Bombay High Court
Mohsin Nasir Sheikh vs The State Of Maharashtra Thr. on 25 August, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 23/2025
1. Mohsin Nasir Sheikh,
Aged 35 yrs., Occ. Labour,
2. Abhijit @ Pawan Moreshwar Katare,
Aged 35 yrs., Occ. Labour,
3. Sheikh Nasif Sheikh Rashid,
Aged 33 yrs., Occ. Labour,
All R/o. Jalnagar Ward,
Chandrapur.
...APPELLANTS
VERSUS
1. State of Maharashtra,
through Police Station officer,
Police Station - Ramnagar,
Dist. Chandrapur.
...RESPONDENT
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Mr. Akshay Naik, Senior Advocate assisted by Mr Aniruddha Jaltare,
Advocate for appellants.
Mr. S. S. Doifode, Additional Public Prosecutor for respondent/State.
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CORAM : ANIL L. PANSARE AND
M. M. NERLIKAR, JJ.
CLOSED FOR JUDGMENT : 13.08.2025
PRONOUNCEMENT OF JUDGMENT : 25.08.2025
::: Uploaded on - 25/08/2025 ::: Downloaded on - 25/08/2025 21:28:42 :::
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JUDGMENT :
(PER: M. M. NERLIKAR , J.)
Heard.
2. Rule. Rule made returnable forthwith. By consent of
parties, heard finally.
3. By way of present appeal, the appellants have
challenged the orders dated 07.12.2024, 04.01.2025 and
18.01.2025, whereby the learned Special Judge, Chandrapur
has extended the time for filing the charge-sheet. It is further
prayed to quash and set aside the orders dated 09.12.2024,
08.01.2025 and 05.02.2025, by which the learned Special
Judge, Chandrapur has rejected the application under Section
187(2)(i) of the Bharatiya Nagarik Suraksha Sanhita, 2023
("BNSS") filed by the appellants for grant of statutory bail. It is
further prayed that the appellants be enlarged on bail in
offence registered with Police Station - Ramngar, Dist.
Chandrapur vide Crime No. 798/2024 for commission of
offence under Sections 103(1), 109(1), 189(2), 189(4), 190,
191(2), 191(3) and 61 of the Bhartiya Nyaya Sanhita ("BNS")
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Sections 3, 4 and 25 of the Indian Arms Act, 1959 3(1)(i)(ii),
3(2) and 3(4) of the Maharashtra Control of Organised Crime
Act, 1999 ("MCOCA") and 135 of the Maharashtra Police Act.
4. Brief facts:-
On 12.08.2024, informant Shivaji Vasanta Gonewar
lodged the report with Police Station, Ramnagar, District
Chandrapur alleging that at around 03.00 p.m. when the
informant was at his house, deceased Haji called him and asked
him to come to his house. The deceased informed him that
one Nur and Sameer Sheikh are intending to commit his
murder, and therefore he wanted to inquire by going to
Chandrapur as he has received the information about the same.
When the informant and deceased along with others were
enroute towards Chandrapur at about 03.50 p.m., two persons
boarded the car of deceased Haji and thereafter, all the five
persons went to Shahidarbar Hotel, Chandrapur. When the
deceased and other person went inside the hotel to have a meal
at about 04.15 p.m. one white colour Renault Company car
came and stopped in front of the informant. Seven persons got
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down from the said vehicle and they were armed with guns and
knives. Immediately, the accused persons started firing bullets
on the informant, who ran and took shelter behind the Pan
Shop, however, two bullets hit him on his left leg. Thereafter,
all the accused persons went inside the hotel and fired at Haji.
After that, the accused persons ran away. Haji was brought to
the Government Hospital, Chandrapur and during treatment,
he succumbed to the injuries. On 13.08.2024, six accused
persons out of seven surrendered and accordingly, they were
arrested and granted Police Custody. During the investigation,
it transpired that some other persons were also involved and
accordingly, they were arrested on 18.08.2024, wherein the
present appellants are also included as accused Nos. 9, 10 and
11. They were produced before the learned Magistrate on
18.08.2024 and the police custody remand was granted till
20.08.2024.
5. The following undisputed facts emerges from the
record a proposal was sent for invoking the provisions of the
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MCOCA and accordingly, the approval under Section 23(1)(a)
of the said Act was granted by the Special Inspector General of
Police, Nagpur Division, Nagpur. As the 90 days period for
filing the charge-sheet was to expire on 16.11.2024, 1 st
application dated 07.11.2024 was filed by the learned Special
Additional Public Prosecutor, Chandrapur (MCOCA) ("herein
after referred to as Additional Public Prosecutor, Chandrapur")
under Section 21(2)(b) of the MCOCA for extension of 90 days
for filing of charge-sheet against the accused persons which
was allowed vide order dated 08.11.2024 granting extension
for 15 days for filing the charge-sheet i.e. upto 23.11.2024.
