MHCC020162962023
IN THE COURT OF SPECIAL JUDGE,
CITY CIVIL AND SESSIONS COURT OF GR. BOMBAY
BAIL APPLICATION NO.961 OF 2023
IN
REMAND APPLICATION NO.1286 OF 2023
Kailash Mathura Suryawanshi
Е Accused
Vs.
The State of Maharashtra
(Through, Nagpada Police Station, Mumbai
Vide C.R. No.310 of 2023)
Е Prosecution
Appearances:Advocate Mr. Santosh Madhukar Deshpande for accused.
SPP Mr.Jaysing Desai for the Prosecution.
CORAM : THE SPECIAL JUDGE
SHRI. RAJESH J. KATARIYA (C.R.NO.25)
DATED : 27th OCTOBER 2023.
(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
Present application is filed by the learned advocate for the
accused for grant of default bail to the applicant/accused Kailash
Mathura Suryawanshi.
2.

In the present case, the offence vide C.R.No.310/2023 came
to be registered at Nagpada Police Station for the offences u/s 170,
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341,347,363 and 395 of IPC on the basis of FIR dated 08.04.2023
against unknown persons. The accused no.1 is arrested on 10.04.2023
and was under PCR till 18.04.2023. Accused no.2 is arrested on
11.04.2023 and was under PCR till 18.04.2023.

Accused no.3 is
arrested on 12.04.2023 and was under PCR till 18.04.2023. The
accused no.4 is arrested on 04.05.2023 and was under PCR till
12.05.2023. The applicant/accused no.5 is arrested on 03.06.2023 and
was produced before Learned Metropolitan Magistrate on 04.06.2023.
He was under PCR till 14.06.2023. The accused no.6 is arrested on
23.06.2023 and was under PCR till 14.06.2023. After the abovesaid
respective period of PCR of the accused persons, they were sent in
judicial custody by Learned Metropolitan Magistrate. The charge-sheet
against the accused persons is filed for the offences u/s 170,
341,347,363 and 395 of IPC in the Court of learned Metropolitan
Magistrate, 69th Court, Mazgaon on 07.07.2023. Thereafter, on
05.10.2023, prior approval as per Section 23(1)(a) of MCOC Act came
to be accorded in the case.
3.

The rozanama of the Court of the learned Metropolitan
Magistrate shows that on 09.10.2023, the learned Metropolitan
Magistrate issued production warrant with direction to the I.O. to
produce accused before this court.

On 11.10.2023, the prosecution
filed intimation before this Court regarding grant of prior approval
under Section 23(1)(a) of MCOC Act, also, accused are produced before
this Court on 11.10.2023. On 11.10.2023, prosecution filed remand
application seeking further PCR of the accused. As the prosecution had
not filed written statement as required as per section 21(7) of MCOC
Act, this Court did not grant PCR and remanded the accused to judicial
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custody.
4.

Today, present application is filed for grant of default bail as
per section 167(2) of Cr.PC on behalf of accused Kailash Mathura
Suryawanshi.
5.

Heard learned advocate Mr. Deshpande for the applicant and
learned SPP Mr. Desai for prosecution.
6.

Learned advocate for the applicant submitted that accused
no.1 is arrested on 10.04.2023. He submitted that applicant is arrested
on 03.06.2023. He further submitted that the counting of period of
detention the date of arrest of accused no.1 i.e. 10.04.2023 is required
to be considered. He submitted that though charge-sheet before the
Metropolitan Magistrate is filed on 07.07.2023, the prior approval is
granted on 05.10.2023 and the period of 180 days from the date of
arrest of first accused expired on 07.10.2023. He submitted that there
is no order of extension for further investigation in favour of the
prosecution. The report required as per the provisions of Section 21 of
MCOC Act is not submitted by the prosecution. There is no specific
reason for detention of the accused beyond period of 180 days on the
part of the prosecution. He further submitted that accused is not served
with the copy of charge-sheet.

It infringes the right of accused as
provided under article 21 of the constitution of India. He submitted that
there is no provision for truncating the charge-sheet in IPC. Hence,
prayed for grant of default bail to the applicant.
7.

He placed reliance on the case of Mr. Faizal Wadgama Vs.

