Sandipkumar C. More, J.

1. By way of this appeal, the appellant has questioned the legality and validity of the order dated 29.05.2025 passed by the learned Additional Sessions Judge and Special Judge, Latur whereby extension of 90 days sought by the Investigation Officer i.e. Sub-Divisional Police Officer, Latur, has been granted for completing further investigation and filing charge-sheet. However, during pendency of this appeal, by carrying out the amendment, the appellant also prayed for quashing and setting aside the impugned order below Exh.1 dated 30.07.2025 passed by the learned Special Judge, whereby default bail application filed by the appellant, was rejected.

2. Facts leading to the present appeal, are as under : The present appellant, who is the original accused No.3, was arrested on 24.04.2025 alongwith accused Nos.1 and 2 in Crime No.0087/2025 dated 12.03.2025 registered with Shivaji Nagar Police Station, Latur for the offences punishable under Sections 109 (1), 308(5), 311, 111 of Bharatiya Nyaya Sanhita, 2023 alongwith Section 4 read with Section 25 of the Indian Arms Act and Sections 3 (1) (2), 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1099 (“MCOC Act” for short), added subsequently. The present respondent No.5 i.e. the Police Inspector of Shivaji Nagar Police Station, Latur submitted an application under Section 23(1) (a) of MCOC Act to respondent No.2 thereby seeking prior approval for invoking Sections 3(1)(2), 3(2) and 3(4) of the MCOC Act. Under the order dated 09.04.2025, sanction was approved for invoking the aforesaid sections of MCOC Act. Thereafter on 28.05.2025 a communication was made to the learned Additional Sessions Judge by the aforesaid Investigating Officer i.e. SDPO, Latur for extension of 90 days time for completing further investigation as it could not be completed within earlier period of 90 days, Thereafter vide impugned order dated 29.05.2025, the learned Special Judge, Latur without extending any opportunity to the petitioner, granted such extension.

3. Learned counsel Mr. Karpe for the appellant submitted that the learned Special Judge has ignored the provision of MCOC Act while granting further extension of 90 days for completing the investigation under impugned order dated 29.05.2025. He pointed out that the application for extension of time was not filed by the Public Prosecutor, but it was in fact filed by the Investigating Officer and it is only shown to be filed through APP, without his signature. According to him, no notice of the said application for extension was given to the appellant, violating the principle of natural justice. The proviso appended to Section 21 (2) of MCOC Act was not at all followed. Even there was no application of mind through the Prosecutor for submitting such application for extension for carrying out the investigation. He pointed out that since the order of extension is illegal, the appellant was definitely entitled for default bail as the charge-sheet could not be filed within the period of 90 days, and therefore the order of rejecting the application for default bail filed by the appellant, is illegal. In addition to submissions at bar, learned counsel for the appellant also relied on the following judgments.

                   (i) Criminal Appeal No. 732 of 2018 (Sachin Namdeo Rathod vs The State of Maharashtra) (Bombay High Court)

                   (ii) Criminal Writ Petition No. 831 of 2017 (Pahadiya Tulshiram Champala and others vs State of Maharashtra) (Bombay High Court)

                   (iii) Criminal Appeal No. 43 of 2023 (Darshan Subhash Nandagawali vs State of Maharashtra) (Bom.High Court)

                   (iv) Criminal Bail Application No. 2472 of 2022 (Sunil Vitthal Wagh vs State of Maharashtra (Bombay High (Court)

                   (v) Criminal Appeal No. 502 of 2020 (Shaikh Moin Shaikh Mehmood vs State of Maharashtra) (Bom. High Court)

                   (vi) Hon’ble Apex Court Judgment in the Case of Bikramjit Singh vs The State of Punjab in Criminal Appeal No. 667 of 2020

4. On the contrary learned A.P.P. strongly opposed the submissions made on behalf of the appellant and also filed affidavit in reply to that effect. He pointed out that the learned Special Judge properly passed the order of extension. He pointed out that the appellant had filed application for default bail on 24.07.2025 and the same was rejected on 30.07.2025 and then the charge-sheet was filed on 04.09.2025. According to him, the extension period had in fact expired on 09.09.2025, and therefore, the appellant was not entitled for default bail. He pointed out that that the application for seeking further extension for carrying out investigation was not directly filed, but the Investigating Officer had given instructions to the Special Prosecutor and then it was submitted to the court by the said Special Public Prosecutor. Learned A.P.P. submits that the appellant is prime accused and involved in serious crime, and therefore, hyper technical approach should not be taken in this matter. According to him, opportunity was there for the appellant to apply for regular bail, but he could not avail the same. He also relied on the following judgments.

