REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 967-968 OF 2009

(Arising out of SLP (Crl.) Nos. 7210-7211 of 2007)

Mustaq Ahmed Mohammed Isak and Ors. …Appellants

Versus

State of Maharashtra …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Leave granted.

2.Challenge in these appeals is to the judgment of a Division Bench of

the Bombay High Court holding that the order dated 4.9.2006 passed by

learned Special Judge in bail application No.32 of 2006 filed in remand

application No.17 of 2006 suffers from no infirmity.

3.Criminal Appeal No.996 of 2006 was filed under Section 12 of the

Maharashtra Control of Organized Crime Act, 1999 (in short the ‘Act’).

4.The bail application was preferred by the accused Nos. 5 to 8

challenging the order dated 21.8.2006 passed by the Special Court thereby

granting second extension of 15 days to complete the investigation and to

file the charge-sheet. The bail application came to be rejected. It had been

prayed in the appeal that the appellants be released on bail in LAC No. 3 of

2006 on default of the prosecution in completing the investigation within

the extended period granted upto 21.8.2006. Whereas in Criminal Appeal

No. 736 of 2006 filed by the original accused nos. 5 to 8 under section 12 of

the Act, the order of extension passed by the Special Court on 7.8.2001 in

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MA No. 260 of 2006 filed in Remand .Application No. 52 of 2006 was

prayed to be quashed and set aside, with the prayer that the appellants be

released on suitable bail on default of the prosecution in filing the charge-

sheet within the specified period of 90 days. As per the prosecution

Criminal Appeal 736 of 2006 would not survive after disposal of the bail

application No.32 of 2006 by the Special Court.

5.The sequence of events in the instant appeals is as under:

(a)The appellants were arrested on 13.5.2006 on the

charges punishable under the MCOC Act, 1999.

(b) The period of initial 90 days to complete the investigation

expired on 6.8.2006.

(c) The first application by the prosecutor for extension of time

was filed on 3.8.2006.

(d) The first order, granting extension was passed on 7.8.2006

and the extension of 15 days so granted was to expire on

21.8.2006.

(e) The second application for extension was preferred by the

prosecutor on 21.8.2006 seeking further extension and the

Special Court granted extension upto 4.9.2006.

(f) The charge sheet has been filed on 4.9.2006.

(g) Criminal Appeal No. 996 of 2006 has been presented on

7.10.2006 before the High court i.e. after the charge sheet was

filed.

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6.It was submitted that the Special Court erred in law in rejecting the

bail application by the order dated 4.9.2006 and while doing so it

misinterpreted the provisions of section 21 (2) (b) of the Act. In short, it is

submitted by the learned Counsel for the appellants that though the period

for completing the investigation and filing the charge sheet is extended by

another 90 days and the investigation is required to be completed in a

maximum period of 180 days, there is no provision for granting extension

after completion of 90 days in piecemeal in as much as the power of

granting extension beyond 90 days can be exercised by the Special Court

only once and while doing so, the Special Court on an application moved by

the prosecutor can either refuse to grant extension or grant extension for

any number of days upto 90 days, but if the extension application for the

first occasion is considered and extension is granted for any period less than

90 days, the second application for granting extension moved by the

prosecutor cannot be entertained and the Special Court has no such powers

to consider such second application or any number of applications filed by

the prosecutor for extension upto a total period of 180 days to complete the

investigation and file the charge sheet.

4

7.Stand of the State before the High Court was that the stand of the

appellants about the scheme of Section 21 (2)(b) is misconceived. The High

Court accepted that the order passed by learned Single Judge did not suffer

from any infirmity.

8.Learned counsel for the appellant submitted that the scope and ambit

of Section 21(2)(b) of the Act has not been kept in view.

9.Learned counsel for the respondent-State on the other hand supported

the judgment.

Section 21 so far as relevant reads as follows:

“21.Modified application of certain provisions of the Code-

(1) Notwithstanding anything contained in the code or in any

other law, every offence punishable under this Act, shall be

deemed to be a cognizable offence within the meaning of

clause (C) of section 2 of the Code and "Cognizable Case" as

defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case

involving an offence punishable under this Act subject to the

modifications that, in subs section (2),-

(a) the references to "fifteen days", and "sixty days", wherever

they occur, shall be construed as references to "thirty days" and

"ninety days", respectively;

(b) after the proviso, the following proviso shall be inserted,

namely:---

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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 upto one hundred and ninety

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.”