This was the first extension which was granted by the Special
Court.
6. However on 19.11.2024, 1st application was filed by
the appellants for grant of default bail under Section 187(2)(i)
of the BNSS. On 22.11.2024, 2nd application was filed by the
learned Additional Public Prosecutor, Chandrapur for grant of
extension of time to file charge-sheet. Time was extended by
15 days by order dated 22.11.2024 i.e. till 07.12.2024. On
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05.12.2024, 3rd application was filed by the learned Additional
Public Prosecutor, Chandrapur for grant of extension of 60
days. By an order dated 07.12.2024, extension of 30 days was
granted i.e. upto 06.01.2025. Again on 04.1.2025,
4th application was filed by learned Additional Public
Prosecutor, Chandrapur for extension of 30 days. By order
dated 06.01.2025, time was extended till 18.01.2025. Again
on 18.01.2025, 5th application was filed by learned Additional
Public Prosecutor, Chandrapur for extension of time of 18 days.
By order dated 18.01.2025, time was extended till 04.02.2025.
7. It is to be noted that the appellants filed application
for grant of default bail under Section 187(2)(i) of the BNSS
on three occasions i.e. on 19.11.2024, secondly on 06.01.2025
and thirdly on 04.02.2025. However, those applications
rejected by orders dated 09.12.2024, 08.1.2025 and lastly on
05.02.2025.
8. Appeal seems to be filed on 04.12.2024, however by
an order dated 15.01.2025, leave to amend was granted. On
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29.01.2025, notice was issued to the respondent/State. Matter
was adjourned time to time and again on 17.04.2025,
permission was sought to amend the appeal and accordingly, it
was granted. However, by order dated 29.04.2025, appellants
are permitted to replace the copy of the appeal with amended
copy of appeal.
9. We have heard learned Senior Counsel Mr. Naik
appearing for appellants and learned Additional Public
Prosecutor Mr. Doifode appearing for the State.
10. Mr. Naik, learned Senior Counsel appearing for
appellants contended that the applications filed for extension of
time for filing charge-sheet dated 05.12.2024, 04.01.2025 and
18.01.2025 were filed by the learned Additional Public
Prosecutor, Chandrapur without applying the mind i.e.
mechanically as the contents of said applications are only
translated version of the applications filed by the Additional
Superintendent of Police, Chandrapur dated 05.12.2024,
04.01.2025 and 17.01.2025 which were filed in Marathi. He
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submitted that the applications filed by the learned Additional
Public Prosecutor, Chandrapur do not indicate the progress of
investigation, which is against the mandate of Section 21 of the
MCOCA. Further, there is no specific reason assigned for
detention of the accused beyond the statutory period of 90 days
and therefore, the learned Special Judge, Chandrapur
committed grave error by granting extension of time to file
charge-sheet to the prosecution by impugned orders and the
same is contrary to the mandate provided under Section 21 of
the MCOCA. So as to substantiate the aforementioned
contentions, the learned senior counsel for appellants relied on
the judgment of the Honb'ble Supreme Court which are Saquib
Abdul Hamid Nachan Vs. State of Maharashtra, (2019) 16 SCC
707, Momin Moiuddin Gulam Hasan and anr. Vs. State of
Maharashtra, 2024 SCC Online Bom 2205, Darshan Subhash
Nandagawali Vs. State of Maharashtra, 2023(5) Mh.L.J. (Cri),
547, Hitendra Vishnu Thakur (referred below).
11. Per contra, the learned Additional Public Prosecutor
Mr. Doifode, submitted that the applications for grant of
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extension of time filed by the learned Additional Public
Prosecutor, Chandrapur were filed after application of mind
which can be gathered from the applications. He further
submitted that the applications also depict the progress of
investigation and therefore, those reasons which are mentioned
in the applications are the reasons which can be said to be the
specific reasons for detention of accused beyond the period of
90 days. He submitted that the learned Special Court granted
extension of time after considering all the facts and
circumstances and therefore, no fault can be found in the
impugned orders. He further submitted that thereafter, charge-
sheet was filed on 04.02.2025 and therefore, right to claim
default bail is no more in existence as the right is extinguished
as soon as the charge-sheet is filed. He further submitted that
the sanction to invoke the provisions of MCOCA was refused by
the Competent Authority on 03.02.2025 and therefore,
considering the subsequent development, the present appeal
may not be entertained for the reasons that now the provisions
of MCOCA would not be applicable as the sanction was refused
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under Section 23 (2) of the MCOCA. He further submits that
earlier two extensions were not challenged by the appellants
and further extensions granted cannot be challenged as charge-
sheet was filed during validly extended period. So as to
substantiate the contentions, he relied on the judgment of the
Hon'ble Supreme Court in cases of Rambeer Shokeen Vs. State
of NCT of Belhi, AIR 2018 SC 688 and Qamar Ghani Usmani
Vs. State of Gujarat, AIR 2023 SC 1901.
