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.  

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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  

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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.”

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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:

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“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 24th 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.

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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

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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

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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

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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.

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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.

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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 the appellants  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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