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The Sessions Court had already taken cognizance and therefore, the custody of the applicants will be governed by Section 309 Cr.P.C. and will not revert back to Section 167 of the Cr.P.C. The application made by the investigating agency for custody under Section 21(7) of the MCOCA is rejected and hence the custody continues to be under Section 309 Cr.P.C.

9. I have heard learned senior advocate Shri Raja Thakare and learned counsel Shri Jha for the applicants as well as learned Public Prosecutor Shri Venegavkar for the State at length.

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.

Diksha Rane/Darshan Patil ba 154323 & 57223.doc "54. The issue to be answered in the present case is as to whether for bemanding the appellant-accused, Section 167(2) CrPC could have been resorted to by the Special Judge or remand could have been done only under Section 309(2) CrPC. This Court had occasion to consider the provisions of Section 167 and Section 309 CrPC in large number of cases. In the old Code, there was a provision, namely, Section 344 which was akin to Section 309 of the present Code. Section 167 of the Code of Criminal Procedure, 1973, corresponds to Section 167 of the old Code.

60. A two-Judge Bench judgment in Dinesh Dalmia v. CBI, is relevant for the present case where this Court had occasion to interpret sub-section (2) of Section 167 CrPC vis-à-vis sub-section (2) of Section 309 CrPC. In para 29, this Court laid down: (SCC p. 782) "29. The power of a court to direct remand of an accused either in terms of sub-section (2) of Section 167 of the Code or sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub- section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub-section (2) of Section 309 of the Code would be attracted only after cognizance has been taken.""