10.Learned counsel for the appellant placed strong reliance on a decision

of this Court in Hitendra Vishnu Thakur and Ors. v. State of Maharashtra

and Ors. (1994 (4) SCC 602) and it was contended that once the application

for extension for any period upto 90 days was considered and allowed by

the Special Court no further applicable can be entertained for extension for

the remaining period or for any period upto the remaining period, thus

making the total extension of 90 days.

11.Learned counsel for the respondent-State submitted that the position

is no longer res intergra in view of what has been stated by this Court in

Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna

(AIR 1979 SC 1377). In Thakur’s case (supra) this Court had considered

the scheme of Section 20(4) of the Terrorists and Disruptive Activities

(Prevention) Act, 1987 (in short the ‘TADA’) read with Section 167 of the

6

Code of the Criminal Procedure, 1973 (in short the ‘Code’). In paras 21 and

22 it was noted as follows:

“21. Thus, we find that once the period for filing the

charge-sheet has expired and either no extension under

clause (bb) has been granted by the Designated Court or

the period of extension has also expired, the accused

person would be entitled to move an application for

being admitted to bail under sub-section (4) of Section

20 TADA read with Section 167 of the Code and the

Designated Court shall release him on bail, if the

accused seeks to be so released and furnishes the

requisite bail. We are not impressed with the argument of

the learned counsel for the appellant that on the expiry of

the period during which investigation is required to be

completed under Section 20(4) TADA read with Section

167 of the Code, the court must release the accused on

bail on its own motion even without any application

from an accused person on his offering to furnish bail. In

our opinion an accused is required to make an

application if he wishes to be released on bail on account

of the ‘default’ of the investigating/ prosecuting agency

and once such an application is made, the court should

issue a notice to the public prosecutor who may either

show that the prosecution has obtained the order for

extension for completion of investigation from the court

under clause (bb) or that the challan has been filed in the

Designated Court before the expiry of the prescribed

period or even that the prescribed period has actually not

expired and thus resist the grant of bail on the alleged

ground of ‘default’. The issuance of notice would avoid

the possibility of an accused obtaining an order of bail

under the ‘default’ clause by either deliberately or

inadvertently concealing certain facts and would avoid

multiplicity of proceedings. It would, therefore, serve the

ends of justice if both sides are heard on a petition for

grant of bail on account of the prosecution’s ‘default’.

Similarly, when a report is submitted by the public

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prosecutor to the Designated Court for grant of extension

under clause (bb), its notice should be issued to the

accused before granting such an extension so that an

accused may have an opportunity to oppose the

extension on all legitimate and legal grounds available to

him. It is true that neither clause (b) nor clause (bb) of

sub-section (4) of Section 20 TADA specifically provide

for the issuance of such a notice but in our opinion the

issuance of such a notice must be read into these

provisions both in the interest of the accused and the

prosecution as well as for doing complete justice

between the parties. This is a requirement of the

principles of natural justice and the issuance of notice to

the accused or the public prosecutor, as the case may be,

would accord with fair play in action, which the courts

have always encouraged and even insisted upon. It

would also strike a just balance between the interest of

the liberty of an accused on the one hand and the society

at large through the prosecuting agency on the other

hand. There is no prohibition to the issuance of such a

notice to the accused or the public prosecutor in the

scheme of the Act and no prejudice whatsoever can be

caused by the issuance of such a notice to any party. We

must as already noticed reiterate that the objection to the

grant of bail to an accused on account of the ‘default’ of

the prosecution to complete the investigation and file the

challan within the maximum period prescribed under

clause (b) of sub-section (4) of Section 20 TADA or

within the extended period as envisaged by clause (bb)

has to be limited to cases where either the factual basis

for invoking the ‘default’ clause is not available or the

period for completion of investigation has been extended

under clause (bb) and the like. No other condition like

the gravity of the case, seriousness of the offence or

character of the offender etc. can weigh with the court at

that stage to refuse the grant of bail to an accused under

sub-section (4) of Section 20 TADA on account of the

‘default’ of the prosecution.

