Document Fragment View

Matching Fragments

[A] The accused are arrested for IPC offence and the charge-sheet for IPC offence has been filed within 90 days.
The provisions of MCOCA are invoked but the accused are neither arrested nor taken in custody after invocation of MCOCA. Though more than 180 days have passed from the original date of arrest as well as from the invocation of MCOCA, the charge-sheet has not been filed under MCOCA.
:6:
Diksha Rane/Darshan Patil ba 154323 & 57223.doc From the date of committal till the transfer of case to the Special Court under MCOCA, the accused were remanded from time to time by virtue of provisions of Section 309 of the Cr.P.C. There is no specific provision under MCOCA as regards grant of remand by Special Court, till the time the Special Court under MCOCA on receipt of sanction under Section 23(2) of the MCOCA takes cognizance of the offence and hence the detention of the accused in the intervening period could only and only be by virtue of Section 167(2) of the Cr.P.C. The application of provisions of Cr.P.C. are not totally excluded from application to MCOCA cases but they are subject to the modification in the special Act. Section 21(2) of the MCOCA makes it apparent that the provisions of Section 167(2) of the Cr.P.C. are modified to the maximum of 180 days. It has to be borne in mind that Section 173(1) Cr.P.C. envisages that every investigation has to be concluded without unnecessary delay. If the provisions of Section 167 and Section 173(1) Cr.P.C. are not read conjointly in a case under MCOCA, it will lead to an anomaly, that after exhausting the period of 180 days from Diksha Rane/Darshan Patil ba 154323 & 57223.doc the original date of arrest if the charge-sheet under MCOCA is not filed it will be violative of Article 21 of Constitution.
[B] The arguments of the prosecution may be that since a charge-sheet under IPC is filed, the provisions of Section 167(2) Cr.P.C. ceased to operate. However, in such an eventuality if there is an inordinate delay in filing charge-
sheet under MCOCA even if the accused apply for regular bail, the rigours of Section 21(4)(b) MCOCA will be attracted and the investigation can remain pending indefinitely, without any check or supervision by the Special Court. Therefore, by harmonious reading of the provisions of the Cr.P.C. and MCOCA, it will have to be construed that if from the original date of arrest the charge-sheet is not filed under the MCOCA within the statutory period or extended period as per Section 21(2)(b) MCOCA, obviously the detention would be illegal thereby the accused are entitled to bail. The invocation of MCOCA at such a late juncture is demonstrative of the malafides of the investigating agency as it is evident that somehow or the other they want to keep the matter lingering and frustrate the right of liberty Diksha Rane/Darshan Patil ba 154323 & 57223.doc to the accused.

16. The submission of the learned senior advocate Shri Thakare is that during the investigation, that is before filing of the charge-sheet, the power to authorize detention is under Section 167 of the Cr.P.C. Since the cognizance of offence under MCOCA is directly taken by the Special Court, there are no committal proceedings. According to him, the power to authorise the custody would spring from Section 309 (2) of the Cr.P.C. Under the MCOCA the investigation cannot be conducted by an officer below the rank of Deputy Superintendent of Police in view of the non-obstante clause provided under Section 23(1)(b) of the MCOCA. It is submitted that, therefore, the investigation culminating into filing of the charge-sheet under the penal law, cannot be said to be investigation under the MCOCA. Learned senior advocate was at pains to point out that once prior approval under Section 23(1) of the MCOCA is obtained, in view of Diksha Rane/Darshan Patil ba 154323 & 57223.doc Section 6 of the MCOCA, the jurisdiction of a magistrate or for that matter even the Sessions Judge is ousted. It is submitted that in such eventuality it cannot be that the custody of the accused would be governed by Section 309(2) of the Cr.P.C. because according to the learned senior advocate, the MCOCA Special Court cannot take cognizance unless there is a sanction under Section 23(2) of the MCOCA and the power under Section 309(2) of the Cr.P.C. can be exercised only after the Court takes cognizance, therefore, the detention cannot be said to be under Section 309(2) of the Cr.P.C.

28. In the light of what is observed by the Supreme Court, I do not find any force in the submission of learned counsel Diksha Rane/Darshan Patil ba 154323 & 57223.doc for the applicants that on the grant of prior approval under Section 23(1) of the MCOCA the investigation to be carried out is a new investigation. I am in respectful agreement with the observations of His Lordship Kotwal, J. in Suraj Arun Pote (supra) that the investigation carried from the point of prior approval was not a new investigation but only a further investigation. The investigation under the MCOCA was continuation of the earlier investigation for IPC offence. The provisions of MCOCA were invoked because the material under the MCOCA was found against the Applicant. The charge-sheet in the present case was already filed under IPC offence on 1/1/2022 in respect of some accused and on 23/2/2022 in respect of the other accused. The cognizance of the charge-sheet was taken and therefore, the case was committed to the Court of Sessions. The application made by the investigation agency seeking custody under Section 21(7) of the MCOCA was rejected. The MCOCA was not invoked at the time of registration of the offence under IPC. The right to claim default bail under Section 167(2) of the Cr,P.C. will not revive as the Diksha Rane/Darshan Patil ba 154323 & 57223.doc invocation of the provisions of the MCOCA was not a new investigation but a continuation of the earlier investigation for IPC offence.