12. Upon considering the above submissions, it could be
gathered that the appellants have challenged the orders of
extension dated 07.12.2024, 06.01.2025 and 17.01.2025. We
have also perused the applications filed for grant of extension
for filing charge-sheet dated 05.12.2024, 04.01.2025 and
18.01.2025. The learned senior counsel for appellants has
contended that the applications filed by the learned Additional
Public Prosecutor, Chandrapur would demonstrate that he has
not applied his mind before filing the applications. The other
two grounds raised by the appellants are that the report does
not depict progress in investigation and specific reason in order
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to detain the appellants, therefore the Court has committed
gross error by extending the time for filing the charge-sheet on
three occasions and the orders are against the mandate of
Section 21 of the MCOCA. In order to appreciate the said
submissions, it is necessary to reproduce Section 21 of the
MCOCA as under:-
"21. Modified application of certain provisions of the Code-
(1).....
(2) Section 167 of the Code shall apply in relation to a
case involving an offence punishable under this Act subject
to the modifications that, in sub-section
(a) the references to "fifteen days", and "sixty days",
wherever they occur, shall be construed as references to
"thirty days" and "ninety days", respectively;
(b) after the proviso, the following proviso shall be inser-
ted, namely:--
"Provided further that if it is not possible to complete the
investigation within the said period of ninety days, the
Special Court shall extend the said period upto one hun-
dred and eighty days, on the report of the Public Prosec-
utor indicating the progress of the investigation and the
specific reasons for the detention of the accused beyond
the said period of ninety days.".
Proviso to Section 21(2)(b) carves out exception in respect of
grant of extension of period beyond 90 days, the period can be
extended upto 180 days subject to satisfying three conditions as
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laid down in the said proviso. The powers to be exercised
under Section 21 of the MCOCA are vested with the Special
Court, there is no dispute to that effect. Further, if it is not
possible to complete the investigation within 90 days then for
extension of further time beyond 90 days, three conditions are
to be satisfied which are mandatory i.e. (1) the report of the
"Public Prosecutor" is necessary, (2) the said report should
indicate the "progress of investigation" and (3) it should also
invariably "specify the reasons for the detention" of the accused
beyond the period of 90 days. To understand these three
ingredients of the proviso, it is necessary to discuss each
ingredient.
[i] Report of the Public Prosecutor:-
The important ingredient as stated in the proviso to
Section 21(2)(b) of the MCOCA is the report of the Public
Prosecutor. It is the statutory duty of the "Public Prosecutor" to
independently apply his mind to the request of the
Investigating Agency before submitting the report to the Court
for extension of time, considering the drastic provision that the
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accused can be remanded upto 180 days. Therefore, it requires
application of mind by the Public Prosecutor. In catena of
judgments, the Hon'ble Supreme Court has observed that the
Public prosecutor is neither a post office of the Investigating
Agency nor he is a forwarding Agency, but is vested with a
statutory duty. Application of mind by the Public Prosecutor is
a must while submitting the report because, it would result into
further custody of the accused affecting right to life and
personal liberty. Further, application is to be filed by the
learned Public Prosecutor.
13. In case of Hitendra Vishnu Thakur and others Vs.
State of Maharashtra and others, (1994) 4 SCC 602 , the
Hon'ble Supreme Court in para 23 while dealing with the
identical issue observed as under:-
"23. We may at this stage, also on a plain reading of clause
(bb) of sub-section (4) of Section 20, point out that the
Legislature has provided for seeking extension of time for
completion of investigation on a report of the public
prosecutor. The Legislature did not purposely leave it to an
investigating officer to make an application for seeking
extension of time from the court. This provision is in tune
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with the legislative intent to have the investigations
completed expeditiously and not to allow an accused to be
kept in continued detention during unnecessary prolonged
investigation at the whims of the police. The Legislature
expects that the investigation must be completed with
utmost promptitude but where it becomes necessary to
seek some more time for completion of the investigation,
the investigating agency must submit itself to the scrutiny
of the public prosecutor in the first instance and satisfy
him about the progress of the investigation and furnish
reasons for seeking further custody of an accused. A public
prosecutor is an important officer of the State Government
and is appointed by the State under the Code of Criminal
Procedure. He is not a part of the investigating agency. He
is an independent statutory authority. The public
prosecutor is expected to independently apply his mind to
the request of the investigating agency before Submitting a
report to the court for extension of time with a view to
enable the investigating agency to complete the
investigation. He is not merely a post office or a
forwarding agency. A public prosecutor may or may not
agree with the reasons given by the investigating officer
for seeking extension of time and may find that the
investigation had not progressed in the proper manner or
that there has been unnecessary, deliberate or avoidable
