9911796707
TMI Blog2005 (10) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... t;. Petitioner No. 1 (original accused No. 44) was arrested on 13.6.2003 and was taken in judicial custody by order dated 10th July 2003 and the Charge sheet was filed against him on 15.9.2003. The Petitioner No. 2 (original Accused No. 49) was arrested on 5.8.2003, he was remanded to judicial custody on 22.8.2003, the charge sheet against him was filed on 5.9.2003. The petitioner No. 3 (original accused No. 53) was arrested on 6.9.2003, was remanded to judicial custody on 26.9.2003, and the charge sheet against him was filed on 29.12.2003. The Petitioner No. 4 (original accused No. 56) was arrested on 18.10.2003 and was remanded to the judicial custody on 3.11.2003, the charge sheet was filed against him on 29.12.2003. Petitioner No. 5 (original accused No. 61) was arrested on 4.12.2003 and was remanded to the judicial custody on 16.12.2003, charge-sheet against him was filed on 3.2.2004. Since then, these accused are in judicial custody pending the trial. 2. The above-referred dates will show that, initially, the judicial custody was granted on the respective dates under Section 167 of the Code of Criminal Procedure, 1973 and from the date of the filing of the charge-sheets, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Sub-section (4) provides that person to be appointed as a Judge or additional Judge of a Special Court shall be Sessions Judge or Additional Sessions Judge. Sub-section (5) of Section 5 regulates the business of the Special Court. It provides that where the additional Judge or Judges are appointed in Special Court, the Judge of the Special Court may from time to time, by general or special order in writing provide for distribution of the business of the Special court amongst himself and additional Judge or additional Judges and also for the disposal of the urgent business in the event of his absence or the absence of any additional Judges. Thus, on reading these provisions, it is made clear that the business of the Special Court shall be regulated by a general or special order made by the Special Judge, and the said general or special order may be pertaining to the distribution of the business of the Special Court amongst the Special Judge and Additional Judges of the Special Court. It may or shall also provide for the disposal of the urgent business in the absence of the Special Judge or any of the additional Judges. Suffice it to say at this stage that, for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The second ground on which the Petitioners have approached this Court is that from 5.5.2005 upto 8.6.2005, there were absolutely no orders passed under Section 309(2) of the Code of Criminal Procedure, remanding the accused - petitioners to the judicial custody. Therefore, the detention of the petitioners in custody is illegal and bad in law. Thus, it is the contention of the petitioners that their Constitutional right under Article 22 is violated. Thus, they have approached this Court by filing this petition for habeas corpus. 10. This petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners upon which there were endorsements of petitioner Nos. 1 to 4 and he was instructed to withdraw from the case. Therefore, we discharged Shri. Amin Solkar from the case. However, Shri. Solkar remained on record for one Petitioner, namely, Petitioner No. 5. In view of these circumstances, we issued a direction to the office to issue a production warrant, to present the Petitioners before this Court on 19.9.2005. On 19.9.2005, in afternoon session, Petitioner Nos. 1 to 4 were presented. Shri. Amin Solkar learned Counsel for the petitioner No. 5 was absent. We heard Petitioner Nos. 1 to 4 on the point of admission of the petition. However, since the court time was over, the respondent could not be heard. However, petitioner Nos. 1 to 4 stated that so far as the reply to the argument of the CBI counsel is concerned, they would make an arrangement by discharging Shri. Amin Solkar, Advocate to appear and make a submission on their behalf. We adjourned the matter to 22.9.2005. On 22.9.2005 we heard the matter and we granted rule returnable one week. Thereafter the matter was heard on 29.9.2005 which was consumed in such an important petition of habeas corpus is not attributable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 309(2) of the Code of Criminal Procedure, 1973. Therefore, he submitted that the petition deserves to be dismissed. 13. Further, pointing out the remand warrants produced on record, learned Senior Counsel for the CBI, Shri. Sushilkumar submitted that initially the remand order was issued to the Superintendent of Prison, Yerwada Central Prison on 26.9.2003 in respect of the Petitioner No. 3 and, thereafter from time to time on the same warrant, Judge of the Special Court has extended the remand period. He pointed out that it appears that the rubber stamp has been prepared to the effect that "Accused is produced/not produced before me and he be produced before me on...." He submitted that this was a stamp when Video Conferencing was not there and after the introduction of the Video Conferencing system, the rubber stamp was modified to the effect that "Accused is produced before me on Video Conference and he be produced on Video Conference before me on ...", and by the use of such stamp, endorsement made on original warrant, further judicial custody/remand has been extended from time to time. He also pointed out that the similar are the warrants in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd order as per the format should have been passed by