IMPORTANT POINTS
(1) Default bail – Once period of detention expired, sans charge-sheet having been lodged and accused manifested intent to avail right by making application, no subterfuge to defeat indefeasible right can be countenanced.
(2) Default bail – Once competent authority declines to grant sanction under Section 23(2) of Act, 1999, extended period for completion of investigation, would terminate on the day competent authority declines to grant sanction and on next day, right to seek default bail, in the event charge-sheet is not filed, accrues to accused.

JUDGMENT

The applicants, who have been arraigned in CR No. 497 of 2023 registered with Malad Police Station, for the offences punishable under Sections 120-B, 394, 395 and 412 read with Section 34 of the Indian Penal Code, 1860 (“the Penal Code”), Sections 37 (1)(A) 135 read with Section 142 of Maharashtra Police Act, 1951, have preferred this application to enlarge him on bail.

2. The gravamen of indictment against the applicants and the co-accused is that in pursuance of a criminal conspiracy, on 20th August, 2023, the first informant was robbed of cash of Rs.1,25,00,000/- kept in two bags by threatening to cause death by pointing a knife. It is further alleged that the applicant and the co-accused had retained the cash amount despite having known that the cash was robbed from the first informant.

3. Applicant No. 1 – Dinesh (A5), the applicant No. 2-Pratik Bhojane (A6) were arrested on 2nd September, 2023 and applicant No. 4-Ravi Yashawante (A8) was arrested on 4th September, 2023.

4. During the course of investigation, it transpired that the co-accused Krushna Godambe (A11), who came to be arrested on 10th September, 2023, was the leader of an organized crime syndicate. Thus, with the prior approval of the competent authority under Section 23(1)(a), the offences punishable under Section 3(1)(ii), 3(2), 3(3), 3(4) of the MCOC Act, 1999 were invoked.

5. Post invocation of MCOCA, the applicant and the co-accused were produced before the Special Court. On 20th November, 2023, an application for extension of period of investigation under Section 21 (2) of the Maharashtra Control of Organized Crime Act, 1999 was filed before the Special Court. By an order dated 28th November, 2023, the learned Special Judge, MCOC Court granted 21 days extension to complete the investigation.

6. The investigating agency moved a proposal for sanction under sub-section (2) of Section 23 of the MCOCA, 1999. By an order dated 12th December, 2023, the competent authority declined to grant sanction as envisaged by sub-section (2) of Section 23 of the MCOCA, 1999. Thereupon, on 12th December, 2023, an application was filed before the learned Special Judge, seeking direction to remit the record and proceedings to the jurisdictional Magistrate as the competent authority refused to grant sanction under Section 23 (2) of the MCOCA, 1999. The learned Special Judge, thus, directed that the record of proceedings be sent to the Court of learned Chief Metropolitan Magistrate. The proceedings in MCOC MA No. 1478 of 2023 were thus disposed of.

7. In the aforesaid backdrop on 13th December, 2023, the applicants preferred an application for default bail under Section 167 (2) of the Code of Criminal Procedure, 1973, before the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali. On that day, the learned Additional Chief Metropolitan Magistrate directed the prosecution to file its say. In the meanwhile, on 14th December, 2023, the Investigating Officer lodged the charge-sheet at 1.20 pm.

8. By the impugned order, the learned ACMM was persuaded to reject the applications for default bail holding, inter alia, that since the learned Special Judge had extended the period by 21 days and that period was to expire on 18th December, 2023 and, in the meanwhile, on 14th December, 2023, the charge-sheet was lodged, the applicants were not entitled to default bail. The learned Magistrate was also of the view that since the application for default bail had not been finally decided by the Court before filing of the charge-sheet, there was no question of grant of bail under Section 167 (2) of the Code, 1973.

9. Mr. More, the learned Counsel for the applicants submitted that the learned Magistrate committed a manifest error in rejecting the application for default bail by ascribing aforesaid reasons. Mr. More would urge that it is well recognised that the right of an accused to be enlarged on bail in the event the investigation is not completed within the period st