delay in completing the investigation. In that event, he
may not submit any report to the court under clause (bb)
to seek extension of time. Thus, for seeking extension of
time under clause (bb), the public prosecutor after an
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independent application of his mind to the request of the
investigating agency is required to make a report to the
Designated Court indicating therein the progress of the
investigation and disclosing justification for keeping the
accused in further custody to enable the investigating
agency to complete the investigation. The public
prosecutor may attach the request of the investigating
officer along with his request or application and report,
but his report, as envisaged under clause (bb), must
disclose on the face of it that he has applied his mind and
was satisfied with the progress of the investigation and
considered grant of further time to complete the
investigation necessary. The use of the expression "on the
report of the public prosecutor indicating the progress of
the investigation and the specific reasons for the detention
of the accused beyond the said period" as occurring in
clause (bb) in sub-section (2) of Section 167 as amended
by Section 20(4) are important and indicative of the
legislative intent not to keep an accused in custody
unreasonably and to grant extension only on the report of
the public prosecutor. The report of the public prosecutor,
therefore, is not merely a formality but a very vital report,
because the consequence of its acceptance affects the
liberty of an accused and it must, therefore, strictly comply
with the requirements as contained in clause (bb). The
request of an investigating officer for extension of time is
no substitute for the report of the public prosecutor. Where
either no report as is envisaged by clause (bb) is filed or
the report filed by the public prosecutor is not accepted by
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the Designated Court, since the grant of extension of time
under clause (bb) is neither a formality nor automatic, the
necessary corollary would be that an accused would be
entitled to seek bail and the court 'shall' release him on
bail if he furnishes bail as required by the Designated
Court. It is not merely the question of form in which the
request for extension under clause (bb) is made but one of
substance. The contents of the report to be submitted by
the public prosecutor, after proper application of his mind,
are designed to assist the Designated Court to
independently decide whether or not extension should be
granted in a given case. Keeping in view the consequences
of the grant of extension i.e. keeping an accused in further
custody, the Designated Court must be satisfied for the
Justification, from the report of the public prosecutor, to
grant extension of time to complete the investigation.
Where the Designated Court declines to grant such an
extension, the right to be released on bail on account of
the 'default' of the prosecution becomes indefeasible and
cannot be defeated by reasons other than those
contemplated by sub-section (4) of Section 20 as discussed
in the earlier part of this judgment. We are unable to agree
with Mr Madhava Reddy or the Additional Solicitor
General Mr Tulsi that even if the public prosecutor
'presents' the request of the investigating officer to the
court or 'forwards' the request of the investigating officer
to the court, it should be construed to be the report of the
public prosecutor. There is no scope for such a construction
when we are dealing with the liberty of a citizen. The
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courts are expected to zealously safeguard his liberty.
Clause (bb) has to be read and interpreted on its plain
language without addition or substitution of any
expression in it. We have already dealt with the
importance of the report of the public prosecutor and
emphasised that he is neither a 'post office' of the
investigating agency nor its 'forwarding agency' but is
charged with a statutory duty. He must apply his mind to
the facts and circumstances of the case and his report must
disclose on the face of it that he had applied his mind to
the twin conditions contained in clause (bb) of sub-section
(4) of Section 20. Since the law requires him to submit the
report as envisaged by the section, he must act in the
manner as provided by the section and in no other manner.
A Designated Court which overlooks and ignores the
requirements of a valid report falls in the performance of
one of its essential duties and renders its order under
clause (bb) vulnerable. Whether the public prosecutor
labels his report as a report or as an application for
extension, would not be of much consequence so long as it
demonstrates on the face of it that he has applied his mind
and is satisfied with the progress of the investigation and
the genuineness of the reasons for grant of extension to
keep an accused in further custody as envisaged by clause
(bb) (supra). Even the 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
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envisaged by clause (bb) and it would not be a proper
report to seek extension of time. In the absence of an
appropriate report the Designated Court would have no
jurisdiction to deny to an accused his Indefeasible right to
be released on bail on account of the default of the
prosecution to file the challan within the prescribed time if
an accused seeks and is prepared to furnish the bail bonds
as directed by the court. Moreover, no extension can be
granted to keep an accused in custody beyond the
prescribed period except to enable the investigation to be
completed and as already stated before any extension is
granted under clause (bb), the accused must be put on
notice and permitted to have his say so as to be able to
object to the grant of extension."
