Shaibaz Kaiser Ateeq Shaikh And Anr vs The State Of Maharashtra And Ors
- Court
- Bombay High Court
CNR No : HCBM010094492026
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Gokhale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1100 OF 2026
Shaibaz Kaiser Ateeq Shaikh & Anr. ..Petitioners
Versus
The State of Maharashtra & Ors. ..Respondents
__________
Mr. Milan Desai a/w. Sudeep Sharma, Rohan Naidu and Pooja
Pandey for Petitioners.
Ms. M. M. Deshmukh, APP for State/Respondent.
Mr. Anil Singh, ASG a/w. Kuldeep Patil, SPP, Adarsh Vyas, Digvijay
S. Kachare, Krishnakant Deshmukh, Anay Joshi, Yukta Sawant,
Sanika Joshi, Saili Dhuru and Sumitkumar Nimbalkar for CBI-
Respondent No.2.
__________
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 08 OCTOBER 2026
PRONOUNCED ON : 21 OCTOBER 2026
JUDGMENT : (PER SARANG V. KOTWAL, J.)
1. The arguments were heard at length, Rule. Rule is made
returnable forthwith with consent of the parties.
2. Heard Mr. Milan Desai, learned counsel for the
Digitally
signed by
VINOD
BHASKAR
GOKHALE
Date:
2026.10.21
14:42:22
+0530
VINOD
BHASKAR
GOKHALE
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Petitioners, Ms. M. M. Deshmukh, learned APP for the State-
Respondent No.1 and Mr. Anil Singh, learned ASG with Mr.
Kuldeep Patil, learned Special P.P. for the CBI-Respondent No.2.
3. The Petitioner No.1 Shaibaz Shaikh is the original
accused No.5 and the Petitioner No.2 Sameer Siroha is the original
Accused No.3 in R.C.C.No.77 of 2026 before the court of J.M.F.C.,
Igatpuri, Dist. Nashik. The petition is filed for their release, as
according to the Petitioners, they are illegally detained.
4. In this case, the charge-sheet is already filed and the
case is at the stage of framing of the charges. At the outset, we
may mention that the allegations in the charge-sheet are quite
serious. The FIR was lodged at CBI, EOB, Mumbai, on 08.08.2025
vide the FIR No. RC0682025E0005, under sections 61(2) r/w.
318(2), 319(2), 336(3), 338, 340(2) and 351 of the Bharatiya
Nyaya Sanhita, 2023 (for short ‘BNS’), under sections 7(a) and 12
of the Prevention of Corruption Act, 1988 (as amended in 2018)
(hereinafter referred to as ‘PC Act’), under sections 66C and 66D of
the Information Technology Act, 2000 and under sections 3(1) and
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42(1) of the Telecommunications Act, 2023.
5. The gist of the FIR is that the investigating agency
received a credible information from a reliable source that a group
of private persons including the Petitioners entered into criminal
conspiracy and committed financial fraud by impersonation by
making phishing calls/deceptive calls, from an illegal call centre,
posing as Amazon Support Services Call Centre. They cheated
senior citizens of US, Canada and other countries and fraudulently
obtained the proceeds of crime via Gift Cards, Cryptocurrency. The
call centre was located at Igatpuri, Nashik. It was alleged that the
Cyber fraudsters were helped by various unknown public servants
of various Public and Private Sector banks in India for
opening/operating of various mule accounts, for transferring the
Cyber fraud proceeds through the means of various laptops,
mobiles, computers and other electronic devices and network
devices.
6. The charge-sheet gives details of the investigation
carried out. According to the investigating agency, as mentioned in
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the charge-sheet, Sandeep Singh and Vishal Yadav were the main
persons running this fake call centre with the active assistance of
both the Petitioners and few others. The modus operandi of the
Cyber fraud was as follows:
Initially, a message/voice mail is broadcast to the
unknown innocent foreign nationals of USA and Canada through
cloud servers purportedly at the behest of Amazon Service and
support Centre. In response to the said message by trusting the
said message, the foreign nationals call back the provided contact
details mentioned in the message/voice mail. The International
VOIP calls made by the foreign nationals were routed through the
cloud servers/exchanges like VICI Dial. The agents present at the
fake/illegal call centre attended the calls and by gaining their
confidence they used to obtain their financial details and
convinced them to transfer the funds for cancellation of orders
which otherwise were not placed by those foreign nationals. Thus,
the funds were then transferred through Cryptocurrency or gift
vouchers in the wallets provided by the accused persons. The
accused used digital means in the call centre to extort money and
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thus, committed Cyber fraud. It is alleged that, they were helped
by various unknown public servants of various public and private
sector banks in India for transferring the Cyber fraud proceeds
through the means of various laptops, mobiles, computers and
other electronic devices and network devices.
7. On 09.08.2025 at 12:15a.m., a team of CBI officers
along with independent witnesses conducted a raid at the fake call
centre running from Rain Forest Resort, Igatpuri, Nashik, where
around 63 operators comprising of dialers, verifiers, closers and
supporting staff/team leaders and Management were running the
said illegal call centre. It was found that one application namely
VICI Dialer was installed in the 49 laptops available on
workstation of the said call centre and they used to manage the
calling functionality and were cheating the foreign citizens. During
the searches, huge cash to the tune of Rs.1.20 crores and 600gms
of gold ornaments were recovered from the premises of Vishal
Yadav. The Petitioners were operating at fake call centre. They
were arrested from the call centre on 09.08.2025. They were
produced before the learned Magistrate at Igatpuri. He granted
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transit remand to produce them before the Special Judge for CBI
cases, at Pune. They were produced before the said Court on
10.08.2025. They were granted police custody remand till
16.08.2025. After that, they were remanded to Judicial Custody till
29.08.2025. Subsequently, the Special Court extended the judicial
custody of the accused from time to time. They were in judicial
custody at Yerwada Central Jail, Pune. Specific roles of different
accused were mentioned in the charge-sheet story.
