[Cites 13, Cited by 0]
Bombay High Court
Tauhid Alam Kitabullah Shaikh vs The State Of Maharashtra on 18 March, 2026
2026:BHC-AS:13479 905 BA-253-2026.ODT
Navnath Waghmare (P.A)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 253 OF 2026
Tauhid Alam Kitabullah Shaikh ...Applicant
Versus
The State Of Maharashtra ...Respondent
Mr. Advait Tamankar, Mr. Nilesh Bangar, Mr. Kamlesh Satre for the
Applicant.
Ms. Veera Shinde APP for the State
Mr. Mahesh Anjanwad PSI, Shivajinagar Police Station, Mumbai
CORAM: R. M. JOSHI, J.
RESERVED ON 09th MARCH, 2026
JUDGMENT:
- PRONOUNCED ON 18th MARCH, 2026
1. This is an Application filed under Section 439 of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C") for seeking bail in
connection with C.R. No. 396 of 2024 registered on 18.05.2024
with Shivaji Nagar Police Station, Mumbai, for the offence
punishable under Sections 8(c) r/w Sections 22(c) and 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short
"NDPS Act").
2. On 18.5.2024 at the instance of Bansi Baburao Khade, HC
Buckle 5691 aforesaid offence came to be registered. On that day
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while PSI Krushna Dige along with his staff was performing
patrolling duty, at about 15.15 hrs. the applicant was intercepted in
suspicious circumstances on the spot along with one plastic bag in
his hand. After complying with the formalities mandated under the
NDPS Act, he was found in possession of 15 bottles of cough syrup
containing Codeine Phosphate in the said plastic bag which were
being possessed illegally for sale for drug purposes. After drawing
necessary panchanama regarding search and seizure of the
muddemal in the presence of panchas, FIR came to be registered in
C.R. No. 396 of 2024 in Shivaji Nagar under Section 8(c) r/w
Sections 22 and 29 of the NDPS Act. During inquiry, the applicant
disclosed that he is selling those bottles in the said vicinity along
with his brother Faiyaz Alam Kitabullah Shaikh. The
applicant/accused upon further interrogation and upon
memorandum disclosed that, the alleged contraband was procured
by him from Accused No.2 Faiyaz Alam Kitabullah Shaikh, to
whom Anticipatory bail was granted by trial court on 24.05.2024,
he was intercepted and nothing was recovered from him.
3. At the outset Ld. Counsel for the Applicant contends that he
is not seeking bail on merits. According to him, Applicant would be
entitled to get bail on the ground that custody of the Applicant from
04.10.2024 to 20.03.2026 is illegal. It is his submission that without
taking cognizance of the offence, the Trial Court had no power to
detain the Applicant in custody under Section 167 of Cr.P.C. To
support his submission, he placed reliance on the judgment of the
Karnataka High Court in the case of Devindrappa & Anr. vs. State
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of Karnataka (2004 SCC Online Kar 11). Apart from this, it is his
submission that the liberty was granted by this Court by an order
dated 17th October, 2025 to move fresh application for bail in case
the CA Report is not received and charge is not framed within a
period of three months.
4. Learned APP opposed the said contention by submitting that
unless CA Report was received, it was not possible for the Trial
Court to frame the charge. It is her contention that in any case now
cognizance has been taken, having regard to the nature of offence,
the Applicant is not entitled for bail.
5. The contention of the Ld. Counsel for the Applicant is that
the Ld. Trial Court ceases to have power to grant custody under
Section 167 of Cr.P.C. once the Chargesheet is filed and detention
during the period of after the filing of chargesheet and before taking
cognizance of the offence is illegal. He further contends that
Magistrate can exercise power under Section 309 of Cr.P.C only
after taking the cognizance of the chargesheet. For this purpose, he
relied on the judgment of Karnataka High Court in the case of
Devindrappa (supra), the relevant paragraph from the said
judgment is extracted below:
"13. The power of Magistrate to remand the accused to
custody could be exercised either under Section 167 or
under Section 309 Cr. P.C. Once charge sheet is filed,
period of remand under Section 167 Cr. P.C. comes to
an end. If further custody is necessary, it can be done
905 BA-253-2026.ODT
only under Section 309 Cr. P.C. To remand the
accused to custody under Section 309 Cr. P.C., the
learned Magistrate has to apply his mind to the facts
and material available in the final report i.e. charge
sheet and decide whether cognizance of the offence
could be taken or not. If he takes cognizance of the
offence, then, he can exercise his power under Section
309(2) Cr. P.C. to remand the accused.
14. In the present case, the two citations of the Apex
Court are not applicable to the facts of the present case
because it is not a case where an application under
Section 167(2) Cr. P.C. came to be filed by the accused
after the expiry of the period envisaged therein and the
same was kept pending for a long time beyond filing of
charge sheet. On the other hand, the Charge sheet
came to be filed on 10.6.03 but till 27.6.03, no
cognizance was taken. When once charge sheet is filed
on 10.6.03, the custody cannot be under Section 167(2)
Cr. P.C. In this case, they were arrested on 6.2.03 and
the 90 days period would come to an end, at any cost
by 6.5.03 or 7.5.03. The period for investigation
allowed under the Act would come to an end at any
cost before 7.5.03. After 7.5.03, no application under
Section 167 Cr. P.C. came to be filed though such right
was available to the accused. In view of the Supreme
Court decision in 2001, the detention from 7.5.03 till
10.6.03, did not become unauthorised. But however,
after filing of the charge sheet on 10.6.03, he could
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not have been detained in custody under Section 167
Cr. P.C. The learned Magistrate ought to have
exercised his mind to the material available on record
to take cognizance. But unfortunately, he took
cognizance on 27.6.03. Subsequent to taking
cognizance, the custody is under Section 309(2) Cr.
