casual orders, to 8.6.2005. However, for the point in controversy, it is an admitted fact that on that date Shri.P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune has not passed any order extending the judicial custody remand by exercising the powers under section 309 of the Code of Criminal Procedure and simply adjourned the case to 8.6.2005. 9. This petition has arisen from the above referred MCOC Special Case No. 2 of 2003. The grievance of the petitioners is that on 5.5.2005, the case could not have been placed before Shri.P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune, because he was not appointed as the Judge of the Special Court by appropriate notification by following the procedure as laid down under section 5 of the MCOC Act and, therefore, the said Judge was incompetent to deal with and try the cases under the MCOC Act. Therefore, the act on the part of Shri.P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune to adjourn the case to 8.6.2005 :12: :12: :12: is illegal one, and thereby the detention of the Petitioners is illegal one. . The second ground on which the Petitioners have approached this Court is that from 5.5.2005 upto 8.6.2005, there were absolutely no orders passed under section 309(2) of the Code of Criminal Procedure, remanding the accused - petitioners to the judicial custody. Therefore, the detention of the petitioners in custody is illegal and bad in law. Thus, it is the contention of the petitioners that their Constitutional right under Article 22 is violated. Thus, they have approached this court by filing this petition for habeas corpus. 10. This petition was presented in this court on or about 26th May 2005. It was moved for circulation on 27.5.2005 and the circulation was granted for 1.6.2005. On 1.6.2005, the matter was adjourned beyond vacation so as to put up the matter before the Regular Bench. It was circulated before the Division Bench on 10.6.2005. On the said date, the Advocate for the Petitioners was absent and, therefore, the matter was adjourned for two weeks. However, later on at 2.55 p.m., the Advocate for the Petitioners appeared and sought leave to amend, which :13: :13: :13: was granted. The matter was recirculated after amendment on 17.6.2005. However, on the said date, by the consent of both sides, the matter was adjourned to 27.6.2005. It appears from the order dated 27.6.2005 that the Division Bench has given oral directions to the petitioner to produce the Roznama of the case, and since it was not produced, the matter was adjourned for two weeks to enable the Advocate for the Petitioners to get a copy of the roznama. Again on 11th July 2005, learned counsel for the Petitioner requested for time to place the Roznama of the case on record. Therefore, the case was adjourned to 25.7.2005. On 25.7.2005, the learned counsel for the petitioners submitted that he wanted to withdraw from the case but he had to follow the procedure and requested for time. Therefore, the matter was adjourned to 8.8.2005. On 8.8.2005, counsel for the Petitioners was absent, and therefore, it was adjourned for two weeks. On 22.8.2005, the matter appeared before this Bench when we have taken a note of all these facts and directed the office to issue notice to the petitioners to make an arrangement of the counsel to conduct their case and / or to see that their advocate remains present. However, after we had passed order in the Morning Session, we received a telegram from the Petitioner - Dilip Kamth. :14: :14: :14: Therefore, we placed the matter on the very next day, i.e., on 23.8.2005. On 23.8.2005, learned counsel Shri. Amin Solkar for the petitioners was present and tried to get discharge from the case, but when it was pointed out to him that unless the procedure to withdraw has been followed, the discharge from the case cannot be granted. However, he reported that the petitioners did not desire to continue him. Therefore, we again granted some time to Shri. Amin Solkar. On 30.8.2005, Shri. Amin Solkar produced a letter addressed to the petitioners upon which there were endorsements of petitioner Nos. 1 to 4 and he was instructed to withdraw from the case. Therefore, we discharged Shri. Amin Solkar from the case. However, Shri. Solkar remained on record for one Petitioner, namely, Petitioner No.5. In view of these circumstances, we issued a direction to the office to issue a production warrant, to present the Petitioners before this court on 19.9.2005. On 19.9.2005, in afternoon session, Petitioner Nos. 1 to 4 were presented. Shri. Amin Solkar learned counsel for the petitioner No.5 was absent. We heard Petitioner Nos. 1 to 4 on the point of admission of the petition. However, since the court time was over, the respondent could not be heard. However, petitioner Nos.1 to 4 stated that so far as the reply to the argument of the :15: :15: :15: CBI counsel is concerned, they would make an arrangement by discharging Shri. Amin Solkar, Advocate to appear and make a submission on their behalf. We adjourned the matter to 22.9.2005. On 22.9.2005 we heard the matter and we granted rule returnable one week. Thereafter the matter was heard on 29.9.2005 onwards. We have placed on record this history of proceeding to demonstrate that the time which was consumed in such an important petition of habeas corpus is not attributable to the lapse or laxity on the part of this court. The above facts and adjournments taken from time to time by the parties are self-evident of the fact that it is the petitioners who were responsible for the delayed hearing of this petition. 