[Cites 49, Cited by 0]
Delhi High Court
Deepa Singh vs State (Nct Of Delhi) on 17 February, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 09.02.2026
Judgment pronounced on: 17.02.2026
+ CRL.A. 1725/2025
DEEPA SINGH .....Appellant
Through: Mr. Kundan Kumar, Mr. Pranshu
Kumar, Ms. Jaya Chandra, Ms. Divya
Kundra, Mr. Madan Jha, Ms. Mahima
Chaudhary and Ms. Prerna Jain,
Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Aman Usman, APP for the State
with Inspector Ritesh.
+ CRL.A. 1740/2025 &CRL.M.A. 38731/2025
ANURADHA @ CHIKU .....Appellant
Through: Mr. Kundan Kumar, Mr. Pranshu
Kumar, Ms. Jaya Chandra, Ms. Divya
Kundra, Mr. Madan Jha, Ms. Mahima
Chaudhary and Ms. Prerna Jain,
Advocates.
versus
STATE(NCT OF DELHI) .....Respondent
Through: Mr. Aman Usman, APP for the State
with Inspector Ritesh.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. These appeals under Section 12 of the Maharashtra
Control of Organised Crime Act, 1999, (the MCOCA) have been
filed by the accused persons in Crime No. 186/2025, Sultanpuri,
Police Station aggrieved by the order dated 18.12.2025 as per
which the trial court dismissed their applications for default bail.
The appellants/accused persons as per the aforesaid FIR are
alleged to have committed the offences punishable under various
Sections of the Narcotic Drugs and Psychotropic Substances Act,
1985 (the NDPS Act), Section 113 and 238 of Bharatiya Nyaya
Sanhita, 2023; Section 18(c) of the Drugs and Cosmetics Act, 1940
and Sections 3 and 4 of the MCOCA.
2. According to the learned counsel for the
appellants/accused persons, the impugned order has been passed
by the Link Judge in the absence of the Special Judge and hence
invalid. Referring to Sections 5 and 6 of the MCOCA, it was
argued that it is only the Special Court constituted under the
MCOCA that has the power to pass orders relating to offences
under the MCOCA, and hence the impugned order cannot be
sustained. It was submitted that an Additional Sessions Judge, who
has not been appointed in accordance with Section 5(3) of the
MCOCA, has no jurisdiction to deal with MCOCA cases. Reliance
is placed on the dictum in A.R. Antulay v. R.S. Nayak, (1988) 2
SCC 602, to submit that jurisdiction is purely a matter of
legislative mandate, and neither the High Court nor the Supreme
Court can confer jurisdiction on a particular court without
following the due procedure of law in accordance with the statute.
A judge can exercise powers under MCOCA only if appointed
through the procedure prescribed under the statute, and in the
absence of a notification constituting a Special Court under
Section 5 of the MCOCA, no court can assume such jurisdiction.
Reliance was also placed on the dictum in Jamiruddin Ansari v.
Central Bureau of Investigation &Anr. AIR 2009 SC 2781 to
state that MCOCA has an overriding effect over the CrPC. It was
also submitted that under Section 21(2)(b) of MCOCA, only the
Special Court has the power to extend custody, and neither the
Link Additional Sessions Judge nor any other court can exercise
that power. He further submitted that any application relating to
the extension of the investigation or custody must be postponed till
the Special Court is constituted. Lastly, he submitted that the only
remedy left in the absence of a Special Court would be to approach
the High Court seeking directions to the State to appoint a Special
Judge, as no judge other than a duly appointed Special Judge can
assume jurisdiction under MCOCA, and continuation of custody
otherwise would be wholly without authority of law. Reference
was also made to Abdul Rashid Sikandersab Kulkarni & Ors.
vs. The State of Maharashtra & Anr. (Criminal Writ Petition
No. 1306/2006) dated 06.07.2006, Yogesh Mittal vs. State of
NCT of Delhi 246 (2018) DLT 582 (DB), Khalid Ahmad & four
others vs. The State of M.P. (M.Cr.C. No. 1395/2016) dated
11.09.2017.
