Bombay High Court
Sachin Hindurao Waze vs Union Of India Through S.P on 6 March, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:10477-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2485 OF 2024
Sachin Hindurao Waze ..Petitioner
Versus
Union of India, Through the S.P.
The National Investigation Agency & Anr. ..Respondents
__________
Mr. Rounak Naik a/w. Ms. Sajal Yadav, Ms. Aayushya Genuja,
Harsh Ghangurde, Ms. Dakshata Dupare and Nihal Rebello for
Petitioner.
Mr. Sandesh D. Patil a/w. Chintan Shah, Prithviraj Gole,
Krishnakant Deshmukh, Anusha Amin and Ms. Divya Pawar for
Respondent No.1/NIA.
Mr. J. P. Yagnik, APP for State/Respondent.
Mr. Nitin Pawar and Mr. Akhilesh Singh, NIA present.
__________
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
RESERVED ON : 24 FEBRUARY 2025
PRONOUNCED ON: 06 MARCH 2025
JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. Heard Mr. Rounak Naik, learned counsel for the
Petitioner, Mr. Sandesh Patil, learned counsel for the Respondent
No.1/NIA and Mr. Yagnik, learned APP for the State.
2. This is a writ petition praying for writ of habeas corpus
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alleging that the Petitioner’s detention is illegal. The Petitioner is
seeking his release forthwith. Though, there are many grounds
raised in the petition, learned counsel for the Petitioner restricted
his arguments to the grounds which are noted and considered in
the following discussion.
3. Before referring to the submissions made by the learned
counsel on behalf of the Petitioner, it is necessary to mention the
background as to how the Petitioner came to be arraigned as an
accused. There were three separate incidents, apparently having
no connection with each other; however, as the events unfolded
subsequently, it was realised that all these three incidents were
interconnected and the Petitioner was a common factor involved in
all these three incidents. These incidents are as follows:
1) C.R.No.47 of 2021 was registered at Vikhroli
police station on 18.02.2021 against an unknown
accused. The first informant was one Mansukh Hiren. His
grievance was that his Mahindra Scorpio vehicle was
stolen.
On 26.02.2021, C.I.U. Crime Branch, Mumbai took
over the investigation of that offence by registering their
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own F.I.R. vide C.R.No.41 of 2021. At this stage, the
Petitioner was the Investigating Officer.
On 07.03.2021 the Anti-Terrorism Squad (for
short ‘ATS’) took over the investigation of the same
offence by registering their own F.I.R. vide C.R.No.11 of
2021 U/s.379 of the I.P.C.
On 21.05.2021, the National Investigation Agency
(for short ‘NIA’) included the investigation of this offence
in their ongoing investigation in connection with their F
No.11011/19/2021/NIA.
2) C.R.No.35 of 2021 was registered at Gamdevi
police station on 25.02.2021, under sections 286, 465,
473, 506(2), 120B of the I.P.C. and U/s.4(a)(b)(i) of the
Explosive Substances Act. It was registered against an
unknown accused. It was in connection with one
Mahindra Scorpio car found near the residential building
of a prominent industrialist.
This investigation was taken over by C.I.U., Crime
Branch, Mumbai by registering their own C.R.No.40 of
2021. At this stage, the Petitioner was the Investigating
Officer.
On 07.03.2021, the ATS took over this investigation
by registering their own C.R.No.10 of 2021. By the order
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of the Central Government, on 08.03.2021, the NIA took
over the investigation of this offence by registering their F
No.11011/19/2021/NIA.
3) Mumbra police station, Thane, A.D.R.No.39 of
2021 U/s.174 of the Cr.p.c. was registered on 05.03.2021.
This was registered after the dead body of the
aforementioned Mansukh Hiren was found.
On 07.03.2021, ATS took over this investigation
by registering their own C.R.No.12 of 2021, under
sections 302, 201 and 120B r/w.34 of the I.P.C. Even this
investigation was transferred to NIA on 20.03.2021 in
their ongoing investigation F No.11011/19/2021/NIA.
4. All these ostensibly unconnected incidents were
ultimately found to have had a common thread and the entire
matter was investigated by the NIA vide their F
No.11011/19/2021/NIA. The investigation was completed and the
charge-sheet was filed before the learned Special Judge, Mumbai.
The investigation was carried out vide RC/01/NIA/Mum.
5. The Petitioner was arrested by the NIA on 13.03.2021 at
11:40p.m. He was produced before the learned Special Judge,
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Mumbai on 14.03.2021. He was granted police custody for 10 days
and the next date for remand was 25.03.2021. On 14.03.2021
itself the Petitioner had made an application at Exhibit-3 claiming
that his arrest was illegal because the requisite consent of the State
Government U/s.45 of the Cr.p.c. was not taken. The said
application was rejected on 16.03.2021. It was observed that the
issue whether the Petitioner had acted in discharge of his official
duties could be decided at an appropriate stage.