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22. An application for grant of bail under Section 20(4)

has to be decided on its own merits for the default of the

prosecuting agency to file the charge-sheet within the

prescribed or the extended period for completion of the

investigation uninfluenced by the merits or the gravity of

the case. The court has no power to remand an accused

to custody beyond the period prescribed by clause (b) of

Section 20(4) or extended under clause (bb) of the said

section, as the case may be, if the challan is not filed,

only on the ground that the accusation against the

accused is of a serious nature or the offence is very

grave. These grounds are irrelevant for considering the

grant of bail under Section 20(4) TADA. The learned

Additional Solicitor General rightly did not subscribe to

the argument of Mr Madhava Reddy (both appearing for

the State of Maharashtra) that while considering an

application for release on bail under Section 20(4), the

court has also to be guided by the general conditions for

grant of bail as provided by Section 20(8) TADA.

Considering the ambit and scope of the two provisions,

we are of the opinion that it is totally inconceivable and

unacceptable that the considerations for grant of bail

under Section 20(8) would be applicable to and control

the grant of bail under Section 20(4) of the Act. The two

provisions operate in different and independent fields.

The basis for grant of bail under Section 20(4), as

already noticed, is entirely different from the grounds on

which bail may be granted under Section 20(8) of the

Act. It would be advantageous at this stage to notice the

provisions of Section 20(8) and (9) of the Act.

“(8) Notwithstanding anything contained in the Code, no

person accused of an offence punishable under this Act

or any rule made thereunder shall, if in custody, be

released on bail or on his own bond unless—

(a)the Public Prosecutor has been given an

opportunity to oppose the application for such release,

and

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(b)where the Public Prosecutor opposes the

application, the court is satisfied that there are

reasonable grounds for believing that he is not guilty of

such offence and that he is not likely to commit any

offence while on bail.

(9) The limitations on granting of bail specified in sub-

section (8) are in addition to the limitations under the

Code or any other law for the time being in force on

granting of bail.”

As would be seen from the plain phraseology of sub-

section (8) of Section 20, it commences with a non

obstante clause and in its operation imposes a ban on

release of a person accused of an offence punishable

under TADA or any rule made thereunder on bail unless

the twin conditions contained in clauses (a) and (b)

thereof are satisfied. No bail can be granted under

Section 20(8) unless the Designated Court is satisfied

after notice to the public prosecutor that there are

reasonable grounds for believing that the accused is not

guilty of such an offence and that he is not likely to

commit any offence while on bail. Sub-section (9)

qualifies sub-section (8) to the extent that the two

conditions contained in clauses (a) and (b) are in

addition to the Limitations prescribed under the Code of

Criminal Procedure or any other law for the time being

in force relating to the grant of bail. Strictly speaking

Section 20(8) is not the source of power of the

Designated Court to grant bail but it places further

limitations on the exercise of its power to grant bail in

cases under TADA, as is amply clear from the plain

language of Section 20(9). The Constitution Bench in

Kartar Singh case while dealing with the ambit and

scope of sub-sections (8) and (9) of Section 20 of the Act

quoted with approval the following observations from

Usmanbhai case: (SCC p. 704, para 344)

“Though there is no express provision

excluding the applicability of Section 439 of

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the Code similar to the one contained in

Section 20(7) of the Act in relation to a case

involving the arrest of any person on an

accusation of having committed an offence

punishable under the Act or any rule made

thereunder, but that result must, by

necessary implication, follow. It is true that

the source of power of a Designated Court

to grant bail is not Section 20(8) of the Act

as it only places limitations on such power.

This is made explicit by Section 20(9)

which enacts that the limitations on granting

of bail specified in Section 20(8) are ‘in

addition to the limitations under the Code or

any other law for the time being in force’.

But it does not necessarily follow that the

power of a Designated Court to grant bail is

relatable to Section 439 of the Code. It

cannot be doubted that a Designated Court

is ‘a court other than the High Court or the

Court of Session’ within the meaning of

Section 437 of the Code. The exercise of the

power to grant bail by a Designated Court is

not only subject to the limitations contained

therein, but is also subject to the limitations

placed by Section 20(8) of the Act.”