3. Per contra, it was submitted by the learned Special Public
Prosecutor that as per Annexure E dated 27.10.2025 Link Roster,
the Link Judge was fully empowered to pass orders in the absence
of the Special Judge, and hence, there is no infirmity in the
impugned order. It was submitted that, admittedly, the Link Judge
is a member of the Delhi Higher Judicial Services and hence
qualified as per the requirement in Section 5(3) of the MCOCA.
He further submitted that it is not the Presiding Officer but the
Court, which is designated with the powers of the Special Court.
Reference was made to notification no. F.6(33)/2009-Judl. dated
15.09.2010. The learned SPP also submitted that this Court had
given directions in Rambeer Shokeen v. State (NCT of Delhi),
2017 SCC OnLine Del 8504, that in the event of the presiding
officer of Special Court being not available either on account of
leave of absence or due to other official engagements, it is
necessary that arrangements for link courts, similar to the courts of
the Metropolitan Magistrates, as per long-standing practice, is put
in position. For the sake of argument, even if the period of 14 days
extended by the Link Judge vide order dated 10.12.2025 is treated
as unauthorised by law, it was contended that subsequent extension
of the period of investigation by the Special Judge on 18.12.2025
retrospectively validated the former. Lastly, he also contended that
though this issue did not arise before the Apex Court while
considering the appeal arising out of Rambeer Shokeen (Supra),
the doctrine of merger is applicable. In support of the arguments,
reference was made to the dictums in Sukhbir Singh v. State
NCT of Delhi Through SHO, 2025 DHC 6658 and Rambeer
Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405.
4. Heard both sides.
5. The short point that arises for consideration in this appeal
is whether the Link Judge who passed the impugned order was
empowered to pass the said order extending the period of
investigation beyond the period of 90 days by virtue of the proviso
to Clause (b) to Sub Section (2) to Section 21 of MCOCA.
6. Admittedly the appellants were in judicial custody
pursuant to their arrest on 12.09.2025, which remand was being
extended from time to time. The period of 90 days was to expire
on 11.12.2025. On 10.12.2025 a request was submitted on behalf
of the prosecution for extending the period of investigation by a
further period of 90 days from 10.12.2025. However, on the said
day, the judge of the Special Court was on leave. Hence, the
request was taken up by the Link Judge by virtue of Annexure E
Link Roster. By order dated 10.12.2025, the Link Judge allowed
the request and enlarged the period of investigation by 14 days.
Thereafter, the appellants/accused persons, moved an application
for default bail under Section 167(2) Cr.P.C./187(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS) read with
Section 21(2)(B) MCOCA. In the application it was alleged that
since no charge-sheet/final report had been filed within 90 days,
the appellants are entitled to be released on default bail. It was also
alleged that though the prosecution had got an extension of the
period of investigation by a period of 14 days by the order dated
10.12.2025, the said order is of no avail as the same had not been
passed by the designated Special Court. On the other hand, it was
passed by an Additional Sessions Judge who had not been
appointed as a Judge of the Special Court. The procedure adopted
by the prosecution agency in filing a report under Section
21(2)MCOCA for extension of period of investigation before the
Link Court/Judge and the order that was passed subsequently by
the Link Judge as the Judge of the Special Court was on leave, is
an internal arrangement of judiciary, which shall in no way affect
the right of default bail accrued to the appellants. Therefore, it was
alleged that detention of the appellants beyond 11.12.2025 was
without jurisdiction and illegal.
7. The learned Special Judge relying on the dictum in
Rambeer Shokeen (Supra) dismissed the application for default
bail holding that the Link Judge was empowered to pass the order
dated 10.12.2025 extending the period of investigation. This
according to the learned counsel for the appellant is incorrect. Here
it would be apposite to refer to paragraph 79 of the judgment of the
learned Single Judge of this Court in Rambeer Shokeen (Supra)
relied on by the trial court, which reads-
"79. Before parting, some further observations are in order: (i)
The case at hand has brought out error in the notification dated
15.09.2010 issued by order and in the name of Lt. Governor of
National Capital Territory of Delhi vis-à-vis conferment of
powers of the presiding officers of special court under MCOCA
on officers of Delhi Higher Judicial Service. Corrective action
needs to be initiated.