11. In the present matter, initially, on 23.8.2005 the respondent has filed an affidavit on behalf of the CBI opposing the admission of the petition, later on the additional affidavit was filed by the CBI on 21.9.2005 along with certain documents. After we had given directions to produce orders passed by Shri.P.P.Birajdar, the 5th Additional District & Sessions Judge, Pune and the order sheet, the further affidavit was filed by the CBI on 5th October 2005. At the time of hearing of the petition on 29th :16: :16: :16: September 2005, the brief submissions on behalf of the CBI were tendered and along with the brief submissions, the copies of the Standing Charge Arrangement Order passed by the District & Sessions Judge on 22.6.1993 was produced. So also the order sheet of the case and the copies of the remand warrants issued by the Judge of the Special Court in respect of each of the Petitioners were produced. So also the notification issued by the Government of Maharashtra under Section 5 of the MCOC Act, 1999 dated 9th July 2005 making appointment of Shri. M. B. Sardeshpande, the 4th Additional District & Sessions Judge, Pune is produced on record, since Shri. Shembole, the earlier Judge of the Special Court was transferred from the said place. 12. Learned Senior Counsel Shri. Sushilkumar appearing for the CBI submitted that assuming for a moment that the detention of the Petitioners from 5.5.2005 to 8.6.2005 is illegal, the petition filed by the Petitioners for the habeas corpus cannot be allowed. He submitted that the under the habeas corpus petition, the court is expected to see the legality or illegality of the detention on the date of return and not on the date of the institution of the petition. He submitted that after the alleged period :17: :17: :17: of illegal detention, there are five orders passed by the Judge of the Special Court on 8.6.2005, 28.6.2005, 27.7.2005, 19.8.2005 and 16.9.2005 which are valid orders granting custody under section 309(2) of the Code in respect of the Petitioners. Therefore, he submitted that on the date of return there are valid orders of the remand as a result of which the Petitioners are detained in the custody under section 309(2) of the Code of Criminal Procedure, 1973. Therefore, he submitted that the petition deserves to be dismissed. 13. Further, pointing out the remand warrants produced on record, learned Senior Counsel for the CBI, Shri. Sushilkumar submitted that initially the remand order was issued to the Superintendent of Prison, Yerwada Central Prison on 26.9.2003 in respect of the Petitioner No.3 and, thereafter from time to time on the same warrant, Judge of the Special Court has extended the remand period. He pointed out that it appears that the rubber stamp has been prepared to the effect that "Accused is produced / not produced "Accused is produced / not produced "Accused is produced / not produced before me and he be produced before me on..........". before me and he be produced before me on..........". before me and he be produced before me on..........". He submitted that this was a stamp when Video Conferencing was not there and after the introduction of the Video Conferencing system, the rubber stamp was :18: :18: :18: modified to the effect that "Accused is produced "Accused is produced "Accused is produced before me on Video Conference and he be produced on before me on Video Conference and he be produced on before me on Video Conference and he be produced on Video Conference before me on .........", Video Conference before me on .........", Video Conference before me on .........", and by the use of such stamp, endorsement made on original warrant, further judicial custody / remand has been extended from time to time. He also pointed out that the similar are the warrants in respect of the rest of the Petitioners and there are similar endorsements for extension. His submission is that this exercise on the part of the Judge of the Special Court is proper exercise of the powers under section 309(2) of the Code of Criminal Procedure, 1973. He submitted that these warrants coupled with the order sheets make a complete compliance of Section 309 of the Code of Criminal Procedure, 1973. Thus, he submitted that on the date of return, since there are valid orders passed by the Judge of the Special Court, the earlier period for which the Petitioners are making grievance of illegal detention will not have any bearing and the petition be dismissed. He also submitted that even if it is assumed that the exercise of powers by the Judge of the Special Court by use of the rubber stamp may not be proper mode of exercise of powers, but it does not render the judicial custody as illegal one. Thereby he submitted that the orders are valid one and prayed for the dismissal of the petition. :19: :19: :19: 14. Learned counsel for the Petitioners Shri. Chitnis submitted that the facts alleged in the petition