DILIP PANDURANG KAMATH AND ANR. vs. THE STATE OF MAHARASHTRA

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2005:BHC-AS:18874-DB
HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1483 OF 2005. WRIT PETITION NO. 1483 OF 2005. WRIT PETITION NO. 1483 OF 2005.
1. Dilip Pandurang Kamath,
Aged 44 years, Occu: Service,
R/o: RNA Park, A-1, 302, Vashi
Naka, Chembur, Mumbai 400 074.
2. Abdul Rasheed Sikandarsab
Kulkarni, Aged: 47 years,
Occu: Advocate, R/o: Flat No.201,
Shahid Apartments No.16,
"C" Street, Haines Road,
Fraser Town,
Bangalore 560 005.
3. Chenna Boyanna Krishna Yadav,
Aged: 41 years, Occu: Advocate/
Ex-MLA, R/o: H. No. 18-5-757,
Lal Darwaza,
Hyderabad 500 253 (A.P.)
4. Gokul Bhagaji Patil,
Aged 54 years, Occu: Service,
R/o: Ganesh Darshan,
2nd Floor, Chaitanya Sankul,
Badlapur, Shirgaon,
MIDC Road, Dist: Thane.
5. Mohammed Chand Mulani,
Aged 61 years, Occu: Retired ACP,
Resident No. 667, Besides Aroh
Mangal Karyalaya, Datta Nagar,
Ambegaon, Katraj,
Pune.
(Presently lodged in Yerwada
Central Prison Pune.) ..PETITIONERS.
(Orig. Accused Nos. 44,49,53,58 & 61.)
Versus.
The State of Maharashtra,
(In the instance of Bund
Garden Police Station, Pune,
in C. R. No. 135/2002)
Through: CBI, Kitab Mahal,
Mumbai. ..RESPONDENTS.
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Shri. S. R. Chitnis, i/b S/Shri. Sachin Kivansara
and M. Rupender, for Petitioners Nos. 1 to 4.
Shri. Amin H. Solkar for Petitioner No.5.
Shri. Raja Thakare and Shri. A. M. Chimalkar,
Advocates for the respondent - C.B.I.
Shri. D. S. Mhaispurkar, A. P. P. for the State.
CORAM: S.B.MHASE & CORAM: S.B.MHASE & CORAM: S.B.MHASE &
S.R.SATHE, JJ S.R.SATHE, JJ. S.R.SATHE, JJ
DATE: October 14, 2005. DATE: October 14, 2005. DATE: October 14, 2005.
ORAL JUDGMENT (PER S.B.MHASE,J.). ORAL JUDGMENT (PER S.B.MHASE,J.).
ORAL JUDGMENT (PER S.B.MHASE,J.).
1. The Petitioners have approached this Court
invoking jurisdiction of this Court under Article 226
of the Constitution of India and thereby seeking the
writ of habeas corpus. The petitioenrs are original
accused Nos. 44, 49, 53, 56 and 61 respectively in
Special Case No. 2 of 2003, pending before the
Special Court ( MCOC Court) at Pune, which arises from
Crime No. 135 of 2002 registered with Bandgarden
Police station. The Said offence was registered and
charge sheet was filed under sections 255, 256, 257,
258, 260, 263-A, 419, 420, 467, 468, 471, 472, 473 and
474 of the IPC, Sections 3(1)(2), 3(2), 3(4), 3(5), 4
& 24 of the Maharashtra Control of Organised Crime
Act, 1999 (hereinafter, in short, referred to as " the
.), Section 63(a) of the Bombay Stamp Act and
MCOC Act"
Section 13(a) & 13(d) of the Prevention of Corruption
Act. This case is commonly known in the media and the
public as "The Telgi Stamp Scam Case". Petitioenr
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No.1 (original accused No. 44) was arrested on
13.6.2003 and was taken in judicial custody by order
dated 10th July 2003 and the Charge sheet was filed
against him on 15.9.2003. The Petitoner No.2
(original Accused No.49) was arrested on 5.8.2003, he
was remanded to judicial custody on 22.8.2003, the
charge sheet against him was filed on 5.9.2003. The
petitoner No.3 (original accused No. 53) was arrested
on 6.9.2003, was remanded to judicial custody on
26.9.2003, and the charge sheet against him was filed
on 29.12.2003. The Petitioner No.4 (original accused
No.56) was arrested on 18.10.2003 and was remanded to
the judicial custody on 3.11.2003, the charge sheet
was filed against him on 29.12.2003. Petitioner No.
5 (original accused No. 61) was arrested on 4.12.2003
and was remanded to the judicial custody on
16.12.2003, charge-sheet against him was filed on
3.2.2004. Since then, these accused are in judicial
custody pending the trial.
2. The above-referred dates will show that,
initially, the judicial custody was granted on the
respective dates under section 167 of the Code of
Criminal Procedure, 1973 and from the date of the
filing of the charge-sheets, since congnizance has
been taken, the Petitioners are in judicial
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custody/remand granted as per the provisions of
Section 309(2) of the Code of Criminal Procedure,
1973. All these accused - petitioners, after their
arrest, from time to time have applied for bail on
merit before the Special Court (MCOC Court), Pune.
After hearing them, their bail applications were
rejected by the Special Court. When this petition was
pending simultaneously, the Petitoners have filed bail
applications before the learned Single Judge of this
Court, the same are as under:
. (a) Petitioner No.1 Bail Application No.4319 of 2004.
. (b) Petitioner No.2 bail application No.4869 of 2004.
. (c) Petitioner No.3 bail application No.4853 of 2004.
. (d) Petitioner No.4 bail Application No.4004 of 2004.
. (e) Petitioner No.5 bail application No.3885 of 2004.
. It is reported that while this petition was
being heard, the application of the petitioner No.1
for bail was rejected by the learned Single Judge.
3. It is worthwhile to mention that from the
date of arrest till the filing of the petition, the
Special Court has granted remand from time to time.
However, these orders are not subject of challenge in
this petition. On the contrary, all these proceedings
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upto May 2005 have been accepted to be valid by the
Petitioners.
4. As the charge-sheet has been filed against
the petitioners under the MCOC Act, the cases of the
Petitioners are triable by the Special Court within
whose local jurisdiction the offence was committed or
before the Special Court constituted for trying such
offence. Section 6 of the MCOC Act makes a provision
in respect of the exclusive jurisdiction of the
Special Court to try the cases under the said Act.
Section 5 of the said Act contemplates that the
Government may, by notification in the official
gazette, constitute one or more Special Courts for
such area or areas, or for such case or class or group
of cases, as may be specified in the notification. It
is further provided in sub-section (3) of Section 5
that such Special Court shall be presided over by a
Judge to be appointed by the State Government with the
concurrence of the Chief Justice of the Bombay High
Court. The said provision further states that the
State Government may also appoint, with the
concurrence of the Chief Justice of the Bombay High
Court, additional Judges to exercise jurisdiction in a
Special Court. Sub-section (4) provides that person
to be appointed as a Judge or additional Judge of a
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Special Court shall be Sessions Judge or Additional
Sessions Judge. Sub-section (5) of Section 5
regulates the business of the Special Court. It
provides that where the additional Judge or Judges are
appointed in Special Court, the Judge of the Special
Court may from time to time, by general or special
order in writing provide for distribution of the
business of the Special court amongst himself and
additional Judge or additional Judges and also for the
disposal of the urgent business in the event of his
absence or the absence of any additional Judges.
. Thus, on reading these provisions, it is
made clear that the business of the Special Court
shall be regulated by a general or special order made
by the Special Judge, and the said general or special
order may be pertaining to the distribution of the
business of the Special Court amongst the Special
Judge and Additional Judges of the Special Court. It
may or shall also provide for the disposal of the
urgent business in the absence of the Special Judge or
any of the additional Judges. Suffice it to say at
this stage that, for the purposes of this petition, in
the absence of the Special Judge, it is the Special
Judge who is going to remain absent, who will entrust
the business of his Court by order made in writing
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under these sections to any of the additional Special
Judge of the Special Court. The Special Judge can
also make an order as to how the business in the
absence of any of the Judge or Additional Judge of the
Special Court is to be carried out.
6. Admittedly, at Pune the Special Court was
constituted by the Government for conducting the cases
under the MCOC Act. Apart from constituting the
Special Court, and appointing the Special Judge for
the Special Court, the government has also appointed
two additional Judges for the Special Court.
7. Shri. Shembole was appointed as the Judge
of the Special Court by Government of Maharashtra with
the concurrence of the Chief Justice of the Bombay
High Court by issuing notification dated 4th March
2002. So also, by another notification, Shri. B. N.
Deshpande and Shri. V. V. Borikar were appointed as
the Additional Judges of the Special Court constituted
under the MCOC Act. The case of the Petitioners was
being dealt with by the Judge of the Special Court
Shri. Shembole and all the orders till 5.5.2005,
including the judicial custody remand order under
section 309(2) of the Code of Criminal Procedure, were
passed by Shri. Shembole. It appears from the
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order-sheet that on 8.4.2005, the case was resumed
before the Judge of the Special Court, when one of the
Petitioners was produced on video conference and the
rest of the petitioners were not produced through
Video Conference and the case was adjourned to
5.5.2005. There is no dispute on the fact that on
this date, the judicial custody remand was granted by
the Judge of the Special Court till 5.5.2005.
