The Bombay High Court has declared the continued detention of two accused persons illegal where the Special Judge appointed under the Prevention of Corruption Act, 1988 lacked jurisdiction to take cognizance after the charge-sheet was filed solely under the Bharatiya Nyaya Sanhita, 2023 and the Information Technology Act, 2000, and the transferee Magistrate failed to pass any order taking cognizance or remanding the accused under Section 346 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Court held that cognizance is a sine qua non for valid trial and remand, and its absence renders detention unauthorized.
Background & Facts
The Dispute
The petitioners, Shaibaz Kaiser Ateeq Shaikh (Accused No.5) and Sameer Siroha (Accused No.3), were arrested on 09.08.2025 during a CBI raid at an illegal call centre operating from Rain Forest Resort, Igatpuri, Nashik. The call centre allegedly defrauded foreign nationals, primarily senior citizens in the US and Canada, by impersonating Amazon Support Services and extracting funds via gift cards and cryptocurrency. The petitioners challenged their continued detention as illegal on the ground that no competent court had taken cognizance of the offence or passed remand orders after the charge-sheet was filed.
Key Facts
- FIR registered on 08.08.2025 at CBI, EOB, Mumbai (FIR No. RC0682025E0005) under Sections 61(2), 318(2), 319(2), 336(3), 338, 340(2), 351 of the BNS, 2023; Sections 7(a) and 12 of the PC Act, 1988; Sections 66C and 66D of the IT Act, 2000; and Sections 3(1) and 42(1) of the Telecommunications Act, 2023
- Raid conducted on 09.08.2025 at 12:15 a.m. at Rain Forest Resort, Igatpuri; 63 operators found; Rs.1.20 crores cash and 600gms gold recovered from co-accused Vishal Yadav
- Petitioners arrested on 09.08.2025, produced before JMFC Igatpuri, granted transit remand, produced before Special Judge, CBI, Pune on 10.08.2025
- Police custody remand till 16.08.2025, then judicial custody till 29.08.2025; subsequently extended from time to time
- Charge-sheet filed on 03.11.2025 before Special Judge, CBI, Pune (Special Case No.1492 of 2025) only under BNS and IT Act - not under PC Act
- Copies of charge-sheet supplied to accused on 13.11.2025; acknowledgment by petitioners on 18.11.2025
- Petitioner No.1's bail application (Exhibit-19) and Petitioner No.2's temporary bail application (Exhibit-27) heard by Special Judge
- Special Judge's order dated 12.02.2026: held he was not empowered to take cognizance as charge-sheet not filed under PC Act; transferred case to JMFC Igatpuri "for taking cognizance/trial in accordance with law" under Section 361 BNSS; directed production of accused before JMFC on 18.02.2026; remanded accused to judicial custody until then
- Case renumbered as RCC No.77 of 2026 before JMFC Igatpuri; roznama entries from 25.02.2026 onward show only adjournments, video conference productions, and intimation of next dates - no order taking cognizance, no remand warrant, no direction to Jail Superintendent
- JMFC rejected bail applications (Exhibits-65, 66) on 07.09.2026; permitted further investigation under Section 193(9) BNSS on 13.04.2026 (90 days)
- Petitioners currently detained at Nashik Road Central Prison
Procedural History
- 08.08.2025: FIR registered (RC0682025E0005)
- 09.08.2025: Raid at Rain Forest Resort; petitioners arrested
- 10.08.2025: Produced before Special Judge, CBI, Pune; police custody remand till 16.08.2025
- 16.08.2025: Remanded to judicial custody till 29.08.2025
- 03.11.2025: Charge-sheet filed before Special Judge (Special Case No.1492/2025) - without PC Act charges
- 13.11.2025: Charge-sheet copies given to advocates
- 18.11.2025: Petitioners acknowledged receipt
- 12.02.2026: Special Judge transferred case to JMFC Igatpuri under Section 361 BNSS; directed production on 18.02.2026
- 18.02.2026: Case transferred; renumbered RCC No.77/2026
- 25.02.2026 onwards: Roznama entries before JMFC - adjournments only
- 13.04.2026: JMFC permitted further investigation under Section 193(9) BNSS (90 days)
- 07.09.2026: JMFC rejected bail applications (Exhibits-65, 66)
- 08.10.2026: Arguments reserved in present writ petition
- 21.10.2026: Judgment pronounced
Relief Sought
The petitioners sought a declaration that their continued detention in connection with RCC No.77 of 2026 is illegal, and their release on bail, on the grounds that: (i) the Special Judge lacked jurisdiction to take cognizance once the charge-sheet omitted PC Act offences; (ii) the JMFC Igatpuri never took cognizance; and (iii) no remand orders were passed by the JMFC authorizing continued custody.
The Legal Issue
The central questions were: (1) Whether a Special Judge appointed under Section 3 of the PC Act has jurisdiction to take cognizance of a police report when the charge-sheet is not filed for any offence under the PC Act; (2) Whether the Judicial Magistrate First Class, upon transfer of the case under Section 361 BNSS, took cognizance of the offence; and (3) Whether the continued detention of the accused without an order of cognizance and subsequent remand orders under Section 346 BNSS is illegal.
Arguments Presented
For the Petitioners
Mr. Milan Desai contended that the Special Judge, having found no PC Act offence in the charge-sheet, lacked jurisdiction to take cognizance - relying on State through CBI v. Jitender Kumar Singh (2014), where the Supreme Court held that trying a PC Act offence is a jurisdictional fact for exercising powers under Section 4(3) PC Act. He further argued that the JMFC never passed an order taking cognizance under Section 227 BNSS (issuance of summons) or otherwise applied his mind to initiate proceedings. Citing Lalankumar Singh v. State of Maharashtra (2022), he submitted that issuance of process is not an empty formality. Since no cognizance was taken, no remand orders could be passed under Section 346 BNSS, rendering detention illegal.