6. On 24.03.2021, a report was submitted before the
learned Special Judge, Mumbai, mentioning that Sections 16 and
18 of the Unlawful Activities (Prevention) Act, 1967 (for short
‘UAPA’) were added. The learned Special Judge passed an order
“Seen & filed, tagged with NIA R.A.No.312/2021”. The remand
application number was R.A.No.312/2021 right from the first
remand.
7. On 25.03.2021, the police custody remand was extended
up to 03.04.2021. It may be noted here that, this period up to
03.04.2021 was beyond the period of 15 days from the date of his
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arrest and the date of his first remand. On 09.04.2021, the
Petitioner was remanded to judicial custody.
8. On 09.06.2021, the learned Special Judge gave an
extension of 60 days to complete the investigation under UAPA. On
05.08.2021, the said period was further extended by 30 days. On
03.09.2021, an application was made for permission to file the
charge-sheet. On that day itself, the charge-sheet was filed. On the
same day i.e. on 03.09.2021 it was observed that the charge-sheet
was filed and hence, R.A.No.312 of 2021 was disposed of.
9. According to the learned counsel for the Petitioner, from
03.09.2021 to 07.09.2021 there was no judicial order authorising
detention of the Petitioner. On 07.09.2021, the case was assigned
to another learned Judge. He received the charge-sheet at
4:55p.m. and took cognizance on the same day. According to the
learned counsel for the Petitioner, no order U/s.309 of the Cr.P.C.
remanding the Petitioner was passed on that day. On 15.11.2021,
the other documents were received.
These are the important dates. Mr. Naik’s submissions
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revolved around these dates.
SUBMISSIONS MADE BY SHRI. ROUNAK NAIK, LEARNED COUNSEL
ON BEHALF OF THE PETITIONER.
10. According to the learned counsel, Section 45 of the
Cr.p.c. is contravened. No consent of the State Government was
taken before arresting the Petitioner. Admittedly, he was the
Investigating Officer in the aforementioned offences, for which, he
was subsequently arrested. All the acts attributed to him were
committed during the performance of his official duty, therefore, it
was necessary to have obtained the consent U/s.45 of the Cr.p.c.,
before his arrest.
The first remand should have been obtained by the
Investigating Agency from a Magistrate. Learned Special Judge
was not empowered to remand the Petitioner at the first instance
when he was arrested.
The charge-sheet was filed on 03.09.2021 and,
therefore, power to remand before filing of the charge-sheet
U/s.167 of the Cr.p.c. came to end on 03.09.2021. After that, the
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remand could have been granted only U/s.309 of the Cr.p.c. But
there was no such order of the remand U/s.309 of the Cr.p.c.
passed on 03.09.2021.
The matter was transferred to another learned Judge
on 07.09.2021. The charge-sheet runs into thousands of pages and
therefore, it was not possible for him to have applied his mind to
the entire set of documents to reach to the conclusion that it was a
fit case where cognizance could be taken. In spite of that, on that
very day i.e. on 07.09.2021, within a short period the cognizance
was taken.
According to Shri. Naik, the warrant of remand
U/s.309 of the Cr.p.c. was required to be sent by the learned
Special Judge under his own signature. The Criminal Manual
provides Form VI requiring signature of the learned Special Judge.
But in this case, there is no such warrant of remand U/s.309 of the
Cr.P.C. signed by the learned Special Judge.
Learned counsel relied on the Judgment of the Hon’ble
Supreme Court in the case of Ram Narayan Singh Versus State of
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Delhi and others1. According to Shri. Naik, the ratio of that
judgment is that, every order made under the said section had to
be in writing and signed by the Presiding Judge or Magistrate.
Learned counsel relied on the judgment of a Division
Bench of this Court in the case of Dilip Pandurang Kamath and
others Versus The State of Maharashtra2, and in particular he
relied on paragraph-28 of the said judgment; wherein, it was
observed that, as far as, the remand order is concerned, only a
warrant is sufficient. It was observed that, it was a settled law that
under Section 309(2) of the Cr.p.c. the only requirement was that,
if an adjournment was made, then by a warrant the accused may
be remanded to custody. According to him, in this case the
Petitioner is not remanded to custody U/s.309 of the Cr.P.C. under
warrant on each date.
Learned counsel also relied on the Judgment of a
Single Judge Bench of the High Court of Delhi at New Delhi in the
case of Yogesh Mittal Versus Enforcement Directorate3. He relied
1 (1953) 1 SCC 389
2 2005 SCC OnLine Bom 1236
3 2018 SCC OnLine Del 6565
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on the observation in paragraph-30, wherein, it was observed that,
noting dated 11th August, 2017 in that case was not by the Court
but was by the Reader of the Court; which could not be said to be
an order of remand by the Court.
SUBMISSIONS MADE BY SHRI. SANDESH PATIL, LEARNED COUNSEL
ON BEHALF OF THE RESPONDENT NO.1/NIA.