However, the whole controversy, according to the
Petitioners, is about the proceedings that has taken
place on 5.5.2005.
8. We have already stated in the above
paragraph that there were three Judges of the Special
Court established under the MCOC Act. However, Shri.
Shembole before whom this case bearing MCOC Special
Case No.2 of 2003 was pending was not available on
5.5.2005, i.e., the date till which the judicial
custody remand order was granted by the said Judge, as
stated earlier. Therefore, it was further necessary
to pass the appropriate judicial custody remand orders
under section 309(2) of the Code of Criminal Procedure
on the said date. However, Shri.Shembole was on
summer vacation from 2.5.2005 till 15.5.2005.
Additional Judge of the Special Court, Shri.
B.N.Deshpande, was also on judicial leave (Summer
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Vacation) from 2.5.2005 till 15.5.2005. It is further
to be noted that the Second Additional Judge of the
Special Court, Shri. V.V.Borikar, who then also was
the 4th Additional District & Sessions Judge, Pune was
also on Earned Leave from 5.5.2005 to 7.5.2005 and the
charge of the said court was kept with Shri. P. P.
Birajdar, the 5th Additional District & Sessions
Judge, Pune. It is an admitted fact that Shri.
P.P.Birajdar, 5th Additional District & Sessions
Judge, Pune was not the Judge and/or additional Judge
appointed by the Government of Maharashtra under
section 5 of the MCOC Act and therefore, he was not
supposed to preside over and try the case under the
MCOC Act. However, the charge came to Shri. Birajdar
in view of the standing order No. Gen-B-16/ii/46/93
dated 26th June 1993, which gives a general power to
the District Judge to make an arrangement about the
business of the court when one of the Judge/court
proceeds on leave and/or summer vacation. We have
ascertained by making an enquiry through the Registry
with the Special court that the Special Court has not
passed any general or specific orders as contemplated
by sub-section (5) of Section 5, which provision has
already been dealt with in the above paragraphs.
Under these circumstances, the above case, namely,
MCOC Special Case No. 2 of 2003 was placed before
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Shri. P. P. Birajdar, the 5th Additional District &
Sessions Judge, Pune. On this date, none of the
accused who were in judicial custody were produced
before Shri. Birajdar, the 5th Additional District &
Sessions Judge, Pune, since the Video Conferencing
facility was not available in the court of
Shri.P.P.Birajdar. On behalf of the respondent,
Police Officer preferred an application, stating that
the counsel for the CBI - Shri. Raja Thakare was busy
in the High Court and requested to adjourn the matter.
On this application, Shri. P.P.Birajdar, the 5th
Additional District & Sessions Judge, Pune passed an
order of "Other Side to Say", upon which the Advocate
for one of the accused - Mr. Telgi has stated that he
has no objection to grant adjournment. However,
Shri.P.P.Birajdar, the 5th Additional District &
Sessions Judge, Pune did not pass any order as to
whether the adjournment is granted or not and the
application remained as it is. On this date, it
appears from the order-sheet, that the case was posted
to 8.6.2005. From the order-sheet, it is not clear
whether the judicial custody remand of the accused,
and more specifically of the petitioners, was extended
under section 309 of the Code of Criminal Procedure.
However, now it is an admitted position by the
respondent that on 5.5.2005, except the presentation
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of the application by the CBI for the adjournment, no
business was transacted before Shri. P.P.Birajdar,
the 5th Additional District & Sessions Judge, Pune.
The case was simply put before him and he put the same
case, after passing certain casual orders, to
8.6.2005. However, for the point in controversy, it
is an admitted fact that on that date
Shri.P.P.Birajdar, the 5th Additional District &
Sessions Judge, Pune has not passed any order
extending the judicial custody remand by exercising
the powers under section 309 of the Code of Criminal
Procedure and simply adjourned the case to 8.6.2005.
9. This petition has arisen from the above
referred MCOC Special Case No. 2 of 2003. The
grievance of the petitioners is that on 5.5.2005, the
case could not have been placed before
Shri.P.P.Birajdar, the 5th Additional District &
Sessions Judge, Pune, because he was not appointed as
the Judge of the Special Court by appropriate
notification by following the procedure as laid down
under section 5 of the MCOC Act and, therefore, the
said Judge was incompetent to deal with and try the
cases under the MCOC Act. Therefore, the act on the
part of Shri.P.P.Birajdar, the 5th Additional District
& Sessions Judge, Pune to adjourn the case to 8.6.2005
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is illegal one, and thereby the detention of the
Petitioners is illegal one.
. The second ground on which the Petitioners
have approached this Court is that from 5.5.2005 upto
8.6.2005, there were absolutely no orders passed under
section 309(2) of the Code of Criminal Procedure,
remanding the accused - petitioners to the judicial
custody. Therefore, the detention of the petitioners
in custody is illegal and bad in law. Thus, it is the
contention of the petitioners that their
Constitutional right under Article 22 is violated.
Thus, they have approached this court by filing this
petition for habeas corpus.
10. This petition was presented in this court
on or about 26th May 2005. It was moved for
circulation on 27.5.2005 and the circulation was
granted for 1.6.2005. On 1.6.2005, the matter was
adjourned beyond vacation so as to put up the matter
before the Regular Bench. It was circulated before
the Division Bench on 10.6.2005. On the said date,
the Advocate for the Petitioners was absent and,
therefore, the matter was adjourned for two weeks.
However, later on at 2.55 p.m., the Advocate for the
Petitioners appeared and sought leave to amend, which
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was granted. The matter was recirculated after
amendment on 17.6.2005. However, on the said date, by
the consent of both sides, the matter was adjourned to
27.6.2005. It appears from the order dated 27.6.2005
that the Division Bench has given oral directions to
the petitioner to produce the Roznama of the case, and
since it was not produced, the matter was adjourned
for two weeks to enable the Advocate for the
Petitioners to get a copy of the roznama. Again on
11th July 2005, learned counsel for the Petitioner
requested for time to place the Roznama of the case on
record. Therefore, the case was adjourned to
25.7.2005. On 25.7.2005, the learned counsel for the
petitioners submitted that he wanted to withdraw from
the case but he had to follow the procedure and
requested for time. Therefore, the matter was
adjourned to 8.8.2005. On 8.8.2005, counsel for the
Petitioners was absent, and therefore, it was
adjourned for two weeks. On 22.8.2005, the matter
appeared before this Bench when we have taken a note
of all these facts and directed the office to issue
notice to the petitioners to make an arrangement of
the counsel to conduct their case and / or to see that
their advocate remains present. However, after we had
passed order in the Morning Session, we received a
telegram from the Petitioner - Dilip Kamth.
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Therefore, we placed the matter on the very next day,
i.e., on 23.8.2005. On 23.8.2005, learned counsel
Shri. Amin Solkar for the petitioners was present and
tried to get discharge from the case, but when it was
pointed out to him that unless the procedure to
withdraw has been followed, the discharge from the
case cannot be granted. However, he reported that the
petitioners did not desire to continue him.
Therefore, we again granted some time to Shri. Amin
Solkar. On 30.8.2005, Shri. Amin Solkar produced a
letter addressed to the petitioners upon which there
were endorsements of petitioner Nos. 1 to 4 and he
was instructed to withdraw from the case. Therefore,
we discharged Shri. Amin Solkar from the case.
However, Shri. Solkar remained on record for one
Petitioner, namely, Petitioner No.5. In view of these
circumstances, we issued a direction to the office to
issue a production warrant, to present the Petitioners
before this court on 19.9.2005. On 19.9.2005, in
afternoon session, Petitioner Nos. 1 to 4 were
presented. Shri. Amin Solkar learned counsel for the
petitioner No.5 was absent. We heard Petitioner Nos.
1 to 4 on the point of admission of the petition.
However, since the court time was over, the respondent
could not be heard. However, petitioner Nos.1 to 4
stated that so far as the reply to the argument of the
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CBI counsel is concerned, they would make an
arrangement by discharging Shri. Amin Solkar,
Advocate to appear and make a submission on their
behalf. We adjourned the matter to 22.9.2005. On
22.9.2005 we heard the matter and we granted rule
returnable one week. Thereafter the matter was heard
on 29.9.2005 onwards. We have placed on record this
history of proceeding to demonstrate that the time
which was consumed in such an important petition of
habeas corpus is not attributable to the lapse or
laxity on the part of this court. The above facts and
adjournments taken from time to time by the parties
are self-evident of the fact that it is the
petitioners who were responsible for the delayed
hearing of this petition.