the Judge of the Special Court. Since such format order has not been issued, the extension of the remand of the Petitioners in the judicial custody by use of the rubber stamp is a procedure not contemplated under Section 309 of the Code. He submitted that it is a mechanical exercise of the power and, such exercise of power made with the use of the stamp shows that there is no application of mind by the Judge and therefore the remand orders and the extension of the remand as evidenced from the remand warrants is illegal. Thus, he submitted that even assuming that the case of the Petitioners for habeas corpus is to be considered on the date of return, it will be crystal clear that even on the date of return there are no valid remand orders passed putting the Petitioners in the judicial custody. Therefore, the writ of habeas corpus must follow. 15. Shri. Amin Solkar who appears for the Petitioner No. 5 submitted that if the remand warrants which are produced on record from 8.6.2005 onwards are perused, it will be seen that the remand orders are granted for a period of more than 15 days at a time. He submitted that proviso to Sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Section 309 of the Code of Criminal Procedure, 1973 were being passed from time to time on earlier occasions. On 5.5.2005 had the Judge of the Special Court been present, the case could not have proceeded since the total record of the proceeding has been called by the Apex Court and except the applications submitted from time to time and order sheets and the remand orders, no other record appears to have been with the Special Court. Therefore, it is an admitted position that the hearing of the case would not have proceeded and only exercise which the Judge of the Special Court was required to do was to grant a judicial custody remand and/or to extend the judicial custody remand which has already been granted by exercise of power under Section 309(2) of the Code of Criminal Procedure, 1973. This requires to be mentioned to make it clear that the position of the case on 5.5.2005. 17. So far as Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune is concerned, he admittedly entertained an application for adjournment submitted by the respondent - CBI, since their counsel - Shri. Raja Thakare was busy in the High Court, Bombay and on that application also he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted on 8.6.2005 will be dealt with in the later part of the judgment. 19. At this stage, we find it appropriate to consider- whether the detention of the Petitioners being illegal one on the date of the presentation of the petition, they are entitled to a writ of as prayed for or not. It is further necessary to consider whether the date of institution or the date of return is the date for issue of writ of habeas corpus. 20. In this respect, it is observed by the Apex Court in the matter of Naranjan Singh Nathwan and Ors. v. State of Punjab reported in AIR-1952 106, as follows: "If at any time before the Court directs the release of the detenu, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. The question is not whether the later order validates the earlier detention but whether in the face of the later valid order the Court can direct the release of the Petitioner. The Learned Judges point out that the analogy of civil proceedings in which the rights of parties have ordinarily to be ascertained as on the date of the institution of the proceedings h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of the earlier invalid order or earlier illegal detention. It is the later valid order which will survive. Only thing which the court has to be satisfied that the later order is a valid order. Viewed from this angle, since the returnable date in this petition is 29th September 2005, we will have to scrutinise the legality or illegality of the order with reference to that date, i.e., 29th September 2005. 24. The insistence of the Petitioners to consider the legality or illegality of the detention of the Petitioners under Section 309 of the Code to the date of the institution of the petition is not sustainable in law. Therefore, we accept the submission made by the learned Counsel for the CBI that the legality or illegality of the Petitioners' detention will have to be decided with reference to the date of return, i.e., on 29th September 2005. 25. As we have discussed above, that after filing of this petition and more specifically from 8.6.2005 onwards Judge of the Special Court has passed five remand orders extending the remand. Those orders are dated 8.6.2005, 28.6.2005, 27.7.2005, 19.8.2005 and 16.9.2005. By the last order dated 16.9.2005, the judicial custody remand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pass order either in the order sheet or on remand warrant is concerned, the Petitioners' counsel accepts that the Judge who made the endorsement on remand warrants on 6.8.2005 onwards on five occasions is the competent Judge appointed by the Government of Maharashtra in exercise of the power under Section 5 of the MCOC Act, 1999. Therefore, so far as the competency of the Judge passing order on and after 8.6.2005 is concerned, there is no dispute. The question of the competency of the Judge was raised qua Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune before whom the case was placed on 5.5.2005 and not in respect of the subsequent Judges of the Special Court. We also make it clear that Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune was not the competent Judge to handle the case on 5.5.2005, since there was no Notification issued under Section 5 of the MCOC Act, 