There Should Never Be A Vacuum: Delhi High Court Upholds Link Judge’s Powers Under MCOCA, Flags Need For More Special Judges
While denying default bail; Court urges consideration of appointing additional judges to avoid procedural gaps
The Delhi High Court has held that a Link Judge can validly extend the period of investigation under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) in the absence of the designated Special Judge, while cautioning that “there should never be a vacuum” in the functioning of Special Courts.
The Court noted that only one Special Judge has been appointed per sessions division, which leads to practical difficulties when the presiding officer is unavailable due to leave or other engagements. In such situations, procedural complications arise, as seen in the present case, where the competence of the Link Judge itself was called into question.
Significantly, the Court used the occasion to highlight systemic shortcomings in the implementation of MCOCA in Delhi. The Bench further emphasised that the statute itself envisages a broader judicial framework, and it would be thus be “ideal” if additional judges are appointed to Special Courts, or alternatively, if more judicial officers are empowered to deal with MCOCA cases.
Justice Chandrasekharan Sudha observed, “…When there is only one judge appointed to the Special Court, difficulties in work arrangement would certainly arise when the said judge goes on leave or otherwise. The Legislature has forseen this situation and has provided for appointment of additional judges under Section 5(3) of MCOCA. This would no doubt be a decision that will have to to be taken by the State Government in consultation with the Hon’ble the Chief Justice of this Court. It would do well for the High Court on the administrative side to consider the feasibility of appointing additional judge(s) to the Special Court already constituted or conferring the power to deal with offences under MCOCA to more members of the Delhi Higher Judicial Service. This order may be placed before the Hon’ble the Chief Justice of this Court for considering the matter”.
“...It is no doubt true that sub-section (3) to Section 5 of the MCOCA empowers the authority concerned to appoint additional judges. But as long as additional judges have not been appointed to the Special Court sub-section (5) of Section 5 MCOCA cannot come into play. In such situations, there cannot be a vacuum or a situation that no judge will be able to exercise the powers”, the Bench further observed.
Advocate Kundan Kumar appeared for the appellants and Aman Usman, APP appeared for the respondent.
In the matter, the appellants/accused persons as per the FIR were alleged to have committed the offences punishable under various Sections of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act), Section 113 and 238 of Bharatiya Nyaya Sanhita, 2023; Section 18(c) of the Drugs and Cosmetics Act, 1940 and Sections 3 and 4 of the MCOCA.
The Court was dealing with appeals filed by accused persons seeking default bail on the ground that the extension of investigation beyond 90 days had been granted by a Link Additional Sessions Judge, and not by a duly appointed Special Judge under MCOCA. It was argued that such an order was without jurisdiction, rendering their continued custody illegal.
However, rejecting the contention, the Court held that in the absence of additional judges under Section 5(3) of MCOCA, a complete breakdown of judicial functioning cannot be permitted. It observed that sessions-level arrangements, including assignment of urgent matters to Link Judges, are necessary to ensure continuity, particularly when only one Special Judge is available in a sessions division.
The Court clarified that while Section 5(5) of MCOCA permits distribution of work only when additional judges are appointed, in their absence, procedural law allows the Sessions Judge to make temporary arrangements to deal with urgent matters. Therefore, on this reasoning, the extension of investigation granted by the Link Judge was upheld.
On the issue of default bail, the Court further held that even assuming some irregularity in the order passed by the Link Judge, the accused would not automatically be entitled to release, as the de facto doctrine would apply to sustain actions taken to prevent a legal vacuum.
On the notification pointed by the Prosecutor dated 15-09-2010 submitting that all officers of the Delhi Higher Judicial Service have been empowered to exercise the powers of a Special Court under the MCOCA, the bench observed, “…a word regarding the notification relied on by the prosecutor. I have already given reasons as to why the notification does not solve the situation as the one that arose in the case on hand. This fact was noticed by the learned Single Judge in Rambeer Shokeen (Supra) which judgment was rendered on 22.05.2017. Nearly nine years have elapsed. It is a matter of great concern that no steps have been taken till date to rectify the defect pointed out in paragraph 79(i) of the aforesaid judgment. Further, it would certainly be ideal if additional Judge(s) are appointed to the Special Court or a few officers, if not, all the members of the Delhi Higher Judicial Service, are empowered to deal with offences under the MCOCA”.
While dismissing the appeals and upholding denial of default bail, the judgment highlighted that effective enforcement of special criminal statutes must be supported by adequate judicial infrastructure, failing which procedural disputes are bound to arise.
Cause Title: Deepa Singh v. State (NCT Of Delhi) [Neutral Citation: 2026:DHC:1315]
Appearances:
Appellants: Kundan Kumar, Pranshu Kumar, Jaya Chandra, Divya Kundra, Madan Jha, Mahima Chaudhary and Prerna Jain, Advocates.
Respondent: Aman Usman, APP for the State with Inspector Ritesh