11. In the present matter, initially, on
23.8.2005 the respondent has filed an affidavit on
behalf of the CBI opposing the admission of the
petition, later on the additional affidavit was filed
by the CBI on 21.9.2005 along with certain documents.
After we had given directions to produce orders passed
by Shri.P.P.Birajdar, the 5th Additional District &
Sessions Judge, Pune and the order sheet, the further
affidavit was filed by the CBI on 5th October 2005.
At the time of hearing of the petition on 29th
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September 2005, the brief submissions on behalf of the
CBI were tendered and along with the brief
submissions, the copies of the Standing Charge
Arrangement Order passed by the District & Sessions
Judge on 22.6.1993 was produced. So also the order
sheet of the case and the copies of the remand
warrants issued by the Judge of the Special Court in
respect of each of the Petitioners were produced. So
also the notification issued by the Government of
Maharashtra under Section 5 of the MCOC Act, 1999
dated 9th July 2005 making appointment of Shri. M.
B. Sardeshpande, the 4th Additional District &
Sessions Judge, Pune is produced on record, since
Shri. Shembole, the earlier Judge of the Special
Court was transferred from the said place.
12. Learned Senior Counsel Shri. Sushilkumar
appearing for the CBI submitted that assuming for a
moment that the detention of the Petitioners from
5.5.2005 to 8.6.2005 is illegal, the petition filed by
the Petitioners for the habeas corpus cannot be
allowed. He submitted that the under the habeas
corpus petition, the court is expected to see the
legality or illegality of the detention on the date of
return and not on the date of the institution of the
petition. He submitted that after the alleged period
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of illegal detention, there are five orders passed by
the Judge of the Special Court on 8.6.2005, 28.6.2005,
27.7.2005, 19.8.2005 and 16.9.2005 which are valid
orders granting custody under section 309(2) of the
Code in respect of the Petitioners. Therefore, he
submitted that on the date of return there are valid
orders of the remand as a result of which the
Petitioners are detained in the custody under section
309(2) of the Code of Criminal Procedure, 1973.
Therefore, he submitted that the petition deserves to
be dismissed.
13. Further, pointing out the remand warrants
produced on record, learned Senior Counsel for the
CBI, Shri. Sushilkumar submitted that initially the
remand order was issued to the Superintendent of
Prison, Yerwada Central Prison on 26.9.2003 in respect
of the Petitioner No.3 and, thereafter from time to
time on the same warrant, Judge of the Special Court
has extended the remand period. He pointed out that
it appears that the rubber stamp has been prepared to
the effect that "Accused is produced / not produced "Accused is produced / not produced "Accused is produced / not produced
before me and he be produced before me on..........". before me and he be produced before me on..........". before me and he be produced before me on..........".
He submitted that this was a stamp when Video
Conferencing was not there and after the introduction
of the Video Conferencing system, the rubber stamp was
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modified to the effect that "Accused is produced "Accused is produced "Accused is produced
before me on Video Conference and he be produced on before me on Video Conference and he be produced on before me on Video Conference and he be produced on
Video Conference before me on .........", and by the
Video Conference before me on .........", Video Conference before me on .........",
use of such stamp, endorsement made on original
warrant, further judicial custody / remand has been
extended from time to time. He also pointed out that
the similar are the warrants in respect of the rest of
the Petitioners and there are similar endorsements for
extension. His submission is that this exercise on
the part of the Judge of the Special Court is proper
exercise of the powers under section 309(2) of the
Code of Criminal Procedure, 1973. He submitted that
these warrants coupled with the order sheets make a
complete compliance of Section 309 of the Code of
Criminal Procedure, 1973. Thus, he submitted that on
the date of return, since there are valid orders
passed by the Judge of the Special Court, the earlier
period for which the Petitioners are making grievance
of illegal detention will not have any bearing and the
petition be dismissed. He also submitted that even if
it is assumed that the exercise of powers by the Judge
of the Special Court by use of the rubber stamp may
not be proper mode of exercise of powers, but it does
not render the judicial custody as illegal one.
Thereby he submitted that the orders are valid one and
prayed for the dismissal of the petition.
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14. Learned counsel for the Petitioners Shri.
Chitnis submitted that the facts alleged in the
petition as to what happened on 5.5.2005 are admitted
by the respondents and even inspite of the opportunity
being given to them, respondents have not produced any
material to demonstrate that the proper orders as
contemplated under section 309(2) of the Code of
Criminal Procedure, 1973 have been passed by the Judge
of the Special Court. On the contrary, he submitted
that section 309(2) is a mandatory provision and
unless there is a remand order directing the judicial
custody of the Petitioners, the detention of the
Petitioners in the custody is illegal one. This
amounts to constitutional violation and it cannot be
corrected by subsequent valid remand orders. Learned
counsel further submitted that the so called warrants
which have been produced on record is not a valid
exercise of power. He submitted that, initially there
should be judicial order granting remand as desired by
Section 309 and thereafter the warrant should be
issued. He insisted that in the present matter,
inspite of the opportunity being given for the
production of the order sheet, order sheet produced
does not show that any judicial order has been passed
by the Judge of the Special Court granting judicial
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custody. He submitted that everytime whenever the
remand is granted on adjourned dates, the fresh remand
order as per the format should have been passed by the
Judge of the Special Court. Since such format order
has not been issued, the extension of the remand of
the Petitioners in the judicial custody by use of the
rubber stamp is a procedure not contemplated under
section 309 of the Code. He submitted that it is a
mechanical exercise of the power and, such exercise of
pwoer made with the use of the stamp shows that there
is no application of mind by the Judge and therefore
the remand orders and the extension of the remand as
evidenced from the remand warrants is illegal. Thus,
he submitted that even assuming that the case of the
Petitioners for habeas corpus is to be considered on
the date of return, it will be crystal clear that even
on the date of return there are no valid remand orders
passed putting the Petitioners in the judicial
custody. Therefore, the writ of habeas corpus must
follow.
15. Shri. Amin Solkar who appears for the
Petitioner No.5 submitted that if the remand warrants
which are produced on record from 8.6.2005 onwards are
perused, it will be seen that the remand orders are
granted for a period of more than 15 days at a time.
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He submitted that proviso to sub-section (2) of
Section 309 contemplates that the remand order shall
be for a period of 15 days only. Relying upon the
judgments of the State of Tamil Nadu v/s. V. State of Tamil Nadu v/s. V. State of Tamil Nadu v/s. V.
Krishnaswami Naidu & Another reported in AIR-1979 SC Krishnaswami Naidu & Another reported in AIR-1979 SC Krishnaswami Naidu & Another reported in AIR-1979 SC
1255 1255; A. R. Antulay v/s. Ramdas S. Naik & 1255 A. R. Antulay v/s. Ramdas S. Naik & A. R. Antulay v/s. Ramdas S. Naik &
Another, reported in AIR-1984 SC 718, and Another, reported in AIR-1984 SC 718, and; Harshad Harshad
Another, reported in AIR-1984 SC 718, and Harshad
Mehta & Ors. v/s. State of Maharashtra, reported in Mehta & Ors. v/s. State of Maharashtra, reported in Mehta & Ors. v/s. State of Maharashtra, reported in
2001 Cri. L. J. 4259 2001 Cri. L. J. 4259 he submitted that position of 2001 Cri. L. J. 4259
the Special Judge has been scrutinised by the Apex
Court in these judgments, and the Apex Court has
desired to read the words "Special Judge" by
incorporation in the Code of Criminal Procedure, 1973
wherever necessary. Special Court is the court of
original criminal jurisdiction having the power to
take cognizance and try the cases. He submitted that,
therefore, in the the First proviso of Section 309(2)
in-stead of words "Magistrate" the words "Special
Court" or the "Judge of the Special Court" shall be
incorporated, and, thus interpreted it follows that
Judge of the Special Court cannot grant judicial
custody for a period of more than 15 days at a time.
He, therefore, submitted that since the judicial
custody remand in the present matter, on the date of
return is for a period of more than 15 days at a time,
remand order/s which has been passed by the use of the
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rubber stamp is/are illegal and the Petitioners are
entitled for the writ of habeas corpus and/or bail as
State of T. N. V/s.
has been done in the case of State of T. N. V/s. State of T. N. V/s.
Pandya, AIR-2001 SC 2972. Pandya, AIR-2001 SC 2972. Pandya, AIR-2001 SC 2972.
16. So far as the position of the case on
5.5.2005 is concerned, it will be revealed that the
case of the Petitioners was placed before Shri.P. P.
Birajdar, the 5th Additional District & Sessions
Judge, Pune, who was admittedly not a Judge of the
Special Court appointed under section 5 of the MCOC
Act, 1999. But, on perusal of the order sheet it will
be seen that on 5.5.2005 though Shri. P. P.
Birajdar, the 5th Additional District & Sessions
Judge, Pune has signed the order sheet as an In-charge
Special Judge, Pune, yet he has not passed any order.
