Back
IN THE HIGH COURT OF BOMBAY
Saquib Abdul Hamid Nachan
Versus
State of Maharashtra
Decided on, January 30, 2006
Prevention of Terrorism Act, 2002 - Section 29 - Criminal Procedure Code (2 of 1974), Section 209(2) - The Special Court while holding the enquiry acts as a Magistrate and can remand the accused to custody until the disposal of the special case. - The Special Court cannot be deprived of the general powers of passing an order of remand under the provisions of Criminal Procedure Code and if the provisions of Sections 167 and 209(b) are not applicable on account of the progress in the inquiry or the special nature of the inquiry, obviously, the powers of remand will have to be read into the scheme of Section 309(2) of Criminal Procedure Code. It cannot be said that the prosecution case has already been opened immediately after the charge-sheet was filed on 22.7.2003. It appears that in view of the interim stay granted and subsequently continued by the Apex Court, the order of remand passed by the Special Court on 22.7.2003 is an order passed under Section 309(2) of Criminal Procedure Code and the said order specifically states that the accused have been remanded to judicial custody until disposal of the case. This is a valid and legal order passed under Section 309(2) of Criminal Procedure Code until the disposal of the case.
Prevention of Terrorism Act, 2002 - Sections 29 and 99 - Cr PC, Section 209 - Trial before Special Court. - Since there is no stage of commitment of case, hence scheme of Section 209 of Code not applicable to special Court under Act and as such remand order passed by special Court cannot be treated to be an order under Section 209(b) of Code.
B. H. MARLAPALLE, J.
( 1 ) HEARD Mr. R. M. Agrawal with Mr. G. R. Agrawal and Mr. Mubin Solkar the learned counsel for the petitioners and Mr. S. R. Borulkar, Public prosecutor, with Mr. D. S. Mhaispurkar, APP for the respondents. Rule. Respondents waive service. By consent of the parties, the petition was heard finally rather than considering the interim prayer for being released the petitioners on bail.
( 2 ) THIS petition prays for a writ of habeas corpus or in the nature of habeas corpus against the respondents directing them to set the petitioners at liberty forthwith from the detention in POTA Special case No. 2 of 2003.
( 3 ) THE petitioners claim to be the citizens of india and were taken in custody sometimes in April/may 2003 and they are presently under-trial in POTA special Case No. 2 of 2003 pending before the Special court at Greater Mumbai and they are sought to be tried for three different offences of Bomb Blasts, namely, the Mulund Blast case (DCB-CID, C. R. No. 21/03), the Vile-Parle Blast case (DCB-CID, C. R. No. 9/03) and the Bombay Central Blast case (DCB-CID, C. R. No. 59/03 ). The State has filed a joint/combined charge-sheet before the Special Court on 19/7/2003. The petitioner no. 5 was not arrested and arraigned as an accused in the said case and, therefore, he objected to his being tried in a joint trial of all the three Bomb Blasts case. He objected to the same and contended that he must be tried separately only in respect of the Mulund Bomb Blast case and this application was dismissed by the Special Court on 30/7/2005. Criminal Appeal No. 716 of 2005 came to be filed before this court immediately against the said order and the said appeal was dismissed on 6/10/2005 by extending the interim stay for two weeks to enable the accused to approach the Supreme Court of India. It is admitted that the said interim stay to the trial of the special case has been continued as at present by the Apex Court.
( 4 ) IT is contended by the petitioners that on and after 18/10/2005 there was no order of remand passed under Section 309 of Cr. P. C. thereby extending their judicial custody for such period and/or till such date as thought fit and, therefore, their confinement in prison since 18/10/2005 is nothing but illegal detention in view of the well settled legal position of law. The petitioners further contend that on 18/10/2005 the Sheristedar of the Special Court made the following endorsement on the warrants of the petitioners:- "date will be informed to you later on when stay by the Honble High Court is vacated. " as per the petitioners this endorsement discloses a blatant violation of the mandatory provisions of Section 309 of Cr. P. C. As per them in the absence of any reasoning being given by the special Court, coupled with the fact that no particular date or period was mentioned when the petitioners were to be produced again before the special Court, their subsequent detention is wholly illegal and in utter violation of the procedure established by law. The inaction on the part of the special Court in not passing the remand order extending the custody on or after 18/10/2005 for a fixed period/date has rendered the confinement of the petitioners in judicial custody as illegal, even though the trial of the Special Case No. 2 of 2003 has been stayed by this court and/or by the Apex Court. This detention of the petitioners in the Central prison at Thane is in gross violation of the protection guaranteed under Article 21 of the constitution, urged Mr. Agrawal, the learned counsel for the petitioners.
( 5 ) ADMITTEDLY, the petitioner no. 2 is no more in detention as he has been released on bail during the pendency of this petition and, therefore, this petition is required to be considered for the remaining 12 petitioners. The State has filed replies and opposed the petition. It is submitted that the special Court has passed an order of remand after the charge-sheet was filed on 19/7/2003 as required unde
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