                   (i) Sanjay Datt vs The State (1994 AIR SCW 3857)

                   (ii) Sadhwi Pragyna Singh Thakur vs State of Maharashtra [AIR 2011 SC (Supp) 755]

5. It is to be noted that the prayers in this appeal are twofold, one is for quashing order dated 29.05.2025 passed by the learned Special Judge, Latur by granting further extension of 90 days to the investigating agency to complete the investigation on the ground that the original application filed by prosecution was against the provision of Section 21 of MCOC Act and second for quashing the order dated 30.07.2025 whereby learned Special Judge had refused to grant default bail to the appellant.

6. Admittedly, in the instant case, application for seeking extension of time beyond 90 days by the prosecution was filed on 28.05.2025 which was allowed on 29.05.2025. Further, the application for default bail by the appellant was filed on 24.07.2025 and the same came to be rejected on 30.07.2025. The charge-sheet in this matter is admittedly filed on 04.09.2025 i.e. within the extended period for investigation, which was to be expired on 09.09.2025. Though the learned Special Judge rejected the default bail application of the appellant before filing the charge-sheet during extended period, but according to the appellant, extension order was in fact illegally obtained contrary to the provision of MCOC Act, and therefore, on expiration of 90 days the appellant had acquired indefeasible right of default bail as contemplated in Section 167 of the Code of Criminal Procedure (“Cr.P.C.” for short)

7. To have better idea of the provisions we would like to reproduce sub-sections (1) and (2) of Section 167 of Cr.P.C. as under:

                   “167. 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 ftxed by section 57, 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 Judicial Magistrate a copy of the entries in the diary hereinafter prescribed 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, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks ftt, for a term not exceeding ftfteen days in the whole; 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” .

8. On going through the aforesaid provision, it can be seen that before introduction of MCOC Act, the period for completion of investigation of the offence was either 90 days or 60 days, as the case may be, and if the investigation could not be concluded within the aforesaid periods, then the accused was entitled to release on bail on his readiness to furnish bail, irrespective of merits of the allegation made against him.

9. However, on coming into force MCOC Act certain modifications are suggested in Section 167 of Cr.P.C. as per Section 21 of the MCOC Act. For quick reference, we would like to reproduce Section 21 of the MCOC Act, which reads as under :

                   “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 deftned 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 modiftcations that, in sub-section (2),—

                   (a) the references to “ftfteen 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 speciftc reasons for the detention of the accused beyond the said period of ninety days.”.

                   (3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.

                   (4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless—

                   (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

                   (b) where the Public Prosecutor opposes the application, the Court is satisfted that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

                   (5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.

                   (6) The limitations on granting of bail specifted in sub- section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.

                   (7) The police officer seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody shall ftle a written statement explaining the reason for seeking such custody and also for the delay, if any, in seeking the police custody”.

Sub-section (2) of Section 21 of the MCOC Act is relevant in this matter. On going through the said sub- section, it appears that right of default bail as per Section 167 (2) of Cr.P.C. has not taken away by this Act, but certain modifications are there as mentioned above. As per the aforesaid modifications, the right of default bail now available to the accused under this Act, is available after completion of 90 days period from the date of offence, unless the period for investigation is extended by the Special Court as per the proviso to sub-section (2) of Section 21 of the MCOC Act. Therefore, considering the prayers in this petition, it clearly appears that if the extension order is held illegal, then only the appellant acquires right of default bail, because the application to that effect filed by the appellant has already been rejected within the period of such extension. In other words, if the extension order is held illegal, then only it can be held that default bail application of the appellant was maintainable and it can be said that he had acquired indefeasible right of default bail which was to be granted to him by the learned Special Judge.

10. The appellant has challenged the order of extension as aforesaid, on the following grounds.

                   (a) The report was not independently submitted by the Prosecutor, but it was only submitted by the I.P. through the Prosecutor.

                   (b) There was no application of mind by the Prosecutor while acting upon the aforesaid report of I.O.

                   (c) There was no notice to the appellant of the application for extension. Even his say was not called on the same and the learned Special Judge passed order of extension immediately on next day of its filing without giving any opportunity to the appellant of hearing.

11. In support of the aforesaid grounds the learned counsel for the appellant heavily relied on the judgments of this Court as well as Hon’ble Apex Court. In Criminal Appeal No.732 of 2018 (supra), following observation is made by this Court.