Therefore, accordingly, the Hon'ble Supreme Court has
emphasised the important role to be played by the Public
Prosecutor while seeking extension of time with a view to
enable the Investigating Agency to complete the
investigation. Further, the Hon'ble Supreme has also
observed that the Public Prosecutor is not merely a post
office or a forwarding agent. It is further observed that the
Public Prosecutor may or may not agree with the reasons
given by the Investigating Agency for seeking extension of
time and may find that the investigation had not progressed
in the proper manner or that there has been unnecessary,
deliberate or avoidable delay in completing the
investigation. Under such circumstances, the Investigating
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Agency may not submit any report to the Court seeking
extension of time. It is further observed that report of the
Public Prosecutor is not merely a formality, but a very vital
report because the consequence of its acceptance affects the
liberty of an accused and it must, therefore, strictly comply
with the requirements as contained in clause (bb). It is
further observed that the use of expression "on the report of
the public prosecutor indicating the progress of the
investigation and the specific reasons for the detention of
the accused beyond the said period" in clause (bb) in
sub-section (2) of Section 167 as amended by Section 20(4)
are important and indicative of the legislative intend not to
keep an accused in custody unreasonably and to grant
extension only on the report of the Public Prosecutor.
Therefore, the Hon'ble Supreme Court has elaborately dealt
with the issue of application of mind by the Public
Prosecutor and his duties before making or while making an
application for extension of time for filing charge-sheet.
[ii] Progress of Investigation:-
The other ingredient as mentioned is "progress of
investigation" which has to be spelt out from the report of the
Public Prosecutor. The term "Investigation" is defined under
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Section 2(l) of the BNSS which includes all the proceedings
under the Sanhita for collection of evidence conducted by the
Police Officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf. Therefore, the term
"progress of the investigation" means and includes collection of
evidence in the form of recording of the statements, arrest of
the accused, steps taken towards collection of relevant
documents, collection of all relevant information and analysis
of the collected materials. It also includes search, seizure etc.
and therefore, it could be understood that every step of the
Investigating Officer should be towards development of
investigation or to say more advanced stage in investigation.
Thus, the report of Additional Public Prosecutor, Chandrapur
should disclose the progress in the investigation and not the
reasons why investigation was not completed.
[iii] Specific Reasons for Detention:-
Third ingredient is that the report shall disclose
"specific reasons for detention". In common parlance, this
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means that there should be reasons indicating grounds on
which further detention i.e. beyond 90 days is sought. There
may be 'en' number of reasons depending upon the facts and
circumstances of the case.
14. The idea behind such a strict compliance is to
safeguard the illegal or unnecessary detention of the accused.
Article 21 of the Constitution of India provides for protection of
life and personal liberty. These liberties can be curtailed only
by procedure established by the law and therefore, there
should be strict compliance of the proviso to Section 21(2)(b)
of the MCOCA. Thus, in a given case, extension of time to
complete investigation must be justified, but continuation of
detention may not. It is for this reason amongst other that
Additional Public Prosecutor, Chandrapur should justify
continuation of detention by assigning specific reasons.
15. Considering the above discussion, now let us turn to
the challenge in the appeal. It seems from the record that after
completion of 90 days, the first application was filed for
extension of time on 07.11.2024 and second application was
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filed on 22.11.2024 by the Additional Public Prosecutor,
Chandrapur. By orders dated 08.11.2024 and 22.11.2024
extension was granted till 23.11.2024 and 07.12.2024
respectively. It is needless to mention that those orders
granting extension of time for filing charge-sheet are not under
challenge. However, the challenge is in respect of 3 rd, 4th and
5th extension which was granted. The 3 rd application for
extension of time for filing charge-sheet was filed by the
learned Additional Public Prosecutor on 05.12.2024, 4th
application was filed on 04.01.2024 and 5 th was filed on
18.01.2025. Accordingly, by orders dated 07.12.2024,
06.01.2025 and 18.01.2025 respectively extension was granted
by the Special Court. After going through the application dated
05.12.2024 filed by learned Additional Public Prosecutor,
Chandrapur and the application addressing the Additional
Public Prosecutor, Chandrapur by the Additional
Superintendent of Police, Chandrapur dated 05.12.2024, it
transpires that the application filed by the learned Additional
Public Prosecutor, Chandrapur is translation of Marathi version
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of the report filed by the Additional Superintendent of Police,
Chandrapur. Further, it is necessary to note that by order dated
07.12.2024, the learned Special Judge has extended time for
30 days which depicts that the learned Special Judge lost sight
of the fact that the conditions laid down under Section 21(2)
(b) of the MCOCA has not been complied. The order is not
only cryptic, but also shows non-application of mind. The
learned Special Judge has failed to consider whether the
application filed by the learned Additional Public Prosecutor
discloses the progress of the investigation and whether there
are specific reasons for detention of the accused persons and
whether the learned Public Prosecutor has applied his mind
independently before filing the application.
