Bombay High Court: In an appeal filed by the appellants, who were accused of offences under Maharashtra Control of Organised Crime Act, 1999 (MCOCA), challenging the orders seeking extension of time to file the charge-sheet, the Division Bench of Anil L. Pansare and M. M. Nerlikar*, JJ., set aside the orders passed by the Special Judge and granted conditional bail to the accused. The Court held that there was flagrant violation of provisions of Section 21(2)(b) of MCOCA as the extension to file the charge-sheet was granted five times, even though the applications filed for the said extension were replica of the first such application, with just the change in the date. Furthermore, it was held that the applications were filed without fulfilling the statutory duty of ‘application of mind’ by the Special Additional Public Prosecutor (APP), which needed to be satisfied to get extension of time for filing the charge-sheet.
Background
On 12-8-2024, the informant lodged a report with the police station, Ramnagar, alleging that the deceased had called and asked to meet him. The deceased told the informant that two people intended to kill him, therefore he wanted to inquire about the same by going to Chandrapur. When everyone was having a meal at the hotel, then a white colour car stopped before the informant out of which seven people stepped out. Immediately, then the accused persons started firing, and two bullets hit the informant on his left leg. Thereafter, all the accused persons went inside the hotel and fired at the deceased and ran away.
The deceased was then taken to the hospital where he succumbed to his injuries. The next day six out of seven accused surrendered and thus, they were arrested by the police. Therefore, offence registered with Police Station under Sections 103(1), 109(1), 189(2), 189(4), 190, 191(2), 191(3) and 61 of the Bhartiya Nyaya Sanhita (BNS), 2023, Sections 3, 4 and 25 of the Arms Act, 1959 3(1)(i)(ii), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and 135 of the Maharashtra Police Act, 1951.
During the investigation, it transpired that some other persons were also involved and accordingly, they were arrested on 18-8-2024, wherein the present appellants were also included as Accused 9, 10 and 11. They were produced before the Magistrate, who granted remand under police custody 20-8-2024.
Since the charge-sheet could not be filed within 90 days, i.e. by 16-11-2024, extension for the same was sought by APP under Section 21(2)(b) of MCOCA. 1st application of extension was filed on 7-11-2024 and were granted 15 days for filing the charge-sheet i.e. up to 23-11-2024. Subsequently, four other applications for extension were filed and lastly, 5th application was filed for which extension was granted till 4-2-2025, to file the charge-sheet.
The appellants had filed application for grant of default bail under Section 187(2)(i) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 on three occasions i.e. on 19-11-2024, secondly on 6-1-2025 and thirdly on 4-2-2025 all of which got rejected by different orders of the Special Judge.
Hence, the appellants approached the present Court challenging the orders passed by Special Judge, Chandrapur, whereby the 3rd, 4th and 5th application for extension of time in filing of the charge-sheet were allowed.
Analysis, Law and Decision
The Court pointed out that the power to grant extension to file the charge-sheet beyond 90 days is embodied under Section 21(2)(b) of MCOCA, this extension can be granted only when the mandatory conditions under the proviso of Section 21 are satisfied.
The Court observed that the first important ingredient as stated in the proviso of the said section is the report of the Public Prosecutor. The Public Prosecutor is statutorily bound to apply his mind to the request of the Investigating Agency before submitting the report to the Court for extension of time. Furthermore, that report of the Public Prosecutor is not merely a formality, but a very vital report because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in the said section.
The second ingredient was “progress of the investigation” which was explained by the Court to mean and include collection of evidence in the form of recording of the statements, arrest of the accused, steps taken towards collection of relevant documents, collection of all relevant information and analysis of the collected materials. It was pointed out by the Court that extension applications filed by APP are just English translation of the report filed by Additional Superintendent of Police, Chandrapur which was in Marathi. Thus, it was opined that the report of APP should have disclosed every step of the Investigating Officer taken towards development of investigation and not the reasons why investigation was not completed.
Finally, the report should have disclosed “specific reasons for detention”. The Court observed that the 4th and 5th application for extension is just the replica of 3rd application which neither mentions the progress of investigation nor the reasons of detention.
The Court emphasised that the rights granted under Article 21 and 22 of the Constitution can be curtailed only by procedure established by law, Thus, in the instant case the procedure under Section 21 of MCOCA ought to have been followed to deny the grant of bail to the accused. Additionally, the Court opined that when the orders of extension are set aside, then the right to be released of the accuse, on default bail continues to remain enforceable even if the bail application had previously been rejected by the Court.
Accordingly, the Court set aside the order of extension of time passed by the Special Judge, enlarged the appellants on conditional bail and held that there was flagrant violation of provisions of Section 21(2)(b) of MCOCA and the accused persons were deprived of their right to obtain default bail under Section 187(2)(i) of the BNSS. It was further held that once the order granting extension is held illegal, the appellants are entitled to statutory bail under Section 187(2)(i) of the BNSS for default bail.
[Mohsin Nasir Sheikh v. State of Maharashtra, 2025 SCC OnLine Bom 2974, decided on: 25-8-2025]
*Judgement authored by- Justice M. M. Nerlikar
Advocates who appeared in this case:
Advocate for the Appellants- Akshay Naik, Senior Advocate; Aniruddha Jaltare, Advocate
Advocate for the Respondents- S. S. Doifode, Additional Public Prosecutor
Buy Constitution of India HERE