11. Learned counsel for the Respondent No.1/NIA submitted
that the Petitioner was arrested on 13.03.2021 after the NIA had
taken over the investigation on 08.03.2021. The offence under the
Explosive Substances Act was mentioned in the Schedule of the
National Investigating Agency Act, 2008 (for short ‘NIA Act‘),
therefore, the learned Special Judge under NIA was the competent
Court who could have granted an order of remand of the
petitioner. He relied on the provisions of Sections 2(b) and 16 of
the NIA Act. He submitted that the Petitioner had raised a ground
that there was no valid remand order after 03.09.2021. He had
preferred an application at Exhibit-16 in NIA Special Case No.1090
of 2021 for being released on default bail U/s.167(2) of the Cr.P.C.,
on that ground. Learned Special Judge had rejected that
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application vide the order dated 22.10.2021. There was no
challenge to that order by the Petitioner and, therefore, that issue
had been finally concluded vide the said order. Hence, the
Petitioner cannot raise that issue in the present petition for habeas
corpus.
Learned counsel further submitted that the order dated
03.09.2021 at Exhibit 106 was in the nature of directions by the
learned Special Judge sending the petitioner to a hospital. Similar
order was passed on 07.09.2021. As a background, Shri. Patil
submitted that on 30.08.2021, the Petitioner was taken to the
hospital. Vide that order, the Superintendent, Taloja Jail was
directed to take the Petitioner to S.S. Hospital & Research Centre,
Pavanputra Enclave, Opp. Jain temple, Thane Bhiwandi Road,
village Kalher, Bhiwandi for his medical treatment. The petitioner
was in the hospital till 28.09.2021. On 29.09.2021, he was
directed to be taken to Taloja Jail, but he was actually in the
hospital till 05.10.2021, therefore, he was in authorised custody.
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Shri. Patil submitted that, there was a difference
between Section 344(2) of the Cr.P.C., 1898 and Section 309(2) of
the Cr.P.C., 1973. The requirement of signing every order made
under that section by a Magistrate or a Court; which was
mentioned in Section 344(2) of the Cr.P.C., 1898, was deleted by
the Legislature while enacting Section 309(2) of the Cr.p.c.
Therefore, the ratio in the case of Ram Narayan Singh (supra) is
not applicable to this case.
Shri. Patil further submitted that, when the charge-
sheet was filed, page nos.1 to 290 summarised the case, and in
particular, on page No.19 there was a summary of the charges.
Hence, it was not necessary for the learned Special Judge to have
gone through the entire documents annexed to the charge-sheet. It
was possible for him to have taken cognizance based on the report
of the Investigating Officer which did not run into many pages and
therefore, there is no force in the submission that the cognizance
was taken mechanically and without due application of mind.
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SUBMISSIONS MADE BY LEARNED APP SHRI J. P. YAGNIK ON BEHALF
OF THE RESPONDENT NO.2 – THE STATE OF MAHARASHTRA :
12. The Petitioner was initially detained in Taloja Central
Prison and thereafter he was shifted to Thane Central Prison.
Therefore, the question was whether the Petitioner was kept in
custody in either or both of these prisons under the valid orders of
remand passed by the learned Special Judge from time to time and
on every date of the case. To explain this situation, Shri Yagnik has
filed two separate affidavits of the Superintendent of Taloja
Central Prison and the Superintendent of Thane Central Prison.
Shri Yagnik submitted that the procedure followed by both the
Superintendents of these prisons was similar. It was based on the
order mentioned in the Rozanama and followed by the note
prepared by the Judicial Clerk of the Court by using a rubber
stamp and inscribing his own signature. The note was given to the
Jail Authorities intimating the next date to produce the prisoner
either personally or through Video Conferencing. According to
those notes, the prisoners were produced before the Court either
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personally or through Video Conferencing. Shri Yagnik submitted
that this procedure is followed in this particular case.
REASONS AND CONCLUSION :
13. The Respondent No.1 has filed affidavit-in-reply in which
the role played by the Petitioner is mentioned. The Petitioner had
attempted to show Mansukh Hiren as a conspirator in placing the
explosive laden SUV on Carmichael Road and had tried to
convince Mansukh Hiren to accept the responsibility for placing
the Scorpio vehicle laden with explosives. When Mansukh Hiren
refused to accept his proposition, the Petitioner hatched a
conspiracy to kill Mansukh Hiren through the accused No.10 and
the accused No.5 with the help of the killers i.e. the accused No.6
to accused No.9. The vehicle with explosives was planted by the
Petitioner himself on Carmichael Road.
14. Learned counsel for the Petitioner submitted that the
consent of the State Government was not taken before arresting
the Petitioner and, therefore, Section 45 of the Cr.P.C. was
contravened. According to the learned counsel, the Petitioner was
the investigating officer in those offences and subsequently he was
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he was under the protection of Section 45 of Cr.P.C.. Section 45 of
Cr.P.C. reads thus :
“Section 45 – Protection of members of the Armed
Forces from arrest(1) Notwithstanding anything contained in sections 41
to 44 (both inclusive), no member of the Armed Forces
of the Union shall be arrested for anything done or
purported to be done by him in the discharge of his
official duties except after obtaining the consent of
the Central Government.