For the Respondent (CBI)
Mr. Anil Singh, ASG, argued that the JMFC's orders - rejecting bail (07.09.2026) and permitting further investigation (13.04.2026) - demonstrated application of mind, constituting cognizance. He relied on State of Gujarat v. Afroz Mohammed Hasanfatta (2019) and S.K. Sinha v. Videocon International Ltd. (2008) to submit that cognizance occurs when a Magistrate applies his mind to the police report, and no formal order is required. He further cited Kallu Nat v. State of U.P. (2025) for the proposition that compliance with Section 207 CrPC (supply of documents) deems cognizance taken. Mr. Kuldeep Patil, SPP, relied on Vinodbhai Tiwari v. State of Gujarat (2026) to argue that when an accused is already in custody, the court need only remand by warrant without a timeline.
The Court's Analysis
The Court examined the jurisdiction of the Special Judge under the PC Act. Reproducing Sections 3(1), 4(1), 4(2), and 4(3) of the PC Act, it held that a Special Judge's jurisdiction to try non-PC Act offences under Section 4(3) is contingent on trying a PC Act offence at the same trial. Since the charge-sheet was filed only under BNS and IT Act, and no public servant was charge-sheeted, the Special Judge had no jurisdiction to take cognizance. This was expressly acknowledged by the Special Judge in his order dated 12.02.2026 (paragraph 15):
"In this case, though the FIR was registered for the offences punishable under PC Act, but charge-sheet has not been filed under PC Act, therefore, I found substance in the argument of Ld. Advocate for accused No.5 that at this stage, this Court is not empower to take the cognizance against the arrested accused..."
The Court then analyzed cognizance under the BNSS framework. Drawing from Kallu Nat (paragraphs 19 - 21) and S.K. Sinha, it held that cognizance is "a conscious application of mind... with a view to initiate proceedings" - a sine qua non for valid trial. The JMFC's roznama entries showed only adjournments, video conference productions, and intimation of next dates - no order issuing process under Section 227 BNSS, no warrant of remand under Section 346(2) BNSS, no direction to the Jail Superintendent. The Court rejected the ASG's contention that bail rejection or permission for further investigation constituted cognizance:
"Those orders were passed in completely different context. As discussed above, taking cognizance is an order passed with a view to initiating proceedings against the accused based on a police report. The observations made by the learned J.M.F.C. in the orders referred to by the learned ASG do not satisfy this criteria."
On remand, the Court interpreted Section 346(2) BNSS - which empowers a court, "after taking cognizance of an offence... [to] adjourn the same... and may by a warrant remand the accused if in custody". Since no cognizance was taken, the power to remand never arose. The Court disagreed with the Vinodbhai Tiwari interpretation that no remand order is needed if the accused is already in custody, clarifying that the Gujarat High Court only addressed the 15-day timeline, not the necessity of a remand order:
"The Judgment is only about the outer limit of the timeline. It cannot be interpreted to mean that the Magistrate need not remand the accused after taking cognizance if he is already in custody."
The Verdict
The petitioners succeeded. The Court declared their continued detention illegal and ordered their release on bail upon executing personal bond of Rs.1 lakh each with one or two sureties of like amount, subject to seven conditions: (I) deposit passports with Investigating Officer; (II) report to investigating agency every Saturday 3:00 - 5:00 p.m. till trial conclusion; (III) provide residential address and contact numbers; (IV) attend all dates in RCC No.77/2026 before JMFC Igatpuri; (V) not tamper with evidence or influence witnesses; (VI) not leave Maharashtra without trial court permission; (VII) cooperate in expeditious trial. The investigating agency was granted liberty to rearrest by following due procedure. The writ petition was disposed of with Rule made absolute.
What This Means For Similar Cases
Cognizance Is a Jurisdictional Prerequisite, Not a Formality
- Special Judges under PC Act cannot take cognizance of non-PC Act offences unless a PC Act offence is simultaneously tried. The jurisdictional fact - trial of a PC Act offence - must exist at the time of cognizance.
- Transfer under Section 361 BNSS does not cure the defect: the transferee court must independently take cognizance. The Special Judge's transfer order explicitly stated the case was sent "for taking cognizance/trial in accordance with law."
- Practitioners must verify the charge-sheet's statutory basis before the Special Judge. If PC Act charges are dropped, challenge jurisdiction immediately.
Magistrates Must Pass Express Cognizance and Remand Orders
- No deemed cognizance from administrative orders: Bail rejection, permission for further investigation, or document supply under Section 207 CrPC/Section 230 BNSS do not substitute for a judicial act of taking cognizance.
- Cognizance requires a conscious judicial act - application of mind to the police report with a view to initiate proceedings. The order need not be elaborate but must exist on record.
- Remand under Section 346(2) BNSS is mandatory after cognizance: Even if the accused is already in custody, the court must issue a warrant remanding the accused. The 15-day limit in the proviso applies only to first-time remand; for continuing custody, a warrant is still required.
- Jail Superintendents and prosecutors have a duty to flag the absence of remand orders to the court.
Practical Takeaways for Defence Counsel
- Audit the remand chain: From arrest to present, identify every remand order. If a transfer occurred, check whether the transferee court passed cognizance and remand orders.
- File habeas corpus or writ petitions where detention continues without cognizance/remand - the Court entertained the petition despite pending bail applications because the illegality went to the root of jurisdiction.
- Insist on written orders: Roznama entries and video conference notations are not substitutes for judicial orders authorizing custody.
- Leverage Section 346(2) BNSS: The "warrant" requirement is a safeguard - demand its production.