8. The Accused No.3 i.e. the Petitioner No.2 Sameer was a
crucial team member of Vishal Yadav. He used to look-after the
information technology part of the call centre and provided I.T.
solution, installation, maintenance of computer hardware and
software in the fake call centre. He provided technical assistance to
dialer/verifier/closer. He ensured proper working of call centre set
up, internet connection and other technical instruments. He
provided a few employees to Vishal Yadav and Abhay Singh.
9. The Petitioner No.1. i.e. the Accused No.5 was associated
with Sandeep Singh. His work was to arrange and provide
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employees to work in these fake call centres. He was also involved
in running illegal fake call centre at Green Resort, Alibaug and
DDS Resort, Brahmanpada, Borigaon road, near Umargaon. He
was working as a team leader in the call center. He provided eight
callers/dialers/closer to Sandeep Singh and Vishal Yadav to work
in the call center at Igatpuri. He was actively recruiting and
employing other individuals for illegal gain.
These, in short, are the allegations against the
Petitioners. It has to be mentioned without any doubt that the
allegations are serious, and specific roles are attributed to them.
10. Both the Petitioners had filed bail applications at
Exhibits-65 and 66 in R.C.C.No.77 of 2026 before the learned
Additional Chief Judicial Magistrate, Igatpuri, Nashik. Both these
applications were rejected vide the order dated 07.09.2026. After
that, the Petitioner No.1 (Accused No.5) has preferred bail
application vide Criminal Bail Application No.3701 of 2026 before
Single Judge Bench of this Court having assignment of bail
matters. That application was filed in September 2026 and it is still
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pending. The Petitioner No.2 (Accused No.3) Sameer has preferred
an application for bail before the Sessions Court at Nashik. That
application is also pending. However, it must be noted that, these
are the subsequent developments. The present writ petition is filed
much prior to filing of these pending bail applications.
11. In this case, the charge-sheet was filed on 03.11.2025 in
the Court of Special Judge for CBI Case, at Pune. The charge-sheet
was filed under sections 61(2), 318(2), 319(2), 336(3), 338 and
340(2) of the BNS and under sections 66C and 66D of the
Information Technology Act, 2000. Significantly, it was not filed
under the PC Act, 1988. This is of some significance. The noting
on the first page of the charge-sheet mentions that, as per
instructions of the accused produced on V.C., they accepted that
the copy of the charge-sheet could be given to their Advocate on
their behalf. It is noted on 13.11.2025. There is no dispute that the
accused have received the copies of the charge-sheet.
Acknowledgment of both the petitioners to that effect is dated
18.11.2025.
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12. The Accused No.2 Vishal Yadav preferred bail application
before the learned Additional Sessions Judge, Pune in Special Case
No.1492 of 2025. After filing of the charge-sheet, the special case
was numbered as Special Case No.1492 of 2025 before the learned
Special Judge. The said application was rejected by the learned
Judge vide the order dated 24.12.2025 by referring to the merits
of the matter. This was after filing of the charge-sheet.
13. After that, the Petitioner No.1 Shaibaz (Accused No.5)
preferred an application for grant of bail vide Exhibit-19 and the
Petitioner No.2 Sameer (Accused No.3) filed an application for
temporary bail for four weeks vide Exhibit-27. Arguments were
advanced on behalf of the Accused No.5 Shaibaz, which were
adopted by the learned counsel for the Accused No.3 Sameer. The
learned Special Judge noted these facts and then observed that the
Court decided to pass the order below Exhibit-1 instead of
deciding those bail applications. The learned Judge heard both the
sides and specifically discussed the meaning of ‘cognizance’ of an
offence. He observed that, though, the FIR was registered for the
offences punishable under P.C. Act, but the charge-sheet was not
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filed under the P.C. Act and, therefore, that Court was not
empowered to take the cognizance against the arrested accused.
The learned Judge went on to observe that, in view of the
provision of Section 361 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (for short ‘BNSS’) the custody of the accused could
be treated as legal because after filing of the charge-sheet, during
enquiry and even during trial the case can be transferred to the
Magistrate having jurisdiction to try the case. He observed that,
after filing of the charge-sheet, the custody of the accused was
legal under the provision of Section 361 of the BNSS. He observed
that, there was no offence under the P.C. Act against the arrested
accused and no public servant was charge-sheeted before that
Court and, therefore, it was necessary to transfer that case to the
learned J.M.F.C., Igatpuri for taking cognizance/trial in accordance
with law. He also observed that, it would be just and proper to
keep the bail applications pending for disposal by the concerned
Magistrate. It was further observed that the proceedings were
required to be stayed as envisaged U/s.361 of the BNSS and to
transfer the case. The operative part of the order dated 12.02.2026
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passed by the Special Judge, CBI-ACB, Pune, below Exhibit-1 in
Special Case No.1492 of 2025 is of some significance. Therefore,
we are reproducing it as under:
i) The present case bearing Special Case No.1492/2025
(The State of Maharashtra through CBI, EOB,
Mumbai Vs. Durgesh Singh and others), arising out
of RC0682025E0005, dated 08/08/2025 registered
by CBI, EOB, Mumbai, is hereby transferred to the
Court Ld. Judicial Magistrate First Class, Igatpuri,
Dist. Nashik, as per provision under section 361 of
the BNSS for taking cognizance/trial in accordance
with law.
ii) The entire record and proceedings of this case be
transmitted forthwith to the Court of Ld. Judicial
Magistrate First Class, Igatpuri, Dist. Nashik under
proper acknowledgment.
iii) The muddemal/property articles, if any, be sent to
the transferee Court in sealed condition along with
proper inventory and acknowledgment.
iv) Since the accused No.1 to 5 in this case are presently
in judicial custody lodged at Yerwada Central Prison,
Pune, the Superintendent of the said Jail is directed
to produce the accused persons before the Ld.
