S.C. DHARMADHIKARI, J.

1. By this Writ Petition under Article 226 of the Constitution of India, the Petitioner states that the order dated 5 January 2018, passed by the Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai be quashed and set aside.

2. Primarily, the Petitioner seeks issuance of Writ of Habeas Corpus or appropriate Writ and direction directing the police machinery to set him at liberty forthwith.

3. We had heard extensive arguments on this Petition on more than one occasion. The arguments were canvassed before the Vacation, but since the composition of the bench changed post summer vacation, the Petition was argued afresh by Mr. Nilesh Pawaskar, the learned Counsel appearing for the Petitioner. He not only relied on the annexures to the Petition, but sought to meet the contents in the affidavit-in-reply by presenting a rejoinder affidavit and in that rejoinder affidavit, the Petitioner's Counsel was fair enough to annexe a copy of what is popularly known as a challan/charge-sheet but identified with legal terminology employed in Section 173 of the Code of Criminal Procedure. Thus, a report of the investigation was laid in the Court and the only argument therefore which was remaining for consideration and duly canvassed by Mr. Pawaskar was that this was not done within the prescribed time limit. Hence, the order remanding the Petitioner – accused thereafter results in the Petitioner's illegal and unconstitutional detention enabling this Court to issue Writ of Habeas Corpus.

4. For appreciating the arguments of both sides, we would have to know a few facts. Prior to that we proceed to grant Rule. The Respondents waive service. By consent of both sides and since extensive arguments were heard, we pass final orders in this Petition.

5. It is undisputed that the Petitioner is named as Accused No.1 in FIR No. RC0682017E0014 dated 31.08.2017, registered by the First Respondent, for short Investigating Machinery. The offences alleged are punishable under Section 120-B r/w. Section 420, 465, 467, 468 & 471 of the Indian Penal Code.

6. We need not refer to the prosecution case for the consideration of legal arguments.

7. The Petitioner does not dispute that before the investigations were concluded and apprehending the arrest, the Petitioner presented pre-arrest bail application in the Competent Court and he was protected by certain interim orders. On that interim protection coming to an end, but during the course of investigation, the Petitioner was arrested by the Investigating Machinery and produced before the Court of the Additional Chief Metropolitan Magistrate, at Esplanade, Mumbai. He was produced on 12th October 2017 and the learned Additional Chief Metropolitan Magistrate remanded him to Police Custody on 16th October 2017. On 16th October 2017 the Petitioner was remanded to judicial custody. On various occasions thereafter the remand to judicial custody was extended. The Petitioner is relying upon the legal position that he could have been remanded to custody only till 9th January 2018. That is the date on which the period of 90 days stipulated by Section 167(2) of the Code of Criminal Procedure would come to an end. However, on 8th January 2018 an application bearing No.24 of 2018 was preferred by the Investigating Machinery before the Special Judge, Greater Mumbai wherein all the remand papers were requested to be taken on file. That was because the charge-sheet contained an addition and a reference to an offence under the Prevention of Corruption Act, 1988. The Petitioner therefore states that he was unaware of the addition of such a charge. In paragraph 6 of the Writ Petition the Petitioner has set out the factual position as under :-

“6. That the CBI presented charge-sheet before the Sessions Department on 9th January, 2018 in which the matter was never placed before the Ld. Special Judge, 47th Court, Greater Bombay, who exercised jurisdiction over CBI, EOW matter, by way of assignment by