(ii) These proceedings have brought to the fore the confusion
that might prevail not only in the cases involving offences under
the MCOCA but also under other special enactments covered
by the afore-said notification dated 15.09.2010, in the event of
the presiding officers of special courts being not available
either on account of leave of absence or due to other official
engagements. There should never be a vacuum. Since such
special courts as under MCOCA (or under other enactments
like TADA, POTA etc.) are generally also designated as the
courts of cognizance, it is necessary that arrangement for link
courts, similar to the courts of the Metropolitan Magistrates, as
per long standing practice, is put in position.
(iii) The impropriety reflected in the inept handling on the part
of the judicial officers who dealt with the matter at hand, as
noticed above, points to the need for proper sensitization of the
judicial officers at large in the intricacies and nuances of such
special enactments through training or orientation programmes
organized by the judicial academy."
(Emphasis Supplied)
8. According to the learned counsel for the appellant/accused
persons, the learned Single Judge in Rambeer Shokeen (Supra)
went wrong in passing directions as contained in clause (ii) of
paragraph 79 of the judgement as the Court had no power to confer
jurisdiction on any Court without following the due procedure of
law in accordance with the statute. Conferring jurisdiction is
purely a matter of legislative mandate. The direction issued is
against the specific provision contained in MCOCA and hence
illegal and invalid. In support of the argument reference was made
to the following judgments :-
8.1. In Jamiruddin Ansari (Supra), it was held that Section
25 MCOCA has an overriding effect over the provisions of the
Code of Criminal Procedure, 1973 (Cr.P.C). A Special Judge
under the MCOCA cannot invoke the provisions of Section 156(3)
Cr.P.C. for ordering a special enquiry on a private complaint and
take cognizance thereupon, without traversing the route indicated
in Section 23 of the MCOCA. In order to give a harmonious
construction to the provisions of Section 9(1) and Section 23 of
MCOCA, on receipt of a private complaint, the judge of the
Special Court has to forward the same to the officer indicated in
Section 23(i)(a) to have an enquiry conducted into the complaint
by a police officer indicated in Section 23(1) clause (b) and only
thereafter cognizance of the offence complained of can be taken
provided, sanction is accorded to the Special Court to take
cognizance of such offence under Sub-section (2) of Section 23.
8.2. In the judgment dated 06.07.2006 in Criminal
Writ Petition No. 1320 of 2006 of the High Court of Bombay the
legality and validity of a remand order passed by an Additional
Sessions Judge while the Judge of the Special Court, MCOCA was
on leave was considered. It was held that on a plain reading of
Section 5 of MCOCA, it is clear that the intention of the legislature
is to set up a Special Court by notification under Section 5(1) to be
presided over by a judge who is to be appointed by the State
Government in consultation with the Chief Justice of the Court
under Section 5(3). Section 5(3) also contemplates the
appointment of additional judges. It is also obvious that the
appointment of a Special Judge can be made only from the
category of Sessions Judge or Additional Sessions Judge, vide
Section 5(4). After referring to the aforesaid provisions of
MCOCA, it was held that there is no provision in the Statute which
confers any power on the judge of the Special Court to further
confer the power to act as a Special Judge on any Sessions judge.
