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Judgment
JUDGMENT [Per Vaishali Patil-Jadhav, J.] :
. By way of this appeal, the appellants have questioned the legality and validity of the order dated 08.04.2026 passed by the learned Special Judge, MCOCA, Shrirampur, District Ahilyanagar (hereinafter referred to as ‘learned Special Judge’), whereby extension of time for filing the chargesheet was granted under Section 21(2)(b) of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as ‘MCOC Act’).
Brief facts leading to the filing of present appeal are as under:
The appellants are the original accused persons in Crime No. 08/2026 dated 13.01.2026 registered with Shrirampur Taluka Police Station, District Ahilyanagar, for the offences punishable under Sections 115(2), 118(1), 119(1), 189(1), 189(2), 190, 191(2), 191(3), 351(2), 351(3), 352 and 310(2) of the Bharatiya Nyaya Sanhita, 2023 (for short ‘BNS’).
During the course of investigation, on 18.01.2026, Section 103(1) of BNS was added, and subsequently on 26.01.2026, Section 111 of BNS was added. The appellant No. 1 was arrested on 17.01.2026 and was produced for remand before the Judicial Magistrate First Class at Shrirampur on 18.01.2026. The appellant No. 2 was arrested on 19.02.2026 and was produced for remand before the Judicial Magistrate First Class at Shrirampur on 20.02.2026.
On 05.03.2026, the investigation of the said FIR was transferred for further investigation to the State Criminal Investigation Department (CID). Thereafter, on 02.04.2026, the respondent No. 2 received prior approval to add Sections 3(1)(i) and (ii), 3(2) and 3(4) of the MCOC Act.
The initial period of 90 days for completing the investigation and filing the chargesheet was to expire on 12.04.2026. Consequently, respondent No. 2- Additional Superintendent of Police, Bombay filed an application before the learned Special Judge on 08.04.2026 seeking extension of time to file the chargesheet. By the impugned order dated 08.04.2026, the learned Special Judge allowed the said application and granted an extension of 60 days, thereby extending the period for filing the chargesheet up to 12.06.2026.
Subsequently, on 08.06.2026, the Investigating Officer made a further application along with a report to the learned Special Judge, seeking an additional extension of 30 days to complete the investigation. On 11.06.2026, the learned Special Judge passed an order granting this extension, thereby extending the period for filing the chargesheet up to 10.07.2026.
The present appeal was filed on 05.05.2026 and during the pendency of this appeal, while the first extension period was still in effect and the chargesheet was yet to be filed, the present appellants filed an application for default bail on 08.06.2026. The application for default bail was rejected by the learned Special Judge on 11.06.2026 on the ground that it was filed prematurely. The chargesheet in the matter was ultimately filed on 10.07.2026, after obtaining the sanction for prosecution from the Additional DGP, CID, MS, Pune under Section 23(2) of the MCOC Act.
Being aggrieved by the order of extension dated 08.04.2026, the appellants have preferred the present appeal.
Learned Advocate Mr. Devendra Patil appearing for the appellants submitted that the report of the Public Prosecutor forwarded before the learned Special Court does not reflect independent application of mind, which is a mandatory requirement under law.
It was submitted that even the Special Court has granted the extension in a mechanical manner. Perusal of the order does not show application of mind by the learned Special Court. There are no specific reasons provided in the order, which is again a mandatory requirement under the law for extending the judicial custody.
It was further submitted that the impugned order should be quashed on the ground that the appellants were neither produced before the learned Special Court nor were they given an opportunity to counter the application seeking extension of detention period for filing of the chargesheet, which clearly violates their right of being heard or represented as contemplated under the law.
Learned Advocate lastly submitted that since the mandatory requirements under the law were not complied with while passing the impugned order, the appellants acquired the indefeasible right to be released on default bail under Section 187(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, "BNSS"). In support of his submissions, learned Advocate placed reliance on the following judgments:-
Jigar alias Jimmy Pravinchandra Adatiya Vs. State of Gujarat, [AIR 2022 SC 4641],
The judgment dated 09.01.2026 in Criminal Appeal No.701/2025 (Akshay Mahadeo Kamble Vs. The State of Maharashtra and others)
Md. Ariz Hasnain @ Ariz Hasnain Vs. State of Jharkhand, 2026 INSC 456.
