2005 Supreme(Bom) 1434

IN THE HIGH COURT OF BOMBAY
Dilip Pandurang Kamath
Versus
State of Maharashtra
Decided Date: 14/10/05

Headnote:Maharashtra Control of Organised Crimes Act, 1999 - Sections 3(1), (2) and 5 - Criminal Procedure Code, 1973, Section 309 - Habeas corpus petition - Contention - Custody without statutory orders - Article 22(5) violated - Rebuttal - Special Judge and Additional Sessions Judge on vacation - Order by ADJ for extension of judicial custody - Detention not by special Judge - Illegal. - Perusal of the remand warrants shows that there is no endorsement made by any Court Officer and/or more specifically, the 5th Additional District and Sessions Judge, that the judicial custody of the petitioners has been granted. Thus, the only inference follows that without the orders of any Court, the petitioners were kept in prison. Because, on perusal of the said remand warrants it will be evident that those warrants have further been endorsed 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 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 will be dealt with in the later part of the judgment.

       The insistence of the petitioners to consider the legality or illegality of the detention of the petitioners under Section 309 of the Code at the date of the institution of the petition is not sustainable in law. Therefore, Court accepts the submission made by the 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.

       Criminal Procedure Code, 1973 - Section 309(2) Habeas corpus Scope for Detention held illegal Effect and relief of subsequent validity of detention Held Legality of detention to be seen on date of return and not with reference to date of institution of proceedings Absence of good faith Cannot be said authority cannot supersede an earlier illegal order. As discussed, that after filing of this petition and onwards Judge of the Special Court has passed five remand orders extending the remand. By the last order, the judicial custody remand of the petitioners is extended. Even though it may be a repetition, but the remand warrants have been produced on record and in respect of each of the petitioners there is a remand warrant issued under Section 309, initially in a proper format. In earlier paragraph of this judgment, the dates stated 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 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. Similar endorsements extending the judicial custody remand have been made and the five endorsements on the respective dates have been made and signed by the Judge of the Special Court under the MCOC Act, 1999.

       Criminal Procedure Code, 1973 - Section 309(2) Maharashtra Control of Organised Crime Act, 1999, Sections 3, 5 and 9 Continuation of detention Judicial custody Orders should be having legal reason Extension of remand cannot be said to be improper because proper endorsement on warrant of custody had been made. 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 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 Superintendent 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. 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, at least on this count, the warrant cannot be said to be improper one.

       Criminal Procedure Code, 1973 - Section 309(2) Maharashtra Control of Organised Crime Act, 1999, Sections 3 and 5 Remand of accused Power of Special Judge Contention orders under jurisdiction of special Judge Can take cognizance only after case is remitted to him After cognizance special Court under MCOCA holds capacity and power of sessions Judge and can pass order granting remand. 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 subsection (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 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, 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 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 counsel Solkar, Court rejects the said submission being without any merit.