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2005 Supreme(Bom) 1436
IN THE HIGH COURT OF BOMBAY
Dilip Pandurang Kamath
Versus
State of Maharashtra
Decided On : (October 14, 2005) 2005
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.
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 petitioners 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 Band garden 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 and 24 of the Maharashtra Control of organised Crime Act, 1999 (hereinafter, in short, referred to as "the MCOC Act" ). Section 63 (a) of the Bombay Stamp Act and Section 13 (a) and 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". Petitioner 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 Petitioner 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 petitioner 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 cognizance has been taken, the petitioners are in judicial 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 petitioners 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 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, cons
