Bombay High Court Grants Bail To MCOCA Accused; Says No Independent Reasons By Prosecutor To Extend Custody, 'Word By Word' Copied From IO

A division bench of Justice Bharat Deshpande and Justice Vinay Joshi sitting at Nagpur while granting bail to a twenty-year-old organised crime accused held that the public prosecutor completely failed in his duty as he did not record independent reasons for supporting the IO’s request for extension.

“all the contents word by word, paragraph by paragraph, including full stops and commas, in these applications are identically the same. Thus, the only conclusion which could be drawn is that application addressed to the Public Prosecutor attached to the Special Court, is copied word by word and paragraph by paragraph in the application addressed to the Special Court dated 07.11.2022 by the Public Prosecutor…the Public Prosecutor attached to the Special Court, completely failed in its duty to observe the mandate of the law as laid down under Section 21(2) (b) of the said Act, proviso of MCOC Act, 1999”, the court held.

Section 21(2)(b) of the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) provides that if the investigation of a case is not complete within ninety days, the Special MCOCA Court can extend it to one hundred and eighty days, on the prosecutor’s report showing the progress of the investigation and the specific reasons for the detention of the accused beyond ninety days.

The court held that mere reproduction of the IO’s application without demonstration of application of mind by the prosecutor would not render his report as the one envisaged under section 21(2)(b) of the MCOCA.

The accused has been booked under offence punishable under Sections 302, 120-B, 143 and 34 of the IPC read with Sections 4 and 25 of the Arms Act and Sections 3(1)(i)(ii), 3(2) and 3(4) of the MCOCA.

He filed the present appeal challenging three orders – i) extension of 60 days granted to the investigation agency for filing chargesheet under section 21(2)(b) of the MCOCA, ii) order rejecting his bail application under section 21(2)(b) of the MCOCA, iii) another extension of 15 days granted to the investigation agency for filing charge sheet

Advocate S.V. Sirpurkar for the appellant argued that the extensions were illegal as the prosecutor did not submit his independent report by applying his mind to the facts while seeking an extension. Further, as the first extension was granted without following due procedure, the appellant was in unlawful detention, he argued. He also submitted that the bail was rejected only on the ground that the investigation agency is awaiting government sanction to proceed under MCOCA, which is not even a ground for extension of time.

The court perused the extension applications filed by the public prosecutor before the court as well as the applications filed by the investigating office to the public prosecutor requesting him to seek extension.

The court noted that both the applications filed by the prosecutor before the court and the applications file by the IO before the prosecutor are identical. The court said that the prosecutor’s application is copied word for word from the IO’s application.

The application that was finally filed before the special court was jointly signed by the IO and the public prosecutor.

The court relied on Supreme Court judgement in Hitendra Thakur v. State of Maharashtra and observed that the prosecutor has to apply his mind independently and satisfy himself that there is actually a need for extension of time to file charge sheet. Only after verifying the case papers and reasons given by the IO, the prosecutor may apply for extension by submitting his report, the court said.

The prosecutor may attach the IO’s request along with his report but he has to give his own reasons for supporting the IO’s contentions for extension of time, the court observed. In the absence of prosecutor’s independent report, the special court has no jurisdiction to deny bail to the accused, the court said.

The court further said that the prosecutor did not record his satisfaction that the that there is actually a need for extension of time. Merely signing application for extension jointly with the IO cannot be considered as the public prosecutor satisfying himself regarding the need for extension as per section 21(2)(b) of the MCOCA, the court held.

The court said that the special judge under MCOCA committed serious error by accepting the extension applications. It was the duty of the special MCOCA court to find out whether the public prosecutor submitted an independent report showing application of mind and recording his satisfaction for need of extension, the court held.

Therefore, the first extension of 60 days itself is illegal in the present case and for the same reason the second extension is also illegal, the court concluded.

The concerned public prosecutor attached to the special court filed an affidavit to justify about application of mind and recording his satisfaction.

The court did not accept the affidavit observing that the prosecutor was statutorily required to record his reasons independently and record satisfaction before applying for extension of time. This cannot be replaced with an affidavit filed subsequently and that too when it is challenged before a higher court, the court held.

Therefore, the court set aside all three impugned orders. The court held that since the first extension is illegal, the appellant is entitled to bail under 167(2) of the CrPC and his further detention has to be considered illegal.

Thus, the court directed the appellant to be released on a PR bond of Rs. 50,000/- with one or two solvent sureties and on the condition that he attends the concerned police station on every alternate Monday till completion of trial.

Case no. – Criminal Appeal No. 43 of 2023

Case Title – Darshan Subhash Nandagawali v. State of Maharashtra