The Bombay High Court allowed an appeal filed under Section 12 of MCOC Act, 1999, challenging three orders concerning the rejection of bail application and the grant of extension to investigating agency.
The Court observed that mere reproduction of the application or request of the Investigating Officer by the Public Prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged in clause (b) proviso of Section 21(b) and it would not be a proper report to seek an extension of time.
Brief Facts:
The appellant is one of the accused in Crime registered for the offence punishable under Sections 302, 120-B, 143, and 34 of the Indian Penal Code read with Sections 4 and 25 of the Arms Act and Section 3(1)(i)(ii), Section 3(2) and Section 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (MCOC). The present appeal is filed under Section 12 of MCOC Act, 1999, thereby challenging three orders, (i) Order of extension granted to the Investigation Agency for a period of 60 days, (ii) Order rejecting bail application filed by the appellant under Section 167(2)(a)(ii) of the Code of Criminal Procedure read with Section 21(2)(b) of MCOC Act dated 09.12.2022 and (iii) Second extension of 15 days granted to the Investigation Agency under Section 21(2)(b) of the MCOC Act dated 09.01.2023.
Contentions of the Appellants:
The Learned Counsels for the Appellants argued that both extensions granted by the Special Judge, are without application of mind and without following settled propositions of law as laid down in Section 21(2)(b), proviso, wherein it is mandatory for the Public Prosecutor to submit his independent report by applying mind to the facts and circumstances of the case for applying for an extension of time. Further, he contended that after the first extension was granted without following due procedure, rejection of bail was totally illegal, thereby detaining the appellant in illegal custody.
Contentions of the Respondent:
The learned counsel for the respondent argued that strongly objected to the grounds raised in the appeal thereby claiming that the learned Public Prosecutor applied its mind and filed an application/report giving justification for the extension. He further submitted that obtaining sanction is part and parcel of the investigation process and therefore, such ground is not available to the appellant.
Observations of the Court
The Court noted that on perusing the applications filed by the learned Public Prosecutor before the Special Court on 07.11.2022, and the second application dated 07.01.2023, it found that all the contents word by word, paragraph by paragraph, including full stops and commas, were the same.
The Court observed that the Public Prosecutor attached to the Special Court completely failed in its duty to observe the mandate of the law as laid down under Section 21(2) (b) of the said Act, proviso of MCOC Act, 1999. The duty of the Public Prosecutor attached to the Special Court is something special in which he has to apply his mind independently and satisfy himself as to whether there is a need for an extension of time to file the charge sheet. Only then the Public Prosecutor, after verifying the case papers and reasons given by the Investigating Officer, may apply by submitting his report to the Special Court for such an extension. Mere reproduction of the application or request of the Investigating Officer by the Public Prosecutor in his report, without demonstration of the application of his mind and recording his own satisfaction, would not render his report as the one envisaged in clause (b) proviso of Section 21(b) and it would not be a proper report to seek an extension of time.
Further, the Court said that the second aspect for a prosecutor is to record his satisfaction, which is clearly absent in both applications. It was the duty of the learned Special Court to find out whether there is any independent report of the Public Prosecutor showing the application of mind and recording his satisfaction for the purpose of extension to file the chargesheet.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the learned Special Judge committed serious error by accepting both applications for extension, and hence, all the impugned orders are liable to be quashed and set aside.
Case Title: Darshan Subhash Nandagawali vs State of Maharashtra
Coram: Hon’ble Justice Vinay Joshi and Hon’ble Justice Bharat P. Deshpande
Case no.: CRIMINAL APPEAL NO. 43 OF 2023
Advocate for the Appellant: Mr. S.V. Sirpurkar
Advocate for the Respondent: Mr. N.R. Rode
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