And went on to add: (SCC p. 704, para 345)

“Reverting to Section 20(8), if either of the

two conditions mentioned therein is not

satisfied, the ban operates and the accused

person cannot be released on bail but of

course it is subject to Section 167(2) as

modified by Section 20(4) of the TADA Act

in relation to a case under the provisions of

TADA.”

11

Thus, the ambit and scope of Section 20(8) of TADA is

no longer res integra and from the above discussion it

follows that both the provisions i.e. Section 20(4) and

20(8) of TADA operate in different situations and are

controlled and guided by different considerations.

12.In para 30 the conclusions were summarized. In Sanjay Dutt v. State

thr. C.B.I. Bombay (II) (1994 (5) SCC 410) the decision in Thakur (supra)

was considered alongwith large number of other cases where in paras 48

and 49 it was held as follows:

“48. We have no doubt that the common stance before us of the

nature of indefeasible right of the accused to be released on

bail by virtue of Section 20(4)(bb) is based on a correct reading

of the principle indicated in that decision. The indefeasible

right accruing to the accused in such a situation is enforceable

only prior to the filing of the challan and it does not survive or

remain enforceable on the challan being filed, if already not

availed of. Once the challan has been filed, the question of

grant of bail has to be considered and decided only with

reference to the merits of the case under the provisions relating

to grant of bail to an accused after the filing of the challan. The

custody of the accused after the challan has been filed is not

governed by Section 167 but different provisions of the Code

of Criminal Procedure. If that right had accrued to the accused

but it remained unenforced till the filing of the challan, then

there is no question of its enforcement thereafter since it is

extinguished the moment challan is filed because Section 167

CrPC ceases to apply. The Division Bench also indicated that if

there be such an application of the accused for release on bail

and also a prayer for extension of time to complete the

investigation according to the proviso in Section 20(4)(bb),

both of them should be considered together. It is obvious that

no bail can be given even in such a case unless the prayer for

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extension of the period is rejected. In short, the grant of bail in

such a situation is also subject to refusal of the prayer for

extension of time, if such a prayer is made. If the accused

applies for bail under this provision on expiry of the period of

180 days or the extended period, as the case may be, then he

has to be released on bail forthwith. The accused, so released

on bail may be arrested and committed to custody according to

the provisions of the Code of Criminal Procedure. It is settled

by Constitution Bench decisions that a petition seeking the writ

of habeas corpus on the ground of absence of a valid order of

remand or detention of the accused, has to be dismissed, if on

the date of return of the rule, the custody or detention is on the

basis of a valid order. (See Naranjan Singh Nathawan v. State

of Punjab; Ram Narayan Singh v. State of Delhi and A.K.

Gopalan v. Government of India.)

49. This is the nature and extent of the right of the accused to

be released on bail under Section 20(4)(bb) of the TADA Act

read with Section 167 CrPC in such a situation. We clarify the

decision of the Division Bench in Hitendra Vishnu Thakur,

accordingly, and if it gives a different indication because of the

final order made therein, we regret our inability to subscribe to

that view.”

13.In Criminal Appeal No.736 of 2006 before the High Court challenge

was to the order dated 7.8.2006 granting first extension for 15 days on the

ground that the prosecution failed to make out the ingredients set out under

Section 21 (2)(b) proviso. The Special Court noted that the reasons have

been indicated and the High Court also noted that the Special Court

recorded the satisfaction to the grant of extension. The High Court

ultimately held as follows:

13

“It is pertinent to note that on the day this application

was filed i.e. on 3.8.2006 or thereafter till 7.8.2006 the accused

had not moved an application for being released on bail on

completion of 90 days. Their indefeasible right to apply for

being released on bail accrued to them on 6.8.2006 as well as

on 21.8.2006. However, it appears that the first bail application

i.e. bail application NO.32 of 2006 was filed on 4.9.2006.”