Judicial Magistrate First Class, Igatpuri, Dist. Nashik
on 18/02/2026 or as per production warrant issued
by the transferee Court. Accordingly, all the accused
(A1 to A5) are remanded to Judicial Custody until
then.
The necessary intimation to the concerned Jail
v)
Authority be issued.
vi) The copy of this order be forwarded to the
Superintendent of Yerwada Central Prison, the Public
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Prosecutor of CBI EOW, Mumbai, the Investigating
Officer and Ld. transferee Court.
vii) Accordingly, proceedings in the present matter are
stayed pending transmission of the record to the Ld.
Judicial Magistrate First Class, Igatpuri, Dist. Nashik.
viii) Ld. Judicial Magistrate First Class Igatpuri is hereby
directed to dispose of pending bail applications of
accused persons at earliest as per Law.
ix) It is clarified that this order shall not prevent Ld.
Judicial Magistrate First Class Igatpuri to
commit/transfer present case to this Court, if the
offence under PC Act is made out against public
servant during further investigation and
supplementary charge-sheet is filed, in present crime,
against public servant(s).
14. The Investigating Officer has filed his Affidavit in reply.
The background of the case and the allegations against each of the
Petitioners are mentioned. It is further mentioned that the
investigation concerning the role of the concerned public servant
was kept pending, so that, further evidence could be collected and
appropriate legal steps could be taken thereafter. It is contended in
the Affidavit that, not arraying the public servant at that particular
stage did not divest the Special Court of its jurisdiction. It is
further contended that, U/s.187 of the BNSS, the Court before
whom the accused person is produced during the investigation is
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empowered to authorize the detention in judicial custody or police
custody, depending on the facts and circumstances of the case.
Since the charge-sheet was filed before the Special Court, the
Special Court was fully competent to consider the police report
and pass the orders extending the judicial custody of the accused
and, hence, remand orders passed by the Special Court were
lawful. It is further mentioned that the procedural transfer of a
case from one competent Court to another did not invalidate
earlier judicial orders passed by the transferring court. Section
193(9) of the BNSS permits further investigation even after filing
of the police report and, hence, continuing investigation against
the public servant was fully consistent with the statutory scheme of
criminal investigation.
15. Vide Additional Affidavit, the wife of the Petitioner No.1
produced the roznama of the case before the Special Judge up to
12.02.2026 and after that the roznama of R.C.C.No.77 of 2026
before the J.M.F.C., Igatpuri, up to 27.03.2026.
16. The Respondent No.2 filed Additional Affidavit in reply
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dated 25.05.2026. It was contended that the Petitioners had filed
successive and multiple bail applications before various Courts and
these facts were suppressed from this Court. There is a reference to
previous bail applications till filing of the charge-sheet and
thereafter filing of the charge-sheet. There is a reference to the
order dated 13.03.2026 whereby their bail application at Exhibit-
41 in R.C.C.No.77 of 2026 was rejected by the learned J.M.F.C.
Igatpuri, vide the order dated 13.03.2026. After that, the Petitioner
No.1 had filed the Bail Application No.489 of 2026 before the
learned Sessions Judge, Nashik and in that application it was also
prayed for release of the Petitioner No.1 by exercising power
U/s.187(3) of the BNSS. It was specifically contended that,
transferring the custody of the present petitioners to judicial
custody from time to time were valid and legal orders.
17. In the meantime, the Investigating Officer had filed an
application at Exhibit-44 in RCC No.77 of 2026 before the J.M.F.C.
Igatpuri, seeking permission to conduct further investigation
U/s.193(9) of the BNSS. That application was allowed and the
Investigating Officer was granted permission to conduct further
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investigation. It was directed that the investigation shall be
completed within a period of 90 days. That order was passed on
13.04.2026.
18. In the background of this factual matrix and pendency of
the trial, we have considered the contentions raised by both the
parties.
SUBMISSIONS OF MR. MILAN DESAI, LEARNED COUNSEL FOR
THE PETITIONERS:
19. Learned counsel for the Petitioners submitted that, in
this case, after filing of the charge-sheet, no Court has taken
cognizance of the offence and, therefore, all subsequent remand
orders are invalid. The learned Special Judge, Pune has specifically
recorded that he was not empowered to take cognizance because
the charge-sheet was not filed under the provisions of the PC Act
and, therefore, he transferred the case to the Court of J.M.F.C.,
Igatpuri. Quite clearly, therefore, he has not taken cognizance of
the offence. Therefore, it was necessary for the prosecuting agency
to show that the learned J.M.F.C. at least had taken cognizance of
the offence. However, in the entire record, there is no such order
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taking cognizance of the offence. Though, no specific format is
provided for passing the order of cognizance, Section 227 of the
BNSS requires an order of issuance of summons to the accused to
show that cognizance is taken by the Court. In the present case,
there is no such order. After filing of the charge-sheet, the remand
orders can be passed only after taking cognizance U/s.232 or U/s.
346 of the BNSS. Since the cognizance was not taken, the remand
orders could not be passed.
20. During the course of the arguments, this Court wanted
to see nature of the remand orders, because the validity of the
remand orders was under challenge. The Court granted leave to
the learned counsel for the Petitioners to raise a specific ground
about the remand orders. Accordingly, the petition was amended
and the new ground was added that, in the present case, there
were no remand orders passed either by the learned Special Judge
or by the learned Magistrate remanding the Petitioners to judicial
custody, from time to time.
