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2012 DIGILAW 2410 (BOM)

State of Maharashtra v. Anil Pandit Aher

2012-12-21

ABHAY M.THIPSAY

body2012
JUDGMENT : Not on board. Taken on board on being mentioned for production on the ground of extreme urgency. 2. Heard Mr. Hingorani, the learned APP for the appellant/State of Maharashtra. 3. The respondents were produced before the Special court under the Maharashtra Control of Organized Crimes Act (M.C.O.C. Act) for obtaining their remand in police custody. The learned Judge of the Special court, by his order dated 20.11.2012, rejected the prayer of the investigating agency to remand the respondents into police custody, and directed their detention to judicial custody. The State of Maharashtra, being aggrieved by the said order, rejecting the request for grant of police custody remand of the respondents, have approached this court seeking leave to file an appeal against the said order, under the provisions of Section 12 of the M.C.O.C. Act. 4. In my opinion, leave is not necessary for filing an appeal, as proposed, as this appeal cannot be termed as an appeal against acquittal, so as to make leave necessary before the appeal can be entertained on merits. As such, in my opinion, the appellant - State of Maharashtra - are entitled to have the appeal entertained and considered for admission. 5. I have gone through the impugned order. 6. The circumstances in which the remand in Police Custody was sought and came to be rejected are as follows :- It is not in dispute that the respondents had been arrested in the said case i.e. C.R.No.284 of 2012, registered on 27 September 2012 at Nasik Police station, on the allegation of having committed offences punishable under Sections 392, 395, 120B, 109 & 412 of the Indian Penal Code (IPC), and also on the allegations of having committed offences punishable under the Arms Act and Bombay Police Act. The respondent nos. 1, 2, 3 and 4 (original accused nos.6, 7, 8 and 9) were arrested on 4.10.2012, the respondent no.5 (original accused no.10) on 6.10.2012 and respondent nos.6 and 7 (original accused nos.11 and 12) were arrested on 14.10.2012. The respondent nos.1, 2, 3 and 4 were remanded in police custody till 15.10.2012, and the other respondents were remanded into police custody till 20.10.2012. Thereafter, the respondents were remanded into judicial custody. On 5.11.2012, the provisions of M.C.O.C. Act were applied to the said case. The respondent nos.1, 2, 3 and 4 were remanded in police custody till 15.10.2012, and the other respondents were remanded into police custody till 20.10.2012. Thereafter, the respondents were remanded into judicial custody. On 5.11.2012, the provisions of M.C.O.C. Act were applied to the said case. On 20.11.2012, the respondents who had already been remanded in judicial custody, as aforesaid, were got produced before the learned Judge of the Special Court with a remand application, with a prayer to grant police custody remand of the respondents for a period of 15 days. 7. The learned Judge of the Special court was of the view that no case for remand in police custody was made out, and rejected the prayer for such remand. He remanded the respondents to judicial custody. It is this order dated 20.11.2012 that is sought to be challenged in this appeal. 8. I have gone through the remand application dated 20.11.2012 and examined the grounds on which the remand in police custody was sought for. Eight grounds are written in the said remand application, as justifying the remand in police custody. However, I find that none of these grounds deserve any serious consideration. 9. I have also considered the grounds taken in the appeal memo, on which the impugned order is challenged. 10. The respondents are alleged to be the 'conspirators'. When this role is attributed to them, on what basis the recovery of the weapon is expected from them, has not been made clear. Moreover, the respondents were already in police custody for quite sometime, and obviously, they have been interrogated on these aspects. Merely because the provisions of the MCOC Act were later applied to the case, there would be no automatic necessity of, or justification for, seeking a remand of the accused persons in police custody. There is absolutely no mention in the remand application, as to what was the revelation which made the investigating agency feel the necessity of the remand of the respondents in Police Custody again, is not at all clear from the remand application dated 20 November 2012. Why and how there was a necessity of a remand in Police Custody, and how, without it, investigation could not be carried out, is not even suggested. 11. Why and how there was a necessity of a remand in Police Custody, and how, without it, investigation could not be carried out, is not even suggested. 11. The learned Judge was of the view that there was no sufficient ground and no material on record to justify the remand of the respondents in Police Custody in spite of the fact that they had already been remanded in Police Custody earlier for about 11 days. 12. I do not think that a case for interference with the discretionary order passed by the learned Judge of the Special court is made out. 13. Even otherwise, the maintainability of the appeal is doubtful, as the impugned order can be termed as interlocutory. Anyway, I have examined the appeal on merits. 14. Moreover, it is well settled that even while the respondents are in judicial custody, the investigating agency can interrogate them after seeking the necessary permission in that regard from the concerned court. It would be open for the appellant to apply to the learned Judge to pass orders permitting the respondents to be interrogated while in judicial custody, and needless to say, that such applications whenever made, shall be dealt with on merits and in accordance with law, by the learned Judge. Thus, it is not that the respondents cannot be interrogated at all, as a result of the impugned order. 15. The appeal is summarily dismissed with the aforesaid observations. Appeal dismissed.