Per contra, learned A.P.P. Mr. G. A. Kulkarni for respondent nos.1 and 2 strongly opposed the appeal and supported the impugned order dated 08.04.2026 contending that after the extension of 60 days granted by the order under challenge, there was further extension of 30 days by order dated 11.06.2026 and while the 30 days extension was in force, the charge-sheet came to be filed on 10.07.2026. Hence, after filing of the charge-sheet, the appellants have lost their right of default bail under Section 187(4) of the BNSS. It was also submitted that the default bail application of the appellants was rejected by the learned Special Court by order dated 11.06.2026 and the appellants have not challenged that order of rejection of application for default bail as well as further extension of 30 days granted by the learned Magistrate by order dated 11.06.2026. Learned A.P.P. lastly submitted that as the subsequent extension and rejection of bail is not challenged, the appeal deserves to be dismissed on this ground alone. In support of his submissions, learned A.P.P. has placed reliance on the following judgments:-
M. Ravindran Vs. Intelligence Officer, Directorate of Revenue Intelligence, [(2021) 2 SCC 485]
Qamar Ghani Usmani Vs. State of Gujarat [(2023) 18 SCC 155]
Heard learned Advocate for the appellants and the learned A.P.P. for respondent nos.1 and 2. Perused the impugned order, appeal memo, annexures thereto and citations relied upon by both the parties.
The moot question which needs to be decided by this Court is :-
Whether, the appellants are entitled to default bail under Section 187(4) of the BNSS as the appellants were neither given any notice of filing of the application for extension of time for completing the investigation nor were they kept present when the application was heard and the order was passed ?
Before we deal with the present case, it will be apposite to refer to Section 187 of BNSS (corresponding to section 167 of the Cr.P.C.) and Section 21 (b) of the MCOC Act, which read thus:-
“187. Procedure when investigation cannot be completed in twenty-four hours.
(1)Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter specified relating to the case, and shall at the same time forward the accused to such Magistrate.
(2)The Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration whether such person has not been released on bail or his bail has been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3), and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
(3)The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding
(i)ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;
(ii)sixty days, where the investigation relates to any other offence, and, on expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXV for the purposes of that Chapter;
(4)No Magistrate shall authorise detention of the accused in custody of the police under this Section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the audio-video electronic means.
(5)No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby declared that notwithstanding the expiry of the period specified in sub-section (3), the accused shall be detained in custody so long as he does not furnish bail.
Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under sub-section (4), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the audio-video electronic means, as the case may be:
Provided that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution:
Provided further that no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or a place declared as prison by the Central Government or the State Government."
. Section 21 of the MCOC Act, which deals with the modified application of Section 167 of Cr.P.C. (corresponding to Section 187 of BNSS), is reproduced hereunder for ready reference:
“21. Modified application of certain provisions of the Code. -
(1)Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and "cognizable case" as defined in that clause shall be construed accordingly.
(2)Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section (2), -
(a)the references to "fifteen days", and "sixty days", wherever they occur, shall be construed as references to "thirty days" and "ninety days", respectively;
(b)after the proviso, the following proviso shall be inserted, namely:—
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period upto one hundred and eighty days, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days. ...................."
Before proceeding further, it is relevant to note that by virtue of the notification dated 16.07.2024, issued by the Ministry of Law and Justice, references to the Cr.P.C. in any enactment shall be read as references to the corresponding provisions of the BNSS. Accordingly, in the present case, Section 167 Cr.P.C. is to be read as Section 187 BNSS, for the purposes of the MCOC Act. Also, since the mandatory requirements under Section 167 of the Cr.P.C. and the corresponding provisions under the BNSS are pari materia, the legal position laid down in the judgments relied upon by both the parties would remain unaffected.
