Case Note & Summary
The petitioner, Saquib Abdul Hamid Nachan, filed a criminal writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court. Initially, he sought quashing of remand proceedings and orders passed by the Special Judge presiding over the Special Court constituted under the Prevention of Terrorism Act, 2002 (POTA), in respect of three crimes registered as DCB CID C.R.No.21/03, 09/03, and C.R.No.124/02 (DCB-CID C.R.No.59/03), and also sought release on permanent bail. However, at the hearing, he pressed only for declaring the remand proceedings and orders as null, void, and without jurisdiction, and for quashing them. The respondent, State of Maharashtra, opposed the petition through an affidavit filed by the Assistant Commissioner of Police, DCB-CID. The bone of contention was whether the Judge appointed by the State Government under Section 23(4) of POTA to preside over the Special Court could exercise the powers conferred only on a Magistrate under Section 167 of the Code of Criminal Procedure, 1973 (CrPC) to authorize detention of an accused in police custody or judicial custody. The petitioner argued that the Special Judge, being a Sessions Judge, lacked the magisterial powers under Section 167 CrPC, and thus the remand proceedings were erroneous and in colourable exercise of power. The court analyzed the provisions of POTA and CrPC and held that the Special Judge appointed under Section 23(4) of POTA cannot exercise the powers of a Magistrate under Section 167 CrPC. Consequently, the remand orders passed by the Special Judge were without jurisdiction and void. The court allowed the petition and quashed the remand proceedings and orders.
Headnote
A) Criminal Procedure - Remand Powers - Jurisdiction of Special Judge under POTA - Section 167 CrPC, Section 23 POTA - The core issue was whether a Special Judge appointed under Section 23(4) of POTA can exercise magisterial powers of remand under Section 167 CrPC. The court held that the Special Judge, being a Sessions Judge, does not have the powers of a Magistrate under Section 167 CrPC, and thus the remand orders passed by him were without jurisdiction and void. (Paras 1-3) B) Constitutional Law - Writ Jurisdiction - Quashing of Remand Orders - Articles 226 and 227 of Constitution of India - The petitioner sought quashing of remand proceedings and orders passed by the Special Judge under POTA. The court, exercising its writ jurisdiction, declared the remand orders null and void for lack of jurisdiction. (Paras 1-3)
Issue of Consideration
Whether a Judge appointed under Section 23(4) of the Prevention of Terrorism Act, 2002 to preside over a Special Court constituted under Section 23(1) of the said Act can exercise the powers conferred on a Magistrate under Section 167 of the Code of Criminal Procedure, 1973 to authorize detention of an accused in police or judicial custody.
Final Decision
The court allowed the petition and quashed the remand proceedings and orders passed by the Special Judge under POTA, holding them to be without jurisdiction and void.
Law Points
- Special Judge under POTA cannot exercise powers under Section 167 CrPC
- Remand orders by Special Judge without jurisdiction are void
- Article 226 and 227 can be invoked to quash such orders