21. In support of his contention, learned counsel Shri. Desai
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relied on the Judgment of the Hon’ble Supreme Court in the case
1
of State through CBI New Delhi Versus Jitender Kumar Singh . He
specifically relied on paragraph-38 of the said Judgment; which
reads as follows:
“A Special Judge exercising powers under the PC Act is
not expected to try non-PC offences totally
unconnected with any PC offences under Section 3(1)
of the PC Act and in the event of a Special Judge not
trying any offence under Section 3(1) of the PC Act,
the question of the Special Judge trying non-PC
offences does not arise. As already indicated, trying of
a PC offence is a jurisdictional fact to exercise the
powers under Sub-section (3) of Section 4.
Jurisdiction of the Special Judge, as such, has not
been divested, but the exercise of jurisdiction, depends
upon the jurisdictional fact of trying a PC offence.”
22. In paragraph-45 of the said Judgment, the Hon’ble
Supreme Court considered the fact that, no offence under the PC
Act was committed by any of the non-public servants and,
therefore, the Special Judge under the PC Act had no occasion to
try any case under the PC Act, and therefore, the view taken by the
Special Judge, CBI, Greater Mumbai in forwarding the case papers
of Special Case No.88 of 2001 in the Court of Chief Metropolitan
Magistrate for trying the case in accordance with law, was upheld.
1 Criminal Appeal No.943 of 2008 : Decided on 05.02.2014.
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Shri. Desai relied on this Judgment to contend that the
learned Special Judge had no jurisdiction to take cognizance of the
offence where the charge-sheet was not filed under the PC Act
against any of the accused.
23. Shri. Desai submitted that, there is no order of taking
cognizance. He relied on the Judgment of the Hon’ble Supreme
Court in the case of Lalankumar Singh & Ors. Versus State of
2
Maharashtra , in which, it was observed that, the order of issuance
of process was not an empty formality. The Magistrate was
required to apply his mind as to whether sufficient ground for
proceeding exists in the case or not. The formation of such an
opinion was required to be stated in the order itself.
SUBMISSIONS OF MR. ANIL SINGH, LEARNED ASG AND MR.
KULDEEP PATIL, SPP FOR THE RESPONDENT NO.2-CBI
24. Learned ASG Shri. Anil Singh and Shri. Patil, learned
SPP appearing for the CBI submitted that, there is no illegality in
detention of both the Petitioners. The offence is very serious. Their
bail applications were rejected by the trial Courts on multiple
occasions. One bail application is pending before this Court and,
2 Criminal Appeal No.1757 of 2022 : Decided on 11.10.2022.
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therefore, no relief can be granted to the Petitioners in this case.
They relied on the observations of the Hon’ble Supreme Court in
3
the case of State of Madhya Pradesh & Ors. Versus Kusum Sahu .
In the said case, the accused therein had filed four bail
applications before the High Court and all of them were dismissed.
After that, a habeas corpus petition was filed on behalf of the said
accused and this time, the writ petition was allowed and the
accused was directed to be released on bail. The Hon’ble Supreme
Court set aside that order passed in the habeas corpus petition
releasing the accused.
25. Learned ASG relied on the order dated 13.04.2026
passed by the learned J.M.F.C., below Exhibit-43 in R.C.C.No.77 of
2026. Vide that order, the Investigating Officer was permitted to
interrogate the Accused No.2 Vishal Yadav and Accused No.3
Sameer Siroha (Petitioner No.2). In that order, it was mentioned
that, considering the submissions made and the grounds stated in
the application, the request for interrogation was necessary.
Learned ASG submitted that, this shows application of mind and
3 Criminal Appeal No.4710 of 2025 : Decided on 03.11.2025.
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would mean that the trial Court had taken the cognizance.
26. Learned ASG further relied on the order dated
13.04.2026 passed below Exhibit-44 in R.C.C.No.77 of 2026
whereby the Investigating Officer was granted permission to
conduct further investigation U/s.193(9) of the BNSS. In that
order, there is a reference that, the learned Judge had perused the
record and the contents of the application. It was observed that,
the object of the proposed further investigation was to supplement
the evidence already placed on record and to bring forth all
relevant facts necessary for the just adjudication of the case.
Learned ASG submitted that, this again shows application of mind
and hence, it can be said that the cognizance was taken.
27. In support of his contention, the learned ASG relied on
the observations of the Hon’ble Supreme Court in the case of State
4
of Gujarat Versus Afroz Mohammed Hasanfatta . In paragraph-23,
it is observed that, in cases instituted on a police report, the
Magistrate is only required to pass an order issuing summons to
the accused. Such an order of issuing summons to the accused is
4 (2019) 20 Supreme Court Cases 539
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based upon subjective satisfaction of the Magistrate considering
the police report and other documents and satisfying himself that
there was sufficient ground for proceeding against the accused. In
a case based upon the police report, at the stage of issuing the
summons to the accused, the Magistrate was not required to
record any reasons.
28. Learned ASG then relied on the observations of the
Hon’ble Supreme Court in the case of S. K. SINHA, Chief
Enforcement Officer Versus Videocon International Ltd. and
5
others . In paragraph-33, it was observed that, taking cognizance
does not involve any formal action or indeed action of any kind. It
occurs as soon as a Magistrate applies his mind to the suspected
commission of an offence. Cognizance, thus, takes place at a point
when a Magistrate first takes judicial notice of an offence.
29. Learned ASG further relied on the observations of the
Hon’ble Supreme Court in the case of Kallu Nat alias Mayank
6
Kumar Nagar Versus State of U.P. and another . In paragraph-52, it
was observed that, whether cognizance of an offence was taken or
5 (2008) 2 Supreme Court Cases 492
6 2025 SCC OnLine SC 1606.