Here it will also be profitable to refer to the decision of the Hon'ble Supreme Court in Jigar Vs. State of Gujarat, (2023) 6 SCC 484, wherein the Apex Court has considered the scope and import of the requirement of notice and production of the accused at the stage of consideration of an application for extension of time for completion of investigation and observed as follows:-
"41.Clause (b) of Sub-section (2) of Section 167 of Code of Criminal Procedure lays down that no Magistrate shall authorise the detention of the Accused in the custody of the police unless the Accused is produced before him in person. It also provides that judicial custody can be extended on the production of the Accused either in person or through the medium of electronic video linkage. Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the Accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand. The reason is that the Accused has a right to oppose the prayer for the extension of the remand.
42.When the Special Court exercises the power of granting extension under the proviso to Sub-section (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of Clause (b) of Sub-section (2) of Section 167 of Code of Criminal Procedure, it is mandatory to procure the presence of the Accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered. In fact, the Constitution Bench of this Court in the first part of paragraph 53(2) (a) in its decision in the case of Sanjay Dutt : (1994) 5 SCC 410 holds so.
43.The requirement of the report under proviso added by Sub-section (2) of Section 20 of the 2015 Act to Clause (b) of Sub-section (2) of Section 167 of Code of Criminal Procedure is two-fold. Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the Accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.
44.As noted earlier, the only modification made by the larger Bench in the case of Sanjay Dutt to the decision in the case of Hitendra Vishnu Thakur (1994) 4 SCC 602 is about the mode of service of notice of the application for extension. In so many words, in paragraph 53(2)(a) of the Judgment, this Court in the case of Sanjay Dutt (1994) 5 SCC 410 held that it is mandatory to produce the Accused at the time when the Court considers the application for extension and that the Accused must be informed that the question of extension of the period of investigation is being considered. The Accused may not be entitled to get a copy of the report as a matter of right as it may contain details of the investigation carried out. But, if we accept the submission of the Respondents that the Accused has no say in the matter, the requirement of giving notice by producing the Accused will become an empty and meaningless formality. Moreover, it will be against the mandate of Clause (b) of the proviso to Sub-section (2) of Section 167 of Code of Criminal Procedure. It cannot be accepted that the Accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The Accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the Accused can always point out the twin requirements of the report in terms of proviso added by Sub-section (2) of Section 20 of the 2015 Act to Sub-section (2) of Section 167 of Code of Criminal Procedure. The Accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.
45.The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the Accused to claim a default bail. If we accept the argument that the failure of the prosecution to produce the Accused before the Court and to inform him that the application of extension is being considered by the Court is a mere procedural irregularity, it will negate the proviso added by Sub-section (2) of Section 20 of the 2015 Act and that may amount to violation of rights conferred by Article 21 of the Constitution. The reason is the grant of the extension of time takes away the right of the Accused to get default bail which is intrinsically connected with the fundamental rights guaranteed Under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21. The failure to procure the presence of the Accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the Accused Under Article 21."
From a perusal of the above-referred provisions and the observations made by the Hon'ble Apex Court in Jigar (supra), the following principles of law emerge as the mandatory requirements to be complied with, while deciding the extension application under Section 187(4) of BNNS and Section 21 of the MCOC Act:-
Section 187(4) mandates that if the investigation is not completed and charge-sheet is not filed within a period of 60 days or 90 days, an indefeasible right to get default bail accrues in favour of the accused.
The application for extension of period for filing of charge-sheet, filed by the public prosecutor, must indicate independent application of his mind. The report submitted by the Investigating Officer should not be merely forwarded as it is.
The accused must be given notice of the application filed by the Investigating Officer for extension of period of investigation.
The concerned Special Court must give reasons while passing the order, granting extension of time for investigation.
Section 187(4) mandates production of the accused either in person or through audio-video electronic means while the extension application for judicial custody is decided.
The accused must be given an opportunity to oppose the prayer for extension of time, although the scope of such opposition may be limited.
