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2023 DIGILAW 2048 (BOM)

State of Maharashtra v. Sachin Dhananjay Kulkarni

2023-10-19

GAURI GODSE, REVATI MOHITE DERE

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JUDGMENT/ORDER REVATI MOHITE DERE, J. - Heard learned counsel for the parties. 2. By the aforesaid appeal, the appellant-State of Maharashtra has impugned the order dtd. 3/12/2022 passed by the learned Additional Sessions Judge and Special Judge under Maharashtra Control of Organised Crime Act ('MCOC Act'), Greater Mumbai, by which the learned Judge was pleased to reject the appellant's application being Misc. Application (SC) No. 567/2022, seeking police custody remand of the respondentsaccused. Learned A.P.P submits that the impugned order rejecting the State's application seeking police custody remand of the respondents-accused is untenable in law. 3. Mr. Thakare, learned senior counsel appearing for the respondents-accused opposed the appeal. He submits that no interference is warranted in the impugned order dtd. 3/12/2022, inasmuch as, there is non-compliance of the mandate of Sec. 21(7) of the MCOC Act. He submits that in the application filed by the State, there is no explanation whatsoever for the delay in seeking police custody remand. 4. Perused the papers. It appears that an FIR was lodged at the behest of Shreedhar Bhovar being C.R. No. 558/2021, with the Bhandup Police Station, as against the respondents-accused for the alleged offences punishable under Ss. 302, 326, 342, 506, 120B, 143, 144, 148, 149 r/w 34 of the Indian Penal Code; under Ss. 4, 25 of the Arms Act and under Ss. 37(1), 135 of the MCOC Act. It appears that pursuant to the registration of the said FIR, the respondents were arrested in the said C.R. It appears that out of 10 accused, 1 accused was a juvenile in conflict with law and hence, he was produced before the Juvenile Justice Board, Dongri, Mumbai. It appears that the investigation was thereafter transferred from Bhandup Police Station to DCB, CID, Unit-VII, Crime Branch, Ghatkopar (West), Mumbai. After investigation, charge-sheet was filed in the said case on 1/1/2022 as against respondent Nos. 1 to 8 in the Court of the 37th Esplanade Court, Mumbai; on 4/1/2022, before the Juvenile Justice Board, Dongri, Mumbai, as against the juvenile in conflict with law, and, on 23/2/2022, supplementary charge-sheet as against respondent No. 9 in the Court of Additional Chief Metropolitan Magistrate, 37th Esplanade Court, Mumbai. 1 to 8 in the Court of the 37th Esplanade Court, Mumbai; on 4/1/2022, before the Juvenile Justice Board, Dongri, Mumbai, as against the juvenile in conflict with law, and, on 23/2/2022, supplementary charge-sheet as against respondent No. 9 in the Court of Additional Chief Metropolitan Magistrate, 37th Esplanade Court, Mumbai. It appears that on 21/2/2022, the DCB CID, Unit-VII, Crime Branch, Ghatkopar (West), Mumbai, forwarded a proposal along with a report and all relevant documents to the Joint Commissioner of Police (Crime), Mumbai, seeking prior approval for invoking the provisions of the MCOC Act. Pursuant thereto, the Joint Commissioner of Police (Crime), Mumbai, accorded prior approval vide order dtd. 23/9/2022. Pursuant to the approval granted, the appellant-State filed an application being Misc. Application (SC) No. 567/2022 in Sessions Case No. 645/2022 before the learned Special Judge on 16/11/2022 and sought police custody remand of the respondents-accused under Sec. 21(7) of the MCOC Act. The grounds on which police custody remand was sought, have been reproduced by the learned Special Judge in para 8 of his order dtd. 3/12/2022. After going through the reasons on which, police custody remand was sought, the learned Judge rejected the said application seeking police custody remand of the respondents-accused Nos. 1 to 9, as the appellant-State had failed to explain the delay and as no affidavit was filed. 5. We have perused the impugned order as well as Sec. 21(7) of the MCOC Act. Admittedly, the proposal was sent by the police on 21/2/2022 and approval was granted by the Joint Commissioner of Police (Crime), Mumbai, on 23/9/2022; and the police filed an application seeking police custody remand before the learned Judge on 16/11/2022. The grounds on which police custody remand was sought, is completely silent with respect to delay in filing the said application, belatedly. No explanation has also been accorded by the appellant-State, in the grounds on which, police custody remand was sought, as mandated under Sec. 21(7) of the MCOC Act. 6. Learned A.P.P also does not dispute the fact that no explanation is given in the application filed by the State, seeking police custody remand of the respondents-accused, belatedly. The prosecution has failed to explain delay of 55 days, in filing the application, as mandated by Sec. 21(7) of the MCOC Act. 7. Having perused the order, no infirmity can be found in the impugned order dtd. The prosecution has failed to explain delay of 55 days, in filing the application, as mandated by Sec. 21(7) of the MCOC Act. 7. Having perused the order, no infirmity can be found in the impugned order dtd. 3/12/2022, rejecting the State's application seeking police custody remand of the respondents-accused. 8. Considering the aforesaid, the appeal stands dismissed.