                   “Both the applications ftled under Section 21 of the MCOC Act, were addressed to the learned Special Judge, but the applications were prepared and signed by the investigating officer, Sub-Divisional Police Officer, SubDivision Osmanabad. On the application dated 18th September, 2018, there is signature of Motichand Rathod, SDPO and on the left side of this signature, there is signature of Special Prosecutor appointed by the State showing that through Special Prosecutor application was presented before the learned Special Judge by SDPO. The contents of the application also show that the application was drafted, prepared by the investigating officer. Except the signature of the learned Special Prosecutor on both the applications, there is nothing to show that the learned Special Prosecutor has considered the contentions of the investigating officer made for getting extension of time and he was satisfted that there were reasons for extension of time. Thus, the applications as they are, do not show that the Special Prosecutor had applied his mind, he was satisfted about the grounds mentioned for getting extension of time. On the application dated 19th September, 2018, in addition to the signature of the learned Special Prosecutor, two more words are written like “submitted by”.

With this observation this Court had allowed the appeal setting aside the order of extension of time for investigation passed by the learned Special Judge in the said matter.

12. Learned counsel for the appellant has also relied on the judgment in of this court at Nagpur Bench in Criminal Appeal No. 43 of 2023 (supra), wherein following observation is made.

                   “We had an opportunity to peruse the applications filed by the learned Public Prosecutor before the Special Court on 07.11.2022 and second application dated 07.01.2023, with the copies of applications produced along with the Pursis dated 19.04.2023, which were addressed by the Investigating Officer to the Public Prosecutor attached to the Special Court, dated 05.11.2022 and 06.01.2023. On minute observations, we are surprised to know that all the contents word by word, paragraph by paragraph, including full stops and commas, in these applications are identically the same. Thus, the only conclusion which could be drawn is that application which was forwarded by the Investigating Officer on 05.11.2022 addressed to the Public Prosecutor attached to the Special Court, is copied word by word and paragraph by paragraph in the application addressed to the Special Court dated 07.11.2022 by the Public Prosecutor. This application presented before the Special Court is jointly signed by the Investigating Officer and Public Prosecutor attached to the Special Court”.

In the same judgment this Court has made reference to the observation of the Hon’ble Apex Court in the case of Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors.; (1994) 4 SCC 602 as follows :

                   “The above dictum as laid down by the Apex Court clearly goes to show that the duty of the Public Prosecutor attached to the Special Court is something special in which he has to apply his mind independently and satisfy himself as to whether there is actually need for extension of time to ftle charge-sheet. Only then the Public Prosecutor, after verifying the case papers and reasons given by the Investigating Officer, may apply by submitting his report to the Special Court for such extension. The Public Prosecutor along with his report may attach the request of the Investigating Officer made to him, but he has to apply his mind and demonstrate by giving his reasons as to why he is supporting the contentions raised by the Investigating Officer for extension of time”.

On going the above observations, it is clearly evident that the application/report for extension is supposed to be filed independently by the Special Public Prosecutor and it cannot be merely submitted by the Investigating Officer through learned Special Prosecutor. It has been specifically observed that the request of Investigating Officer for extension of time is no substitute for the report of Public Prosecutor as per the proviso to Section 21 of MCOC Act. Moreover, in the light of observation of the Hon’ble Apex Court in the case of Hitendra Thakur (supra), it has been laid down that the Public Prosecutor attached to the Special Court is having some special duty in which he has to apply his mind independently and satisfy himself whether there is actual need for extension of time to file charge-sheet. Only on such satisfaction of Public Prosecutor after verifying the material on record, he shall submit report to the Special Court for such extension. A duty is therefore cast upon the learned Prosecutor so attached, to apply his mind for seeking extension and that too after going through material on record. He cannot merely act as a post office. By observing this, the Hon’ble Apex Court as well as this Court in the aforesaid judgments, have rejected the extension of time to file charge- sheet, as prayed. The same view is reiterated by this Court in the case of Shaikh Moin vs State of Maharashtra in Criminal Appeal No. 502 of 2020 that how should be the approach of Public Prosecutor by making the following observation.

                   “In Aslam Babalal Desai (supra), Hon’ble Justice Ahmedi, speaking for the majority, referred with approval to the law laid down in Rajnikant Jivanlal (supra) wherein it was observed as under:

                   The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may ftnd that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the court under clause (bb) to seek extension of time. Thus, for seeking extension of time under clause (bb), the public prosecutor after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. The public prosecutor may attach the request of the investigating officer along with his request or application and report, but his report, as envisaged under clause (bb), must disclose on the face of it that he has applied his mind and was satisfted with the progress of the investigation and considered grant of further time to complete the investigation necessary. The use of the expression "on the report of the public prosecutor indicating the progress of the investigation and the speciftc reasons for the detention of the accused beyond the said period" as occurring in clause (bb) in Ss. (2) of Section 167 as amended by Section 20(4) are important and indicative of the legislative intent not to keep an accused in custody unreasonably and to grant extension only on the report of the public prosecutor. The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequence of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). The request of an investigating officer for extension of time is no substitute for the report of the public prosecutor. Where either no report as is envisaged by clause (bb) is ftled or the report ftled by the public prosecutor is not accepted by the Designated Court, since the grant of extension of time under clause (bb) is neither a formality nor automatic, the necessary corollary would be that an accused would be entitled to seek bail and the court shall release him on bail if he furnishes bail as required by the Designated Court”.