The position regarding the crystallization of the right to default bail has been further elucidated by the Division Bench of this Court in Criminal Appeal No.701 of 2025, to which one of us (Sandipkumar C. More, J.) is a party. After considering the observations made by the Apex Court in Sanjay Dutt Vs. The State reported in 1994 AIR SCW 3857 and Sadhwi Pragyna Singh Thakur Vs. State of Maharashtra reported in AIR 2011 SC (Supp) 755, this Court observed as follows :-
"18.In the case of Sanjay Dutt (supra), it is specifically observed that grant of bail in such situation is subject fo refusal of prayer for extension of time, if such prayer is made. It is further observed that if the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. Thus, the filing of the charge-sheet is an important fact in acquiring the right of default bail. Similarly, in the case of Sadhwi Pragnya Singh Thakur (supra) it has been observed that right under Section 167 (2) of Cr.P.C. to be released on bail on default if charge-sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right, and the said right would be lost if the charge-sheet is filed and would not survive after the filing of the charge-sheet. Admittedly, such right lapses on filing of the charge-sheet, but in the instant case, when the extension order is already held bad and illegal by us, then till filing of charge-sheet the appellant was having right to default bail which was refused to him merely because extension order was already passed by that time."
The crux of the ratio laid down by this Court in Akshay (supra), is that the right of an accused to be released on default bail under Section 167(2) Cr.P.C. is defeated only if the chargesheet is filed within the statutory period of 90 days or a validly extended period. If an application for default bail is filed by the accused before the chargesheet is submitted, the right becomes crystallized and cannot be defeated by the subsequent filing of the chargesheet. If the foundation of the extended period itself is illegal, then the filing of the chargesheet during such an illegally extended period cannot be used to defeat the accrued right of the accused.
Now coming to the facts of the case in hand, let us apply the aforementioned mandatory requirements of law. We have perused the application dated 08.04.2026 filed by the public prosecutor, which has only reproduced the report given by the Investigating Officer and there is no independent application of mind by the public prosecutor while seeking extension of 60 days for completing the investigation and filing of charge-sheet. We have also perused the impugned order dated 12.06.2026 passed by the learned Special Court, which also does not give any reason. The extract of reasons recorded for extension of time for filing the charge-sheet and to conclude the investigation, is reproduced hereinbelow:-
"4.Having heard, I have gone through the report of the prosecution as well as the separate report filed by the Investigating Officer Mr. Kishor Salvi, Addl. Superintendent of Police, State Crime Investigation Department, Kokan Bhavan, New Bombay. On going through the report of the prosecution and the Investigating Officer and on hearing them, I am of the opinion that there is progress in the investigation and further extension 60 days is necessary looking to the nature of the crime."
The reasons given by the learned Special Court are mechanical and do not reflect any application of mind and neither give any justifiable reason. Perusal of the order shows that no opportunity was given to the appellants to oppose the prayer for extension of time to file the charge-sheet. The order also reflects that the mandatory requirement of Section 187(4) of BNSS in respect of production of the accused in the Court physically or via electronic media was not followed before passing the impugned order. Hence, the order extending the time for filing the charge-sheet is passed without following the mandatory requirement under Section 187(4) of BNSS and Section 21 of MCOC Act.
Even though the appellants have not challenged the second extension granted by the Special Court by order dated 11.06.2026 but the same is produced by the A.P.P. as Annexure to his affidavit in reply. Perusal of the said order also reflects that though the Advocates of the appellants were heard while granting the second extension but the accused were not intimated about filing of the application for further extension and were also not produced in the Court, physically or by way of video conferencing. Learned Advocates for the appellants have informed this Court that the Advocates were present in the Court, as on the same date the application for default bail was heard. So co-incidently, the Advocates were present while hearing of application for second extension. The second extension order also reflects that no intimation about filing of second extension application was given to the appellants and also the order does not give any reason for further extension unlike the first order.