It requires to be mentioned, at this stage, that on
5.5.2005, either for Shri. P. P. Birajdar and/or
the Judge of the Special Court had the Judge of the
Special Court been present on that day, it was not
necessary to do anything, because the cognizance has
already been taken long back as contemplated under
section 309(2) of the Code of Criminal Procedure, 1973
and the orders of the remand as desired under
sub-section (2) of Section 309 of the Code of Criminal
Procedure, 1973 were being passed from time to time on
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earlier occasions. On 5.5.2005 had the Judge of the
Special Court been present, the case could not have
proceeded since the total record of the proceeding has
been called by the Apex Court and except the
applications submitted from time to time and order
sheets and the remand orders, no other record appears
to have been with the Special Court. Therefore, it is
an admitted position that the hearing of the case
would not have proceeded and only exercise which the
Judge of the Special Court was required to do was to
grant a judicial custody remand and/or to extend the
judicial custody remand which has already been granted
by exercise of power under section 309(2) of the Code
of Criminal Procedure, 1973. This requires to be
mentioned to make it clear that the position of the
case on 5.5.2005.
17. So far as Shri.P.P.Birajdar, the 5th
Additional District & Sessions Judge, Pune is
concerned, he admittedly entertained an application
for adjournment submitted by the respondent - CBI,
since their counsel - Shri. Raja Thakare was busy in
the High Court, Bombay and on that application also he
had not passed any order granting adjournment. If the
said application is perused, it will be seen that the
Court has passed order "Other side to say" and one of
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the accused has given no objection for adjournment and
case was adjourned to 8.6.2005. Thus, on perusal of
order sheet dated 5.5.2005, it is evident that there
was no judicial custody remand order passed by Shri.
P. P. Birajdar, the 5th Additional District &
Sessions Judge, Pune. Since the jail warrants
addressed to the Superintendent of Jail have been
produced on record, on perusal of these warrants it is
revealed that there is an endorsement on earlier date,
i.e., on 8.4.2005, in respect of the Petitioner No.3
that- the accused not produced before me on Video
Conference, and he be produced on Video Conference on
5.5.2005. Similar are the endorsements in respect of
the Petitioner Nos. 2, 4 & 5. In case of the
Petitioner No.1 (the original accused No.44), there is
an endorsement that- "he was produced before me on
Video conference, and he be produced before me on
video conference on 5.5.2005". However, on these
warrants there is no further endorsement made by Shri.
P. P. Birajdar, the 5th Additional District &
Sessions Judge, Pune extending the judicial custody
remand, either by use of the rubber stamp or by any
written order directing the accused to remand till
8.6.2005.
18. Perusal of the remand warrants shows that
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there is no endorsement made by any Court Officer
and/or more specifically by Shri.P.P.Birajdar, the 5th
Additional District & Sessions Judge, Pune that the
judicial custody of the Petitioners has been granted
upto 8.6.2005. Thus, the only inference follows that
without the orders of any court, the Petitioners were
kept in prison from 5.5.2005 to 8.6.2005. Because, on
perusal of the said remand warrants it will be evident
that those warrants have further been endorsed
on
8.6.2005, 28.6.2005, 27.7.2005, 19.8.2005 & 16.9.2005
granting judicial custody remand, making use of the
rubber stamp. All these remand warrants have been
signed by the Judge of the Special Court who is
competent to sign. Suffice at this stage to state
that the detention of the Petitioners from 5.5.2005
till 8.6.2005 is unauthorised one, i.e., on the date
of the presentation of the petition. The question of
validity of the use of rubber stamp by which the
further extension of judicial custody was granted on
8.6.2005 will be dealt with in the later part of the
judgment.
19. At this stage, we find it appropriate to
consider- whether the detention of the Petitioners
being illegal one on the date of the presentation of
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the petition, they are entitled to a writ of as prayed
for or not. It is further necessary to consider
whether the date of institution or the date of return
is the date for issue of writ of habeas corpus.
20. In this respect, it is observed by the Apex
Court in the matter of Naranjan Singh Nathwan & Others Naranjan Singh Nathwan & Others
Naranjan Singh Nathwan & Others
v/s. State of Punjab reported in AIR-1952 106, v/s. State of Punjab reported in AIR-1952 106, as v/s. State of Punjab reported in AIR-1952 106,
follows:
"If at any time before the Court
directs the release of the detenu, a
valid order directing his detention
is produced, the Court cannot direct
his release merely on the ground that
at some prior stage there was no
valid cause for detention. The
question is not whether the later
order validates the earlier detention
but whether in the face of the later
valid order the Court can direct the
release of the Petitioner. The
Learned Judges point out that the
analogy of civil proceedings in which
the rights of parties have ordinarily
to be ascertained as on the date of
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the institution of the proceedings
has no application to proceedings in
the nature of habeas corpus where the
Court is concerned solely with the
question whether the applicant is
being lawfully detained or not.
.......
Once it is conceded that in habeas
corpus proceedings the Court is to
have regard to the legality or
otherwise of the detention at the
time of the return and not with
reference to the date of the
institution of the proceeding, it is
difficult to hold, in the absence of
proof of bad faith, that the
detaining authority cannot supersede
an earlier order of detention
challenged as illegal and make a
fresh order wherever possible which
is free from the defects and duly
complies with the requirements of the
law in that behalf."
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21. In Ram Narayan Singh v/s. State of Delhi & . In Ram Narayan Singh v/s. State of Delhi & . In Ram Narayan Singh v/s. State of Delhi &
Others reported in AIR-1953 SC 277, Others reported in AIR-1953 SC 277, the Apex Court has Others reported in AIR-1953 SC 277,
observed as follows:
"It has been held by this court that in
habeas corpus proceedings the Court is to
have regard to the legality or otherwise of
the detention at the time of the return and
not with reference to the institution of
the proceedings."
22. In Talib Hussain v/s State of Jammu & . In Talib Hussain v/s State of Jammu & . In Talib Hussain v/s State of Jammu &
Kashmir reported in 1971(3) SCC 118, Kashmir reported in 1971(3) SCC 118, the Apex Court Kashmir reported in 1971(3) SCC 118,
observed as follows:
"In regard to the submission that the
petitioner was arrested and deprived
of his personal liberty long before
the order of his arrest and this
invalidated his detention, it is
sufficient to point out that in
habeas corpus proceedings the Court
has to consider the legality of the
detention on the date of hearing. If
on the date of hearing, it cannot be
said that the aggrieved party has
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been wrongfully deprived of his
personal liberty and his detention is
contrary to law, a writ of habeas
corpus cannot issue."
23. The same is the view expressed in the
matter of Kanu Sanyal V/s. District Magistrate,
Darjeeling & Others reported in 1974 Criminal L. J.
465, and in the matter of Col. Dr. B. Ramchandra
Rao v/s. The State of Orissa & Others reported in
(1972) 3 SCC 256 and in the matter of Gadavari S.
Parulekar etc. v/s. State of Maharashtra reported in
1966 Cri. L. J. 1967. These above referred
judgments have conclusively laid down the principle
that in a habeas corpus petition the legality and/or
illegality of the detention has to be considered on
the date of return that and not on the date of the
institution of the matter, because if it is found that
on the date of the return there is a valid order
detaining the concerned person, the said order cannot
be invalidated as a result of the earlier invalid
order or earlier illegal detention. It is the later
valid order which will survive. Only thing which the
court has to be satisfied that the later order is a
valid order. Viewed from this angle, since the
returnable date in this petition is 29th September
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2005, we will have to scrutinise the legality or
illegality of the order with reference to that date,
i.e., 29th September 2005.
24. The insistence of the Petitioners to
consider the legality or illegality of the detention
of the Petitioners under section 309 of the Code to
the date of the institution of the petition is not
sustainable in law. Therefore, we accept the
submission made by the learned counsel for the CBI
that the legality or illegality of the Petitioners’
detention will have to be decided with reference to
the date of return, i.e., on 29th September 2005.
25. As we have discussed above, that after
filing of this petition and more specifically from
8.6.2005 onwards Judge of the Special Court has passed
five remand orders extending the remand. Those orders
are dated 8.6.2005, 28.6.2005, 27.7.2005, 19.8.2005
and 16.9.2005. By the last order dated 16.9.2005, the
judicial custody remand of the Petitioners is extended
upto 15.10.2005. Even though it may be a repetition,
but we would like to put on record that the remand
warrants have been produced on record and in respect
of each of the Petitioners there is a remand warrant
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issued under section 309, initially in a proper
format. In earlier paragraph of this judgment, we
have stated the dates in respect of the each of the
Petitioners when he was taken in judicial custody.
Thereafter on each later date, in respect of the each
of the Petitioners, the judicial custody has been
extended by an endorsement made on the same warrant to
the effect that "accused is produced / not produced
before the court, accused be produced on ........ "
and after the introduction of the video conference
facility, "the accused is produced / not produced
before me on video conference scheme, he be produced
on video conference scheme on ...........", as per the
requirement, necessary portion of the rubber stamp was
scratched each time showing the production or non
production of the accused before the court in person
or through video conference. All these endorsements
have been signed by the Special Judge under the MCOC
Act, 1999. What we find that prior to 5.5.2005
similar endorsements extending the judicial custody
remand have been made and after 8.6.2005, the five
endorsements on the respective dates have been made
and signed by the Judge of the Special Court under the
MCOC Act, 1999.