(2) The State Government may, by notification, direct
that the provisions of subsection (1) shall apply to
such class or category of the members of the Force
charged with the maintenance of public order as may
be specified therein, wherever they may be serving, and
thereupon the provisions of that sub-section shall
apply as if for the expression “Central Government”
occurring therein, the expression “State Government”
were substituted.”
15. The requirement of the protection is mentioned in
Section 45(1) of Cr.P.C.. The benefit is extended to the category of
members of the Force charged with maintenance of public order
which the State Government could direct under a notification.
According to the learned counsel for the Petitioner, the Petitioner
was protected under Section 45(2) of Cr.P.C. as he was member of
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the Force charged with the maintenance of public order. However,
we do not agree with this submission because the requirement
mentioned under sub-section (1) of Section 45 of Cr.P.C. is that
such person who was to be arrested must have done that act or
purported to have done that act in the discharge of his official
duties. In the given set of facts, by no stretch of imagination, it
can be said that the Petitioner was acting or was purportedly
acting in the capacity of his official duties, when he planted that
vehicle at Carmichael Road or when he entered into the conspiracy
and executed the conspiracy to commit the murder of Mansukh
Hiren. Therefore, we do not find any substance in this submission
that the NIA should have obtained consent from the State
Government before effecting his arrest.
16. The next submission of the learned counsel was that the
first remand should have been obtained by the NIA from the
Magistrate and not from the learned Special Judge. According to
the learned counsel, the learned Special Judge was not
empowered to remand the Petitioner at the first instance when the
Petitioner was arrested. It is significant to note that there was a
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common investigation by the NIA through their F
No.11011/19/2021/NIA of the two registered offences and one
ADR as mentioned hereinbefore. C.R. No.35/2021 was registered
at Gamdevi police station on 25.2.2021 under Sections 286, 465,
473, 506(2), 120B of IPC and under Sections 4(a)(b)(i) of the
Explosive Substances Act, 1908.
17. In this background, it is important to note that the
Schedule of the National Investigation Agency Act, 2008 (for short,
‘NIA Act‘) lists the Explosive Substances Act, 1908. Section 13(1)
of the NIA Act provides thus :
“Section 13 – Jurisdiction of Special Courts
(1) Notwithstanding anything contained in the
Code, every Scheduled Offence investigated by the
Agency shall be tried only by the Special Court
within whose local jurisdiction it was committed.”
18. The Hon’ble Supreme Court in the case of Bikramjit
Singh Vs. State of Punjab4 has considered the effect of Section
13(1) of the NIA Act and has held that the Special Court alone has
exclusive jurisdiction to try the Scheduled offences. It was
4 2020(10) Supreme Court Cases 616
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observed in paragraphs-24 & 25 that the Special Court has
exclusive jurisdiction over every Scheduled Offence investigated
by the Investigating Agency of the State. In the present case, the
National Investigation Agency carried out the investigation. The
offences under the Explosive Substances Act, 1908 are covered
under the Schedule of the NIA Act. Therefore, the learned Special
Judge under the NIA Act has the exclusive jurisdiction to try these
offences.
19. This judgment was followed by a Division Bench of this
Court in the case of Sudha Bharadwaj Vs. National Investigation
Agency5. The Division Bench considered the submissions on behalf
of the Investigating Agency that the Special Courts constituted or
designated either under Section 11 or Section 22 of the NIA Act
are not meant for conduct of pre-trial proceedings. The Division
Bench did not accept this proposition and default bail was granted
to the Petitioner in that case. The relevant observations are in
paragraph-115 & 116 of the said judgment, which read thus :
5 2021 SCC OnLine BOM 4568
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19 of 36 wp-2485-24-F“115. This propels us to the next limb of the
submission assiduously canvassed on behalf of the
respondents that under section 11 of the NIA Act,
the Special Courts are to be constituted for the
trial of Scheduled Offences. The Special Courts so
constituted or designated under either section 11
or section 22 of the NIA Act, are not meant for
conduct of pre-trial proceedings. Since the
extension of period of detention, pending
completion of investigation, is squarely in the
realm of investigation, the ordinary criminal
Courts are not divested of the jurisdiction to deal
with pre-trial proceedings, including the extension
of period of detention, was the thrust of the
submission on behalf of the respondents.
116. Indeed, there is a marked difference
between the stages of investigation, inquiry and
trial envisaged by the Code. However, in the light
of the controversy at hand, the distinction sought
to be drawn between “pre-trial” and “trial”
proceedings and the jurisdiction of the Court qua
those proceedings, is not of much assistance to
the respondents. The reason is not far to seek.