The State of Maharashtra. [Criminal Bail Application no.2167 of 2016;
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decided on 23.02.2017]. He invited my attention to the para nos.16 and
23 of the order which reads as under:-
У16. At the cost of reiteration, this Court cannot be
oblivious, of the fact that applicant was produced before
the Court on 06.07.2016 and was in custody till
07.10.2016 in the intervening period i.e. from
03.09.2016 to 07.09.2016, applicant was in police
custody and on 07.09.2016, he was remanded to judicial
custody. What needs to be considered is the first date of
remanding the accused to judicial custody. The fact that
he was sent to judicial custody by the Special Court
would clearly indicate that he was taken in custody
under the provisions of MCOCA and the charge-sheet
ought to have been filed within 90 days or else
investigating agency ought to have filed an application
seeking extension of time. The learned special Judge has
rejected the application on the ground that in the
interregnum, charge-sheet was filed against co-accused
and hence, applicant could not avail of relief under
section 167 (2) of Code of Criminal Procedure, 1973.
Needless to say that if the investigation continues even
beyond the stipulated mandatory period, the benefit of
proviso appended to sub-section 2 of section 167 of the
Code would be available to offender.
ЕЕ.
23. In the case of State of Maharashtra V/s Bharati
Varma reported in 2002 ALL MR (Cri) 1215 (S.C.),
wherein the HonТble Supreme Court pleased to hold that:
УFor the application of the proviso to Section
167(2) of the Code there is no necessity to consider
when the investigation could legally have
commenced. That proviso is intended only for
keeping an arrested person under detention for the
purpose of investigation and the legislature has
provided a maximum period for such detention. On
the expiry of the said period the further custody
becomes unauthorized and hence it is mandated
that the arrested person shall be released on bail if
he is prepared to and does furnish bail. It may be a
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different position if the same accused was found to
have involved in some other offence disconnected
from the offence for which he was arrested. In such
an eventuality the officer investigating such second
offence can exercise the power of arresting him in
connection with the second case. But if the
investigation into the offence for which he was
arrested initially had revealed other ramifications
associated therewith, any further investigation
would continue to relate to the same arrest and
hence the period envisaged in the proviso to Section
167(2) would remain unextendable. It cannot be
said that a new period of 90 days would commence
from the date when approval was accorded under
Section 23 of the MCOC Act for initiating
investigation of any offence under the said Act. In
the present case, but on account of of the default of
investigating agency to complete the investigation
within 90 days form the date of the first remand of
the respondent.Ф
8.

Per contra, vide say filed at Exh.2, learned SPP opposed
application. It is submitted that the charge-sheet was filed before the
learned Metropolitan Magistrate on 07.07.2023 will within stipulated
period of 90 days. Since the charge-sheet is filed in stipulated period,
the provisions of section 167 (2) is not applicable. The further custody
of accused is extended under Section 309 of CrPC. He submitted that
the applicant is not entitled for grant of bail for mere non service of the
copy of charge-sheet. Hence, prayed for rejection of the application.
9.