26. On perusal of the order sheet we only find
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that there is mentioning of the accused persons’
presence, being produced on the video conference
scheme and / or being not produced on the video
conference scheme in respect of the each of the
accused and thereafter further dates have been
granted. Thus, from the perusal of the order sheets,
we do not find that there was any order passed by the
Judge of the Special Court in respect of the remand to
the judicial custody. However, we find that the fact
of the production and non production of the accused
has been stated in the order sheet and the reasons for
adjournments are also equally reflected. Only thing
which is not available in the order sheet is the order
in respect of the remand to the judicial custody.
However, as we have stated earlier, those orders are
available on remand warrants.
27. At this stage, we must mention one aspect
that is to the extent of the competency of the Judge
to pass order either in the order sheet or on remand
warrant is concerned, the Petitioners’ counsel accepts
that the Judge who made the endorsement on remand
warrants on 6.8.2005 onwards on five occasions is the
competent Judge appointed by the Government of
Maharashtra in exercise of the power under section 5
of the MCOC Act, 1999. Therefore, so far as the
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competency of the Judge passing order on and after
8.6.2005 is concerned, there is no dispute. The
question of the competency of the Judge was raised qua
Shri. P. P. Birajdar, the 5th Additional District &
Sessions Judge, Pune before whom the case was placed
on 5.5.2005 and not in respect of the subsequent
Judges of the Special Court. We also make it clear
that Shri.P.P.Birajdar, the 5th Additional District &
Sessions Judge, Pune was not the competent Judge to
handle the case on 5.5.2005, since there was no
Notification issued under section 5 of the MCOC Act,
1999 appointing him as the Judge of the Special Court.
However, that does not deter us, because we are
considering the legality or illegality of the order on
the date of return. Then the question arises whether
the exercise of power, as reflected from the order
sheet and remand warrants, is appropriate exercise
under section 309 of the Code of Criminal Procedure,
1973.
28. In this respect, we make a reference to the
matter of Mashooq Ahmad v/s. State of Uttar Pradesh Mashooq Ahmad v/s. State of Uttar Pradesh Mashooq Ahmad v/s. State of Uttar Pradesh
reported in 1987 ALL L. J. 329. reported in 1987 ALL L. J. 329. In paragraph 16, it reported in 1987 ALL L. J. 329.
is observed by the learned Single Judge of the
Allahabad High Court as follows:
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:34: :34: :34:
"I have attempted to bring up to date
law on the point on record. A
perusal of the same will now make it
absolutely clear that a remand order
is necessary but it can be a remand
by issue of warrant also. In the
present case there is no dispute that
the committal order itself sought to
grant remand at least up to 9.8.1985.
Section 209(b) of the Code of
Criminal Procedure, 1973 directs the
Magistrate to remand the accused to
custody during, and until conclusion
of the trial. In the present case if
the worst interpretation is put to
the order passed by the learned
Magistrate, it will still have to be
accepted that there was a valid
remand up to 9.8.1985. Thereafter
the order sheet of the Sessions Court
has been placed on record and it
shows that no specific order of
remand was passed on the order sheet
but the accused came to be present
before the Court from time to time in
Jail custody and fresh dates were
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given. Naturally, they must have
been endorsed on the warrant. On
25.9.1985 the charges were framed and
dates for trial were fixed and
thereafter also on a number of dates
the accused applicant appeared before
Sessions Court, took orders and was
sent back to jail custody and it is
not disputed anywhere in the lengthy
petition that has been presented to
this Court that a valid warrant of
custody was drawn out. It is settled
now that under Section 309(2) of the
Cr. P. C. the only requirement of
the law is that if an adjournment is
made, then by a warrant the accused
may be remanded to custody.

Sub-sections (1) & (2) of Section 309

of the Cr. P. C., if taken together
will make it absolutely clear that
there is no need to pass a written
order of remand on the order sheet.

The requirement of the law is that a
written order should be passed only
justifying the adjournment but so far
as the remand is concerned, only
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:36: :36: :36:
warrant will be sufficient. Thus,
while we may agree that no specific
order has been passed by the Sessions
Judge after the receipt of the record
by him remanding the accused to Jail
custody, it is also undoubted that
from time to time the accused had
been appearing before the Court of
Session and was being given dates for
further appearance and it necessarily
follows that a warrant must have been
drawn out on which endorsements of
the dates must have been made. This
is the requirement of the rules and
there is no allegation anywhere in
the petition that no such warrant had
been drawn out. In the entire
petition there is no challenge to the
legality of the warrant nor has it
been said that no warrant had been
drawn out. Under these
circumstances, Section 309(2) shall
stand completely fulfilled even
though on the order sheet no specific
order of remand had been written
out.............."
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:37: :37: :37:
"It is thus clear that in this case
there is a valid remand upto 9.8.1985
under Section 309(b), Cr. P. C. in
view of the order of the Magistrate
dated 29.7.1985. Thereafter even if
there was no remand for some time,
the illegality would stand cured and
the Court would see the position on
the date when this application was
moved and it is clear that thereafter
right from 10.9.1985 when the accused
was brought before the learned
Sessions Judge and a date for framing
of the charges was given and then he
was sent back to Jail with a
direction to be produced again on
25.9.1985 and on subsequent dates, it
will mean that he was in custody from
10.9.1985 on the basis of valid
warrant of remand made under section
309(2) of the Code of Criminal
Procedure, 1973. There was thus no
illegality in his detention and no
question of bail arises in his
favour."
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29. A similar reference can be made to the
judgment reported in the matter of Kheraj & Others
v/s. State of Rajsthan (1984 Cri. L. J. 408) while
answering the contention that as a matter of fact
there was no order or directionof remand of the
accused petitioners to judicial custody on May 30,
1983 as the order sheet in this respect is silent, the
Court observed as under:
"So far as the (iii) contention goes,
it may at once be stated that
although in the order sheet dated May
30, 1983 there was no mention of the
remand of the accused persons to
judicial custody but such a direction
clearly appears in the warrants. The
direction on the warrants on May 30,
1983 is in the following terms.
(Text in Hindi Language. Please refer original.)
These endorsements have been made on
the original warrants addressed to
the Incharge of Sub-Jail Nagpur to
whom the accused persons had been
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first forwarded on September 18, 1982
and on which the subsequent remands
were directed first by the Magistrate
and after the commitment by the
learned Sessions Judge from time to
time. In these circumstances it
cannot be said that there was no
order or direction for the remand of
the accused to judicial custody on
May 30, 1983."
30. We are faced with the same circumstances in
respect of the orders passed by the Judge of the
Special Court under the MCOC Act, 1999, as we have
already elaborated the facts. We would like to advert
to sub-section (2) of Section 309 of the Code of
Criminal Procedure, 1973, which is to the following
effect:
"309. Power to postpone or adjourn
proceedings-
(1).............................
(2) If the Court after taking cognizance of
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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."
31. On plain reading of this provision, we find
that the court is supposed to record the reasons for
the adjournment or postponement of the case. However,
after that exercise is complete, if the accused is in
jail, the court may remand by warrant to the custody.
This does not mean that the Judge shall pass an order
in order sheet. Suffice it if the Judge issues
warrant remanding the accused to the judicial custody.
No doubt, for an ideal exercise of the judicial power,
the Judge will assign the reasons for the postponement
of the case and also pass an order remanding the
accused to the judicial custody. However, that is an
ideal position. But, if a Judge passes an order
giving reasons for the adjournment or the postponement
of the case and thereafter issues a warrant duly
signed by him remanding the accused to the judicial
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custody, the same exercise will also be a proper
exercise so far as Section 309(2) is concerned,
because, the warrant is required to be given along
with the accused to the Suprintendent of Jail to keep
the person in judicial custody, and therefore the said
warrant is addressed to the Jailor informing him about
the period of detention and the production of the
accused. Therefore, we are of the same view as has
been reflected in the above referred two judgments.
We find that the Judge of the Special Court has
properly exercised the power maintaining the order
sheet showing the adjournments, issuing warrants and
further extending the said warrants by making an
appropriate endorsements on the said warrants. Those
endorsements do show that the accused- Petitioners
have been remanded to the judicial custody by the
Judge of the Special Court. We find, at least on this
count, the warrant cannot be said to be improper one.
32. Shri. Amin Solkar, learned counsel
appearing for the Petitioner No.5 tried to develop an
argument, taking recourse to the judgments of the Apex
Court in the matter of State of Tamil Nadu v/s. V.