16. So far as the 4th application dated 04.01.2025 is
concerned for extension of time for filing charge-sheet claiming
30 days extension, is nothing but reproduction of the
application dated 05.12.2024. We are of the opinion that the
application neither depicts the progress of investigation nor
does it show that there are specific reasons for further detentin
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of the accused person. As a matter of routine, the learned
Additional Sessions Judge/Special Judge, Chandrapur again on
06.01.2025 has granted request of the learned Additional
Public Prosecutor and time was extended till 18.01.2025.
Further, the 5th application dated 18.01.2025 is again a replica
of third and fourth applications, wherein neither the progress
of investigation nor the reasons for detention are mentioned in
the application and again in a routine manner, the order was
passed by the learned Additional Judge/Special Judge,
Chanrapur on 18.01.2025, thereby granting extension of time
till 04.02.2025 for filing charge-sheet and to complete the
remaining investigation. It is necessary to mention at this
juncture that only dates are changed in the applications and
nothing more than that.
For ready reference, the applications filed by the
Additional Superintendent of Police, Additional Public
Prosecutor, Chandrapur are reproduced herein below:-
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........................................
......................................
17. We have minutely gone through the applications filed
by learned Additional Public Prosecutor, Chandrapur. We find
that in application dated 05.12.2024, fifteen grounds are
mentioned. Similarly, in application dated 04.01.2025, nine
grounds are mentioned and in application dated 18.01.2025,
eight grounds are mentioned. All the grounds mentioned in
application dated 18.01.2025 are already mentioned in the
applications dated 05.12.2024 and 04.01.2025. Only difference
is that in application dated 18.01.2025, ground No.7 shows
sending of letter to the Additional Director General of Police,
Mumbai seeking permission to file charge-sheet. And in
application dated 04.01.2025, only ground No.5 is different
seeking information from the Income Tax Department.
Therefore, the grounds does not show progress of investigation
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neither there are specific reasons to detain the accused and
therefore, grounds are repeated in all these applications.
Accordingly, those grounds cannot be said to be sufficient to
extend the time again and again.
17. It is needles to mention at this juncture that after
every application, the appellants herein have filed applications
for grant of default bail which were turned down by the
concerned Court by its orders dated 09.12.2024. 08.01.2025
and 05.02.2025 on the ground that the learned Special Court
has extended time and therefore, the appellants cannot claim
statutory bail and accordingly those applications were rejected.
18. From the above facts, it can be gathered that the
applications are filed in a routine manner and the orders are
passed casually without adhering to Section 21(2)(b) of the
MCOCA.
19. Further, merely by observing, that the learned Special
Judge has perused the case diary by itself is not sufficient since
the report of the Public Prosecutor has to show progress of
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investigation including relevant material collected during
investigation. The Special Judge has miserably failed to track
the progress of investigation and identify the reasons for
further detention of the appellants.
Therefore, the Additional Public Prosecutor,
Chandrapur has miserably failed to apply his mind on the
contrary, by filing applications for extension. He has only done
the translation of the applications which were filed by the
Additional Superintendent of Police. Further, the Special Judge
has also failed to consider that there is no valid ground to
extend the time and further there is absolutely no justification
in order to continue detentions of the appellants. Needless to
mention at this juncture and as well as the learned Special
Judge failed to apply its mind to Section 21(2)(b) of the
MCOCA and therefore, the applications are filed without
application of mind and order passed thereon are against the
spirit of Section Section 21(2)(b) of the MCOCA
20. Mr. Doifode, learned Additional Public Prosecutor
while arguing vehemently submitted that after filing of charge-
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sheet, the right of the accused to claim statutory bail is
extinguished.
21. However, learned senior counsel appearing for
appellants submitted that the indefeasible right of accused
cannot be extinguished though charge-sheet is filed as the
appellants had filed applications and exercised their option to
obtain bail which were rejected on the ground of grant of
extension. He further submits that once the order of grant of
extension is set aside, their right to get default bail is
automatically revived. Learned senior counsel to buttress his
submission has relied on the following ratios laid down by the
Hon'ble Supreme Court in the cases of Sanjay Dutta Vs. State
through C.B.I. Bombay(II), (994) 5 SCC 410 and M. Ravindran
Vs. Intelligence Officer, Directorate of Revenue Intelligence,
(2021) 2 SCC 485. The Hon'ble Supreme Court in case of
M. Ravindran observed in para 25 as under:-
"25. Therefore, in conclusion:
25.1 Once the accused files an application for bail under
the Proviso to Section 167(2) he is deemed to have
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'availed of' or enforced his right to be released on default
bail, accruing after expiry of the stipulated time limit for
investigation. Thus, if the accused applies for bail under
Section 167(2), CrPC read with Section 36A (4), NDPS Act
upon expiry of 180 days or the extended period, as the
case may be, the Court must release him on bail forthwith
without any unnecessary delay after getting necessary
information from the public prosecutor, as mentioned
supra. Such prompt action will restrict the prosecution
from frustrating the legislative mandate to release the
accused on bail in case of default by the investigative
agency.
