Case Note & Summary
The petitioners, five accused in the Telgi stamp scam (Special Case No. 2 of 2003 before the MCOC Court at Pune), filed this writ petition under Article 226 of the Constitution for a writ of habeas corpus. They contended that their judicial custody had become illegal after 5 May 2005 because no competent court passed an order extending their remand under Section 309(2) of the Code of Criminal Procedure, 1973. The case involved charges under various sections of the Indian Penal Code, the Maharashtra Control of Organised Crime Act, 1999 (MCOC Act), the Bombay Stamp Act, and the Prevention of Corruption Act. The petitioners had been arrested between June and December 2003, remanded to judicial custody, and charge‑sheeted. Their bail applications were rejected by the Special Court, and simultaneous bail applications were pending before the High Court. The Special Court was constituted under Section 5 of the MCOC Act with a Special Judge, Shri Shembole, and two Additional Judges, Shri B.N. Deshpande and Shri V.V. Borikar. On 5 May 2005, the date to which judicial custody had been extended, all three MCOC judges were on leave or vacation. The 2nd Additional Judge, Shri Borikar, had handed over charge of his court to Shri P.P. Birajdar, 5th Additional District & Sessions Judge, Pune, under a standing order of the District Judge. Shri Birajdar was not an appointee under the MCOC Act. No general or special order under Section 5(5) of the MCOC Act had been passed by the Special Judge to authorise any other judge to deal with the case. On 5 May 2005, the accused were not produced before Shri Birajdar as video conferencing was unavailable in his court. A police officer sought adjournment on behalf of CBI counsel, and one accused’s advocate had no objection. Shri Birajdar passed no order extending judicial custody and simply adjourned the case to 8 June 2005. The respondent admitted that no judicial remand order was passed that day. The petitioners argued that the failure to pass a remand order by a competent court rendered their detention illegal from 5 May 2005. The court examined the provisions of the MCOC Act relating to Special Courts and the Code of Criminal Procedure regarding remand. It noted the absence of any enabling order under Section 5(5) and the admitted fact that no remand order was passed on 5 May 2005. The judgment extract provided does not include the final decision of the court on the habeas corpus petition. The outcome of the writ petition remains unknown from the supplied text.
Headnote
A) Criminal Procedure – Remand – Requirement of judicial order extending custody under Section 309(2) of the Code of Criminal Procedure, 1973 – On 5‑5‑2005 the case was placed before Shri P.P. Birajdar, 5th Additional District & Sessions Judge, Pune, who was not an appointed Judge of the MCOC Special Court; no order extending judicial custody was passed by him on that date, and it was admitted that except for an adjournment application no business was transacted – The court noted that in the absence of a valid remand order the detention may become unlawful (Paras 8‑11). B) MCOC Act – Special Courts – Jurisdiction and distribution of business under Section 5 of the Maharashtra Control of Organised Crime Act, 1999 – The Special Court had not passed any general or special order under Section 5(5) entrusting business to any additional Judge or other Judge in the absence of the Special Judge; consequently, the 5th Additional District & Sessions Judge had no authority to preside over the case under the MCOC Act and any order passed by him would lack jurisdiction (Paras 5‑9). C) Constitutional Law – Habeas Corpus – Challenge to legality of detention – The petitioners invoked Article 226 of the Constitution of India seeking a writ of habeas corpus on the ground that their judicial custody was not extended by a court of competent jurisdiction after 5‑5‑2005; the petition was heard pending their bail applications before the High Court (Paras 1‑3).
Issue of Consideration
Whether the continued detention of the petitioners after 5 May 2005 is illegal and entitles them to a writ of habeas corpus, given that no order extending judicial remand under Section 309(2) of the Code of Criminal Procedure, 1973 was passed by a competent Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999.
Law Points
- judicial custody must be extended by a court of competent jurisdiction
- absence of remand order under Section 309(2) CrPC renders custody illegal
- Special Court under MCOC Act has exclusive jurisdiction
- proceedings before a judge not appointed under Section 5 of MCOC Act are without authority
- standing orders of District Judge cannot confer MCOC jurisdiction
- habeas corpus lies when detention is without legal authority
