Author: Advait Shukla


Sachin s/o Namdeo Rathod & Ors. v. State of Maharashtra       

Case No.: CRIMINAL APPEAL NO. 732 OF 2018)

Date Of Reserving Judgment: 19th November, 2018.

Date Of Pronouncing Judgment: 27th November, 2018.

Coram:  T. V. Nalawade & Smt. Vibha Kankanwadi, Jj.

Judgment Per: T.V. Nalawade, J.

PRINCIPLES OF LAW DISCUSSED:

  1. It is the duty of the Court to see that he is properly represented by a counselIf the counsel is not appointed, it is the duty of the Court to see that somebody is appointed for giving legal aid to the accused.
  2. Liberty of Accused was involved and so it was necessary for the Court to see that the principles of natural justice were followed as that is the mandate of Article 21 of the Constitution of India.
  3. The accused must be put on notice – permitted to have his say so as to be able to object to the grant of extension.
  4. Grounds for extension of time by the investigating agency reiterated.

DECISION & DISCUSSION:

This case is an appeal filed under the provisions of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as “MCOC Act”). It discusses the law on point of Statutory Bail u/s. 167(2) & extension of that period.

PRINCIPLES LAID IN THIS JUDGMENT:

When the Accused is in jail, it is the duty of the Court to see that he is properly represented by a counsel. If the counsel is not appointed, it is the duty of the Court to see that somebody is appointed for giving legal aid to the accused. In Hitendra Thakur v. State of Maharashtra[1] Apex Court has laid down that notice is a part of following the principles of natural justice. Liberty of Accused was involved and so it was necessary for the Court to see that the principles of natural justice were followed as that is the mandate of Article 21 of the Constitution of India.

When liberty of persons is involved in the matter, it is the duty of the Court to apply his mind and ascertain as to whether there is a case for extension of time and that includes consideration of the contentions that the provisions of the MCOC Act can be used.

In the case of Mohammad Allimuddin vs. State of Maharashtra [2], the Division Bench of Bombay High Court has compared the provisions of the MCOC Act with the provisions of TADA and the provisions of other similar Acts like Unlawful Activities (Prevention) Act, 1967. They are also considered by that Court in the case of Surendra Pundlik Gadling & Ors. Vs. The State of Maharashtra[3]. In all these special enactments, there is a provision of modification of the provisions of Section 167 of the Code of Criminal Procedure and those provisions are pari materia similar.

“no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension.”

Bom HC has carefully gone through the grounds given for extension of time by the investigating agency. They are as follows:

“a) The investigating agency wanted to make investigation and inquiry with the investigating officer, first informant and Panch witnesses;

  1. b) The investigating agency wanted to collect call details in respect of mobile phones of the Accused persons;
  2. c) Some Accused were absconding;
  3. d) The investigating agency wanted to collect information in respect of bank accounts, insurance etc. of the Accused;
  4. e) The investigating agency wanted to take permission from the Additional Director of Police, Maharashtra State, for filing charge-sheet under the provisions of the MCOC Act; and
  5. f) If the offence was serious, the investigating agency wanted to collect more evidence.”

The State of Maharashtra v. Rangrao Anna Patil

Case No.: CRIMINAL APPEAL NO. 281 OF 1999

Date Of Reserving Judgment: 26th November, 2018.

Date Of Pronouncing Judgment: 29th November, 2018.

Coram:  Indrajit Mahanty And V. K. Jadhav, Jj.

Judgment Per: V. K. Jadhav, J

PRINCIPLES OF LAW DISCUSSED:

  1. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings.
  2. The criminal courts not obliged to terminate trial or criminal proceedings merely on account of lapse of time.
  3. Prosecution has not explained the inordinate delay in trial 33 years delay.

DECISION & DISCUSSION:

This case is an Appeal against acquittal. Hon’ble Court has discussed effect of delay in conduct of trial. It discussed the case of Rajdeo Sharma Vs. State of Bihar[4], in which Apex Court while considering the issue of delay in conduct of trial and also considering the importance of speedy and open trial in para 17 of the Judgment has proceeded to supplement the proposition laid down by the Constitution Bench in a case of Abdul Rehman Antulay Vs. R. S. Nayak[5]

“(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time-limit.”

In the year 2002, a Bench of seven Judges of the Supreme Court was constituted to consider whether the dictum in Abdul Rehman Antulay’s case still holds the field; if not, whether the general direction of the kind given in the Judgment are permissible in law and should be upheld. Thus, the said Bench consisting of seven Judges of the Supreme Court in the case of P. Ramachandra Rao Vs. State of Karnataka[6] reported in has considered the five decisions cited in the order of reference as also to few earlier decisions so as to highlight the issue. The Supreme Court has concluded the issue in para 30 of the Judgment and overruled the earlier cases taking the contrary view including the case of Rajdeo Sharma Vs. State of Bihar . In para 30, the Supreme Court has made the following observations:

“…(3) The guidelines laid down in A. R. Antulay’s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.

(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II)”

“(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines.”

At present, 33 years have been lapsed from the date of framing of the charge and recording plea of the Respondent accused. The law under earlier case was binding when Ld. JMFC had passed the order. Prosecution has not explained the inordinate delay in trial.


[1] AIR 1994 SC 2623.

[2] 2003 ALL MR (Cri.) 474.

[3] (Criminal Writ Petition No.4148 of 2018, decided at Principal Seat on 24th October, 2018).

[4] (1998) 7 SCC 507.

[5] (1992) 1 SCC 225.

[6] AIR 2002 SC 1856.


About the Author: Advait is a 2016-19 Batch Student at ILS Law College, Pune. 


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