Dharamvir Singh @ Deepak vs The State (Nct Of Delhi)
2011 Latest Caselaw 4112 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Reserved on: August 19, 2011
                                 Delivered on: August 25, 2011

+      CRIMINAL REVISION PETITON No.317/2011

       DHARAMVIR SINGH @ DEEPAK                       ....PETITIONER

                      Through:   Mr. Rajiv Khosla, Advocate with Mr. O.P.
                                 Sharma, Advocate & Mr. S.C. Jha,
                                 Advocate.

                          Versus

       THE STATE(NCT OF DELHI)              .....RESPONDENT
               Through: Mr. Pawan Narang, APP




        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This revision petition under Section 401 read with Section 482

Cr.P.C. is directed against the order dated 10th May, 2011 passed by

learned Special Judge, Karkardooma Court, Delhi in case FIR No.538/2010,

P.S. Anand Vihar titled "State Vs. Dharamvir Singh and Anr." whereby the

learned Special Judge dismissed the application of the petitioner under

Section 167(2) Cr.P.C. and declined to admit him on bail.

2. Facts relevant for the disposal of this petition are that the petitioner

along with his co-accused was arrested on 15.12.2010 in case FIR

No.538/2010 P.S. Anand Vihar for allegedly having committed offences

under IPC and the Arms Act. He was produced before the court and

remanded to judicial custody.

3. During investigation, involvement of the petitioner in 31 other

criminal cases was revealed. Thus, on 24.01.2011, Assistant

Commissioner of Police sent a proposal for invoking MCOCA against the

petitioner. On 04.02.2011, requisite sanction under Section 23(1)(a) of

MCOCA for invoking Section 3(2) and 3(4) of Maharashtra Control of

Organized Crime Act, 1999 (as extended to NCT of Delhi) against the

petitioner and investigation by Shri Prem Singh Hooda, ACP, Vivek Vihar

was accorded by the Joint Commissioner of Police, New Delhi Range.

4. On 08.02.2011, the petitioner moved a bail application seeking his

release on bail in case FIR No.538/2010. On 10.02.2011, learned APP

informed learned Additional Sessions Judge about invoking of MCOCA

against the petitioner. Consequently, the petitioner withdrew his bail

application.

5. Investigating agency failed to file charge sheet against the

petitioner within 60 days of his arrest in the case, as such, on the

application of the petitioner seeking bail under Section 167

(2) CrPC proviso (a) (ii), learned M.M. vide order dated 26.03.2011

directed release of the petitioner on bail.

6. However, despite of the bail order, the jail authorities did not

release him because of production warrants issued by the Special Court,

MCOCA on the application moved by the prosecution, intimating that

Section 3(2) and Section 3(4) MCOCA has been added in FIR No.538/2010

P.S. Anand Vihar.

7. Since supplementary charge sheet pertaining to the offences under

Section 3(2) and 3(4) MCOCA was not filed within 90 days of his arrest,

the petitioner moved an application under Section 167(2) Cr.P.C. read with

Section 21 of MCOCA before the Special Court MCOCA, seeking his release

on bail. Bail application under Section 167(2) was dismissed on

10.05.2011 by the learned Special Judge, taking a view that period of

detention of the petitioner was to be computed from 31.03.2011 when the

petitioner was formally arrested for the offence under MCOCA on being

produced before the Special Court pursuant to the production warrants

issued on 28.03.2011.

8. Learned counsel for the petitioner has submitted that the learned

Special Judge, MCOCA has committed a grave error in law in holding that

instead of the actual date of arrest of the petitioner, date of his formal

arrest for the offence under MCOCA would be relevant for computing the

period of detention of the petitioner for the purpose of Section 167(2)

proviso (a) as modified by Section 21 MCOCA. In support of this

contention, the petitioner has relied upon the judgment of the Supreme

Court in the matter of State of Maharashtra Vs. Bharti Chandmal

Varma, AIR 2002 SC 285.

9. Learned APP, on the contrary, has pressed for dismissal of revision

petition and submitted that the learned Additional Sessions Judge, Special

Court MCOCA has rightly rejected the bail application under Section

167(2) Cr.P.C. as being premature. He submitted that initially the FIR

No.538/2010 was registered for offences of Indian Penal Code and the

Arms Act. Only during the course of investigation, it came to the

knowledge of the investigating agency that the petitioner was involved in

31 other criminal cases, including cases of organised crime. Thus,

because of the restriction/safeguard provided under Section 23 of the

Maharashtra Control of Organised Crime Act, 1999, the Investigating

Officer/Assistant Commissioner of Police moved for requisite permission

under Section 23(1)(a) & (b) for invoking offences under Sections 3(2) &

3(4) of MCOCA and investigating the same. After the receipt of requisite

sanction, an application was moved in the Special Court for formally

arresting the petitioner under MCOCA. The petitioner was arrested for the

offences under MCOCA on 31.03.2011 and till then, there was no charge

under the provisions of MCOCA against the petitioner. Thus, learned

Additional Sessions Judge has rightly held that the period of 90 days as

envisaged under Section 167(2) Cr.P.C. as modified by Section 21 MCOCA

has to be computed from 31.03.2011. Learned APP submitted that

supplementary charge sheet incorporating provisions of MCOCA was filed

on 27.06.2011, within the period of 90 days from the date of formal arrest

of the petitioner on 31.03.2011, as such, learned Special Judge rightly

declined the plea of the petitioner for release on bail. Second limb of

argument of learned prosecutor is that admittedly, the charge sheet has

been filed in the court before the release of the petitioner on bail under

proviso (a) to Section 167(2) CrPC read with Section 21 MCOCA, as such in

view of the judgment of Supreme Court in Uday Mohanlal Acharya Vs.