In similar set of facts, the Hon'ble Supreme Court in Md. Ariz Hasnain (supra) dealt with a case wherein the appellant had approached the Supreme Court challenging the first extension order granted without producing the accused before the Court. During the pendency of the appeal before the Supreme Court, the trial Court granted a second extension and the chargesheet was filed. Despite these subsequent developments, the Supreme Court allowed the appeal and held that since the first extension itself was illegal on account of non-compliance with the mandatory requirement of production of the accused and non-application of mind by the Public Prosecutor, the indefeasible right to default bail had crystallized in favour of the accused. The Court observed that a subsequent extension or even the filing of the chargesheet cannot cure the illegality of the first extension, and the accused's right to default bail, once acquired, cannot be defeated. In the present case, the facts are almost identical. The impugned first extension order suffers from the same infirmities as in Md. Ariz Hasnain (supra), and accordingly, the ratio of the said judgment applies squarely to the facts of the present case.
We have carefully perused the judgment relied on by learned APP in Qamar Ghani Usmani (supra). We find that the said judgment is factually distinguishable from the present case. In that case, although the first extension was granted without producing the accused, he was informed about it the very next day. Despite having knowledge, the accused did not challenge the first extension. More importantly, the second extension was granted in his presence, and even at that time, the accused did not raise any grievance about the same or challenge the legality of the first extension. The Supreme Court therefore, held that the accused had acquiesced to the extension and he was not entitled to default bail as he had allowed the extended period to pass without any legal challenge.
In stark contrast, in the present case, the appellants were neither produced before the Court nor informed of the filing of the extension application, which is a mandatory requirement under Section 187(4) of BNSS read with Section 21 of the MCOC Act. They challenged the illegality at the earliest opportunity and filed their default bail application before the expiry of 1st extension period. The reliance placed by the learned A.P.P. on the judgment is therefore misplaced. Consequently, the said judgment being distinguishable on facts does not advance the case of the respondents.
The order dated 08.04.2026 by which the learned Special Court granted an extension of 60 days for completing the investigation and filing the charge-sheet, shows that the mandatory requirement of law, that the public prosecutor must apply his independent mind, is not followed. The order of the learned Special Court does not reflect any independent reasons, while granting the extension for filing the charge-sheet and completing the investigation. It is also a fact that the appellants were not informed about the filing of the extension application nor the appellants were produced before the Court physically or by way of video conferencing.
The present appeal is filed by the appellants on 05.05.2026, after the first extension was granted on 08.04.2026. While this application was pending in this Court, the learned Special Judge granted the second extension by order dated 11.06.2026 and rejected the default bail application by order dated 11.06.2026 and the charge-sheet is filed on 10.07.2026 while the second extension was still in force.
The non-compliance with all these mandatory requirements makes the extension illegal and arbitrary entitling the appellants to claim the default bail. In view of the fact that the order dated 08.04.2026 extending the time for completion of investigation is held to be illegal and since the charge-sheet came to be filed well after the expiry of statutory period of 90 days, the appellants are entitled to get the default bail and thus has acquired indefeasible right to be released on bail.
Considering all the aforesaid aspects, we pass the following order.
ORDER
The appeal is hereby allowed.
The impugned order dated 08.04.2026 passed by by the learned Special Judge under MCOC Act, Shrirampur granting further extension of 60 days to the investigating agency for filing charge-sheet on completion of investigation resorting to the provisions of Section 21(2)(b) of the MCOC Act is quashed and set aside.
The appellants shall be released on default bail under Section 187(4) of the BNSS upon furnishing bail bond and sureties to the satisfaction of the learned Special Judge under MCOC Act, Shrirampur. The Special Court shall be entitled to impose suitable condition to secure the presence of the accused during the trial.
The appeal stands disposed of accordingly.
After pronouncement of the judgment, learned APP seeks stay of this order for at least four weeks so that it can be challenged before the Apex Court. However, we have decided the matter on merits after giving due opportunity to both the sides, therefore, we are not inclined to grant stay at this juncture. As such, request for stay of the order is rejected.