14.The dates and events have been set out by the respondent in the

affidavit filed on 24

th

March, 2008. They read as follows:

Date PARTICULARS OF EVENTS

9.5.2006 ATS staff (which has jurisdiction over entire

Maharashtra) intercepted and apprehended Al

Mohammed Amir Shakil Ahmed in TATA Sumo Jeep

on Verul-Aurangabad Road which resulted in

seizure of 10 AK47 rifles, 2000 live rounds, 30 kgs.RDX

etc. and the panchanama went on from 9.5.2006 to 10.5.2006

10.5.2006 LAC 3/06 under Section 120-B of IPC r.w.

Section 4,5 of Explosive Substances Act, 1908

r.w. 5, 6, 9, 9(B) of. Indian Explosive Act,

1884 r.w. 3, 4, 25 of Indian Arms Act, 1959

r.w. Section 10, 13, 16, 18, 23 of Unlawful

Activities (Prevention) Act, 1967 came to be

Referred.

13.5.2006 Present Petitioners i.e. Accused Nos. 5 to

Accused No.8 namely Javed Ahmed, Mustak

Ahmed, Afzal Khan and Riyaz Ahmed came to be

arrested.

14

14.5.2006 Present petitioners were produced before Additional

C.M.M. 2nd

court, Mazgaon and remanded to PCR

Upto 24.5.2006

22.5.2006 Competent Authority with due application of

mind granted prior approval order under

Section 23(1) (a) of MCOC Act, 1999 to the

present offence and accordingly provisions of

MCOC Act came to be applied to present

offence.

24.5.2006 Thereafter, Petitioners/accused Nos. 5 to 8 were produced for

further remand MCOC, special Court and they were granted

remand as under:

PCR upto 6.6.2006

PCT upto 12.6.2006

MCR upto 21.6.2006

MCR upto 4.7.2006

MCR upto 17.7.2006

MCR upto 25.7.200h

MCR upto 7.8.2006

15

3.8.2006 Before expiry of period of 90 days, special

Public Prosecutor, Smt. Rohini Salian filed

separate application bearing MA No.260 of

2006 in Remand Application No. 17 of 2006 for

extension of period of filing of chargesheet

by another 30 days. Hereto annexed and marked as annexure

"Rl/1" is the copy of MA No.260 of 2006 in remand

application No. 17 of 2006 dated 3.8.2006 filed by Special

Public Prosecutor Smt. Rohini Salian before MCOC Special

Court.

On the said application MCOC Special Court passed order

which is reflected in Roznama as under:

"SPP Ms. Salian for the State present.

ACP Dhawale attached to ATS present.

Application is filed by Ld. Special PP praying for

extension of period to file charge sheet beyond 90 days.

She submits that 93 days will get over on 7.8.2006.

Prosecution seeks permission to serve the notice and the

copy of the application to all the accused. Granted

permission to serve the application/notice to the accused

in the jail. Suptd.of Arthur road Jail is directed to comply

the order.

5.8.2006 Competent Authority granted sanction to

prosecute order under Section 23(2) of MCOC

Act for prosecuting accused in present

offence also for offences under Section 3(1) (ii), (2),

(4) of MCOC Act, 1999

7.8.2006

Initial period of 90 days for filing the charge sheet

was expiring on 7.8.2006

16

7.8.2006 Application of Public Prosecutor bearing MA

No.260 of 2006 came to be allowed by MCOC

Special Court thereby granting extension to

File chargesheet for a period of 15 days i.e.

Upto 21.8.2006 wherein the order is reflected

in the Roznama as under:

"Application for extension of time to file

chargesheet beyond 90 days is argued by the

Learned Spl. P.P. and is opposing by Learned

Defence Advocate Mr. Azmi and Mr. Solkar.

Learned Prosecutor has pointed out that today

nearly documents running in 3000 pages are

collected and prepared by the 10 and yet he

has to collect printouts of the cellphones and the

investigation

inter-alia is incomplete.

It is further submitted by Ld. prosecutor that on 3.8.2006, one

accused is arrested and police are likely to get some

information. It is further submitted that the preparation of the

chargesheet is voluminous record and police have yet to

collect

CA report. Ld Defence Advocate has submitted that specific

details in respect of the incomplete investigation are not

mentioned. Ld. Prosecutor has given general details in

respect

of the investigations and it is much or less repetition of the

previous applications. It is further submitted by them that

specific reasons in respect of each accused separately should

have been given in the application.

On this ground this application is opposed. Perused

application for extension of time alongwith case-diary.

Ld. Defence Advocate Mr. Moobin Solkar submits that

prosecution has not furnished details whether cognizable

17

Considering the volume of the matter, it appears that the

police need some time to collect information and investigate

all the points mentioned above. I am of the opinion with a

view that in this case, Section 21 (b) is to be invoked and time

to file final report is extended for a period of 15 days i.e.