Krishnaswami Naidu & Another reported in AIR-1979 SC
1255; A. R. Antulay v/s. Ramdas S. Naik &
Another, reported in AIR-1984 SC 718; and Harshad
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Mehta & Ors. v/s. State of Maharashtra, reported in
2001 Cri. L. J. 4259 that in the first proviso to
sub-section (2) of Section 309 of the Code, the word
"Magistrate" shall be substituted by incorporation of
the words "Special Court" or "Special Judge", and
thereby further contended that the judicial custody
granted by the Judge of the Special Court in the
present matter being exceeding for a period of more
than 15 days, is bad and illegal, and therefore, the
writ of habeas corpus shall be allowed.
33. This requires us to scrutinise the position
of the Judge of the Special Court. In the matter of
State of Tamil Nadu v/s. V. Krishnaswami Naidu &
Another reported in AIR-1979 SC 1255, the Apex Court
has considered the provisions of the Criminal Law
(Amendment) Act, 1952 and relevant provisions of the
Criminal Procedure Code, 1974. The Apex Court was
required to consider this, because there was a
provision that the Special Judge was empowered to take
cognizance of the offence without the accused was
being committed to him for trial and in trying such
accused person he was required to follow the procedure
prescribed by the Code of Criminal Procedure, 1973 in
the trial of warrant cases by Magistrates. In that
case, the question, therefore, was in what way the
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provisions of Section 167 of the Code of Criminal
Procedure, 1973 will apply. The Apex Court ultimately
in paragraph 10 has observed as under:
"In the result on consideration of
the relevant provisions of the
Criminal Law (Amendment) Act and the
Cr. P. C., we have no hesitation in
coming to a conclusion that a Special
Judge would be a Magistrate empowered
to try a case under section 167 of
the Code of Criminal Procedure, 1973.
The Special Judge will proceed to
exercise the powers that are
conferred upon a Magistrate having
jurisdiction to try the case."
34. In the matter of A. R. Antulay v/s.
Ramdas S. Naik & Another, reported in AIR-1984 SC
718, the question in respect of the jurisdiction of
the Special Court was raised on two specific counts:
(i) That a Court of the Special Judge set up, under
Section 6 of the Criminal Law Amendment Act, 1952
cannot take cognizance of any of the offences
enumerated in Section 6(1)(a) & (b) upon a private
complaints of facts constituting the offence and (ii)
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:44: :44: :44:
that where there are more special judges than one for
any area, in the absence of a specification by the
State Government in this behalf, specifying the local
area over which each special Judge would have
jurisdiction, the Special Judge (Mr. Bhutta) had no
jurisdiction to take cognizance of the offences and
try the case." The Hon’ble Supreme Court observed in
paragraph 34 as under:
"A Court of special Judge is a Court
of original criminal jurisdiction and
it is not necessary to treat him
either a Magistrate or a Court of
Sessions save and except in respect
of specific provision wherein it is
so provided."
. After scrutinising the provisions of the
said Act, in paragraph 27, it is observed by the Apex
Court as:
The net outcome of this position is
that a new Court of original
jurisdiction was set up and whenever
a question arose as to are its powers
in respect of specific question
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:45: :45: :45:
brought before it as a Court of
original criminal jurisdiction it had
to refer to the Criminal P. C.
undaunted by any designation
claptrap. When taking cognizance a
Court of special Judge enjoyed the
powers under S. 190. When trying
cases, it is obligatory to follow the
procedure for trial of warrant cases
by a Magistrate though as and by way
of status it was equated with a Court
of Sessions. The entire argument
inviting us to specifically decide
whether a court of special Judge for
a certain purpose is a court of
Magistrate or a Court of Sessions
evolves around a mistaken belief that
a special Judge has to be one or the
other, and must fit in the slot of a
Magistrate or a court of Sessions.
Such an approach would strangulate
the functioning of the Court and must
be eschewed. Shorn of all
embellishment, the Court of a special
Judge is a Court of original criminal
jurisdiction. As a court of original
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criminal jurisdiction, in order to
make it functionally oriented some
powers were conferred by the statute
setting up the Court. Except those
specifically conferred and
specifically denied, it has to
function as Court of original
criminal jurisdiction not being
hide-bound by the terminological
status description of Magistrate or a
Court of Sessions. Under the Code,
it will enjoy all powers which a
Court of original criminal
jurisdiction enjoys save and except
the ones specifically denied."
35. In the matter of Harshad Mehta & Ors. v/s.
State of Maharashtra, reported in 2001 Cri. L. J.
4259, the Apex Court was considering the question as
to whether the Judge of the Special Court constituted
under the Special Court (Trial of Offences Relating to
Transactions in Securities) Act, 1992 can grant a
pardon in exercise of powers under section 306 & 308
in the absence of a specific provisions in this
respect in the Act. The Apex Court in paragraph 48
observed as:
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" To our mind, the Special Court has
all the powers of a Court of Sessions
and/or Magistrate, as the case may
be, after the prosecution is
instituted or transferred before that
court. The width of the power of the
Special Court will be same whether
trying such cases as are instituted
before it or transferred to it. The
use of different words in Sections 6
& 7 of the Act as already noticed
earlier also show that the words in
Section 7 that the prosecution for
any offence shall be instituted only
in special court deserve a liberal
and wider construction. They confer
on the Special Court all powers of
the Magistrate including the one at
the stage of investigation or
enquiry. Here, the institution of
the prosecution means taking any
steps in respect thereof, before the
Special Court. The scheme of the Act
nowhere contemplates that it was
intended that steps at a
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:48: :48: :48:
pre-cognizance stage shall be taken
before a Court other than a Special
Court. We may note an illustration
given by Mr. Salve, referring to
Section 157 of the Code. Learned
counsel submitted that the report
under that section is required to be
sent to a magistrate empowered to
take cognizance of an offence. In
relation to offence under the Act,
the Magistrate has no power to take
cognizance. That power is
exclusively with the Special Court
and thus the report under section 157
of the Code will have to be sent to
the Special Court though Section
requires it to be sent to the
Magistrate. It is clear that for the
expression "Magistrate" in Section
157, so far as the Act is concerned,
it is required to be read as "Special
Court" and likewise in respect of the
other provisions of the Code. If the
expression "Special Court" is read
for the expression "Magistrate"
everything will fall in line. This
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:49: :49: :49:
harmonious construction of the
provisions of the Act and the Code
makes the Act work. That is what
requires by principles of statutory
interpretation. Section 9(1) of the
Act provides that the Special Court
in the trial of such cases follow the
procedure prescribed by the Code for
the trial of the warrant cases before
the Magistrate. The expression
"trial" is not defined in the Act or
the Code. For the purpose of the
Act, it has a wider connotation and
also includes in it the pre-trial -
trial stage as well.
Section 9(2)
makes a Special Court, a Court of
Session by a fiction by providing

that the Special Court shall be

deemed to be a Court of Session and
shall have all the powers of a Court
Session. In case, the Special Court
is held held not have dual capacity

and powers, both of the Magistrate
and the Court of Session, depending
upon the stage of the case, there
will be a complete hiatus. "
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:50: :50: :50:
36. Thus, it will be revealed that the position
of the Special Judge under the Criminal Law
(Amendment) Act, 1952 was considered in State of Tamil
Nadu v/s. V. Krishnaswami Naidu & Another reported
in AIR-1979 SC 1255 at the stage of Section 167
proceeding of the Code, and to that extent the court
permitted to read the words "Magistrate" by word
"Special Judge". In the matter of A. R. Antulay
v/s. Ramdas S. Naik & Another, reported in AIR-1984
SC 718 , the Apex Court considered the position of the
Special Judge under the Criminal Law (Amendment) Act,
1952 in relation to the Prevention of Corruption Act.
However, the stage at which it was considered was a
stage when the process was issued by the Special
Judge. In Harshad Mehta & Ors. v/s. State of
Maharashtra, reported in 2001 Cri. L. J. 4259 Court
has considered the question as to whether the pardon
provision, as contained in Sections 306 & 307 of the
Code, applies to the proceedings before the Special
Judge under the Act, and ultimately the Court has
observed that the Special Court is a Court of Session
by fiction as provided in Section 9(2) and shall have
all the powers of a Court Session. It is emphasised
that the Special Court is having a dual capacity and
powers, both of the Magistrate and the Court of
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:51: :51: :51:
Session. However, as to when such power and capacity
is to be exercised, the Apex Court has observed that
it will be
depending upon the stage of the case, there
will be a complete hiatus.
37. Coming to the provisions of the the MCOC
Act, 1999, applying the test and the ratio as evolved
in the above referred three cases, we also find that
the Judge of the Special Court under the MCOC Act,
1999 is having a dual capacity, both of the Magistrate
as well as of the Sessions Judge. However, the
question which we have to deal with is as to whether
while exercising the powers under Section 309 of the
Code of Criminal Procedure, 1973, the Judge of the
Special Court shall be treated as a Magistrate covered
by the First proviso of sub-section (2) of Section 309
of the Code of Criminal Procedure, 1973.