The first proviso in section 43-D(2)(b) expressly
confers the power to extend the period of
detention of the accused upto 180 days upon the
‘Court’, which in turn is defined in section 2(d) as
‘a criminal court having jurisdiction to try
offences’ under the said Act. The legislature has
vested the authority to extend the period of
detention in the Court which is competent to try
the offences under UAPA. We have seen that,
Bikramjit Singh (Supra) lays down in emphatic
terms that it is only the Special Courts
constituted either under sections 11 or 22 of the
NIA Act which are competent to try the
Scheduled Offences.”
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20. Therefore, we do not find any force in the submission of
learned counsel for the Petitioner that the first remand could not
have been granted by the learned Special Judge under NIA Act as
far as the Petitioner is concerned.
21. Learned counsel for the Petitioner submitted that the
charge-sheet was filed on 03.09.2021 and, therefore, the power to
remand the Petitioner U/s.167 of the Cr.P.C. came to an end on
03.09.2021. The cognizance was taken on 07.09.2021, therefore,
for the period between 03.09.2021 to 07.09.2021, there was no
valid remand order and for that period his detention was
completely illegal.
In this connection, it must be noted that, at the first
instance, time to complete the investigation beyond 90 days of the
first remand was extended for a period of 60 days from
09.06.2021. Before that period of 60 days was over, again further
extension was granted on 05.08.2021. On that date, the period of
detention and the time for completion of the investigation for a
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further period of 30 days was granted w.e.f. 07.08.2021. This
period of 30 days from 07.08.2021 would have come to an end on
06.09.2021. On 07.09.2021, the charge-sheet was filed and the
cognizance was taken. Therefore, vide the order dated 05.08.2021,
remand U/s.167 of the Cr.P.C. was already extended for a period of
30 days w.e.f. 07.08.2021. Hence, merely filing of the charge-sheet
on 03.09.2021, it cannot be said that from that date onwards there
had to be an order of remand U/s.309 of the Cr.P.C. Remand under
that section could be granted only after taking cognizance. In this
case, admittedly, cognizance was taken on 07.09.2021 and from
that date onwards there was remand U/s.309 of the Cr.P.C.
Therefore, there is no force in the submission that, between the
period from 03.09.2021 to 07.09.2021 there was no valid order of
remand and hence the detention was illegal.
22. In this context, there is another angle on which the issue
raised by the learned counsel for the petitioner in this petition can
be considered. It was the contention of the learned counsel for the
Petitioner that the charge-sheet was filed on 03.09.2021 and
cognizance was taken on 07.09.2021 and, therefore, within that
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period i.e. between 03.09.2021 to 07.09.2021 there was no valid
remand order as the power to grant remand U/s.167 of the Cr.P.C.
came to an end on 03.09.2021. In this context, the observations of
the Hon’ble Supreme Court in the case of Suresh Kumar
Bhikamchand Jain Versus State of Maharashtra and Another6 is
important. In that case the Petitioner therein was functioning as
the Minister of Housing and Slum Area Development, and was a
Member of the Legislative Assembly. During the investigation, he
was arrested on 11.03.2012 and while the charge-sheet was filed
against four others on 25.04.2012, a supplementary charge-sheet
came to be filed on 01.06.2012. For a while, he was released on
interim bail, but upon rejection of his application for bail on merit,
he was again taken into custody on 05.07.2012. It was argued on
his behalf that, although the charge-sheet was filed within the time
stipulated under section 167(2) of the Cr.P.C., sanction to
prosecute the Petitioner had not been obtained, as a result
whereof, no cognizance was taken of the offence. Notwithstanding
that, the remand orders continued to be made and the petitioner
in that case remained in Magisterial custody. In that context, it was
6 (2013) 3 Supreme Court Cases 77
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argued on behalf of him that, after the statutory period U/s.167(2)
of the Cr.P.C. had lapsed, he could not have been remanded to
custody by the Special Judge, who was yet to take cognizance for
want of sanction. It was argued that the orders passed by the
learned Magistrate after the statutory period, were without
jurisdiction. In this background, the Hon’ble Supreme Court has
discussed this aspect in Paragraph-18 which reads thus:
“18. None of the said cases detract from the position
that once a charge-sheet is filed within the stipulated
time, the question of grant of default bail or statutory
bail does not arise. As indicated hereinabove, in our
view, the filing of charge-sheet is sufficient compliance
with the provisions of Section 167(2)(a)(ii) in this
case. Whether cognizance is taken or not is not
material as far as Section 167 Code of Criminal
Procedure is concerned. The right which may have
accrued to the Petitioner, had charge-sheet not been
filed, is not attracted to the facts of this case. Merely
because sanction had not been obtained to prosecute
the accused and to proceed to the stage of Section 309
Code of Criminal Procedure, it cannot be said that the
accused is entitled to grant of statutory bail, as
envisaged in Section 167 Code of Criminal Procedure.
