Criminal Writ Petition No. 2136 of 2011. Case: Lt. Col. Prasad Shrikant Purohit and Ors Vs National Investigation Agency and Ors. High Court of Bombay (India)

Case NumberCriminal Writ Petition No. 2136 of 2011
CounselFor Petitioner: U. R. Lalit, Sr. Adv., a/w with Shrikant Shivade i/b M. S. Mohite, Adv. and For Respondents: D. J. Khambatta, Addl. Solicitor General with Ms. Revati Mohite Dere, Ms. Rohini Salian and Afroz Shah, S. S. Pednekar, Advs.
JudgesK. U. Chandiwal, J.
IssueNational Investigation Agency Act (34 of 2008) - Sections 2, 6, 8; Criminal Procedure Code (2 of 1974) - Sections 167, 173(8), 309
Citation2012 CriLJ 2621
Judgement DateOctober 20, 2011
CourtHigh Court of Bombay (India)


  1. Heard. Rule. Rule made returnable forthwith. With consent of the parties, matter is finally heard.

  2. This Petition is under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure. The petitioners are Accused in MCOC Act Special Case No. 1 of 2009 and 8 of 2011 on the file of the learned Special Court Judge under MCOC Act for Greater Bombay.

  3. An Application under Section 21(7) of Maharashtra Control of Organised Crime Act, 1999 (MCOC Act) was moved by the respondent-National Investigation Agency (for short NIA) for interrogation of the petitioner Ramesh (Accused No. 4) Anand (Accused No. 9) and Sudhakar (Accused No. 10). The petitioners were earlier in police custody for 12,18,20 days respectively. The MCOC case was initially investigated by Special Anti Terrorist Squad (ATS), Mumbai and final report under Section 173 of Code of Criminal Procedure, 1973 (Cr.P.C.) was submitted on 30.1.2009 in C. R. No. 18 of 2008 vide Special MCOC Case No. 1 of 2009 and supplementary charge-sheet vide MCOC case No. 8 of 2011 was filed on 21.4.2011.

  4. By order dated 1st April, 2011 of the Ministry of Home Affairs, Government of India, investigation is taken over by NIA and FIR is registered at crime No. 5/2011 by PS. NIA on 13th April, 2011. While the petitioners were in judicial custody permission was sought to interrogate them by visiting the jail. It was accordingly granted. However, during such interrogation, NIA felt that the petitioners have lot of information to communicate concerning two absconding accused namely Sandip Dange and Ramji Kalsangra. They are also having crucial information regarding the facts which are not so far surfaced in the investigation and consequently by an Application, police custody was sought as the petitioners were to be confronted with new facts which have been emerged.

  5. The learned Judge allowed Misc. Application No. 98/2011 permitting police custody to the petitioners for 8 days from 22.7.2011 up to 30.7.2011. This order is questioned by the petitioners.

  6. Mr. Lalit and Mr.Shivade for petitioners exhaustively dealt with the law applicable namely The Maharashtra Control of Organised Crime Act, 1999 (for short MCOC Act) and The National Investigation Agency Act, 2008 (34 of 2008) (for short NIA Act) to interpret the respective position vis-a-vis applicability of Cr. P. C. and how the prosecution (NIA) could not exhaust the remedies under MCOC Act and in particular taking umbrella of Section 21 (7) of MCOC Act.

  7. During the course of submissions, it was canvassed by learned counsel for petitioners in identically placed situation, judgment delivered by this Court in the matter of Iqbal Hussain Kaskar v. State of Maharashtra, reported in 2003 All MR (Cri) 1817 is not depicting correct position of law owing to earlier judgment of Supreme Court in State v. Dawood Ibrahim Kaskar, reported in 1997 CR LJ 2989 and consequently judgment of Iqbal Hussain Kaskar is per in-curiam.

  8. Three basic points as canvassed by the learned counsel for the petitioners emerge:

    1. Can NIA make an application under Section 21(7) of MCOC Act as it is only the authorities who investigated originally the matter under MCOC Act and submitted charge- sheet alone can file an Application under MCOC Act?

    2. Whether NIA Act is retrospectively applicable to the investigation already completed when charge-sheet is filed and the matter is already subjudice before the competent Court?

    3. Whether accused who were in judicial custody and being produced under Section 309 of Cr. P. C. can be remanded to police custody after long lapse of period?

  9. Following are undisputed facts in the present case:

    (a) The offence in question is dated 29.9.2008.

    (b) NIA Act came into force on 31.12.2008.

    (c) NIA investigates scheduled offences as specified in the schedule in terms of Section 2(1) (f) of the NIA Act.

    (d) Permission/order of the Central Government is dated 1.4.2011 to take further investigation.

    (e) Petitioners are in custody from November, 2008.

    (f) The scheduled offences as specified in the schedule in terms of Section 2 (1) (f) of National Investigation Agency Act, 2008 incorporate apart from Unlawful Activities Prevention Act, 1967 (UAP Act) offences under Indian Penal Code (IPC).

  10. Reliance was placed to the judgment reported in AIR 1988 SC 1932 (Sic) to explain that an elementary rule that the construction of a section is to be made of all parts together. It is said, there is normal presumption that all Acts are prospective unless the contrary can be inferred.

  11. In State Through CBI v. Dawood Ibrahim Kaskar, 2000 (10) SCC 438: AIR 1997 SC 2494 interpretation of Section 309 (2) of Cr.P.C. is mostly surfacing.

    Honourable Supreme Court observed in paras 10 and 11 as under:

  12. In keeping with the provisions of Section 173(8) and the above quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance of an offence, to authorise the detention of a person who is subsequently brought before it by the police under arrest during further investigation in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows:

    309(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 form 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 under this section for a term exceeding fifteen days at a time.

    Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

  13. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. Whole remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since however even after cognizance is taken of an offence the police has a power to investigate into it further which can be exercised in accordance with chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be latter arrested by the police in course of such investigation. If Section 309(2) is to be interpreted as has been interpreted by the Bombay High Court in Mansuri to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the investigating agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it canon production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are therefore of the opinion that the words accused if in custody appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned, he can be remanded to judicial custody only in view of Section 309(2) but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of...

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