1999 appointing him as the Judge of the Special Court. However, that does not deter us, because we are considering the legality or illegality of the order on the date of return. Then the question arises whether the exercise of power, as reflected from the order sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time the accused had been appearing before the Court of Session and was being given dates for further appearance and it necessarily follows that a warrant must have been drawn out on which endorsements of the dates must have been made. This is the requirement of the rules and there is no allegation anywhere in the petition that no such warrant had been drawn out. In the entire petition there is no challenge to the legality of the warrant nor has it been said that no warrant had been drawn out. Under these circumstances, Section 309(2) shall stand completely fulfilled even though on the order sheet no specific order of remand had been written out...." "It is thus clear that in this case there is a valid remand upto 9.8.1985 under Section 309(b), Cr.P.C. in view of the order of the Magistrate dated 29.7.1985. Thereafter even if there was no remand for some time, the illegality would stand cured and the Court would see the position on the date when this application was moved and it is clear that thereafter right from 10.9.1985 when the accused was brought before the learned Sessions Judge and a date for framing of the charges was given and then he was sent bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court is supposed to record the reasons for the adjournment or postponement of the case. However, after that exercise is complete, if the accused is in jail, the court may remand by warrant to the custody. This does not mean that the Judge shall pass an order in order sheet. Suffice it if the Judge issues warrant remanding the accused to the judicial custody. No doubt, for an ideal exercise of the judicial power, the Judge will assign the reasons for the postponement of the case and also pass an order remanding the accused to the judicial custody. However, that is an ideal position. But, if a Judge passes an order giving reasons for the adjournment or the postponement of the case and thereafter issues a warrant duly signed by him remanding the accused to the judicial custody, the same exercise will also be a proper exercise so far as Section 309(2) is concerned, because, the warrant is required to be given along with the accused to the Superintendent of Jail to keep the person in judicial custody, and therefore the said warrant is addressed to the Jailor informing him about the period of detention and the production of the accused. Therefore, we are of the same view as has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a Magistrate empowered to try a case under Section 167 of the Code of Criminal Procedure, 1973. The Special Judge will proceed to exercise the powers that are conferred upon a Magistrate having jurisdiction to try the case." 34. In the matter of A.R. Antulay v. Ramdas S. Naik and Anr., , the question in respect of the jurisdiction of the Special Court was raised on two specific counts: (i) That a Court of the Special Judge set up, under Section 6 of the Criminal Law Amendment Act, 1952 cannot take cognizance of any of the offences enumerated in Section 6(1)(a) & (b) upon a private complaints of facts constituting the offence and (ii) that where there are more special judges than one for any area, in the absence of a specification by the State Government in this behalf, specifying the local area over which each special Judge would have jurisdiction, the Special Judge (Mr. Bhutta) had no jurisdiction to take cognizance of the offences and try the case." The Hon'ble Supreme Court observed in paragraph 34 as under: "A Court of special Judge is a Court of original criminal jurisdiction and it is not necessary to treat him either a Magistrate or a Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is instituted or transferred before that court. The width of the power of the Special Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in Sections 6 & 7 of the Act as already noticed earlier also show that the words in Section 7 that the prosecution for any offence shall be instituted only in special court deserve a liberal and wider construction. They confer on the Special Court all powers of the Magistrate including the one at the stage of investigation or enquiry. Here, the institution of the prosecution means taking any steps in respect thereof, before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at a pre-cognizance stage shall be taken before a Court other than a Special Court. We may note an illustration given by Mr. Salve, referring to Section 157 of the Code. Learned counsel submitted that the report under that section is required to be sent to a magistrate empowered to take cognizance of an offence. In relation to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively with the Special Court and thus the repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is a Court of Session by fiction as provided in Section 9(2) and shall have all the powers of a Court Session. It is emphasised that the Special Court is having a dual capacity and powers, both of the Magistrate and the Court of Session. However, as to when such power and capacity is to be exercised, the Apex Court has observed that it will be depending upon the stage of the case, there will be a complete hiatus. 