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not taken or yet to be taken, depends on the peculiar context of
the case and the stage of proceedings therein, and lodestar for
answering the same had to be discerned from the procedure
adopted by the Magistrate. Nevertheless, when a Magistrate, upon
receiving a police report, proceeds further, by complying with the
procedural requirements laid down in Section 207 of the Code, he
was deemed to have taken cognizance of the offence. For there
could be no need or question of supplying the documents
envisaged under Section 207 to the accused, if cognizance of the
offence was not taken, and more importantly, there could be no
situation where the accused was compelled to appear before the
Magistrate, or made a part of the proceedings in connection with
any case instituted, if cognizance of the offence, involved therein
was not yet taken. This is because prior to taking cognizance of an
offence, the person alleged to be the accused, has no locus in the
proceedings.
In paragraph-54 it is mentioned that, there can be no
compliance of the requirements envisaged under Section(s) 207 or
208 of the Code, as the case may be, if a person was not yet
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arrayed as an accused to the case instituted before the Magistrate.
As both these provisions mandate the requirement to furnish the
copies of the documents enumerated therein, to the accused,
thereby indicating that when the Magistrate proceeds under the
provisions of Sections 207 or 208 and then 209 of Chapter XVI of
the Code, cognizance of the offence was already taken, and further
that the Magistrate has also applied its mind to find out who the
offenders really are.
30. Shri. Patil, learned SPP for CBI while assisting the
learned ASG, relied on the observations of the Division Bench of
the Gujarat High Court, at Ahmedabad, in the case of Vinodbhai
7
Tilakdhari Tiwari Versus State of Gujarat and others to contend
that, once the accused is already in custody, all that the Court is
required to do is to remand him once again in custody by issuance
of a warrant and there is no question of setting a timeline for the
remand.
31. Learned APP was also directed to submit the documents
showing the remand orders whereby the Petitioners were
7 2026 SCC OnLine Guj 997
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remanded to prison. In response thereto, the learned APP
submitted the copy of the directions given by the Court of Special
Judge, Pune issued to the jail authorities. Those directions were in
the nature of stamps, but there were clear directions for producing
the accused on the next date which was mentioned therein before
the Court. Learned APP produced a copy of the roznama before the
learned J.M.F.C., Igatpuri, in R.C.C.No.77 of 2026 from March
2026 onwards. The roznama reported what transpired in the Court
and the last column mentions the next date. There is no direction
to the jail authorities to remand the accused to jail. There is
another chart of the same corresponding dates, wherein, the date
of that particular roznama is mentioned and the next date is
mentioned in the last column. In the middle column, there is a
noting that the accused were produced through video conferencing
and were intimated the next date. This is merely a noting
mentioning that the accused were given the next date when they
were produced through video conferencing. Again this particular
noting does not show any direction to the jail authorities
indicating that the accused were remanded to further custody. This
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is extremely important in the context of the present case.
REASONS AND CONCLUSION
32. Mr. Anil Singh, the learned ASG submitted that the
Petitioner No.1’s bail application is pending before this Court and
the Petitioner No.2’s bail application is pending before the Sessions
Court at Nashik and, therefore, the present petition may not be
entertained. The learned ASG relied on the Judgment of the
Hon’ble Supreme Court in the case of Kusum Sahu .
We have considered this contention seriously. However,
there is a crucial difference in the present case. The present
petition was filed much prior to filing of the bail applications
before this Court and before the Sessions Court. The applications
were filed during the pendency of this petition. Those bail
applications are still pending. More importantly, the Petitioners
have raised important issues such as lack of jurisdiction of the
learned Special Judge in remanding the Petitioners, absence of
order of taking cognizance by either the learned Special Judge or
by the learned Magistrate and the issue that there are no remand
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orders passed at all by the learned Magistrate before whom the
case is pending as of today. All these issues go to the root of the
matter. The learned counsel for the Petitioners did not make
submissions on merits of the matter. The Petition raises serious
issues about the illegality of the continued detention of the
Petitioners without remand orders. Therefore, there is no
impediment in deciding the present petition.
33. This is a very peculiar case and has given rise to some
important issues regarding taking cognizance, remanding the
accused, question of illegal detention and the procedure adopted
by the learned Special Judge and the learned Magistrate. The FIR
in this case mentioned various offences and there was a reference
to the offence under the PC Act, therefore, after obtaining transit
remand of the Petitioners and the other accused, they were
produced before the learned Special Judge for CBI Cases at Pune,
who had territorial jurisdiction in respect of the offences under the
PC Act investigated by the CBI. During the pendency of the
investigation, the stand of the investigating agency was that the
offence under the PC Act was committed and, therefore, the
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learned Special Judge at Pune passed remand orders from time to
time concerning the accused including the present Petitioners. The
charge-sheet was filed on 03.11.2025 and the copies of the charge-
sheet were given to the accused and the Petitioners on 13.11.2025.
Very significantly, the charge-sheet was not filed for commission of
any offence under the PC Act, therefore, the learned Special Judge
trying the offence under the PC Act had no jurisdiction; even to
take cognizance of the police report. In this connection, Sections
3(1), 4, 4(1), 4(2) and 4(3) of the PC Act are important; which
read thus:-
3. Power to appoint Special Judges.—(1) The Central
Government or the State Government may, by notification
in the Official Gazette, appoint as many Special Judges as
may be necessary for such area or areas or for such case or
group of cases as may be specified in the notification to try
the following offences, namely:—
( a ) any offence punishable under this Act; and
( b ) any conspiracy to commit or any attempt to commit or
any abetment of any of the offences specified in clause
( a ).
