STATE OF MAHARASHTRA Vs. RAKESH SUBHASH SURVE

JUDGEMENT

(1.) MR. Sushil Kumar, the learned Senior Counsel appearing for the respondent in Criminal Application Nos. 124/2008, 685/2008 and 757/2008 has raised a preliminary objection regarding maintainability of these applications under section 439(2) of the Criminal Procedure Code. It is submitted that the State of Maharashtra had challenged an order passed by the Special Court, granting bail to the respondent by filing an appeal under section 12 of the Maharashtra Control of Organized Crime Act, 1999 (For short MCOC Act") before the Division Bench of this Court. It is submitted that Division Bench of this Court dismissed the appeal on the ground that it is not maintainable and, thereafter, the present applications have been filed by the applicant-State under section 439(2) of the Criminal Procedure Code. It is submitted that since the bail has been granted by the Special Court under section 21 of the MCOC Act, this Court cannot exercise its jurisdiction under section 439(2) of the Criminal Procedure Code.

(2.) THE learned Senior Counsel for the respondent invited my attention to the provisions of section 21 of the MCOC Act and more particularly the provisions of sub-clause (4) of section 21. It is submitted that non-obstante clause in sub-clause (4) of section 21 clearly excludes the operation of section 439 of the Criminal Procedure Code. That being the position, this Court does not have jurisdiction to entertain any application for cancellation of bail.

(3.) HOWEVER, I am unable to accept the submission of the learned Senior Counsel for the respondent that the High Court cannot entertain an application for cancellation of bail under section 439(2) of the Criminal Procedure Code in cases where bail has been granted to the accused under section 21 of the MCOC Act.