25.2 The right to be released on default bail continues to
remain enforceable if the accused has applied for such bail,
notwithstanding pendency of the bail application; or
subsequent filing of the chargesheet or a report seeking
extension of time by the prosecution before the Court; or
filing of the chargesheet during the interregnum when
challenge to the rejection of the bail application is pending
before a higher Court."
22. The meaning of "if not already availed of" in Sanjay
Dutt case (supra) is clarified by the Hon'ble Supreme Court and
interpreted in the case of Bikramji Singh Vs. State of Punjab,
(2020) 10 SCC 616 and M. Ravindran (supra). It would be
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useful to refer paragraph 29 in Bikramji Singh ( supra) as
under:-
"29. .......In the aforesaid premises, we are of the
considered opinion that an accused must be held to have
availed of his right flowing from the legislative mandate
engrafted in the proviso to sub-section (2) of Section 167
of the Code if he has filed an application after the expiry of
the stipulated period alleging that no challan has been
filed and he is prepared to offer the bail that is ordered,
and it is found as a fact that no challan has been filed
within the period prescribed from the date of the arrest of
the accused. In our view, such interpretation would
subserve the purpose and the object for which the
provision in question was brought on to the statute-book.
In such a case, therefore, even if the application for
consideration of an order of being released on bail is
posted before the court after some length of time, or even
if the Magistrate refuses the application erroneously and
the accused moves the higher forum for getting a formal
order of being released on bail in enforcement of his
indefeasible right, then filing of challan at that stage will
not take away the right of the accused. Personal liberty is
one of the cherished objects of the Indian Constitution and
deprivation of the same can only be in accordance with
law and in conformity with the provisions thereof, as
stipulated under Article 21 of the Constitution. When the
law provides that the Magistrate could authorise the
detention of the accused in custody up to a maximum
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period as indicated in the proviso to sub-section (2) of
Section 167, any further detention beyond the period
without filing of a challan by the investigating agency
would be a subterfuge and would not be in accordance
with law and in conformity with the provisions of the
Criminal Procedure Code, and as such, could be violative
of Article 21 of the Constitution. There is no provision in
the Criminal Procedure Code authorising detention of an
accused in custody after the expiry of the period indicated
in proviso to sub-section (2) of Section 167 excepting the
contingency indicated in Explanation I, namely, if the
accused does not furnish the bail...But so long as the
accused files an application and indicates in the
application to offer bail on being released by appropriate
orders of the court then the right of the accused on being
released on bail cannot be frustrated on the off chance of
the Magistrate not being available and the matter not
being moved, or that the Magistrate erroneously refuses to
pass an order and the matter is moved to the higher forum
and a challan is filed in interregnum. This is the only way
how a balance can be struck between the so-called
indefeasible right of the accused on failure on the part of
the prosecution to file a challan within the specified period
and the interest of the society, at large, in lawfully
preventing an accused from being released on bail on
account of inaction on the part of the prosecuting agency.
On the aforesaid premises, we would record our
conclusions as follows:
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3. On the expiry of the said period of 90 days or 60 days,
as the case may be, an indefeasible right accrues in favour
of the accused for being released on bail on account of
default by the investigating agency in the completion of
the investigation within the period prescribed and the
accused is entitled to be released on bail, if he is prepared
to and furnishes the bail as directed by the Magistrate.
6. The expression "if not already availed of" used by this
Court in Sanjay Dutt case must be understood to mean
when the accused files an application and is prepared to
offer bail on being directed. In other words, on expiry of
the period specified in para (a) of the proviso to sub-
section (2) of Section 167 if the accused files an
application for bail and offers also to furnish the bail on
being directed, then it has to be held that the accused has
availed of his indefeasible right even though the court has
not considered the said application and has not indicated
the terms and conditions of bail, and the accused has not
furnished the same."
Therefore, in the light of the above, it is crystal clear that in
case the orders of extension are set aside so also the orders of
rejecting the bail application by the higher Court, then the right
to be released on default bail continues to remain enforceable
as in the present case the appellants had already availed their
indefeasible right to claim statutory bail.
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23. Therefore, considering the above facts and
circumstances, we are of the considered view, that the Public
Prosecutor has not applied his mind nor has he recorded his
satisfaction about the progress of investigation and specific
reasons for the detention. Further the applications filed for
extension by the learned Special Additional Public Prosecutor
are translated version of Marathi reports filed by Investigating
Officer and there is no independent application of mind by the
Special Additional Public Prosecutor. The learned Special
Judge has utterly failed to consider the provisions of Section
21(2)(b) of the MCOCA in its true perspective. Not only in a
routine manner the orders were passed by granting extension
of time, but also The learned Special Judge gave a complete go
bye to 21(2)(b) of the MCOCA and therefore, deprived the
accused of their indefeasible right of default bail.