Upto 21.8.2006.

Accused are remanded to further JC till 21.8.2006.

Confession statement. He is directed to place it in writing if

he wants.

18.8.2006 Challenging order of granting extension of 15 days i.e. Upto

21.8.2006 for filing chargesheet, accused /petitioner filed

Criminal Appeal No.736 of 2006 under section 12 of MCOC

Act before Bombay High Court.

10 ACP Dhawale filed separate application i.e. Remand

Application No. 54 of 2006 praying for extension of judicial

custody remand of -petitioner/accused upto 4.9.2006. Hereto

annexed and marked as Annexure "R1/2" is the copy of

Remand Application No.54 of 2006 dated 21.8.2006 filed by

ACP Dhawale before MCOC Special Court.

Special P. P. Smt. Rohini Salian filed separate application

i.e. MA No.266 of 2006 in RA No. 17 of 2006 thereby

praying for further extension of period to file chargesheet

under Section 21 (2)(b) of MCOC Act, 1999. Hereto annexed

and marked Annexure "RI/3 is the copy of M.A.No.266 of

,

2006 in RA No. 17/ 2006 dated 21.8.2006 filed by Special PP

Smt. Rohini Salian before MCOC Court.

MCOC Special Court granted further extension by 15 days

i.e. till 4.9.2006 for filing charge sheet by allowing aforesaid

application and order on the aforesaid two applications is

reflected in Roznama as under:

"SPP Ms. Salian for the State present.

A CP Dhawale attached to A TS present.

Adv.Khan for accused. No. 1 present. Adv. Kanse for

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accused.

Nos. 2 and 12 present Adv, Momin Solkar for accused Nos.

15 and 16 present. Adv. Sandip Sarpande h/f Amin Solkar for

accused Nos.5 to 8. Adv. Biyamane h/f Bandarkar for accused

No. 11 present. Adv, Shahid Azmi for accused Nos. 3

4,9,10,13 and 14 present.

Misc. Appln. 266/2006 is made in RA 17 of 2006 under

section 21(2)(b) proviso for extension of the time for filing

chargesheet beyond 90 days. Ld. Spl.PP submitted that the

copies of this application are served on the advocates

defending the accused persons and the accused persons. She

submitted that the investigation team has come across a fresh

information and pursuant to the said information they have

obtained production warrant against two more accused who

are arrested by west Bengal police at Calcutta as their

involvement has been disclosed in this case. She has further

submitted that in view of this new development, police have

to investigate more areas and thus required period of 15 days

to file the chargesheet.

Ld. Adv. Momin Solkar and Adv. Kanse submit that no

specific ground is made out under section 21 (1) to justify

the.,

detention of these accused. Hence oppose this application.

Heard.

Period of 90 days got over on 7.8.2006 and therefore 15 days

time was extended. In view of submissions in para 7 and 14

time extended hereafter by 15 days i.e. till 4.9.2006.

"Further J/c is prayed. Granted. Accused are remanded to J/c

till 4.9.2006.

19

4.9.2006 Within the period extended by MCOC Special Court,

concerned. Investigation Officer ACP Dhawale filed first

chargesheet on 4.9.2006 against 16 accused (including

present petitioners/accused Nos. 5 to 8) before MCOC

Special Court, Mumbai accordingly MCOC Special Case

No. 16 of 2006 came to be registered. It is not out of place to

point out that thereafter, against accused No. 17 second

chargesheet was filed which bear MCOC Special Case

No.16A/2006. Against accused Nos. 18 and 19 third

chargesheet came to be filed which bear MCOC Special Case

No.16B/2006. Against Accused No.20 fourth chargesheet

came to be filed which bear MCOC Special Case No.

16C/2006.

Whereas 7 accused have been shown so far as absconding

accused.

first chargesheet dated 4.9.2006.

4.9.2006 For the first time present petitioners/accused Nos. 5 to 8 filed

bail application No. 32 of 2006 on technical ground

under section 21 of MCOC Act thereby only contending that

"The applicants state that there is no provision under section

21 of the MCOC Act for extension of period for the second

time after it has been granted initially for the first time and

therefore, after the first extended period for filing chargesheet

having expired the applicants have become entitled for their

release on bail on account of default in filing chargesheet

within the extended period

granted under section 21 of MCOC Act.