A judge or an additional judge of the Special Court under the
MCOCA can only be appointed by the State Government in
consultation with the Chief Justice under Section 5(3). Subsection
(5) of Section 5 allows the distribution of business of the Special
Court between the judge of the Special Court and the additional
judges. This is the provision for distribution of urgent business in
the absence of the judge of the Special Court. There is, however,
nothing in that provision which suggests that the distribution of
business may be amongst judges who have not been appointed as
judges of the Special Court under Section 5(3). In other words, the
powers of the Special Court may not be conferred on any judge
unless he has been appointed as a Special or Additional Special
Judge in accordance with Section 5(3) by the State Government in
consultation with the Chief Justice. Any construction to the
contrary would run counter to the scheme of the setting up and
conferral of the jurisdiction of the Special Court under the
provisions of the MCOCA. It was thus held that the judge who
passed the remand order had no power to pass such an order as the
said order could only have been passed by the judge of the Special
Court who alone was empowered to exercise jurisdiction in the
matters by virtue of Section 6 of the MCOCA.
8.3. In A.R. Antulay (Supra), a Constitution Bench of the
Apex Court set aside its earlier order by which the case against the
appellant therein, the then Chief Minister of the State, was
transferred from a Special Court under the Prevention of
Corruption Act, 1947 (the PC Act) to the High Court. The
appellant therein was alleged to have committed offences
punishable under various Sections of the IPC as well as Section 5
of PC Act. For a speedy disposal of the case, the Apex Court
transferred the case against the appellant to the High Court. The
Constitution Bench held that the Supreme Court by its directions
could not have conferred jurisdiction on the High Court to try the
case when it did not possess the jurisdiction under the scheme of
the PC Act. The direction to transfer the case to the High Court
was held to be without jurisdiction as the High Court had no
jurisdiction to try an offence under the PC Act.
8.4. In Yogesh Mittal (Supra), a Division Bench of this
Court held that the failure by the investigating agency to file a
supplementary charge sheet before the Court having jurisdiction,
that is, the Court of the Special Judge, PMLA, before the expiry of
90 days would entitle the accused to the relief of statutory/default
bail under Section 167(2) Cr.P.C.
8.5. Finally in Sadique & Ors. (Supra) it was held after
examining the various provisions of the Unlawful Activities
(Prevention) Act, 1967 (the UAPA), that so far as the offences
under the Act are concerned, a magistrate has no power to extend
the period of investigation under the first proviso to Section
43D(2)(b) of the UAPA. Consequently, any extension of time to
complete investigation passed by the magistrate would be invalid
and the only competent authority to consider such request would
be "the Court" as specified in the proviso to Section 43D(2)(b) of
the UAPA.
9. It would be apposite to refer to Section 4 Cr.P.C./Section 4
of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the BNSS)
which reads thus:-
4. Trial of offences under the Indian Penal Code and
other laws.--(1) All offences under the Indian Penal Code (45
of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any enactment
for the time being in force regulating the manner of place of
investigating, inquiring into, trying or otherwise dealing with
such offences."
(Emphasis supplied)
10. Therefore, as per Sub-section (2) to Section 4, when there
is a procedure prescribed under a special
Act/Enactment/Legislation, it would be the procedure contained
therein that would require to be followed.
11. Sections 5 and 6 of MCOCA reads:-
"5. Special Courts. (1) The State Government may, by
notification in the Official Gazette, constitute one or more
Special Courts for such area or areas, or for such case or class
or group of cases, as may be specified in the notification.
(2) Where any question arises as to the jurisdiction of any
Special Court, it shall be referred to the State Government
whose decision shall be final.
(3) A Special Court shall be presided over by a Judge to be
appointed by the State Government, with the concurrence of the
Chief Justice of the Bombay High Court. The State Government
may also appoint, with the concurrence of the Chief Justice
ofthe Bombay High Court, additional Judges to exercise
jurisdiction in a Special Court.
(4) A person shall not be qualified for appointment as a Judge
or an additional Judge of a Special Court, unless he
immediately before such appointment, is a sessions Judge or an
additional sessions Judge.
(5) Where any additional Judge is or additional Judges are
appointed in a Special Court, the Judge of the Special Court
may, from time to time, by general or special order in writing,
provide for the distribution of the business of the Special Court
among himself and the additional Judge or additional Judges
and also for the disposal of urgent business in the event of his
absence or the absence of any additional Judges.