. In the facts of the present case we have
narrated the sections under which the Petitioners were
charged. One of the Sections, namely, Section 255 of
the Indian Penal Code is triable by the Sessions Court
and equally it is punishable with imprisonment for
life, or imprisonment for 10 years and fine. Rest of
the sections are also punishable with the serious
punishment. But out of all these sections, section
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255 requires trial by the Sessions Court and not by
the Court of Magistrate. Therefore, for the trial of
these sections, the Judge of the Special Court has to
hold the capacity and the powers of the Sessions
Judge. It is further pertinent to note that
sub-section (2) of Section 9 of the MCOC Act, 1999
provides that where an offence triable by a Special
Court is punishable with imprisonment for a term not
exceeding three years or with fine or with both, the
Special Court may, notwithstanding anything contained
in sub-section (1) of Section 260 or Section 262 of
the Code try the offence in summary way in accordance
with the procedure prescribed in the Code and the
provisions of Sections 263 to 265 of the Code shall,
as far as may be, apply to such trial. Proviso to
said sub-section (2) contemplates that, where in the
course of a summary trial under this sub-section, it
appears to the Special Court that the nature of the
case is such that it is undesirable to try in a
summary way, the Special Court shall recall any
witnesses who may have been examined and proceed to
re-hear the case in the manner provided by the
provisions of the Code for the trial of such offence
and the said provisions shall apply to and in relation
to a Special Court as they apply to and in relation,
to a Magistrate.
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. Thus, on reading sub-section (2) of Section
9 of the MCOC Act, 1999 it is clear that in respect
of the certain offences punishable with imprisonment
for a term not exceeding three years, the summary
procedure has been provided and discretion has been
left with the Special Court to try the same case as a
regular triable case as a Magistrate may try it.
However, this procedure will not apply to the offences
which are punishable with imprisonment exceeding the
term of three years. Therefore, sub-section (2) is
having application to that effect only. Rest of the
cases will have to be considered under sub-section (4)
of Section 9 of the MCOC Act, 1999.
38. Sub-section (4) of Section 9 of the MCOC
Act, 1999 reads thus:
"Subject to other provisions of this
Act, a Special Court shall, for the
purpose of trial of any offence, have
all the powers of a Court of Session
and shall try such offence as if it
were a Court of Session, so far as
may be, in accordance with the
procedure prescribed in the Code for
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the trial before a Court of Session."
. Thus, the procedure prescribed for the
sessions cases in the Code will be applicable to the
cases before the Special Court, excluding the cases
enumerated under sub-section (2) of Section (9).
Thus, the character of the Judge of the Special Court
is that, while conducting the cases under sub-section
(2) of Section 9, he exercises the summary power or a
power of the Magistrate in the capacity of the
Sessions Judge. However, when he tries the case
excluding the case covered by sub-section (2) of
Section 9, he acts as a full-fledged Sessions Judge
having the power and capacity to try the cases as a
Sessions Judge as provided in Chapter-XVIII of the
Code of Criminal Procedure, 1973. The present case,
therefore, is triable as a sessions case. This has
been analysed, because as per the ratio laid down in
Harshad Mehta’s case (supra), the capacity and the
powers of the Judge of the Special Court as a
Magistrate and/or Sessions Judge will have to be
decided in reference to a stage of the case so as to
fill up the break-up, if any. Thus, we find that
after the cognizance is taken by the Judge of the
Special Court under the MCOC Act, 1999, the Judge of
the Special Court holds a capacity and power of a
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:55: :55: :55:
Sessions Judge for the trial of the cases and for
grant of remand etc., under Section 309 of the Code of
Criminal Procedure, 1973. Thus viewed, it is not
necessary to incorporate the word "Special Judge" in
the proviso to sub-section (2) of Section 309 of the
Code of Criminal Procedure, 1973, as submitted by the
learned counsel Shri. Amin Solkar. We reject the
said submission being without any merit.
39. Once we hold that first proviso to
sub-section (2) of Section 309 of the Code of Criminal
Procedure, 1973 is not applicable to the present facts
of the case, there is no limitation on grant of remand
for 15 days on the Judge of the Special Court, since
he holds the power and capacity to try the cases as a
Sessions Judge. Thus viewed, we find that the proviso
in that circumstance is not applicable. On plain
reading of the section, it is clear that limitation
provided in First Proviso to sub-section (2) of
Section 309 of the Code of Criminal Procedure, 1973 is
not applicable to the Sessions Judge. In this respect
we have a support from the decision in the matter of
Koomar Indraneel @ Caesar & Another V/s. The State of Koomar Indraneel @ Caesar & Another V/s. The State of Koomar Indraneel @ Caesar & Another V/s. The State of
Bihar (2001 Cri. L. J. 1040). Bihar (2001 Cri. L. J. 1040). It is observed in Bihar (2001 Cri. L. J. 1040).
paragraph 5, by the Court that:
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:56: :56: :56:
"Now coming to the submission
advanced on behalf of petitioners
that an accused in custody has to be
produced before the Court of Session
where his case has been committed by
a Magistrate after every fifteen days
as required by Section 309, the Code
of Criminal Procedure, 1973, I find
that the limit of fifteen days for
remanding an accused to custody as
provided under Section 309, Cr. P.
C. according to which "no Magistrate
shall remand an accused person to
custody under this Section for a term
exceeding fifteen days at a time."
The absence of mention of Court of
Session in this proviso leaves no
room for any doubt that a Court of
Session has been kept out of this
proviso defining the limit of period
of remand at a time of an accused to
custody."
. In the matter of Suresh Ramtirath Yadav
v/s. State of Gujarat reported in 1990 Cr. L. J. ,
1834, the Gujarat High Court has also held in
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:57: :57: :57:
paragraph 18 that:
"Sub-section (2) of Section 309 of the
Criminal Procedure Code contemplates that
the reasons have to be recorded only for
adjourning the enquiry or trial. As
regards the remand order, there is no such
inhibition of recording reasons signed by
the court. Even the provision of
restriction of remand of fifteen days only
at a time applies to a Magistrate and not
to a Sessions Court or a Designated Court."
40. Thus, we find that under Section 309(2) the
Code of Criminal Procedure, 1973, the Judge of the
Special Court holds a capacity and power of the
Sessions Judge while remanding the accused to the
judicial custody. There is no limit of fifteen days
to remand the accused at a time. Therefore, we find
that remand orders which have been passed in the
present case for a period exceeding fifteen days at a
time are valid one.
41. Thus, we find that the orders of remand and
extension of the same as reflected from the remand
warrants issued under Section 309(2) in the present
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:58: :58: :58:
case is the proper exercise of power by the Judge of
the Special Court. Therefore, five remand orders
which are passed on 8.6.2005, 20.6.2005, 27.7.2005,
19.8.2005 and 16.9.2005, existing as on the date of
return of the present petition are valid and legal
one. Therefore, the judicial custody of the
Petitioners on the date of return is valid one.
42. The Petitioners have relied upon judgment
in the matter of Ram Narayan Singh v/s. State of Ram Narayan Singh v/s. State of Ram Narayan Singh v/s. State of
Delhi & Others reported in AIR-1953 SC 277 Delhi & Others reported in AIR-1953 SC 277. It is to Delhi & Others reported in AIR-1953 SC 277
be noted that in that case the court directed the
production of the orders of the Magistrate remanding
the Petitioners for inspection by a counsel of the
Petitioners. However, the orders produced merely
directs the adjournment of the case till 11th March
and was not containing further direction remanding the
accused to the custody and thereafter on 11th March
the warrant was produced. This was done in violation
of the direction given by the Apex Court on 10th
March. Therefore, in paragraph 4 the Apex Court
observed that, " In a question of habeas corpus, when
the lawfulness or otherwise of the custody of the
persons concerned is in question, it is obvious that
these documents, if genuine, would be of vital
importance, but they were not produced,
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:59: :59: :59:
notwithstanding the clear direction contained in our
order of 10th March, " and ultimately the remand
warrant which was produced on record was not
considered by the Court and only order sheet was
considered. Thus, on the date of hearing of the
petition, in that case, there was no remand order.
Therefore, writ of habeas corpus was granted. Such is
not the case in the present matter. In the present
matter, we directed the respondent to produce the
papers in respect of the order sheets and remand
warrants, and as per the directions of the Court, on
returnable date, all these documents have been
produced on record coupled with the material to show
the efforts made by the respondents to obtain the
necessary documents as per the directions of this
court. We have already found that there were five
valid remand orders passed on the date of return.
Therefore, we find that the reliance of the
Petitioners on this case is uncalled for.
43. The Petitioners have also relied upon the
judgment in the matter of State of T. N. v/s. State of T. N. v/s. State of T. N. v/s.