P.C. and the same would be authorised. Therefore,
the detention in the present case between 10.6.03 to
27.6.03 becomes illegal and they are entitled to be
released on bail under Section 439 Cr. P.C. as the
custody was neither under Section 167 Cr. P.C. nor
under Section 309 Cr. P.C."
(emphasis supplied)
6. This court, with due respect to the view taken by the
Karnataka High Court on this issue, would like to differ on the
point that Magistrate ceases to have power once the police report
i.e. chargesheet is filed and there is a vacuum for exercising power
to remand the accused after filing of chargesheet and before taking
the cognizance. It would be necessary to take note of Section 209 of
Cr.P.C., which reads thus:
"209. Commitment of case to Court of Session
when offence is triable exclusively by it.-- When in
a case instituted on a police report or otherwise, the
accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall--
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(a) commit, after complying with the provisions of
section 207 or section 208, as the case may be, the
case to the Court of Session, and subject to the
provisions of this Code relating to bail, remand the
accused to custody until such commitment has been
made;
(b) subject to the provisions of this Code relating to
bail, remand the accused to custody during, and
until the conclusion of, the trial;
(c) send to that Court the record of the case and the
documents and articles, if any, which are to be
produced in evidence;
(d) notify the Public Prosecutor of the commitment of
the case to the Court of Session."
(emphasis supplied)
7. The Section 209 of Cr.P.C as reproduced above, in cases where
there is committal of a case to the Court of Sessions by Magistrate such
as the present case, through its clauses (a) and (b), empowers the
Magistrate to exercise power to remand the accused until such
commitment has been made as well as during and until the conclusion of
trial. Therefore, Magistrate does not cease to have power to remand the
accused even during the period of after filing of chargesheet and before
taking the cognizance as he is empowered to exercise that power under
Section 209 Cr.P.C.
8. On this issue, reference could be made to the judgment Full Bench
of Patana High Court in the case of Sunita Devi and Anr. Vs State of
Bihar and Anr. (2017 SCC OnLine Pat 3671) wherein reference was
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made to the Full Bench of the High Court by Division Bench by framing
a specific question as "Whether remand by the Magistrate to judicial
custody after submission of charge-sheet but before taking cognizance of
the offence in a Sessions case is legally permissible under the Criminal
Procedure Code, 1973." The Patana High Court while deciding the same
issue held as follows:
"30. We are of the view that section 209 of the Code
itself confers the power of remand the accused to
custody in order to commit the case to the Court of
Sessions. Under the commitment proceeding as
envisaged in section 209 of the Code, the remand of
the accused, if in custody, is not made in terms of
section 309(2) of the Code. Therefore, the
expression "after taking cognizance" which finds
place in sections 309 (2) of the Code is not a pre-
requisite and having no bearing, as to remand the
accused to custody by the Magistrate, in order to
commit the case to the Court of Sessions.
31. The power of remand conferred to the
Magistrate under section 209(a) and (b) is not
subject to the other provisions of remand i.e.,
sections 167(2) and 309(2) of the Code, rather this
power is independent in nature and only available
to the Magistrate under commitment proceedings.
32. Therefore, after submission of charge-sheet, once
it appears to the Magistrate that the offence is
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triable exclusively by the Court of Session, the
accused is remanded to custody in terms of section
209 of the Code under the commitment proceedings,
not under section 309(2) of the Code."
(emphasis supplied)
9. It would be relevant to take note of the fact that in all cases of
committal of case to sessions court after filing of chargesheet before
Magistrate, there is bound to be an intervening period, from committal
to taking cognizance and hence in case contention of applicant is
accepted that the said period to be treated as illegal judicial custody,
practically in all committable cases bail would have to be granted. This is
not contemplated by the Code of Criminal Procedure and in view of the
specific provision of Section 209 of the Code, the magistrate does not
cease to exercise power to remand the accused in further judicial custody.
10. Therefore, with due respect to the view taken by the Karnataka
High Court, this court is of the different view that the Magistrate never
ceases to have power to remand the accused. The provisions under 167
Cr.P.C. are provided to protect the liberty of the accused during and after
the investigation and to avoid illegal detention beyond the provided
maximum period, but it nowhere specifically states that it takes away the
power of the Magistrate to remand the accused after filing of the
chargesheet. The provisions under Section 309 of Cr.P.C. are provided to
postpone or adjourn the proceedings wherein Sub-Section (2) empowers
the Magistrate to remand the accused after taking cognizance or
commencement of trial. Irrespective of the above-said provisions the
Section 209 of the Cr.P.C. empowers the Magistrate to remand the
accused until the committal of the case to the Court of Sessions,
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moreover during and until the conclusion of the trial. Hence, it is held
that the Applicant's judicial custody during 04.10.2024 to 20.03.2026, is
not illegal as claimed by counsel for Applicant.
11. The application for bail therefore deserves to be dismissed and
accordingly stands dismissed.
(R. M. JOSHI, J.)
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