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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.

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.