6. Jurisdiction of Special Court. Notwithstanding anything
contained in the Code, every offence punishable under this Act
shall be triable only by the Special Court within whose local
jurisdiction it was committed, or as the case may be, by the
Special Court constituted for trying such offence under sub-
section (1) of section 5."
(Emphasis Supplied)
12. This Court is informed that there are 11 Sessions
divisions in Delhi and that in each division, only one court has
been designated as the Special Court. Therefore, it would be the
said Special Court who is empowered to deal with offences under
the MCOCA. Sub-section (5) to Section 5 of MCOCA comes into
operation, where more than one judge is appointed to the Special
Court or when additional Judges are appointed to the Special
Court. In such circumstance, the judge of the Special Court may
from time to time by general or special order in writing, provide
for the distribution of the business of the Special Court among
himself and the additional judge or additional judges and also for
the disposal of urgent business in the event of his absence or the
absence of any additional judges. When there is only one judge
appointed to the Special Court in each of the sessions division,
Sub-section (5) of Section 5 of MCOCA cannot come into play
and the judge appointed to the Special Court cannot distribute the
business of his Court in his absence to any other member of the
Delhi Higher Judicial Service or the Sessions judge or additional
Sessions judge appointed under Section 9(2) or (3) Cr.P.C/ Section
8(2) or (3) BNSS.
13. When there is only one judge appointed to the Special
Court established in a Sessions division, what would be the course
open in case the said judge is unavailable or goes on leave? The
learned prosecutor relied on the notification dated 15.09.2010 as
answer to the aforesaid question and submitted that all officers of
the Delhi Higher Judicial Service have been empowered to
exercise the powers of a Special Court under the MCOCA. The
notification relied on reads thus:-
"(TO BE PUBLISHED IN DELHI GAZETTEE PART -IV
EXTRA ORDINARY)
GOVERNMENT OF NATIONAL CAPITAL
TERRITORY OF DELHI
DEPARTMNET OF NATIONAL CAPITAL
TERRITORY OF DELHI
DEPARTMENT OF LAW, JUSTICE AND
LEGISLATIVE AFFAIRS 8th LEVEL, C-WING, DELHI
SECRETARIAT, I.P.
ESTATE, NEW DELHI -110002
NO. f.6(33)2009-JUDL./1125-1131 DATED
TO THE 15th September, 2010
NOTIFICATION
NO.F.6(33)/2009-Judl./ In exercise of powers
conferred by sub-section (4) of section 9 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (Act 28 of 1987),
sub-section (4) of section 23 of the Prevention of Terrorism
Act, 2002(Act 15 of 2002),Section 3 of the Maharashtra
Control of Organized Crimes Act, 1999 as extended to the
National Capital Territory of Delhi, section 14 of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (Act 33 of 1989), section 5-B of the
Suppression of Unlawful Act against safety of Civil Aviation
Act, 1982 (Act 66 of 1982), section 6-A of the Anti-Hijacking
Act, 1982 (Act 65 of 1982), sub-section(2) of section 36 of the
Narcotics Drugs and psychotropic Substances Act, 1985 (Act
61 of 1985), sub-section (2) of section 153 of the Electricity
Act, 2003 (Act 36 of 2003), sub-section (1) of section 3 of
Prevention of Corruption Act, 1988, section 7 & 7A of
Industrial Disputes Act, 1947 and section 3(3) of the Land
Acquisition Act, 1984 and in consultation with the Chief
Justice of the High Court of Delhi, the Lt. Governor of the
National Capital Territory of Delhi, hereby confers the
powers of Presiding Officer of the Designated court and
Special Court constituted under the aforesaid acts on each of
the officers of the Delhi Higher Judicial Service, to be
exercisable by each of them with effect from the date of
assumption of the charge of the post of Presiding Officer or
Judge of the Designated Court or Special Court, as the case
may be, in pursuance of the transfer or posting orders made
by the Chief Justice of the Delhi High Court.
By order and in the Name of the
Lt. Governor of National
Capital Territory of Delhi
(Savita Rao)
Special Secretary (Law, Justice & L.A.)"
