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8. We have already stated in the above paragraph that there were three Judges of the Special Court established under the MCOC Act. However, Shri. Shembole before whom this case bearing MCOC Special Case No. 2 of 2003 was pending was not available on 5.5.2005, i.e., the date till which the judicial custody remand order was granted by the said Judge, as stated earlier. Therefore, it was further necessary to pass the appropriate judicial custody remand orders under Section 309(2) of the Code of Criminal Procedure on the said date. However, Shri. Shembole was on summer vacation from 2.5.2005 till 15.5.2005. Additional Judge of the Special Court, Shri. B.N. Deshpande, was also on judicial leave (Summer Vacation) from 2.5.2005 till 15.5.2005. It is further to be noted that the Second Additional Judge of the Special Court, Shri. V.V. Borikar, who then also was the 4th Additional District & Sessions Judge, Pune was also on Earned Leave from 5.5.2005 to 7.5.2005 and the charge of the said court was kept with Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune. It is an admitted fact that Shri. P.P. Birajdar, 5th Additional District & Sessions Judge, Pune was not the Judge and/or additional Judge appointed by the Government of Maharashtra under Section 5 of the MCOC Act and therefore, he was not supposed to preside over and try the case under the MCOC Act. However, the charge came to Shri. Birajdar in view of the standing order No. Gen-B-16/ii/46/93 dated 26th June 1993, which gives a general power to the District Judge to make an arrangement about the business of the court when one of the Judge/court proceeds on leave and/or summer vacation. We have ascertained by making an enquiry through the Registry with the Special court that the Page 1200 Special Court has not passed any general or specific orders as contemplated by Sub-section (5) of Section 5, which provision has already been dealt with in the above paragraphs. Under these circumstances, the above case, namely, MCOC Special Case No. 2 of 2003 was placed before Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune. On this date, none of the accused who were in judicial custody were produced before Shri. Birajdar, the 5th Additional District & Sessions Judge, Pune, since the Video Conferencing facility was not available in the court of Shri. P.P. Birajdar. On behalf of the respondent, Police Officer preferred an application, stating that the counsel for the CBI - Shri. Raja Thakare was busy in the High Court and requested to adjourn the matter. On this application, Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune passed an order of "Other Side to Say", upon which the Advocate for one of the accused - Mr. Telgi has stated that he has no objection to grant adjournment. However, Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune did not pass any order as to whether the adjournment is granted or not and the application remained as it is. On this date, it appears from the order-sheet, that the case was posted to 8.6.2005. From the order-sheet, it is not clear whether the judicial custody remand of the accused, and more specifically of the petitioners, was extended under Section 309 of the Code of Criminal Procedure. However, now it is an admitted position by the respondent that on 5.5.2005, except the presentation of the application by the CBI for the adjournment, no business was transacted before Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune. The case was simply put before him and he put the same case, after passing certain casual orders, to 8.6.2005. However, for the point in controversy, it is an admitted fact that on that date Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune has not passed any order extending the judicial custody remand by exercising the powers under Section 309 of the Code of Criminal Procedure and simply adjourned the case to 8.6.2005.

9. This petition has arisen from the above referred MCOC Special Case No. 2 of 2003. The grievance of the petitioners is that on 5.5.2005, the case could not have been placed before Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune, because he was not appointed as the Judge of the Special Court by appropriate notification by following the procedure as laid down under Section 5 of the MCOC Act and, therefore, the said Judge was incompetent to deal with and try the cases under the MCOC Act. Therefore, the act on the part of Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune to adjourn the case to 8.6.2005 is illegal one, and thereby the detention of the Petitioners is illegal one.

48. Before parting with this judgment, we cannot refrain ourselves from adverting to one circumstance that this case is a product and consequence of non exercise of powers under Sub-section (5) of Section 5 of the MCOC Act, 1999 by the Judge of the Special Court constituted under the MCOC Act, 1999. Had the Judge of the Special Court passed a general or special orders regulating the business of the said Court and giving directions as to which court shall deal with the urgent business of the Special Court in the absence of the Judge or Additional Judge of the Special Court, probably, the case would not have arisen at all. Under these circumstances we issue directions to all the Judges of the Special Courts under the MCOC Act in the State of Maharashtra to pass general or special orders under Section Sub-section (5) of Section 5 of the MCOC Act, 1999.

49. The Registrar General is directed to issue necessary directions to all the Special Courts constituted under the MCOC Act, 1999 to pass appropriate orders under Sub-section (5) of Section 5 of the MCOC Act, 1999.

50. However, this will not be sufficient, because under these provisions, the Judge of the Special Court can give powers to another Judge of the Special Court. We have to also visualise a situation where there is only one Judge of the Special Court, then in that circumstance whom the powers should be given to pass urgent orders and transact the urgent business. So also, we have to also visualise a circumstance where there are more than one Judge of the Special Court, as in the present case, but everyone proceeds on leave or holiday, as in the present case, and ultimately the situation arises where there is no Judge of the Special Court available to pass the appropriate orders. In that eventuality, the provisions of the MCOC Act are found to be inadequate. To overcome this situation, amendments in the Sub-section (5) of Section 5 of the MCOC Act are very much desired. By this amendment, under special circumstances the permission to place the matters before the District Judge or a Judge as directed by the District Judge, shall be given so as to pass the appropriate valid remand orders. But, this cannot be done unless Sub-section (5) of Section 5 of the MCOC Act, 1999 is amended. Therefore, we suggest the Government of Maharashtra to effect the appropriate amendments in Sub-section (5) of Section 5 of the MCOC Act, 1999 in respect of the carrying out of the urgent business in the absence of a the Judge of the Special Court to deal with the urgent business of the Special Court.