Supreme Court of India
MUSTAQ AHMED MOHAMMED ISAK AND ORS.versusSTATE OF MAHARASHTRA
- Citation
- 2009 INSC 767
- Decided
- 8 May 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The Special Court may grant multiple extensions of remand under Section 21(2)(b) of the MCOC Act, provided the aggregate period does not exceed 180 days, and the bail application filed on 4 September 2006 was correctly rejected.
Summary
The appellants were arrested under the Maharashtra Control of Organised Crime Act, 1999 and the Special Court granted two successive extensions of the investigation period, first to 21 August 2006 and then to 4 September 2006, after which the charge‑sheet was filed. The appellants filed a bail application on 4 September 2006 on the ground of prosecution default, arguing that the Act permits only a single extension and that the bail plea should have been entertained earlier. The Supreme Court examined the language of the second proviso inserted by Section 21(2) of the Act into Section 167(2) of the CrPC and held that it does not restrict the Special Court to a single extension; the power can be exercised repeatedly provided the total period does not exceed 180 days. Consequently, the bail application filed on the day the charge‑sheet was submitted was not maintainable, and the lower courts’ rejection of the bail plea was upheld. The Court dismissed the appeals, confirming that the High Court’s order was free of infirmity.
Issues considered
- Whether Section 21(2)(b) of the Maharashtra Control of Organised Crime Act, by inserting a second proviso into Section 167(2) CrPC, limits the power of the Special Court to extend remand only once.
- Whether a bail application filed on the default ground is maintainable when the charge‑sheet is filed within the extended period.
- Whether an appeal filed on 18 August 2006 can be treated as a bail application under the Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 167(2)
- Maharashtra Control of Organised Crime Act, 1999s. 21(2)(b)
Subjects
bailextension of remandMCOC ActSection 21Section 167prosecution defaultcharge sheetSupreme Court
Judgment
(2009] 8 S.C.R. 465
~-
MUSTAQ AHMED MOHAMMED ISAK AND ORS. A
V.
STATE OF MAHARASHTRA
(Criminal Appeal No. 967-968 of 2009)
MAY 8, 2009
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
•
Maharashtra Control of Organised Crime Act, 1999:
Section 21 - lnterpretatiol]_ of - Held: There is nothing in c
the language of second proviso inserted in Section 167(2)
Cr.P.C. by Section 21(2) of the Act to indicate that power of
extension can be exercised only once - Power of remand -
Special Court can exercise power from time to time -
However, the total period for filing charge-sheet/cha/Ian cannot D
exceed 180 days - On facts of the case, held the prosecution
having filed the charge sheet, application for bail filed on
default ground rightly rejected by the courts below.
The appellants were arrested on 13.5.2006 on
charges punishable under the Maharashtra Control of E
.. ,
Organised Crime Act, 1999. The period of initial 90 days
to complete the investigation was to expire on 6.8.2006
and extention was sought on 3.8.2006. Extension of 15
days was granted till 21.8.2006 by the Special Court. On
21.8.2006 further extension of time was sought for and F
granted till 4.9.2006 on which date the charge sheet was
filed. Bail application was filed on default of the
Prosecution in filing the charge sheet within the specified
period of 90 days. The Special Court rejected the Bail
,. application. On appeal, the High Court held that the G
impugned order did not suffer from any infirmity. Hence
the appeal.
Dismissing the appeals, the Court
465 H
466 SUPREME COURT REPORTS [2009] 8 S.C.R.
A HELD: 1.1. There is nothing in the language of
second proviso inserted in Section 167(2) Cr.P.C. by
Section 21 (2) of the Maharashtra Contro: of Organised
Crime Act, 1999 (MCOC Act) to indicate that the power of
extension can be exercised only once as contended by
B the appellants. [Para 15] [487-8]
1.2. The provisions of Section 21 of MCOC Act must
be read in the light of Section 167 Cr.P.C. which itself
indicates that power of remand has to be exercised from
C time to time and this clearly dispels any doubt as regard
the true effect of the second proviso added in Section
167(2) Cr.P.C. 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
D charge sheet/challan cannot exceed 180 days.[Para 16]
(487-D-E]
1.3. In the instant case, appellants were arrested on
13.5.2006, the first extension was granted on 7.8.2006 for
E 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.
F 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) Cr.P.C. on default ground. Affidavit of
Assistant Commissioner of Police specifically states that
G 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. Appellants are
contending that the appeal filed by them on 18.8.2006
should be considered as their application for bail. The
H appeal filed in High Court was challenging the order
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 467
STATE OF MAHARASHTRA
·~
dated 7.8.2006 of Special Court granting extension till A
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
groun~ as the Special Court extended the period on B
7.8.2006 till 21.8.2006 and further extended the period on
21.8.2006 till 4.9.2006. 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 rightly rejected by c
the courts below. [Paras 17 and 18] [487-F-H; 488-A-D]
Hitendra Vishnu Thakur and Ors. v State of Maharashtra
and Ors. 1994 (4) SCC 602; Hussainara Khatoon and Ors.
v. Home Secretary, State of Bihar, Patna AIR 1979 SC 1377
and Sanjay Dutt v. State thr. C.B.I. Bombay (II) 1994 (5) SCC D
410, referred to.
