MCOCA | Refusal Of Sanction To Prosecute Does Not Invalidate Extension Of Judicial Custody Given By Special Court: Bombay High Court

“Once, the Special Court after giving reasons has extended the period of investigation up to 180 days, the refusal of sanction will not take away the extended period of 90 days granted by the Special Court or even curtail the extended period granted by the Special Court," said the court.

The division bench of Justices Sunil B. Shukre and M.W. Chandwani of the Nagpur bench observed that the power of Special Judge under MCOCA to extend judicial custody by 90 days and power of Additional DGP to give sanction for prosecution under MCOCA have different object.

"In other words, former power exists for facilitating the investigation, while the latter power is to facilitate trial of the accused," said the court

The court dismissed a writ petition challenging magistrate’s refusal to default bail to seven men under section 167(2) of the Cr.P.C. The petitioners are being prosecuted under Sections 302, 307, 324, 143, 147, 148 read with Section 149 of IPC and Section 135 of the Maharashtra Police Act, 1951.

The prosecution had also invoked Sections 3(1) (offence of organized crime) and 3(4) (membership of organized crime syndicate) of MCOCA. Special Judge extended the judicial custody by 90 days till August 23, 2022. On August 22, 2022 the ADGP refused sanction to prosecute them under MCOCA. On the same day, the petitioners applied default bail. The IO also filed charge sheet on the same day.

The Judicial Magistrate First Class refused default bail to the petitioners. Their revision petition before the additional sessions judge was rejected. 

Senior Counsel Anil Mardikar for the petitioners before high court submitted that the petitioners gained an indefeasible right to bail as soon as the ADGP refused sanction. They availed this right for default bail by filing the application and subsequent filing of charge sheet by the prosecution will not extinguish it.

APP SM Ghodeswar submitted that the petitioners did not gain any indefeasible right for default bail as the extended period was to expire on August 23, 2022 and the charge sheet was filed on August 22, 2022.

Section 167(2) of the CrPC provides that if an investigation is not completed within 24 hours, the magistrate can authorise detention of the accused for a total period of 90 days if the investigation is about offences punishable with death, life imprisonment, or imprisonment for a minimum term of 10 years. Under Section 21(2)(b) of the MCOCA, this period can be extended by another 90 days.

If the investigation agency does not file charge sheet within 90 days or the extended period, the accused in custody has to be released on bail.

Under Section 23 of MCOCA, a special court cannot take cognizance of any offence under MCOCA without previous sanction of a police officer not below the rank of ADGP.

The court said that the power to extend the judicial custody is exercised by a court while the power to grant or refuse sanction to prosecute is exercised by a police officer. The custody is for ensuring effective and speedy investigation without any hindrance while sanction is necessary to enable the special court to take cognizance of an offence under MCOCA, it added.

Thus, both these powers operate in different fields. After considering the magnitude of the investigation required in a particular case, the Special Judge enables in depth investigation by extending custody period, and whereas, there is an embargo created by Section 23(2) of the MCOC Act on the cognizance taking by the Special Court without previous sanction of the A.D.G.P. The purpose of incorporating such embargo is to provide double filter before roping in anybody under the stringent provisions of law. 

In the current case, the detention was authorised by a court under section 21(2)(b) MCOCA with a reasoned order which became final as it was never challenged. Therefore, the detention of petitioners after 90 days is not unauthorised, the court said.

The court also noted that the petitioners did not contend that the prosecution acted in the mala fide manner and invoked MCOCA only to detain them.

Therefore, the court said that once the Special Court has extended the period of investigation up to 180 days, the refusal of sanction will not take away the extended period or even curtail the extended period granted by the Special Court.

The court considered the issue from another angle assuming that the refusal of sanction would mean that no offence under the MCOCA has been made out in the charge sheet. The consequence would be at most that the custody extension order will stop being effective at the end of the day on which sanction is refused and till that day, the extension order would be valid, the court said.

Though the petitioners applied for bail 30 minutes before the charge sheet was filed, the right to seek default bail would arise only on the next day, the court said. 

"The reason being that, the day on which sanction was refused by the authority, would have to be considered to be the day on which the extended period of custody expired and, therefore, the right to seek default bail would arise on the immediate next day. It also means that when sanction is refused, as for example on Monday, this day of Monday would be the last day on which extended period of custody would come to an end, though in normal circumstances it would have expired later, and therefore, the Investigating Officer would have to take care that he files the final report on that day or otherwise he risks the grant of default bail to the accused." 

It added that provisions made under Section 167(2) of Cr.P.C. speak not in terms of hours, minutes and seconds, but only in terms of number of days completed.

"For the purpose of ascertaining as to when the period of authorized custody comes to an end, it is only the number of completed days, which is relevant and not the time at which the event having the effect of rendering the custody as unauthorized took place," said the court.

By this logic, since the sanction was refused on August 22, 2022, that day became the last day of their authorised custody. Therefore, the right to avail default bail under section 167(2) of Cr.P.C. arose in their favour only from August 23, 2022, said the court.

Therefore, the petitioners’ application was premature having been filed on a day on which they didn't have the right to default bail, the court held and dismissed the petition.

Case no. – Criminal Writ Petition No. 817 of 2022

Case Title – Naresh s/o Netram Nagpure and Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 4

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