(Emphasis Supplied)
14. As rightly pointed out by the learned counsel for the
appellants/accused persons, officer(s) of the Delhi Higher Judicial
Service has been conferred with the powers of a Special Court
only with effect from the date that he/they assume charge of the
said court in pursuance of their transfer or posting orders.
Therefore, the argument that all the officers of the Delhi Higher
Judicial Service have been empowered or conferred with the
power to deal with offences under the MCOCA by way of the
aforesaid notification is apparently incorrect.
15. Let us assume for a moment that no Special Court has
been constituted in a particular district or sessions division. Till a
Special Court is established and a judge appointed to the Special
Court, who is the authority or Court which can deal with offences
under the Act? The answer lies in Section 5 itself.
16. Sub-section (4) says that a person shall not be qualified
for appointment as a judge or additional judge of a Special Court
unless he immediately before appointment was a sessions judge or
an additional sessions judge. This makes it clear that a sessions
judge or an additional sessions judge would be qualified to be
appointed as a judge of the Special Court under Section 5(3) of the
MCOCA. Here it would be apposite to refer to Section 10 Cr.P.C.
which reads thus:-
"10. Subordination of Assistant Sessions Judges.--
(1) All Assistant Sessions Judges shall be subordinate to
the Sessions Judge in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules
consistent with this Code, as to the distribution of business
among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for the
disposal of any urgent application, in the event of his absence or
inability to act, by an Additional or Assistant Sessions Judge, or,
if there be no Additional or Assistant Sessions Judge, by the
Chief Judicial Magistrate, and every such Judge or Magistrate
shall be deemed to have jurisdiction to deal with any such
application."
(Emphasis supplied.)
17. After the omission of post of Assistant Sessions judge
from the Bharatiya Nagarik Suraksha Sanhita, 2023, the essence of
the aforesaid Section was preserved in Section 8(5) and (8), which
reads thus:
"8. Court of Session:
(1) The State Government shall establish a Court of
Session for every sessions division.
(2) Every Court of Session shall be presided over by a
Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions
Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be
appointed by the High Court to be also an Additional Sessions
Judge of another division, and in such case, he may sit for the
disposal of cases at such place or places in the other division as
the High Court may direct.
(5) Where the office of the Sessions Judge is vacant, the
High Court may make arrangements for the disposal of any
urgent application which is, or may be, made or pending before
such Court of Session by an Additional Sessions Judge or if there
be no Additional Sessions Judge, by a Chief Judicial Magistrate,
in the sessions division; and every such Judge or Magistrate
shall have jurisdiction to deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting at
such place or places as the High Court may, by notification,
specify; but, if, in any particular case, the Court of Session is of
opinion that it will tend to the general convenience of the parties
and witnesses to hold its sittings at any other place in the
sessions division, it may, with the consent of the prosecution and
the accused, sit at that place for the disposal of the case or the
examination of any witness or witnesses therein.
(7) The Sessions Judge may, from time to time, make
orders consistent with this Sanhita, as to the distribution of
business among such Additional Sessions Judges.
(8) The Sessions Judge may also make provision for the
disposal of any urgent application, in the event of his absence or
inability to act, by an Additional Sessions Judge or if there be no
Additional Sessions Judge, by the Chief Judicial Magistrate, and
such Judge or Magistrate shall be deemed to have jurisdiction to
deal with any such application.
Explanation.--For the purposes of this Sanhita,
"appointment" does not include the first appointment, posting or
promotion of a person by the Government to any Service, or post
in connection with the affairs of the Union or of a State, where
under any law, such appointment, posting or promotion is
required to be made by the Government."
(Emphasis supplied.)