He placed reliance on the case of Indrabahadur Lalbahadur
Khatri and Ors. Vs. The State of Maharashtra. [Criminal Bail Application
No.1046 of 2012; decided on 05.09.2012] and invited my attention to
para nos.15,17,18,20 and 22 which reads as under:-
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У15. The real question is whether after the filing of the
charge sheet, merely because further investigation is
undertaken, the arrested person would be treated or
taken as being under detention by virtue of Section
167 of the Code; and therefore entitled to claim release
on bail on expiry of the maximum limit for detention, laid
down in Clause (a) of first proviso to Section 167(2). The
answer has to be “no.” Sub-section (8) of Section
173 specifically permits further investigation even after it
has been completed by filing of a charge sheet. But it
does not speak of re-producing the arrested persons
before the Magistrate, under the provisions of Section
167. The remand of the accused persons after the filing of
the charge sheet would be governed by the provisions
of Section 309 of the Code. Therefore, that further
investigation is going on, cannot be taken advantage of,
by the arrested persons, against whom charge sheet has
already been filed, to claim that the maximum period
provided by Clause (a) of first proviso to Section 167(2),
is over, and that therefore, they should be released on
bail.
Е..
17. So far as this case is concerned, there is one more
significant aspect which cannot be overlooked. It may be
recalled that the case had been committed to the court of
Sessions on 7.9.2011. Obviously, the accused persons /
applicants were in custody on account of remand
under Section 209(b) of the Code. When the applicants
were in custody by virtue of the provisions of Clause (b)
of Section 209 of the Code on that date, their emphasis to
get released on the basis of the provisions of Section
167 of the Code, was totally uncalled for.
18. If the scheme of the provisions relating to remand
and / or detention of arrested persons in custody found
in the Code is examined, the mandatory release on bail is
contemplated only where the detention would be under
the provisions of Section 167. Though the contention of
Mr.Amit Desai about the manner in which the time of 60
days or 90 days, as the case may be, is to be reckoned, is
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correct, still, it cannot be said that on the date on which
the applicants sought bail, they were in detention by
virtue of the provisions of Section 167 of the Code. It is
needless to say, that entitlement to be released on bail
under the Clause (a) of first proviso to sub-section (2)
of Section 167 flows from the Magistrate’s inability to
remand the arrested person further in custody. The
provisions of Section 167 are made for enabling the
keeping of an arrested person under detention for the
purpose of investigation; and the legislature has laid
down the maximum period for authorizing such
detention. It is because on the expiry of such period, such
detention becomes unauthorized, that it has been
mandated that the arrested person shall be released on
bail. If this logic behind the said provision is understood,
it becomes at once clear that the benefit of this said
provision cannot be claimed by or extended to a person
whose remand / detention in the same case has been
authorized by any other provision/s in the Code.
Е..
20. Infact, in the circumstances when the applicants
were in custody by virtue of a remand under Section
209 of the Code, the re- arrest was rather superfluous.
The remand orders, if any, passed by the Special court
were also totally superfluous. As already discussed, when
the applicants were already in lawful custody under valid
detention orders passed by the competent court of law,
there would be no occasion for anyone to secure orders
for their further detention/ remand, from any court in
the same case or matter. It would be paradoxical if the
applicants who were earlier not released on bail, are held
to be entitled to be released on bail, merely because the
investigating agency is attempting to show that the
offences allegedly committed by them, had wider
ramifications and were therefore, of a graver and more
serious nature. This superfluous action cannot improve
the position of the applicants, or place them in an
advantageous situation.
Е..

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22. The conclusion that unless the detention would be by
virtue of Section 167 of the Code, there would be no
occasion to claim release on the basis of the maximum
limit prescribed by the Clause (a) of first proviso
to Section 167(2), is inescapable.Ф
10.