4. Cases triable by Special Judges.—(1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), or in any other
law for the time being in force, the offences specified
in sub-section (1) of Section 3 shall be tried by Special
Judges only.
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(2) Every offence specified in sub-section (1) of
Section 3 shall be tried by the Special Judge for the
area within which it was committed, or, as the case
may be, by the Special Judge appointed for the
case, or where there are more Special Judges than
one for such area, by such one of them as may be
specified in this behalf by the Central Government.
(3) When trying any case, a Special Judge may also
try any offence, other than an offence specified in
Section 3, with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of 1974), be
charged at the same trial.”
While trying a case involving the offence under the PC
Act, the learned Special Judge had jurisdiction to try any other
offence specified in Section 3 of the PC Act with which the accused
could be charged at the same trial. However, when there was no
offence under the PC Act, then the learned Special Judge
appointed U/s.3 of the PC Act had no jurisdiction to try the case or
even to take cognizance. In the present case, it is more prominent
because none of the accused is a public servant and the charge-
sheet is not filed for commission of any offence under the PC Act.
34. Initially, the learned Judge did not realize that, he did
not have the jurisdiction and, therefore, he kept on remanding the
accused. As mentioned earlier, copies of the charge-sheet were
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furnished to the accused including the Petitioners.
35. The learned Special Judge vide his order dated
12.02.2026 passed below Exhibit-1 in Special Case No.1492 of
2025 has categorically observed in paragraph-15 as follows:
“In this case, though the FIR was registered for the
offences punishable under PC Act, but charge-sheet
has not been filed under PC Act, therefore, I found
substance in the argument of Ld. Advocate for
accused No.5 that at this stage, this Court is not
empower to take the cognizance against the arrested
accused, but in view of the provision under section
361 of BNSS the custody of the accused can be
considered legal because after filing of charge-sheet
during enquiry and even during trial the case can be
transferred to Magistrate having jurisdiction to try
the case.”
Thus, there is hardly any doubt that the learned Special
Judge had no jurisdiction to take cognizance of the offence. He did
not realize the said fact initially when the charge-sheet was filed,
but while considering the bail applications, he realized that he was
not empowered to take cognizance. This is reflected in his order
dated 12.02.2026.
36. The learned ASG relied on the observations of the
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Hon’ble Supreme Court made in Kallu Nat alias Mayank Kumar
Nagar’s case. In paragraph-45 of the said Judgment, it was
observed that, where a police report is received, the proceedings
are said to be initiated i.e. cognizance is affirmately said to be
taken after the Magistrate had applied his mind to the contents of
the police report, and thereafter he had either issued process to the
accused under Section 204 of the Code, on the basis of such
report, or where the accused was present before it, either on his
own or on being produced by the police, the Magistrate had
complied with the requirement envisaged under Section 207 of the
Code.
In the present case, undoubtedly, the learned Special
Judge, Pune had complied with the requirement U/s.207 of the
Code. However, the learned Special Judge did not have
jurisdiction to take cognizance. This is a crucial difference in the
present facts before us. His lack of jurisdiction is accepted by the
learned Special Judge in paragraph-15 of his order dated
12.02.2026.
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37. Thereafter, the learned Special Judge transferred the
case to the Court of J.M.F.C., Igatpuri. The clause (iv) of the
operative part of his order directed the Superintendent of Yerwada
Central Prison, Pune to produce the accused before the learned
J.M.F.C., Igatpuri on 18.02.2026 or as per the production warrant
issued by the transferee court and directed that all the accused be
remanded to the judicial custody till they were produced before
the J.M.F.C. Igatpuri. Till he transferred the case to the learned
J.M.F.C., Igatpuri, he gave specific directions on every date to the
Jail Superintendent informing him regarding the next date of
hearing and specifically directed him to produce the accused
before the Court on the next date. This, at least, authorized the
Jail Superintendent to keep the accused in custody. The legal
lacuna in this case was that the learned Special Judge had no
jurisdiction to take cognizance of the offence.
38. While transferring the case, the direction in Clause (i) of
the operative part of the order dated 12.02.2026 was important.
He had transferred the case to the learned J.M.F.C., Igatpuri, Dist.
Nashik, ‘for taking cognizance/trial in accordance with law’
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(emphasis supplied). Thus, the learned Special Judge was aware
that the learned Magistrate had to perform the important step of
taking cognizance.
39. When the case was transferred to the Court of learned
J.M.F.C., Igatpuri; from the record, it is clear that no specific order
for taking cognizance was passed by the learned Magistrate. The
roznama noted what transpired in the Court and also mentions the
next date of hearing. The case was numbered as RCC No.77 of
2026 before that Court. The roznama starts from 25.02.2026. It
makes a reference to the letter of the learned Special Judge, Pune,
transferring the case before the learned J.M.F.C., Igatpuri.
Significantly, there were no specific directions issued by the
learned J.M.F.C. to the Superintendent of Jail authorizing custody
of the accused in connection with the said case. An extract of the
register mentions the date of hearing when the roznama was
written and the next date for hearing. There were references that
the accused were produced through the video conferencing and
that they were given the next date. Thus it is just an intimation to
the accused regarding the next date of hearing. There is neither
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any specific warrant remanding the accused nor any specific
direction to the Jail Superintendent to keep the accused in custody.
Thus, this is not a case where the remand orders are invalid, but
this is a case where the learned Magistrate has not taken
cognizance and then has not passed the remand orders.