18. A reading of Sub-section (3) to Section 10 makes it clear
that a sessions judge, appointed under sub-section (2) to Section 9
Cr.P.C./Section 8(2) BNSS, has the power to make arrangements
or provisions for the disposal of any urgent application in the event
of his absence or inability to act, by an additional or assistant
sessions judge, or, if there is no additional assistant sessions judge,
by the chief judicial magistrate, and every such judge or magistrate
shall be deemed to have jurisdiction to deal with any such
application. Therefore, a Sessions Judge of a particular sessions
division has the power to distribute the work under sub-section (3)
to Section 10 to the officers mentioned therein. As noticed earlier,
sub-section (5) of Section 5 of the MCOCA cannot come into play
in the case on hand because admittedly there is only one judge
appointed to the Special Court constituted in the sessions division
concerned. Sub-section (5) comes into play only when additional
judge(s) is/are appointed to a Special Court. In the absence of
additional judges, the judge appointed under sub-section (3) cannot
make over or make provision for the disposal of any urgent
application in the event of his absence or inability to act. But a
Sessions judge appointed under Section 9(2) Cr.P.C by virtue of
sub-section (3) to Section 10 Cr.P.C. certainly has the power to do
so.
19. It is true that sub-section (2) to Section 4 Cr.P.C says that
if there is an enactment, it will be the provisions of the said
enactment which would come into play. It is no doubt true that
sub-section (3) to Section 5 of the MCOCA empowers the
authority concerned to appoint additional judges. But as long as
additional judges have not been appointed to the Special Court,
sub-section (5) of Section 5 MCOCA cannot come into play. In
such situations, there cannot be a vacuum or a situation that no
judge will be able to exercise the powers. The Sessions judge
appointed under Section 9(2) Cr.P.C will have the power to make
necessary arrangements for distribution of work as long as
additional judges are not appointed under Sub-Section (3). Once
additional judges are appointed under Sub-Section (3) to Section 5,
then the Sessions judge can no longer exercise the power under
Section 10(3) for distributing work of a Special Court because then
by virtue of Section 4(2) Cr.P.C. it would only be judge of the
Special Court under Section 5 (5) who can make arrangements for
distribution of work.
20. Now even assuming for argument sake that the allegation
of the appellants that the order passed by the Link Judge was
without authority, the question that arises is whether the appellants
can be said to have been illegally detained in unlawful custody and
therefore entitled to be released on bail? The answer can only be in
the negative because as held in Abdul Rashid (Supra), relied on
by the appellants themselves, the de facto doctrine, which is a
doctrine of necessity and public policy would come into play. (See
paragraphs 13 to 17 of the judgment).
21. Hence, I find no infirmity in the impugned order calling
for interference by this Court.
22. Before I conclude, a word regarding the notification
relied on by the prosecutor. I have already given reasons as to why
the notification does not solve the situation as the one that arose in
the case on hand. This fact was noticed by the learned Single
Judge in Rambeer Shokeen (Supra) which judgment was
rendered on 22.05.2017. Nearly nine years have elapsed. It is a
matter of great concern that no steps have been taken till date to
rectify the defect pointed out in paragraph 79(i) of the aforesaid
judgment.
23. Further, it would certainly be ideal if additional Judge(s)
are appointed to the Special Court or a few officers, if not, all the
members of the Delhi Higher Judicial Service, are empowered to
deal with offences under the MCOCA. When there is only one
judge appointed to the Special Court, difficulties in work
arrangement would certainly arise when the said judge goes on
leave or otherwise. The Legislature has forseen this situation and
has provided for appointment of additional judges under Section
5(3) of MCOCA. This would no doubt be a decision that will have
to to be taken by the State Government in consultation with the
Hon'ble the Chief Justice of this Court. It would do well for the
High Court on the administrative side to consider the feasibility of
appointing additional judge(s) to the Special Court already
constituted or conferring the power to deal with offences under
MCOCA to more members of the Delhi Higher Judicial Service.
This order may be placed before the Hon'ble the Chief Justice of
this Court for considering the matter.
24. In the result, the appeals sans merit are dismissed.
25. Application(s), if any, pending, shall stand closed.
26. The Registry is directed to place a copy of this order in
the connected matter.
CHANDRASEKHARAN SUDHA
(JUDGE)
FEBRUARY 17, 2026/mj/er