24. Further submission of the learned Additional Public
Prosecutor is that, total five applications were filed for grant of
extension of time and orders are passed on it by granting
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extension of time to file charge-sheet. According to Additional
Public Prosecutor, if earlier extensions granted by the Special
Court are not challenged then further orders granting
extensions cannot be challenged when the charge-sheet is filed
within the period of extension granted and therefore,
appellants are not entitled to default bail. To support his
submission, he has relied on the Supreme Court Judgment in
the case of Qamar Ghani Osmani (supra). The issue involved in
Qamar Ghani's case is that when the extension of time for
completing the investigation was prayed by the Investigating
Agency and granted by the Trial Court, the accused was not
kept present. However, here it is not such an issue and
therefore, this judgment would not be applicable in this case.
25. Article 21 of the Constitution of India protects
personal liberty and Article 22 of the Constitution of India
provides safeguards to the accused or the persons detained on
similar lines. Taking into consideration proviso to Section
21(2)(b) of the MCOCA the legislature intended to safeguard
the interest of the accused who is likely to be detained beyond
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period of 90 days and therefore, three conditions are laid
down. Liberty of person can be curtailed only by procedure
established and therefore, so far as the present case is
concerned, the duty has been casted upon the learned Special
Public Prosecutor/ Public Prosecutor and the concerned Special
Judge to adhere to the proviso to Section 21(2)(b) of the
MCOCA.
26. We find that considering the above, there is flagrant
violation of provision to Section 21(2)(b) of the MCOCA and
the accused persons are deprived of their right to obtain default
bail under Section 187(2)(i) of the BNSS. Thus, in the present
facts and circumstances, once the order granting extension is
held illegal, the appellants are entitled to statutory bail under
Section 187(2)(i) of the BNSS for default bail. Hence, we pass
the following orders:-
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(I) Appeal is allowed in terms of prayer clauses (A), (B)
and (C) read as under along with following conditions:-
(A). Quash and set aside the orders dated 07.12.2024,
04.01.2025 and 18.01.2025 whereby the learned Special
Judge, Chandrapur had extended the time for the
Investigating Agency for filing the chargesheet. (Annexure-
M, O and R)
(B). Quash and set aside the orders dated 09.12.2024.
08.01.2025 and 05.02.2025 whereby the Learned Special
Judge, Chandrapur had rejected the application under
Section 187(2)(i) of the Bhartiya Nagarik Suraksha
Sanhita, 2023 filed by the appellants. (Annexure - F2, P
and S)
(C) Enlarge the appellants on Bail in offence registered
with Police Station - Ramnagar, Dist. Chandrapur as crime
no.798 of 2024 for the commission of offence under
Section 103(1), 109(1), 189(2), 189(4), 190, 191(2),
191(3) and 61 of the Bhartiya Nyaya Sanhita, 2023 and 3,
4 and 25 of the Indian Arms Act & 3(1)(i)(ii), 3(2) and
3(4) of the Maharashtra Control of Organised Crimes Act,
1999 and 135 of Maharashtra Police Act."
(I). The appellants namely Mohsin Nasir Sheikh,
Abhijit @ Pawan Moreshwar Katare and Sheikh Nasif
Sheikh Rashid be released on bail in connection with
Crime No. 798/2024 for commission of offence under
Sections 103(1), 109(1), 189(2), 189(4), 190, 191(2),
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191(3) and 61 of the BNS, Sections 3, 4 and 25 of the
Indian Arms Act, 1959, Sections 3(1)(i)(ii), 3(2) and 3(4)
of the Maharashtra Control of Organised Crime Act, 1999
("MCOCA") and 135 of the Maharashtra Police Act on
furnishing PR Bond of Rs.50,000/- each with two sureties
in the like amount.
(II) The appellants shall regularly attend the Trial Court
as and when called by the Trial Court.
(III) The appellants shall not directly or indirectly tamper
with the evidence or make any inducement, threat or
promise to any person acquainted with the findings of the
case.
(IV) The appellants shall furnish their addresses of their
residence and where they will be residing along with their
mobile numbers to the Investigating Officer. The said
addresses shall not be changed without giving intimation
to the Investigating Officer.
(V) The appellants shall attend the concerned Police
Station on every Sunday between 10.00 a.m. to 01.00
p.m., initially, for a period of three months and thereafter,
on every 2nd and 4th Sunday of every month between 12.00
noon to 05.00 p.m. till conclusion of their trial.
27. The prosecution would be at liberty to apply for
cancellation of bail before the learned Special Judge/Court,
if the appellants breach any of the above conditions.
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28. All the concerned to act on uploaded/authenticated copy of
this order.
29. Appeal stands disposed of in above terms.
( M. M. NERLIKAR , J.) (ANIL L. PANSARE, J.)
Gohane
