ABDUL RASHEED SIKANDARSAB KULKARNI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) As these petitions give rise to common questions of law and facts, they were heard together and are being disposed of by this common judgement.

(2.) The petitioners in all these Writ Petitions are accused in various special cases. The petitioners are charged with various offences punishable under the Indian Penal Code and the Prevention of Corruption Act. Since they are also charged with having committed offences under the Maharashtra Control of Organised Crime Act, 1999, hereinafter referred to as the "MCOCA", their cases are being tried by a Special Court constituted under the MCOCA at Pune. The petitioners in Writ Petition No.1306 of 2006 have been arrested sometime in 2003 and have been remanded to judicial custody on different dates in the latter part of 2003. The petitioners in Writ Petition Nos.1308 of 2006, 1320 of 2006, 1321 of 2006 and 1356 of 2006 have been arrested on 8.10.2004 and all of them have been remanded to judicial custody by the Special Court on 8.6.2006. The period of remand of some of the petitioners expired on 29.6.2006 and of others expired on 1.7.2006.

(3.) The legality and validity of the remand order dated 8.6.2006 made by Judge S.P.Hayatnagarkar is challenged by them. The challenge is on the ground that the said Judge is not validly appointed under the provisions of the MCOCA for the Special Court. According to the petitioners, the said Judge was appointed, or conferred with power under section 5(5) of the MCOCA by an Office Order No.JO/30/2006 dated 6.6.2O06 by Special Judge Shri P.B.Joshi since Shri Joshi and the Addl. Special Judge Shri B.M.Deshpande were on leave on 8.6.2006. It is common ground that the said Judge Shri S.P. Hayatnagarkar was appointed to deal with the special cases under the MCOCA on 8.6.2006 because the regularly appointed Judge of the Special Court under the MCOCA was not available and he had been authorised by the Principal Judge to transact urgent business under section 5(5) of the MCOCA. There is no dispute that Shri Hayatnagarkar is an Addl. District and Sessions Judge and, therefore, otherwise qualified to be appointed as a Judge of the Special Court under section 5(4) of the MCOCA.