On 16th September, a bench of Delhi High Court consisting of Justice Yogesh Khanna held that proviso to sub-Section (b) of Section (2) of Section 21 of Maharashtra Control of Organised Crime Act, 1999 is pari materia to Section 20(4) (bb) of the Terrorist and Disruptive Activities (Prevention) Act,, hence applying same analogy, notice ought to have been given to appellant on an application for extension of time to file charge sheet.

Facts of the case:

The present appeal was filed against  the impugned order dated 18.03.2020 passed by the learned Special Judge, West District, Tis Hazari Courts, Delhi and to direct release of appellant on bail per Section 167 Criminal Procedure Code (Cr PC) read with Section 21(2) of the Maharashtra Control of Organised Crime Act, 1999.

Contention of the appellant:

The learned council for the petitioner contended the following:

  1. It was submitted that the appellant was granted regular bail in such FIR No.100/2018 on 05.07.2019 by this Court on the ground there being no evidence against him, except disclosure statement of a co-accused.
  2. The learned counsel for the appellant relied upon order dated 28.11.2019 and subsequent orders where it notes the presence of Mr.Mahesh Patel, Advocate for all accused except accused Rahul Gupta, hence it is argued no notice for such extension was ever given to this accused/appellant and in any case Mr.Mahesh Patel, Advocate accepted notice for other accused, than this appellant hence the appellant is entitled to bail.

Contention of the respondent:

The learned APP for the State on the other hand referred to Sharjeel Imam vs. State of NCT of Delhi stating that the notice to the counsel is a sufficient notice to the accused.

Observation and judgement of the court:

The following observation has been made by the hon’ble bench of the court:

  1. Proviso to sub-Section (b) of Section (2) of Section 21 of Maharashtra Control of Organised Crime Act, 1999 is pari materia to Section 20(4) (bb) of the Terrorist and Disruptive Activities (Prevention) Act,, hence applying same analogy, notice ought to have been given to appellant on an application for extension of time to file charge sheet.
  2. No doubt the bail under Section 167 (1)(a) Cr.P.C is a fundamental right, but one cannot ignore the fact the application dated 24.12.2019 when filed, its advance notice was served upon Sh.Mahesh Patel, Advocate who has been appearing on behalf of all accused. At such time he did not object that he was not a counsel for appellant.
  3. Though, Sh.Rajiv Mohan Advocate was appointed on 26.11.2019 for filing an application for bail, but Sh.Mahesh Patel, Advocate did not sought for discharge from the case qua the appellant.

In the light of the above it was held that it cannot be said the Investigating Officer had the knowledge that Sh.Mahesh Patel, Advocate was no longer an advocate for accused Rahul Gupta. Neither such an inclination was ever shown by Sh.Mahesh Patel, Advocate on 24.12.2019 when he accepted advance notice on behalf of all accused.

Thus, finding so merit in the appeal, it was dismissed.

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