Mohsin Nasir Sheikh v. The State Of Maharashtra Thr.
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 ------------------------------------------------------------------------------------- Mr. Akshay Naik, Senior Advocate assisted by Mr Aniruddha Jaltare, Advocate for appellants.
Mr. S. S. Doifode, Additional Public Prosecutor for respondent/State. -------------------------------------------------------------------------------------
CORAM
: ANIL L. PANSARE AND M. M. NERLIKAR, JJ .
CLOSED FOR JUDGMENT : 13.08.2025 PRONOUNCEMENT OF JUDGMENT : 25.08.2025
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")
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
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
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, 1st 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
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
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
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
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, chargesheet 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.
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 chargesheet 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
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 inserted, 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 hundred and eighty days, 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 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
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
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
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.
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.
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.
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
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
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.
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
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
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 3rd, 4th and 5th extension which was granted. The 3rd 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 5th 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.
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
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:-
........................................
......................................
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
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
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-
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
'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
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.
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.
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 subsection (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.
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
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
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:-
(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. (AnnexureM, 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),
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.
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 by JITENDRA BHARAT GOHANE Date:
2025.08.25 20:04:52 +0530 JITENDRA BHARAT GOHANE