The scheme of the Code of Criminal Procedure is such
that once the investigation stage is completed, the
Court proceeds to the next stage, which is the taking
of cognizance and trial. An accused has to remain in
custody of some court. During the period of
investigation, the accused is under the custody of the
Magistrate before whom he or she is first produced.
During that stage, under Section 167(2) Code of
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authority to remand the accused to custody, both
police custody and/or judicial custody, for 15 days at a
time, up to a maximum period of 60 days in cases of
offences punishable for less than 10 years and 90 days
where the offences are punishable for over 10 years or
even death sentence. In the event, an investigating
authority fails to file the charge-sheet within the
stipulated period, the accused is entitled to be released
on statutory bail. In such a situation, the accused
continues to remain in the custody of the Magistrate
till such time as cognizance is taken by the Court
trying the offence, when the said Court assumes
custody of the accused for purposes of remand during
the trial in terms of Section 309 of Code of Criminal
Procedure. The two stages are different, but one
follows the other so as to maintain a continuity of the
custody of the accused with a court.”
It was observed that scheme of the Cr.P.C. was such
that once the investigation stage was completed, the Court
proceeds to the next stage, which is the taking of cognizance and
trial. An accused has to remain in custody of some court. During
that stage U/s.167(2) of the Cr.P.C., the Magistrate is authorised to
grant remand in the stipulated period of 60 days or 90 days, as the
case may be. In the event, the charge-sheet is not filed within that
period, the accused is entitled to be released on statutory bail. But,
in such a situation the accused continues to remain in the custody
of the Magistrate till such time as cognizance is taken by the Court
trying the offence, when the Court assumes custody of the accused
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for the purposes of remand during the trial in terms of Section 309
of the Cr.P.C.
Paragraph-19 further reads thus:
“19. Having regard to the above, we have no hesitation
in holding that notwithstanding the fact that the
prosecution had not been able to obtain sanction to
prosecute the accused, the accused was not entitled to
grant of statutory bail since the charge-sheet had been
filed well within the period contemplated under
Section 167(2)(a)(ii) Code of Criminal Procedure.
Sanction is an enabling provision to prosecute, which
is totally separate from the concept of investigation
which is concluded by the filing of the charge-sheet.
The two are on separate footings. In that view of the
matter, the Special Leave Petition deserves to be and is
hereby dismissed.”
In that case, the cognizance was not taken in absence
of sanction. The Hon’ble Supreme Court held that even then the
accused was not entitled for grant of statutory bail since the
charge-sheet was filed well within the period contemplated
U/s.167(2)(a)(ii) of the Cr.P.C.
23. Thus, considering the submissions of the learned counsel
for the Petitioner that the remand was illegal between 03.09.2021
to 07.09.2021, on the above discussion, according to us, the
Petitioner cannot be said to be in illegal detention.
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24. The Petitioner had preferred an application at Exhibit-16
in NIA Special Case No.1090/2021 for his release on default bail.
The said application was rejected by the learned Special Judge
vide the order dated 22.10.2021. In that order, there was a specific
reference made to the case of Suresh Kumar Bhikamchand Jain
(supra). Following that ratio, the application was rejected. This
particular order dated 22.10.2021 was not challenged by the
Petitioner and, therefore, had attained finality.
25. Learned counsel for the Petitioner submitted that, after
the first remand on 14.03.2021, the police custody was extended
up to 03.04.2021; which was beyond the period of 15 days of
arrest. He, therefore, submitted that the remand of police custody
beyond 15 days was also illegal. However, in that context, it must
be noted that on 24.03.2021, a report was submitted before the
Special Judge Mumbai, mentioning that Sections 16 and 18 of the
UAPA were added. Under that Act, there was a provision for grant
of police custody for 30 days. Judicial custody was granted on
09.04.2021 which was well within the period of 30 days; as
provided under the UAPA and, therefore, even that submission
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does not have any force.
26. The next submission of the learned counsel for the
Petitioner was that the charge-sheet was filed before one learned
Judge on 03.09.2021 and then it was transferred to another
learned Special Judge on 07.09.2021. The charge-sheet runs into
many pages and it was not possible for him to apply his mind for
reaching the conclusion of taking the cognizance.
27. In this connection, it is rightly submitted by the learned
counsel for the NIA that it was not necessary for the learned
Special Judge to have gone through the each and every document
tendered along with the charge-sheet. It was sufficient for him to
read the pages where summary of the charges was mentioned and
the pages where the entire case was summarised. Those
documents were sufficient to form an opinion for taking the
cognizance. We agree with these submissions of Mr. Patil that the
Court does not have to go through each and every document
submitted along with the charge-sheet for taking cognizance.