Learned SPP also placed reliance on the case of Suraj Arun
Pote Vs. State of Maharashtra [Criminal Bail Application No.19 of 2022;
decided on 09.02.2022]. He invited my attention to the para nos.14,15
and 17 which reads as under:-
У14. In the case of Indrabahadur Khatri (supra), the
accused were arrested on 17/05/2011, for offences
punishable u/s 302 and 341 of IPC and the chargesheet was filed on 12/08/2011. Thereafter on
15/09/2011 prior approval for applying MCOC was
granted. The accused therein were re-arrested on the
allegations of having committed offence under MCOC
Act on 22/09/2011. They made an application for their
release u/s 167 of Cr.P.C. contending that the statutory
period permitting their maximum detention u/s 167
of Cr.P.C. was over. Reliance was placed on Bharati
Varma’s case (supra). However, the contention of the
accused therein and reliance on Bharati’s case were
rejected by the learned Single Judge of this Court.
15. The observations made in the case of Khatri (supra)
are squarely applicable to the present case. It was
observed thus “the real question was whether after the
filing of the charge- sheet, merely because further
investigation was undertaken, the arrested person
would be treated or taken as being under detention by
virtue of section 167 of Cr.P.C.; and therefore entitled
to claim release on bail on expiry of the maximum limit
for detention, laid down in clause (a) of first proviso
to section 167(2)”. The Court went on to observe that
the answer had to be ‘no’. Sub-section 8 of section
173 specifically permits further investigation even after
it has been completed by filing of a charge-sheet. It was
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further observed that when the accused were in
custody by virtue of a remand under section 209 of the
Code, the re-arrest was rather superfluous.
Е..
17. In the present case also the facts are very similar to
Indrabahadur Khatri’s case (supra) and not to Bharati
Varma’s case (supra). In Bharati Varma’s case, the
charge-sheet for the first time was filed beyond
statutory period from the date of first remand.
However, in the present case the first charge-sheet was
filed on 05/08/2021 and the date of first remand was
20/05/2021. The main offence at that point of time
was section 307 of IPC. The charge-sheet was filed
within the period of 90 days. The reason for
enacting section 167 of Cr.P.C. and setting outer limit
was to ensure that the investigation was carried out
diligently and within the statutory period. Therefore
outer limit was specified. In the present case the
investigation was completed within the period of 90
days. Only subsequently after the further investigation
was carried out, the provisions of MCOC Act were
applied. Those provisions could be applied to a
registered offence for which the investigation could be
going on. During investigation if further material is
found then the provisions of MCOC can be applied;
which was done in the present case. Therefore it cannot
be said that the investigation was not completed within
the statutory period of 90 days for offences
under IPC though subsequently provisions of MCOC Act
were applied. The Applicant was in custody pursuant to
valid remand orders. The investigation carried from
that point onwards was only the further investigation.
It was not a new investigation. Because the
investigation under the MCOC Act was continuation of
the earlier investigation for IPC offence. Only
subsequently the provisions of MCOC Act were invoked
because the material under the MCOC Act was found
against the Applicant. Therefore crucial aspect in this
case is whether the investigation under MCOC was
completely new investigation and therefore whether
the charge-sheet should have been filed within 180
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days from the date of first arrest i.e. 20/05/2021. This
question in this case does not arise because the chargesheet was already filed on 05/08/2021. The chargesheet filed on 19/01/2022 can only be described as a
supplementary charge-sheet. The earlier charge-sheet
and remand orders cannot be wiped out from the
record. The cognizance was taken of the earlier chargesheet and thereafter the case was committed to the
Court of Sessions. Therefore the Magistrate Court and
the Sessions Court had rightly remanded the Applicant
under the provisions of Cr.P.C. In Bharati Verma’s case
(supra) the first charge-sheet itself was filed beyond the
statutory period. Therefore facts in that case are not
applicable to the present facts; whereas Khatri’s case
(supra) is based on similar facts. Therefore I am
following the view expressed in the case of
Indrabahadur Khatri (supra). No case for granting any
relief under section 167 of Cr.P.C is made out by the
Applicant. Hence the application is rejected.Ф
11.

In the present case the accused no.1 is arrested on
10.04.2023. the applicant/accused no.5 is arrested on 03.06.2023. he
was under PCR till 14.06.2023 granted by learned Metropolitan
Magistrate. Since thereafter, he is in judicial custody. The charge-sheet
against the accused is filed before learned Metropolitan Magistrate
Court on 07.07.2023 i.e. within 90 days from the date of the arrest of
the applicant as well as from the date of arrest of first accused no.1.
The charge-sheet shows that on 07.07.2023 itself the learned
Metropolitan Magistrate took cognizance of the offence punishable
under Sections 170,341,347,363,395 of IPC and kept the matter for
passing committal order.

Since the learned Metropolitan Magistrate
took the cognizance of the case, the custody of the accused persons is as
per the provision u/s 309 (2) of Cr.PC. The investigation in regard to
the added provisions of MCOC Act is in progress as per the provisions of
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section 173(8) of Cr.PC. I have gone through the case laws relied by
both the parties. With great respect to the ratio laid down in the
respective case laws, the case law relied by the learned advocate for
applicant is not helpful to the applicant for different factual aspect. The
case laws relied by the learned SPP are applicable being similar facts of
the case. Since the charge-sheet is filed by the prosecution within the
stipulated period of 90 days, there is no substance in application as
sought for. Hence, I proceed to pass following order:ORDER
Bail Application No.961 of 2023 is rejected and disposed of.
RAJESH
JAGURAM
KATARIYA
Date : 27.10.2023
Dictated on : 27.10.2023
Typed on
: 27.10.2023
Signed on : 27.10.2023
Digitally signed by
RAJESH JAGURAM
KATARIYA
Date: 2023.10.30
11:54:04 +0530
(Rajesh J. Katariya)
Special Judge
City Civil & Sessions Court,
Gr. Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDERФ
UPLOAD DATE
TIME
NAME OF STENOGRAPHER
30.10.2023
11.58 am
Umesh G. Jadhav (Grade I)
Name of the Judge
Date of Pronouncement of Judgment/Order.

HHJ Shri R.J.KATARIYA
(CR No.25)
27.10.2023
Judgment/order signed by P.O on
27.10.2023
Judgment/order uploaded on
30.10.2023