4.9.2006 Since charge sheet was filed on 4.9.2006 i.e. within extended

time granted by MCOC Special Court, said fact is reflected in

Roznama dated 4.9.2006. Accordingly Bail Application

No.32 of 2006 came to be rejected by MCOC Special Court

by well reasoned order.

20

7.10.2006 Challenging order dated 4.9.2006 in Bail application N0.32

of

2006, accused No. 5 to 8, present petitioners filed Criminal

Appeal No.996 of 2006 under Section 12 of MCOC Act

28.2.2007 I.0. ACP Dhawale filed detailed affidavit in reply in Criminal

Appeal No.996 of 2006 before the Bombay High Court.

Contentions raised therein may kindly be treated as a part and

Parcel of the present affidavit before the High Court. Therein

the contentions raised in Criminal Appeal No.736 of 2006

were also responded.

4.5.2007 Bombay High Court passed present impugned common

order in Criminal Appeal No.736 of 2006 and Criminal

Appeal No.996 of 2006 thereby rejecting prayer for bail

under Section 21(2)(b) of the MCOC Act, r.w. section

167(2) of Criminal Procedure Code.

15.There is nothing in the language of second proviso inserted in

Section 167(2) of the Code by Section 21(2) of the Act to indicate that the

power of extension can be exercised only once as contended by the

appellants. Para 30 of the Hitendra Thakur’s case (supra) on which the

appellants place reliance did not deal with the present issue i.e. whether the

power can be exercised more than once under the proviso.

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16.In this context, we cannot loose sight of Section 167(2) of of the

Code. Section 167 of Code and section 21 of MCOC Act deal with power

of remand. The provisions of Section 21 of MCOC Act must be read in the

light of Section 167 of Code. Section 167(2) of Code itself indicates that

power of remand has to be exercised form time to time and this clearly

dispels any doubt as regard the true effect of the second proviso added in

Section 167(2) of Code by Section 21(2) of the MCOC Act, 1999. The only

possible interpretation of the said proviso is that the Special Court can

exercise power under the said proviso from time to time however, the total

period for filing charge sheet/challan cannot exceed 180 days.

17.In the instant case, appellants were arrested on 13.5.2006, the first

extension was granted on 7.8.2006 for a period of 15 days i.e. upto

21.8.2006 and the second extension was granted on 21.8.2006 for a period

of 15 days i.e. upto 4.9.2006 and the charge sheet has been filed on

4.9.2006. The application for bail on the default ground came to be filed for

the first time on 4.9.2006 i.e. the date on which the charge sheet was

submitted, which is Bail Application No.32 of 2006. Prior to this, there was

no application under Section 21(2)(b) of MCOC Act, 1999 r/w Section

167(2) of Code on default ground. Affidavit of Assistant Commissioner of

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Police Mr.Uttam Chopane specifically states that such an application on a

default ground was made for the first time on 4.9.2006 and not on

18.8.2006 as incorrectly contended by theappellants herein. Appellants

are contending that the appeal filed by them on 18.8.2006 should be

considered as their application for bail. This appeal filed in High Court was

challenging the order dated 7.8.2006 of Special Court granting extension

till 21.8.2006 and on 21.8.2006 extension was granted till 4.9.2006. The

appeal filed on 18.8.2006 cannot be considered as application for bail.

Even if it is treated an application for bail the same was not tenable on

default ground as the Special Court extended the period on 7.8.2006 till

21.8.2006 and further extended the period on 21.8.2006 till 4.9.2006. Thus

the prosecution filed the charge sheet.

18.On 4.9.2006 the charge sheet has been filed and on that day itself, the

application for bail was filed by the appellants on default ground and

therefore, the application for bail was rejected by the courts below.

19.We are of the view that the impugned judgment of the High Court

does not suffer from any infirmity to warrant interference. The appeals fail

and are dismissed accordingly.

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………… ………………

…J.

(DR. ARIJIT PASAYAT)

………… …………………J.

(P. SATHASIVAM)

New Delhi:

May 08, 2009

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