40. As mentioned earlier, there is no reference to any specific
order of taking cognizance. What is the meaning of ‘cognizance’ is
dealt with by the Hon’ble Supreme Court in many cases. In Kallu
Nat’s case, the term ‘cognizance’ is discussed by the Hon’ble
Supreme Court in paragraphs-19, 20 and 21; which are as
follows:-
“19. The term “cognizance” has nowhere been defined
under the Code, but the word itself is of indefinite
import. The word itself is derived from the Latin word
‘ cognoscere ’, and the French Word “ conoisance ” which
means “ to know” , “ to become acquainted with” , or “ to
recognize” . The Black's Law Dictionary defines the term
“cognizance” as “ Judicial notice, knowledge or
acknowledgement ” or “ the judicial hearing of a cause ”.
20. In criminal law, the term “cognizance” has no
esoteric or mystic significance, and the same is
reflected by the omission of any formulaic definition of
the term under the Code. However, over time, the term
“cognizance” has come to acquire a special and distinct
connotation, through a catena of decisions and
authoritative exegesis rendered by this Court. The
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expression “cognizance” means to ‘become aware of’ or
‘to take notice of judicially’. The special connotation
that has been ascribed to the term denotes or indicates
the stage at which a judicial authority such as a Court
of Sessions or a Magistrate is said to have taken judicial
notice of the commission of an offence, with a view to
initiate proceedings against the person or persons
alleged to have committed such offence. [See: Chief
Enforcement Officer v. Videocon International Ltd. ,
(2008) 2 SCC 492].
21. Cognizance is, at its heart, always an act of the
court. It entails not merely the receipt of information or
the mechanical act of acknowledgement of a particular
offence by a judicial authority, but a conscious
application of mind by it, to the information disclosed
or received, as the case may be, and the subjective
element of its satisfaction that i) an offence has indeed
occurred and ii) the circumstances necessitate setting
into motion criminal proceedings in respect of the said
offence, or at the very least take steps for ascertaining if
there is any basis for initiating such proceedings.
Cognizance is attended by the assumption of
jurisdiction for proceeding further.”
41. As observed in paragraph-20, ‘cognizance’ indicates the
stage at which a judicial authority such as a Court of Session or a
Magistrate is said to have taken judicial notice of the commission
of an offence, with a view to initiate proceedings against the
person or persons alleged to have committed such offence. The
learned Magistrate has not passed any order indicating that he had
taken judicial notice of the commission of an offence “with a view
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to initiate proceedings” against the accused. The learned
Magistrate has simply adjourned the case from time to time as if it
was continuation of the trial. There was no starting point of
initiating the proceedings before him.
42. The Hon’ble Supreme Court in the case of S. K. Sinha,
Chief Enforcement Officer (supra), has observed that, taking
cognizance is the point when a Court or a Magistrate takes judicial
notice of an offence with a view to initiating proceedings in respect
of such offence. ‘Taking cognizance’ does not involve any formal
action of any kind. It occurs as soon as a Magistrate applies its
mind to the suspected commission of an offence. Cognizance is
taken prior to commencement of criminal proceedings. Taking of
cognizance is thus, a sine qua non or condition precedent for
holding a valid trial. Cognizance is taken of an offence and not of
an offender.
In the present case, the learned Magistrate proceeded
as if the criminal proceedings had already commenced. He had not
taken judicial notice ‘with a view to initiating proceedings’.
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43. In the case of Afroz Hasanfatta, the Hon’ble Supreme
Court has observed that, in cases instituted on a police report, the
Magistrate is only required to pass an order issuing summons to
the accused. Such an order is based on the subjective satisfaction
of the Magistrate considering the police report and other
documents satisfying himself that there is sufficient ground for
proceeding against the accused. In a case based upon the police
report, at the stage of issuing the summons to the accused, the
Magistrate is not required to record any reason.
In the present case, though, reasons were not expected,
but we do not find any order issuing process or taking cognizance
by the Magistrate.
44. Learned ASG submitted that, various orders passed by
the learned Magistrate would indicate his application of mind,
which would mean that he had taken cognizance of the offence.
Learned ASG referred to the common order passed below bail
applications Exhibit-65 and 66 in RCC No.77 of 2026, whereby the
Petitioners’ bail applications were rejected vide the order dated
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07.09.2026. He also referred to the order passed below Exhibit-44
in RCC No.77 of 2026 whereby the Investigating Agency was
permitted to conduct further investigation. The said order was
passed on 13.04.2026.
We are unable to agree with the submissions of learned
ASG. Those orders were passed in completely different context. As
discussed above, taking cognizance is an order passed with a view
to initiating proceedings against the accused based on a police
report. The observations made by the learned J.M.F.C. in the
orders referred to by the learned ASG do not satisfy this criteria.
45. Even otherwise, we do not find order taking cognizance
and subsequent remand orders directing the Jail authorities to
keep the accused in custody. The accused, at present, are detained
in Nashik Road Central Prison. As per Section 346 of the BNSS, the
Court is empowered to adjourn the proceedings and to remand the
accused, if in custody. Section 346 of the BNSS reads as follows:
346. Power to postpone or adjourn proceedings.—(1)
In every inquiry or trial the proceedings shall be
continued from day-to-day basis until all the witnesses
in attendance have been examined, unless the Court
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finds the adjournment of the same beyond the
following day to be necessary for reasons to be
recorded:
Provided that when the inquiry or trial relates to an
offence under Section 64, Section 65, Section 66,
Section 67, Section 68, Section 70 or Section 71 of the
Bharatiya Nyaya Sanhita, 2023 the inquiry or trial shall
be completed within a period of two months from the
date of filing of the chargesheet.