Parmasiva Pandian reported in AIR-2001 SC 2972. Parmasiva Pandian reported in AIR-2001 SC 2972. In Parmasiva Pandian reported in AIR-2001 SC 2972.
that case the question which the Apex Court was
considering was : Whether the special court which
ceased to be a special Court under the Essential
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Commodities (Special Provisions) Act, 1981, but
continued as such under the Narcotic Drugs and
Psychotropic Substances Act, 1985 has the power to
remand an accused who is implicated for an offence
under the Essential Commodities Act, 1955. Thus, it
will be seen that at the relevant time the Special
Court appointed under the Essential Commodities
(Special Provisions) Act, 1981 has ceased to be a
special Court under the Essential Commodities Act,
since the Act has lapsed and was not further extended
by the appropriate legislation. However, the same
court also continued to be a special court under the
NDPS Act, 1985 and before the same court the case
under the Essential Commodities Act was placed for
remand instead of placing it before the regular
magistrate who had the jurisdiction. In paragraph 16,
the Apex Court observed that:
"On a fair reading of the above
provisions it is clear that during
the period of the EC (Special
Provisions) Act was in force the
special Court constituted for trial
of offences under EC Act had
exclusive jurisdiction to try such
cases. The special Court had also
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the power to pass order of remand
under Section 167 but the provision
changed after the EC (Special
Provisions) Act lapsed by efflux of
time. Thereafter, the position that
used to prevail before the EC
(Special Provisions) Act was in force
stood restored and the judicial
Magistrates who were previously
competent to try the EC Act cases got
the jurisdiction to deal with such
cases. The position is beyond any
pale of doubt that remand orders
passed by the special Court at
Madurai, long after it has ceased to
exercise jurisdiction in cases under
the EC Act are incompetent.
Coming to the question whether the
special Court constituted for trial
of cases under the NDPS Act could
exercise the power of remand of an
accused in the EC Act case, which it
was doing when the special Court
constituted for the EC Act cases was
in existence, the answer to the
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question is in the negative; for the
simple reason that the special Court
constituted for the NDPS Act cases is
a court of exclusive jurisdiction for
trial of particular class of cases
provided under the NDPS Act and it
has not been vested with power of
judicial Magistrate for the purpose
of dealing with EC Act cases. To
accept the contention raised on
behalf of the appellant in this
regard would in our view be contrary
to the scheme of things under the
Criminal Procedure Code, which
specifically vest the power of remand
under S. 167 in Judicial Magistrate.
The High Court was, therefore, was
right in negativing the contention
raised on behalf of the State
Government in this regard."
44. Thus, it will be seen that remand orders
which were under consideration, were passed by the
Court which was not competent to pass such remand
orders under Section 167 of the Code. Such is not the
case in the present matter, the Judge of the Special
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:63: :63: :63:
Court was competent person to pass the remand orders,
as we have discussed in the earlier paragraphs and the
competency of the Judge of the Special Court is also
not in dispute in the present matter. We have also
found that remand orders were properly passed by the
Judge of the Special Court. Therefore, in the facts
and circumstances of the present case the ratio laid
down in the case of State of T. N. v/s. Parmasiva
Pandian reported in AIR-2001 SC 2972 is not
applicable.
45. Much emphasis has been laid by Shri.
Chitnis on a case reported in AIR-1969 SC 1014 (in the AIR-1969 SC 1014 (in the AIR-1969 SC 1014 (in the
matter of Madhu Limaye & Others.). matter of Madhu Limaye & Others.). He has submitted matter of Madhu Limaye & Others.).
that when the fundamental rights of the citizens are
violated, the Court has an ample power under Article
226 of the Constitution to set the person at liberty,
as has been done in the Madhu Limaye’s case. We are
not in agreement with the learned counsel; because
from the observations in the above case it is clear
that Their Lordships did not stop after holding in
paragraph 13 that Madhu Limaye and others were
entitled to be released on the ground of non
compliance of the provisions of Article 22(1) of the
Constitution of India, but Their Lordships further
examined the second point formed in paragraph 7 of the
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:64: :64: :64:
said judgment that, whether valid order of remand
existed or not. Once Their Lordships found that
remand order by Magistrate directing detention in the
jail custody was without application of mind to all
the relevant matters and Their Lordships observed that
the detention in custody being in violation of Article
22(1) of the Constitution of India, Madhu Limaye and
others were entitled to be released forthwith. This
negates the contention of the learned counsel Shri.
S. R. Chitnis, because we find that in the matter of
Madhu Limaye on the date of return the Court was
satisfied that there was no valid detention order.
. It is equally worthwhile to note that in
the matter of Suresh Ramtirath Yadhav v/s. State of
Gujarat reported in 1990 Cr. L. J. 1834, while
answering the submision based on Madhu Limaye’s case
relating to the violation of Article 22(1) of the
Constitution, the Gujarat High Court observed that:
"We are afraid, that the decision rendered
by the Supreme Court lays down no such
principle that even in a case where a
person has been taken into custody under
the Terrorist and Disruptive Activities
(Prevention) Act, 1985, and proper trial is
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:65: :65: :65:
proceeded with by periodically remanding
the undetrial prisoner, he is to be
released. In the above said Supreme Court
decision, the detention itself is
questioned as violative of Article 22(1) of
the Constitution of India and in the facts
and circumstances of the case of illegal
arrest, the Supreme Court held that the
order or remand is a mechanical one and
cannot cure the constitutional infirmities
in the arrest."
. These observations are aptly applicable to
the facts of the present case. Therefore, we hold
that the submissions made by the learned counsel based
on the Madhu Limaye’s case are not acceptable.
46. Reliance has also been placed on an
unreported judgment of this Court of Aurangabad Bench
dated 18.2.2003 in Criminal Application No. 2154 of
2002 with Criminal Petition No. 523 of 2002. This
was a case in which the Judge of the Special Court
under the MCOC Act, 1999 was not appointed at Nashik
and when his appointment was in process, the matter
was placed for appropriate remand orders before the
said Additional District & Sessions Judge. Therefore,
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:66: :66: :66:
if the facts involved in this case are taken into
consideration, they show that on the date of the
remand order there was no duly constituted Special
Court under the provisions of the MCOC Act, 1999.
However, such is not the case in the present matter.
47. If the cases relied upon by the Petitioners
are considered, it will be seen that in those cases on
the date of return there were no valid remand orders
and/or judicial custody orders. However, we have
analysed in this judgment, in our case on the date of
return there were five valid orders passed by the
competent Court granting judicial custody remand.
Therefore, the cases relied upon by the learned
counsel for the Petitioners are not helpful to the
Petitioners in this petition.
48. Before parting with this judgment, we
cannot refrain ourselves from adverting to one
circumstance that this case is a product and
consequence of non exercise of powers under
sub-section (5) of Section 5 of the MCOC Act, 1999 by
the Judge of the Special Court constituted under the
MCOC Act, 1999. Had the Judge of the Special Court
passed a general or special orders regulating the
business of the said Court and giving directions as to
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:67: :67: :67:
which court shall deal with the urgent business of the
Special Court in the absence of the Judge or
Additional Judge of the Special Court, probably, the
case would not have arisen at all. Under these
circumstances we issue directions to all the Judges of
the Special Courts under the MCOC Act in the State of
Maharashtra to pass general or special orders under
Section sub-section (5) of Section 5 of the MCOC Act,
1999.
49. The Registrar General is directed to issue
necessary directions to all the Special Courts
constituted under the MCOC Act, 1999 to pass
appropriate orders under sub-section (5) of Section 5
of the MCOC Act, 1999.
50. However, this will not be sufficient,
because under these provisions, the Judge of the
Special Court can give powers to another Judge of the
Special Court. We have to also visualise a situation
where there is only one Judge of the Special Court,
then in that circumstance whom the powers should be
given to pass urgent orders and transact the urgent
business. So also, we have to also visualise a
circumstance where there are more than one Judge of
the Special Court, as in the present case, but
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everyone proceeds on leave or holiday, as in the
present case, and ultimately the situation arises
where there is no Judge of the Special Court available
to pass the appropriate orders. In that eventuality,
the provisions of the MCOC Act are found to be
inadequate. To overcome this situation, amendments in
the sub-section (5) of Section 5 of the MCOC Act are
very much desired. By this amendment, under special
circumstances the permission to place the matters
before the District Judge or a Judge as directed by
the District Judge, shall be given so as to pass the
appropriate valid remand orders. But, this cannot be
done unless sub-section (5) of Section 5 of the MCOC
Act, 1999 is amended. Therefore, we suggest the
Government of Maharashtra to effect the appropriate
amendments in sub-section (5) of Section 5 of the MCOC
Act, 1999 in respect of the carrying out of the urgent
business in the absence of a the Judge of the Special
Court to deal with the urgent business of the Special
Court.
51. In the result, we find there is no
substance in the petition. The criminal writ petition
is hereby dismissed. The rule is discharged.
52. Shri. Solkar, at this stage, requests for
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leave to appeal to the Supreme Court. We do not find
any vital question involved in this case. The leave
is hereby rejected.
(S.R.SATHE,J.) (S.R.SATHE,J.) (S.B.MHASE, J.) (S.R.SATHE,J.) (S.B.MHASE, J.) (S.B.MHASE, J.)

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