13. In the instant case, if we peruse the copy of application dated 28.05.2025 filed before the learned Special Judge, then it is clearly evident that it is not drafted independently by the Special Public Prosecutor attached to the court of learned Special Judge, but there is only endorsement that it is submitted through the learned Prosecutor. The said application is signed by the concerned Investigating Officer. Surprising to see that there is no signature of the Special Public Prosecutor on the said copy which is produced on record for perusal of this court. Thus, it is clearly evident that the learned Public Prosecutor in this case has acted merely as a post office and did not apply his mind by going through the case papers and forming independent opinion.

14. Further, it is also extremely important to note that in the judgment of this Court in Writ Petition No. 831 of 2017, this Court at Nagpur Bench has specifically observed that there is nothing to establish that before extension of custody, accused were given notice of the said application or were heard as the learned Additional Sessions Judge in para 5 of his order has stated that the accused were informed about extension of judicial custody by further period of 90 days to which they did not say anything. In the instant case, it appears from the record that the appellant had not even given intimation about such application. Therefore, on that count also the extension order dated 29.05.2025 passed just on the next day of filing of the application, appears to be bad and illegal. Therefore, considering all these facts, we are of the opinion that the learned Prosecutor did not apply his mind at all before filing the application for extension of time to file charge-sheet in the instant case. He merely acted as post office, and therefore, such order passed behind back of the appellant without giving him any opportunity of hearing is, thus, bad and illegal and needs to be set aside.

15. So far as rejection of bail application of the appellant is concerned, it appears that the appellant had in fact presented application for statutory/default bail under Section 187 (3) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, similar to Section 167 (2) of Cr.P.C. He has also raised these grounds in the said application that the extension order was bad, and therefore, he had acquired indefeasible right of default bail since the charge-sheet was not filed by that time. On going through the order of rejection of the said bail application dated 30.07.2025, the learned Additional Sessions Judge, Latur had even observed that decision in Hintendra Thakur (supra) was binding upon it, but merely because the extension order was already passed by that time and he was not having power of review regarding the said order of extension, the bail application was rejected.

16. The learned A.P.P. heavily relied on the judgment of Hon’ble Apex Court in the case of Sanjay Dutt (supra), wherein following observation is made :

                   “We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the ftling of the challan and it does not survive or remain enforceable on the challan being ftled, if already not availed of. Once the challan has been ftled, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the ftling of the challan. The custody of the accused after the challan has been ftled is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the ftling of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is ftlled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions 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. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order”.

17. Learned A.P.P. also relied on the judgment in the case of Sadhwi Pragnya Singh Thakur (supra), wherein the following observation is made :

                   “There is yet another aspect of the matter. The right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not ftled within 90 days from the date of ftrst remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is ftled and would not survive after the ftling of the charge sheet. In other words, even if an application for bail is ftled on the ground that charge sheet was not ftled within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is ftled, the said right to be released on bail would be lost. After the ftling of the charge sheet, if the accused is to be released on bail, it can be only on merits. This is quite evident from Constitution Bench decision of this Court in Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b)]. The reasoning is to be found in paras 33 to 49”.

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.

19. It is significant to note that bail application was filed by the appellant during the said extension period which is declared illegal by this Court. When it was filed and got rejected, the charge-sheet was not submitted and the same was filed on 04.09.2025, before the end of extension period which expired actually on 09.09.2025. Admittedly, in the light of the observation in the case of Sadhwi Pragnya Singh Thakur (supra), right for default bail had lapsed on filing of charge-sheet on 04.09.2025, but prior to that only the same was available to the appellant, and therefore, in our considered view, the appellant is entitled for default bail.

20. Considering all the aforesaid aspects, we pass the following order.

ORDER

(i) The appeal is hereby allowed.

(ii) The impugned order dated 29.05.2025 passed by the learned Additional Sessions Judge and Special Judge, Latur granting further extension of 90 days to the investigating agency for filing charge-sheet on completion of investigation resorting to the provision of Section 21 (2) (b) of the MCOC Act, is quashed and set aside.

(iii) The order dated 30.07.2025 below Exh.1 passed by the learned Additional Sessions Judge-1, Latur rejecting the default bail application of the appellant is also quashed and set aside and the appellant/accused No.3 is released on execution of his P.R. bond of Rs. 50,000/- (Rupees Fifty Thousand) alongwith one or more sureties in the like amount.

(iv) The appeal is accordingly disposed of.