37. Coming to the provisions of the MCOC Act, 1999, applying the test and the ratio as evolved in the above referred three cases, we also find that the Judge of the Special Court under the MCOC Act, 1999 is having a dual capacity, both of the Magistrate as well as of the Sessions Judge. However, the question which we have to deal with is as to whether while exercising the powers under Section 309 of the Code of Criminal Procedure, 1973, the Judge of the Special Court shall be treated as a Magistrate covered by the First proviso of Sub-section (2) of Section 309 of the Code of Criminal Procedure, 1973. In the facts of the present case we have narrated the sections under which the Petitioners were charged. One of the Sections, namely, Section 255 of the Indian Penal Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a Court of Session and shall try such offence as if it were a Court of Session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session." Thus, the procedure prescribed for the sessions cases in the Code will be applicable to the cases before the Special Court, excluding the cases enumerated under Sub-section (2) of Section 9. Thus, the character of the Judge of the Special Court is that, while conducting the cases under Sub-section (2) of Section 9, he exercises the summary power or a power of the Magistrate in the capacity of the Sessions Judge. However, when he tries the case excluding the case covered by Sub-section (2) of Section 9, he acts as a full-fledged Sessions Judge having the power and capacity to try the cases as a Sessions Judge as provided in Chapter-XVIII of the Code of Criminal Procedure, 1973. The present case, therefore, is triable as a sessions case. This has been analysed, because as per the ratio laid down in Harshad Mehta's case (supra), the capacity and the powers of the Judge of the Special Court as a Magistrate and/or Sessions Judge will have to be decided in reference to a stage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 309 of the Criminal Procedure Code contemplates that the reasons have to be recorded only for adjourning the enquiry or trial. As regards the remand order, there is no such inhibition of recording reasons signed by the court. Even the provision of restriction of remand of fifteen days only at a time applies to a Magistrate and not to a Sessions Court or a Designated Court." 40. Thus, we find that under Section 309(2) the Code of Criminal Procedure, 1973, the Judge of the Special Court holds a capacity and power of the Sessions Judge while remanding the accused to the judicial custody. There is no limit of fifteen days to remand the accused at a time. Therefore, we find that remand orders which have been passed in the present case for a period exceeding fifteen days at a time are valid one. 41. Thus, we find that the orders of remand and extension of the same as reflected from the remand warrants issued under Section 309(2) in the present case is the proper exercise of power by the Judge of the Special Court. Therefore, five remand orders which are passed on 8.6.2005, 20.6.2005, 27.7.2005, 19.8.2005 and 16.9.2005, existing as on the date of return of the present petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Essential Commodities Act, 1955. Thus, it will be seen that at the relevant time the Special Court appointed under the Essential Commodities (Special Provisions) Act, 1981 has ceased to be a special Court under the Essential Commodities Act, since the Act has lapsed and was not further extended by the appropriate legislation. However, the same court also continued to be a special court under the NDPS Act, 1985 and before the same court the case under the Essential Commodities Act was placed for remand instead of placing it before the regular magistrate who had the jurisdiction. In paragraph 16, the Apex Court observed that: "On a fair reading of the above provisions it is clear that during the period of the EC (Special Provisions) Act was in force the special Court constituted for trial of offences under EC Act had exclusive jurisdiction to try such cases. The special Court had also the power to pass order of remand under Section 167 but the provision changed after the EC (Special Provisions) Act lapsed by efflux of time. Thereafter, the position that used to prevail before the EC (Special Provisions) Act was in force stood restored and the judicial Magistrates who were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons in the above case it is clear that Their Lordships did not stop after holding in paragraph 13 that Madhu Limaye and others were entitled to be released on the ground of non compliance of the provisions of Article 22(1) of the Constitution of India, but Their Lordships further examined the second point formed in paragraph 7 of the said judgment that, whether valid order of remand existed or not. Once Their Lordships found that remand order by Magistrate directing detention in the jail custody was without application of mind to all the relevant matters and Their Lordships observed that the detention in custody being in violation of Article 22(1) of the Constitution of India, Madhu Limaye and others were entitled to be released forthwith. This negates the contention of the learned Counsel Shri. S.R. Chitnis, because we find that in the matter of Madhu Limaye on the date of return the Court was satisfied that there was no valid detention order. It is equally worthwhile to note that in the matter of Suresh Ramtirath Yadhav v. State of Gujarat reported in 1990 Cr. L. J. 1834, while answering the submission based on Madhu Limaye's case relating to the violation of Article 22(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstituted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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