Bombay High Court
Shehzada Khan S/O Aziz Khan And 2 ... vs State Of Mha. Thr. Asst. ... on 15 September, 2022
Bench: V. G. Joshi
1 apl 894.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION(APL) NO.894 OF 2022
Shehzada Khan s/o Aziz Khan and ors.
..vs..
State of Maharashtra, thr. Assistant Commissioner of Police
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Dipesh N. Mehta, Advocate for the petitioners.
Shri M.J. Khan, A.P.P. for the respondent/State.
CORAM : VINAY JOSHI, J.
DATED : 15/09/2022.
Heard.
2. The petitioners have challenged the order of
Special Court, Nagpur dated 10.06.2022 passed below
Exhibit 61 thereby granting extension of time to file
charge-sheet, and also prayed for grant of bail in
default.
3. The learned Public Prosecutor has raised a
preliminary objection to the maintainability of this
petition under Section 482 of the Code of Criminal
Procedure ('the Code'). It is submitted that, Section 12
of the Maharashtra Control of Organised Crime Act,
1999 (for short 'the MCOC Act') provides a remedy of
appeal and thus, the writ petition is not maintainable.
4. Per contra, learned Counsel appearing for the
petitioner would submit that the remedy of appeal
would not be available since the order of extension of
time, is purely an interlocutory order. Since the
2 apl 894.2022
preliminary objection about maintainability has been
raised, it is desirable to decide the same at the
threshold as it relates to the competency of Forum to
adjudicate the dispute.
5. Learned A.P.P. has initially relied on the
decision of the Supreme Court in case of State through
Special Cell, New Delhi vs. Navjot Sandhu (2003) 6
SCC 641 to support his contention. Particularly, he
took me through paragraph 29 and 31 to uphold his
contention. In said case, the accused have raised an
objection before the Special Judge regarding
admissibility of intercepted communication as an
evidence in the trial under the Prevention of Terrorism
Act, 2002 (for short 'the POTA Act'). In said context, it
has been ruled that inherent powers of this Court shall
not be used in case, if other enactment (under POTA
Act) contains a specific bar. The said decision does not
help the prosecution to lay a proposition that the
disputed order is not amenable to the writ jurisdiction
of this Court. Learned A.P.P. further relied on the
decision of the Supreme Court in case of Mustaq
Ahmed Mohammed Asak and ors. vs. State of
Maharashtra (2009) 7 SCC 480 to support his
contention about non-maintainability of this petition.
In said decision, the appellate order was prayed to be
quashed before the Supreme Court. In said decision,
the Supreme Court held that the power of extension of
time to file charge-sheet under Section 21(2) of the
MCOC Act, can be exercised for more than one
3 apl 894.2022
occasion. However, the said decision does not
specifically lay down that the order of extension of
time to file charge-sheet, cannot be questioned in writ
petition. Last reliance is on the judgment of the
Supreme Court in case of Dinesh Dalmia vs. C.B.I. AIR
2008 SC 78 which relates to the bail in default, which
does not relates to the aspect of maintainability.
6. On the other hand, the learned Counsel for
the petitioner has placed reliance on the order of this
Court in Criminal Appeal No. 509 of 2021 (Abdul
Rehman Abdul Latif Shaikh @ Sonu vs. State of
Maharashtra) dated 11.04.2022. In said case, the
challenge was to the order extending the period of
filing charge-sheet under the MCOC Act along with a
prayer of grant of bail. In that context, it is held that
the substantive prayer is for bail and it being an
interlocutory order appeal would not lie in terms of
Section 12 of the MCOC Act. On the same line, he
relied on the order of this Court in Criminal Appeal
No. 287 of 2021 (Vishwajit Ramesh Kasar vs. The
State of Maharashtra) dated 26.07.2021 wherein the
Division Bench of this Court at prima facie stage has
expressed that, the order of extension of time for
submitting charge-sheet appears to be of an
interlocutory nature.
7. The learned Counsel for the petitioner has
submitted that Section 12 of the MCOC Act specifically
bars the remedy of appeal in case of interlocutory
4 apl 894.2022
order and thus, the writ jurisdiction is very much
available. It is submitted that the order granting
extension of time is purely of an interim nature which
neither terminates the proceeding nor finally
adjudicate the rights of the parties. By placing reliance
on the decision of the Supreme Court in case of
Usmanbhai Dawoodbhai Memon and ors. vs. State of
Gujarat (1988) 2 SCC 271 it is submitted that the
order which does not finally dispose the right of the
parties or does not give finality, would be termed as
'interlocutory orders'.
8. Undeniably, Section 12 of the MCOC Act,
excludes the interlocutory orders from the ambit of
remedy of appeal. The Special Court is authorized to
extend the period of filing charge-sheet up to 180 days
on the report of the Public Prosecutor as contemplated
under Section 21(2)(b) of the MCOC Act. The said
order of extension dated 10.06.2022 has been subject
matter of challenge with consequential prayer. The
said order neither terminates the proceedings nor
adjudicates the right of the parties. Therefore, this
being an order of interim nature, remedy under
Section 12 of the MCOC Act may not lie.
9. Section 482 of the Code starts with the words
"nothing in this Code" indicate that the inherent
powers can be exercised even if there is contrary
provision in the Code itself. The inherent power is to
be used in appropriate cases where interference is
5 apl 894.2022
absolutely necessary for securing the ends of justice.
The impugned order being of an interlocutory
character, remedy of appeal is not available and
therefore, there is no bar to invoke the writ
jurisdiction.
10. The parties to proceed further. Stand over
to 22.09.2022.
(VINAY JOSHI, J.)
Trupti
TRUPTI SANTOSHJI AGRAWAL
15.09.2022 18:04