Case Law Reference :
1994 (4) sec 602 referred to Para 10
E
AIR 1979 SC 1377 referred to Para 11..
1994 (5) sec 410 referred to Para 12
- CRIMINAL APPELLATE. JURISDICTION: Criminal Appeal
No. 967-968 of 2009. F
From the Judgment & Order dated 04.05.2007 of the High
Court of Judicature at Bombay in Criminal Appeal No. 996 of
2006 with Criminal Appeal No. 736 of 2006.
Anoop G. Choudhary, Amin Solkar, Shabbir Kardar, Syed G
)I
~
Ahmad Saud and Shakil Ahmed Syed for the Appellant.
Shekhar Naphade and Ravindra Keshavrao Adsure for the
Respondents.
H
468 SUPREME COURT REPORTS [2009) 8 S.C.R.
A The Judgment of the Court was delivered by
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
B 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
c 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
D 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.
E 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 MA No. 260 of 2006 filed in Remand .Application No. 52 of
2006 was prayed to be quashed and set aside, with the prayer
F 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.
G
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.
H
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 469
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
(bJ I he period of initial 90 days to complete the A
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 8
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 c
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 D
sheet was filed.
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) E
(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
F
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
G
,. 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
H
470 SUPRFME COURT REPORTS [2009] 8 S.C.R.
A 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.
7. Stand of the State before the High Court was that the
-
stand of the appellants about the scheme of Section 21 (2)(b)
8
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
C 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.
D 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
E 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
F 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;
G
{b) after the proviso, the following proviso shall be inserted, ~
namely;-Provided further that if it is not possible to 11
complete the investigation within the said period of ninety
days, the Special Court shall extend the said period upto
H
I
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 471
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
one hundred and ninety days, on the report of the Public A
Prosecutor indicating the progress of the investigation and
the specific reasons for the detention of the accusec
beyond the said period of ninety days."
10. Learned counsel for the appellant placed strong
B
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
c•
remaining period, thus making tne 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. D
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 Code of the Criminal Procedure, 1973 (in short the E
"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
F
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 G
" 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 H
472 SUPREME COURT REPORTS [2009] 8 S.C.R.
•
A without any application from an accused pe~son 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
B should issue a notice to the public prosecutor who may
either show that the prosecuticn 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
c. 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
D
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 prosecutor to the
Designated Court for grant of extension under clause (bb),
E 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
F 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
G 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
H accused on the one hand and the society at large through
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 473
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.)
the prosecuting agency on the other hand. There is no A
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 B
·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 c
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 0
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.
22. An application for grant of bail under Section 20(4) has
to be decided on its own merits for the default of the E
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 9ravity of the
case. The court has no power to remand an accused to
custody beyond the period prescribed by clause (b) of F
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 G
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 H
474 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 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
B be applicable to and control tre grant of bail under Section
20(4) of the Act. The two prc.;isions 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
c 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
D 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
(b) where the Public Prosecutor opposes the
E
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-
F 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-
G 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 ca(1 be granted under Section 20(8)
H
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 475
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
" unless the Designated Court is satisfied after notice to the A
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 B
addition to the Limitations prescribed under the Code of
Criminal Pror.edure 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 c
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
.i D
observations from Usmanbhai case: (SCC p.a704, para
344)
'Though there is no express provision excluding the
applicability of Section 439 of the Code similar to
the one contained in Section 20(7) of the Act in E
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 F
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 Section20(8) are "in addition to the G
l ~ 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 H
476 SUPREME COURT REPORTS [2009] 8 S.C.R.
.,.
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
B 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
..
c 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.
D
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.
E
12. In para 30 the conclusions were summarized. In
Sanjay Dutt v. State thr. C.B.I. Bombay(//) (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
F 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
G on a correct reading of the principle indicated in that
decision. The indefeasible right accruing to the accused ~ 1
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
H
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 477
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
'!'
to be considered and decided only with reference to the A
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 B
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 c
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 D
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
E
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 F
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.) G
·~ 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 H
478 SUPREME COURT REPORTS (2009] 8 S.C.R.
A 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
B 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
C recorded the satisfaction to the grant of extension. The High
Court ultimately held as follows:
"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
D 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."
E
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
F
9.5.2006 ATS staff (which has jurisdiction over entire
Maharashtra) intercepted and appre-
hended Al Mohammed Amir Shakil
Ahmed in TATA Sumo Jeep on Verul-
G 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
H 10.5.2006 LAC 3/06 under Section 120-B of IPC r.w.