State of Maharashtra, 2001 Crl.L.J. 1832, the right of the accused to

seek bail under Section 167(2) proviso (a) stands extinguished.

10. I have considered the rival submissions and perused the material on

record. In the matter of State of Maharashtra (supra), almost similar

situation came up for determination before the Supreme Court. In that

case respondent was arrested on 01.04.2001 for the offences under

Sections 489A, 489B, 489C, 120B and 420 of the Indian Penal Code. She

was produced before the Metropolitan Magistrate on 2.04.2001 and he

remanded the respondent to police custody first and later to judicial

custody. During the investigation police discovered that organised crimes

under MCOC Act had also been committed. The investigating agency

sought sanction of the authorities under the MCOC Act for conducting

investigation under the said Act. Relevant sanction was granted on

21.04.2001 and investigation into the offences under MCOC Act

commenced pursuant to the sanction. Finally the charge sheet was filed

on 12.07.2001. On the above facts, Supreme Court held that the

respondent accused in that case would be entitled to bail on account of

default of the investigating agency to complete the investigation within 90

days from the date of first remand of the respondent accused. It was

observed that since further investigation of the offence under MCOCA

could relate to the same arrest and period of detention envisaged under

Section 167(2) proviso (a) remains unextendable.

11. The facts of the instant case are also almost similar. The petitioner

accused was arrested in case FIR No. 538/2010, P.S. Anand Vihar for the

offences falling under the provisions of IPC and the Arms Act on 15 th

December, 2010. The offence under MCOCA was added subsequently

when it came to the knowledge of the Investigating Officer that the

petitioner was involved in about 31 other criminal cases. Undisputedly, till

the date on which the petitioner moved application under Section 167(2)

proviso (a) as modified by Section 21 of the MCOCA, supplementary

charge sheet relating to the offences under MCOCA was not filed, as such,

in view of the judgment of Supreme Court in the matter of State of

Maharashtra Vs. Bharti Chandmal Varma (supra), learned Special

Judge, MCOCA ought to have granted benefit of proviso to Section 167 (2)

as modified by Section 21 of MCOCA to the petitioner by admitting him on

bail.

12. Learned Prosecutor, canvassing in favour of the order of learned

Special Judge dismissing the application of the petitioner seeking bail in

view of the proviso (a) to Section 167(2) CrPC as modified by Section 21 of

the MCOCA, submitted that the learned Special Judge was right in holding

that the period of 90 days as envisaged under Section 167(2) CrPC as

modified by Section 21 of the MCOCA could not be computed from the

actual date of arrest i.e. 15.12.2010 as at that time, no provision of

MCOCA was involved against the petitioner. Learned Prosecutor

submitted that the learned Special Judge has thus rightly held that for the

purpose of computation of the period of 90 days, relevant date is 31 st

March, 2011 when the petitioner was formally arrested for the offences

under MCOCA.

13. This submission of learned Prosecutor is also misconceived for the

reason that from the facts noted above, it is apparent that the

Investigating Officer had come to know about the involvement of the

petitioner in 31 other criminal cases and he had moved a proposal for

invoking MCOCA as early as on 24th January, 2011. Admittedly, the

requisite sanction under Section 23(1)(a) for invoking Sections 3(2) & 3(4)

MCOCA against the petitioner and investigating the case was accorded by

the competent authority on 04th February, 2011. Thus, by any standards,

on 04th February, 2011, offences under MCOCA were added in the FIR. At

that time, the petitioner was in detention, as such, even if the best case of

the prosecution is taken, then also the period of 90 days for the purpose

of benefit to the petitioner in view of proviso to Section 167(2) CrPC has to

be computed from 04th February, 2011. Therefore, it is obvious that as on

06th May, 2011, when the petitioner moved application under Section

167(2) proviso (a) as modified by Section 21 MCOCA, the period of 90

days was over. Admittedly, by then, the charge sheet so far as offences

under MCOCA are concerned was not filed. Thus, in my view, learned

Special Judge, MCOCA was under legal obligation to admit the petitioner

on bail by giving him benefit of proviso (a) to Section 167(2) read with

Section 21 MCOCA. Thus, the order of learned Special Judge, MCOCA

dated 10th May, 2011 suffers from legal infirmity which requires correction

in revision.

14. As regards the judgment relied upon by the learned prosecutor, it is

suffice to say that the aforesaid judgment of Supreme Court is not

applicable to the facts of the present case, because admittedly, before the

filing of supplementary charge sheet by the prosecution on 27.06.2011,

the petitioner on 06.05.2011 had exercised his right to seek bail under

Section 167(2) proviso (a) and he could not reap benefit of his application

because of erroneous order of the court concerned.

15. In view of the discussion above, I find it difficult to sustain the

impugned order dated 10.05.2011 of learned Additional Sessions Judge

(Special Court) MCOCA as it suffers from inherent defect and is based

upon the incorrect enunciation of law.

16. Revision petition is, therefore, accepted. Impugned order dated

10.05.2011 is set aside and the petitioner is directed to be released on

bail in case FIR No.538/2010 under Section 392/397/411/34 IPC and

Section 27 Arms Act as well as Section 3(2) & 3(4) of MCOCA on furnishing

a personal bond in the sum of ` 50,000/- with one surety in the like

amount to the satisfaction of the concerned court.

17. Petition is disposed of accordingly.

18. Order Dasti under the signatures of Court Master.

                                                (AJIT BHARIHOKE)
                                                     JUDGE
AUGUST          25, 2011
Pst/akb