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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO. 4023 OF 2004

Shri Anil Umrao Gote ... Applicant

versus

The State of Maharashtra ... Respondent

...

Mr. A.P. Mundargi with Mr. Niranjan Mundargi,

for the Applicant.

Mr. V.T. Tulpule, for the Respondent.

...

CORAM : A.M.KHANWILKAR,J.

29th September 2004

ORAL ORDER :

1. This application is filed under "section

482" of the Code of Criminal Procedure by the

Applicant, who is accused No. 45 in CR. No.

135/2002 registered at Bund Garden Police

Station, Pune, pertaining to the commonly known

"Stamp Scam case". The relief claimed in this

application is that the Applicant be released on

temporary bail or interim bail for the purpose of

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submitting his nomination form in accordance with

the Notification dated 15th September 2004 issued

by the Election Commission of India in respect of

Assembly elections. When this application was

taken up for hearing on 21st September 2004,

Counsel for the Applicant, on instructions,

stated that the Applicant was not interested in

pursuing the present application. However, as

objection was taken by the learned P.P.

regarding entertaining such applications either

for "interim bail" or "temporary bail" and the

said question being recurring one, it was thought

appropriate that the issue is finally answered.

Accordingly, Counsel were called upon to address

the Court on the question as to whether it is

open to the Special Court, or, for that matter,

the High Court, to release any accused named in

the offence under the special enactment of the

Maharashtra Control of Organised Crime Act, 1999

(hereinafter referred to as MCOCA, for the sake

of brevity) on "interim bail" or "temporary

bail", as the case may be.

2. According to the Counsel for the

Applicant, the power to grant bail is derived by

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the Special Judge under section 437 of the Code

of Criminal Procedure, whereas by the High Court

under section 439 of the Code. It is argued by

Mr. Mundargi that since there is power to grant

bail, it gives implicit power to the Court to

release any person on interim bail, until the

final decision of the main bail application, or,

for that matter, to release the accused on

temporary bail in certain special circumstances.

Mr. Mundargi contends that such power is not

taken away by the special enactment nor it be

limited, as it is inherent in the Court which is

empowered to release the accused on bail during

the pendency of the trial. He further submits

that there is no necessity for the Court to

record a finding as required by section 21(4) of