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 479
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
Section 4,5 of Explosive Substances Act, A
1908 r.w. 5, 6, 9, 9(8) 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. B
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.
c
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 D
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.
E
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 F
PCT upto 12.6.2006
MCR upto 21.6.2006
MCR upto 4.7.2006 G
MCR upto 17.7.2006
MCR upto 25.7.200h
MCR upto 7.8.2006 H
480 SUPREME COURT REPORTS [2009] 8 S.C.R.
•
A 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
B
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.
c Rohini Salian before MCOC Special
Court.
On the said application MCOC Special
Court passed order which is reflected in
D Roznama as under:
"SPP Ms. Salian for the State present.
ACP Dhawale attached to ATS present.
E 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
F 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.
G Matter is fixed on 7.8.2006."
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
H
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 481
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
Section 3(1) (ii), (2), (4) of MCOC Act, A ...
1999
7.8.2006 Initial period of 90 days for filing the
charge sheet was expiring on 7.8.2006
7.8.2006 Application of Public Prosecutor bearing B
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: c
"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 D
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 E
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 F
of the chargesheet is voluminous record
and police have yet to collect
CA report. Ld Defence Advocate has
submitted that specific details in respect G
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
H
482 SUPREME COURT REPORTS [2009) 8 S.C.R.
A 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
B
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 offence
c against all the accused persons and
whether they are the members of the
Organized Crime Syndicate or not, is not
disclosed to the accused persons and so
this application cannot be entertained
D under Section 21 of the MCOC Act.
Considering the volume of the matter, it
appears that the police need some time
to collect information and investigate all
E 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.
F 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
G 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.
H
MUSTAQ AHMED MOHAMM~D ISAK AND ORS. v. 483
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
21.8.2006 10 ACP Dhawale filed separate A
application i.e. Remand Application No.
- 54 of 2006 praying for extension of judicial
custody remand of -petitioner/ accused
ugto 4.9.2006. Hereto annexed and
marked 9s Annexure "R1/2" is the copy of B
Remand Application No.54 of 2006 dated
21.8.2006 filed by ACP Phawale before
MOOG Special Court.
Special P. P. Smt. Rohini Safian filed C
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
MOOG Act, 1999. Hereto annexed and D
marked Annexure "Rl/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 MOOG Court.
E
MOOG 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:
F
"SPP Ms. Salian for the State present.
A GP Dhawale attached to A TS present
Adv.Khan for accused. No. 1 present. Adv. G
Kanse for accused.
Nos. 2 and 12 present Adv, Momin Solkar
for accused Nos. 15 and 16 present. Adv.
H
A
484 SUPREME COURT REPORTS [2009] 8 S.C.R.
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.
-
B
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
c 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
D 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
E 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
·F
submit that no specific ground is made out
under section 21 (1) to justify the.,
detention of these accused. Hence
oppose this application.
G 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
H time extended hereafter by 15 daysJ.e. till
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 485
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
'r
4.9.2006. A
- "Further J/c is prayed. Granted. Accused
are rernanqed to J/c till 4.9.2006.
Accused be produced before this Court
on 4.9.2006." B
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 c
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 D
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
E
which bear MCOC Special Case No.168/
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 F
far as absconding accused.
Hereto annexed and marked as Annexure
Rl/4" is the copy of first chargesheet dated
4.9.2006. G
t' 4.9.2006 For the first time present petitioners/
1 accused Nos. 5 to 8 filed bail application
No. 32 of 2006 on technical ground under
section 21 of MCOC Act thereby only
.:. contending ttiat ''The applicants state that H
486 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 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
B 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.
c 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
D 2006 came to be rejected by MCOC
Special Court by well reasoned order.
7.10.2006 Challenging order dated 4.9.2006 in Bail
application N0.32 of 2006, accused No.
E 5 to· 8, present petitioners filed Criminal
Appeal No.996 of 2006 under Section 12
of MCOC Act before Bombay High Court
praying for bail.
28.2.2007 1.0. ACP Dhawale filed detailed affidavit in
F 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
G 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
H Appeal No. 736 of 2006 and Criminal
MUSTAQ AHMED MOHAMMED ISAK AND ORS. v. 487
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]
r
Appeal No.996 of 2006 thereby rejecting A
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
B
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.
c
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. D
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 E
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 F
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 beeri 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 G
1 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
9ode on default ground. Affidavit of Assistant Commissioner
H
I·'·
488 SUPREME COURT REPORTS [2009] 8 S.C.R.
_ A of 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
B application for bail. This a1peal 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
C 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
D 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
E High Court does not suffer from any infirmity to warrant
interference. The appeals fail and are dismissed accordingly.
G.N. Appeals dismissed.
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