28. Learned counsel for the Petitioner submitted that, after
the cognizance was taken, the accused could be remanded only
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through an order in writing, signed by the Presiding Judge or the
Magistrate. He relied on the Judgment of the Hon’ble Supreme
Court in the case of Ram Narayan Singh (supra). In that
Judgment, the Hon’ble Supreme Court was considering Section
344 of the Cr.P.C., 1898 which required that, every order made
under that section other than by the High Court had to be in
writing, signed by the Presiding Judge or the Magistrate.
Section 344 of the Cr.P.C., 1898 reads thus:
344. (1) If, from the absence of a witness, or any
other reasonable cause, it becomes necessary or
advisable to postpone the commencement of, or
adjourn, any inquiry or trial, the Court may, if it
thinks fit, by order in writing, stating the reasons
therefor, from time to time, postpone or adjourn the
same on such terms as it thinks fit, for such time as it
considers reasonable, and may by a warrant remand
the accused if in custody:
Provided that no Magistrate shall remand an
accused person to custody under this section for a
term exceeding fifteen days at a time.
(2) Every order made under this section by a Court
other than a High Court shall be in writing signed by
the presiding Judge or Magistrate.
Explanation.- If sufficient evidence has been obtained
to raise a suspicion that the accused may have
committed an offence, and it appears likely that
further evidence may be obtained by a remand, this is
a reasonable cause for a remand.”
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29. This particular provision was modified in the Cr.PC,
1973. The corresponding section under the Cr.PC, 1973 was
Section 309; which reads thus:
“Section 309 – Power to postpone or adjourn
proceedings-
(1) In every inquiry or trial the proceedings shall be
continued from day-to-day until all the witnesses in
attendance have been examined, unless the Court finds
the adjournment of the same beyond the following day to
be necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an
offence under section 376, [Section 376A, Section
376AB, section 376B, section 376C, section 376D,
section 376DA or section 376DB of the Indian Penal
Code, the inquiry or trial shall] of the Indian Penal
Code (45 of 1860), the inquiry or trial shall] be
completed within a period of two months from the date
of filing of the charge sheet.
(2) If the Court after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry
or trial, it may, from time to time, for reasons to be
recorded, postpone or adjourn the same on such terms as
it thinks fit, for such time as it considers reasonable, and
may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused
person to custody under this section for a term
exceeding fifteen days at a time:
Provided further that when witnesses are in
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attendance, no adjournment or postponement shall be
granted, without examining them, except for special
reasons to be recorded in writing:
Provided also that no adjournment shall be granted for
the purpose only of enabling the accused person to
show cause against the sentence proposed to be
imposed on him.
Provided also that–
(a) no adjournment shall be granted at the request of
a party, except where the circumstances are beyond
the control of that party;
(b) the fact that the pleader of a party is engaged in
another Court, shall not be a ground for
adjournment;
(c) where a witness is present in Court but a party or
his pleader is not present or the party or his pleader
though present in Court, is not ready to examine or
cross-examine the witness, the Court may, if thinks
fit, record the statement of the witness and pass such
orders as it thinks fit dispensing with the
examination-in-chief or cross-examination of the
witness, as the case may be.
Explanation 1 .-If sufficient evidence has been obtained
to raise a suspicion that the accused may have committed
an offence, and it appears likely that further evidence
may be obtained by a remand, this is a reasonable cause
for a remand.
Explanation 2.-The terms on which an adjournment or
postponement may be granted in include, in appropriate
cases, the payment of costs by the prosecution or the
accused.
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Thus, sub section 2 of Section 344 of the Cr.PC, 1898 is
not carried forward U/s.309 of the Cr.PC, 1973. Therefore, that
particular requirement that every order under the said section had
to be in writing and had to be signed by the Presiding Judge or the
Magistrate, was dispensed with.
30. The contention of the learned counsel for the Petitioner
was that the accused had to be remanded under a warrant and the
order had to be in writing and signed by the Presiding Judge. He
relied on the Form VI of the Criminal Manual which provides
warrant for remand U/s.309 of the Cr.PC, 1973. Learned counsel
for the Petitioner submitted that, no such warrant was issued or
signed by the learned Special Judge and, therefore, remand
U/s.309 of the Cr.PC, 1973 during pendency of trial was illegal.
31. To counter this submission, Shri. Patil submitted that,
Sub Section 2 of Section 309 of the Cr.PC, 1973 uses the word
‘may’. Sub Section 2 of Section 309 mentions that, if the Court
finds it necessary to adjourn any trial, it may, from time to time,
for reasons to be recorded, adjourn the same for such time as it
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considers reasonable, and ‘may’ by a warrant remand the accused
if in custody. Therefore, Shri. Patil submitted that, this section is in
two parts; one is for adjournment of the trial and other part is for
remanding the accused by a warrant. Shri. Patil submitted that the
requirement to remand the accused by a warrant is not mandatory
as the word ‘may’ is used. Therefore, the procedure adopted by the
learned Special Judge, U/s.309 of the Cr.PC will have to be seen
and not the absence of a specific warrant under Form VI of the
Criminal Manual.
We find force in the submission of Shri. Patil in that
behalf.