(2) If the Court, after taking cognizance of an offence,
or commencement of trial, finds it necessary or
advisable to postpone the commencement of, or
adjourn, any inquiry or trial, it may, from time to time,
for reasons to be recorded, postpone or adjourn the
same on such terms as it thinks fit, for such time as it
considers reasonable, and may by a warrant remand
the accused if in custody:
Provided that no Court shall remand an accused person
to custody under this section for a term exceeding
fifteen days at a time:
Provided further that when witnesses are in attendance,
no adjournment or postponement shall be granted,
without examining them, except for special reasons to
be recorded in writing:
Provided also that no adjournment shall be granted for
the purpose only of enabling the accused person to
show cause against the sentence proposed to be
imposed on him:
Provided also that—
( a ) no adjournment shall be granted at the request
of a party, except where the circumstances are
beyond the control of that party;
( b ) where the circumstances are beyond the control
of a party, not more than two adjournments may be
granted by the Court after hearing the objections of
the other party and for the reasons to be recorded
in writing;
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( c ) the fact that the advocate of a party is engaged
in another Court, shall not be a ground for
adjournment;
( d ) where a witness is present in Court but a party
or his advocate is not present or the party or his
advocate though present in Court, is not ready to
examine or cross-examine the witness, the Court
may, if thinks fit, record the statement of the
witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or cross-
examination of the witness, as the case may be.
Explanation 1.—If sufficient evidence has been obtained
to raise a suspicion that the accused may have committed
an offence, and it appears likely that further evidence may
be obtained by a remand, this is a reasonable cause for a
remand.
Explanation 2.—The terms on which an adjournment or
postponement may be granted include, in appropriate
cases, the payment of costs by the prosecution or the
accused.
46. Sub Section 2 of Section 346 of the BNSS is in two parts.
The first part is about adjourning the trial and the second
important part is about remanding the accused. The exact wording
used is “and may by a warrant remand the accused if in custody”.
In the present case, no record was produced before us showing
that the learned Magistrate had remanded the accused by a
warrant. There are not even directions issued to the Jail
Superintendent to keep the accused in custody. The custody of the
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Petitioners is without any authorization by the learned Magistrate
as he has not taken cognizance and has not passed subsequent
remand orders.
47. Shri. Patil, learned SPP tried to rely on the Judgment of
the High Court of Gujarat in the case of Vinodbhai Tiwari, to
contend that, if a person is already in custody, no such time limit
can be ascribed when remanding him to custody. He relied on
paragraph-108 of the said Judgment; which reads as follows:
“108. It is to be noticed here that the proviso
contemplates remanding “ an accused person to
custody ” as compared to the expression in S. 346(2)
which is “ remand the accused if in custody ”. This
Proviso which stipulates a maximum remand period of
15 days would basically come into operation only if the
Court, while adjourning or postponing the trial, is
remanding the accused who is not in custody and for
the first time is ordered to be taken into custody while
adjourning or postponing the trial. It is only in such a
situation that the remand can only be for a period of 15
days. However, if a person is already in custody, no
such time limit can be ascribed when remanding him to
custody.”
We are unable to agree with the submissions of learned
SPP that, no order remanding the accused is necessary, if the
accused is already in custody. The same judgment in paragraph-
116 mentions thus:
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“116. It is this period of 15 days, which is contemplated
during the investigation stage, that is incorporated in
the first proviso to S. 346(2) when the trial is being
postponed or adjourned. This period of 15 days can
apply only when the Court decides to remand an
accused to custody while adjourning the matter. If the
accused is already in custody, all that the Court is
required to do is to remand him once again in custody
by issuance of a warrant and there is no question of
setting a timeline for the remand.”
48. Thus, the Gujarat High Court was considering whether
the timeline of 15 days was applicable in that case. But there are
clear observations that, if the accused is already in custody, the
Court is required to remand him once again in custody by issuance
of a warrant and there was no question of setting a timeline for the
remand. The Judgment is only about the outer limit of the
timeline. It cannot be interpreted to mean that the Magistrate need
not remand the accused after taking cognizance if he is already in
custody.
49. As a result of the above discussion, we find that the
detention of the Petitioners in jail is without any authorization by a
competent Court and, hence, their detention is illegal.
Consequently, they will have to be released from their detention.
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At the same time, it has to be noted that the offence is quite
serious and, therefore, if the investigating agency so desires, and if
it is necessary to arrest the accused, they can take steps in
accordance with law to rearrest the Petitioners by following due
procedure established by law.
50. Before parting with the order, we make it clear that, it is
the duty of the prosecutors, investigating and prosecuting agencies
and even the Jail Superintendents to point out to the Court taking
cognizance, if there is no remand order from the Court to continue
detention of the accused who is already in custody, unless he is to
be released under the orders of the Court.
51. Hence, the following order:
O R D E R
i) The continued detention of the Petitioners in
connection with RCC No.77 of 2026 before the
learned J.M.F.C., Igatpuri, District Nashik, is
declared to be illegal.
ii) The Petitioners are directed to be released on bail
on their executing PR Bond in the sum of Rs.1
lakh each with one or two sureties each in the
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like amount, on the following conditions:
I. The Petitioners shall deposit their
passports, if any, with the Investigating
Officer, before being released.
II. They shall report to the office of the
investigating agency on every Saturday
between 3:00p.m. to 5:00p.m. till
conclusion of the trial.
III.They shall provide their residential address
and the contact numbers where they would
be residing; to the investigating officer,
before being released.
IV. They shall attend all the dates in RCC
No.77 of 2026 before the learned J.M.F.C.,
Igatpuri, Nashik.
V. They shall not tamper with the evidence
and shall not influence the witnesses.
VI. They shall not leave Maharashtra without
prior permission of the trial Court.
VII. They shall cooperate in expeditious
disposal of the trial.
iii) The investigating agency would be at liberty to
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rearrest the Petitioners, if found necessary; by
following the due procedure established by law.
iv) Rule is made absolute in the aforesaid terms.
v) The Writ Petition is disposed of.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
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