32. In this context, we examined the procedure adopted by
the learned Special Judge while adjourning the trial.
33. We have perused a copy of a Roznama of the said case
produced by Shri. Patil. As a specimen, the Roznama dated
02.12.2024 is produced herein below:
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“Daily Status
City Sessions Court, Mumbai
In the court of : COURT 57 ADDL SESSIONS JUDGE
CNR Number : MHCC020110482021
Case Number : SPL.CASE/0101090/2021
NATIONAL INVESTIGATION AGENCY versus SACHIN
HINDURAO WAZE AND ORS.09
Date : 02-12-2024
______________________________________________________Business :CORAM-SHRI A.M.PATIL, SPECIAL JUDGE
UNDER MCOCA/TADA/POTA/NIA AND
OTHER SESSIONS CASES, COURT ROOM
NO.57. 11.01 a.m. – SPP S.D. Gonsalves for
the NIA present. HC Sandeep Chande
attached to the NIA present. Havildar Santosh
Magar attached to Thane District Jail
informed on VC that the accused Sachin Waze
has been taken to the MM Court, Esplanade,
Mumbai. Hence, not produced. Accused no.2,
3, 4 and 10 on bail absent. Ld. SPP sought
short time to file say on Exh.375, Exh.377 and
Exh.378 on the ground that the reply is on
waiting from the NIA. O- Time is granted.
Later on at 11.15a.m.- Accused no.2 and 3 on
bail present. Adv. Dakshata Dupare h/f Adv.
Rounak Naik for accused no.1 present.
Accused no.6-Santosh Atmaram Shelar, 7-
Anand Pandurang Jadhav, and accused no.8-
Satish Tirupati Mothkuri @ Tanni produced
on VC from Taloja Jail. Later on at 11.40a.m.-
Accused no.10 on bail present. Adv.
Chandansingh Shekhawat for accused no.10
present. Accused no.5-Sunil Dharma Mane
produced on VC from Taloja Jail. Heard
accused no.5 below Exh.359 on VC. Ld. SPP
submitted that he has appointment with the
Doctor at 4.00p.m. Later on at 12.00 noon.-
Heard Ld. SPP below Exh.359. Later on at
01.00 p.m.- Accused no.9-Manish Soni
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produced physically from MCP. Application
(Exh.378) is not pressed by the accused no.9.
Hence, disposed of. Later on at 01.15 p.m.-
Accused no.4 on bail present. Matter is
adjourned to 20.12.2024 for further hearing
on Exh.293 on behalf of NIA, hearing
Exh.340, reply on Exh.375, Exh.377 and for
Order on Exh.359. Special Judge
Next Purpose : HEARING
Next Hearing Date : 04-12-2024
COURT 57 ADDL SESSIONS JUDGE”
The roznamas of the other dates are more or less in
this format. All necessary components as to why the matter was
being adjourned is mentioned in that roznama. The next purpose
of the trial is mentioned and the next date of hearing is also
specifically mentioned. Pursuant to the noting in the roznama as
thus, the Sheristedar issued a note under a stamp informing the
Jail authorities the next date of hearing on which date the accused
has to be produced before the Court physically or through the
video conferencing. The jail authorities act on these directions and
then produce the accused on the next date, as directed through
this communication.
34. The Affidavits filed by the Superintendent of Taloja
Central Prison and Thane Central Prison mention that, whenever
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Judicial Clerk noted the presence of the prisoner and once the
matter was over, the Sheristedar used to intimate the next date of
production of the prisoner either physically or through V.C.; by
putting a rubber stamp for directions. The concerned jail
authorities take note of those directions for necessary compliance
in producing the accused. Thus, the requirement of Section 309 of
the Cr.PC is complied with. The reason for adjournment is
mentioned in the roznama by the learned Special Judge. Pursuant
to the noting in the roznama, the Sheristedar intimates the Jail
Superintendent the next date for production of the accused before
the Court and accordingly, on the next date the accused are
produced. Thus, this is sufficient compliance of Section 309 of the
Cr.P.C., and therefore, it cannot be said that the accused is detained
in jail without any valid remand order. In this view of the matter,
the ratio of the judgments in the case of Dilip Kamath and Yogesh
Mittal does not help the submissions of Shri Naik.
35. Though, the petition runs into many pages and many
grounds are taken, learned counsel for the petitioner specifically
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restricted his arguments only to the submissions which we have
noted down in this order.
36. Considering all these aspects and the above discussion,
we are of the opinion that no relief can be granted in terms of the
prayers mentioned in this petition. It is made clear that the
reference to the merits and facts of the case is made only for the
purpose of deciding this Petition. The Trial Court, at an
appropriate stage, shall decide the trial in accordance with law on
the basis of the evidence produced before it.
37. Accordingly, the Writ Petition is dismissed.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
[Gokhale/Deshmane]
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Digitally signed by
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Date: 2025.03.06
11:07:55 +0530
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