Malegaon Blast Case Bombay High Court Judgement On Applicability of MCOCA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 866 OF 2009
AND
CRIMINAL APPLICATION NO. 539 OF 2010
The State of Maharashtra
At the instance of A.T.S. Police Station,
Bombay, Through Assistant Commissioner
of Police, AntiTerrorism Squad, Bombay .. Appellant
(Org.Complainant)
Vs.
1. Pragyasinh Chandrapalsinh Thakur and ors. .. Respondents
(Org. Accused
Nos.1 to 11)
WITH
AND
CRIMINAL APPLICATION NO. 1318 OF 2009
The State of Maharashtra .. Appellant
Vs.
Lt. Colonel Prasad Shrikant Purohit .. Respondent
(Org.Accd.No.9)
WITH
2
Vs.
Rakesh Dattatray Dhawade .. Respondent
(Org.Accd. No.7)
WITH
Vs.
Ajay Eknath Rahirkar .. Respondent
(Org.Accd.No.6)
WITH
Shri Ajay Eknath Rahirkar .. Appellant
(Org.Accd.No.6)
Vs.
The State of Maharashtra .. Respondent
Mr. Amit Desai, Senior Advocate with Mrs. Rohini Salian, Mr. P. A. Pol,
PP and Mr. J. P. Yagnik, APP for State in Cri. Appeal Nos.866 to 869 of
2009 and for respondent in Cri. Appeal No. 1024/09.
Mr. V. T. Tulpule, Senior Advocate with Mr. Harshad Kandalkar and Ms.
Veena Rohirkar for appellant in Cri. Appeal No. 1024 of 2009 and
respondent no. Cri. Appeal No. 867 of 2009.
Mr. Mahesh Jethmalani, Senior Advocate i/by Mr. Ganesh Sovani for

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respondent no.1 in Cri. Appeal No. 866/09.
Mr. Rajendra Parkar for respondent nos.2 and 3 in Cri. Appeal No.
866/09.
Mr. Subhash Jha i/by Mr. Naveen Chomal for respondent no.4 in Cri.
Appeal No. 866/09.
Mr. Naveen Chomal for respondent no. 5 in Cri. Appeal No. 866/09.
Mr. V. T. Tulpule, Senior Advocate a/w Ms. Nisha Parab and Mr.
Harshad Kandlkar for respondent no.6 in Cri. Appeal No. 866/09 and for
respondent in Cri. Appeal No. 869/09.
Mr. Madhav Jamdar i/by Mr. Subhah Jadhav for respondent no.7 in Cri.
Appeal No. 866/09 and for respondent in Cri. Appeal No. 868/09.
Mr. M. S. Mohite for respondent no. 8 in Cri. Appeal No. 866/09.
Mr. Shrikant Shivade a/w Mr. Manoj Mohite for respondent no.9 in Cri.
Appeal No. 866/09.
Mr. U.R. Lalit, Senior Advocate with Mr. Shrikant Shivade for respondent
no.10 in Cri. Appeal No. 866/09.
Mr. Rajeev K. Pandey i/by Mr. Sanjeev Punalekar for respondent no.11
in Cri. Appeal No. 866/09.
CORAM : B.H. MARLAPALLE &
ANOOP V. MOHTA, JJ.
Reserved on : June 23, 2010
Pronounced on : July 19, 2010.
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ORDER ( Per B. H. Marlapalle, J.)
1. In MCOC Special Case No. 1 of 2009, 11 accused are
facing trail. Accused Nos. 6, 7 and 9 filed bail applications i.e. Bail
Application Nos. 40, 41 and 42 of 2008 respectively, for being released
on bail and while deciding these applications, the learned Special Judge
by his order dated 31/7/2009 was pleased to discharge all the accused
under the provisions of Section 227 of Cr. P. C. from the offences
punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the
Maharashtra Control of Organized Crime Act, 1999 (for short the MCOC
Act) and consequently the case came to be transferred in exercise of
the powers under Section 11 of the said Act to the regular court having
jurisdiction under Cr. P. C. for trial of the offences punishable under
Sections 302, 307, 326, 324, 427, 153A, 120B of IPC read with
Sections 25(1) and 25 (3) of the Arms Act read with Sections 3, 4, 5, 6
of Explosive Substance Act read with Sections 15, 16, 17, 18, 20 and 23
of Unlawful Activities (Prevention) Act, 1967 (Amended) 2004. The bail
applications came to be rejected. The order of prior approval under
Section 23(1)(a) of the MCOC Act passed on 20/11/2008 by the Deputy
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Inspector General of Police and ATS, Mumbai in C.R. No. 18 of 2008
and the sanction given by the Additional Director General of Police,
Railways, Mumbai on 15/1/2009 under Section 23(2) of the said Act
came to be quashed and set aside by a separate order passed below
Exh. 1 on the same day i.e. 31/7/2009.
2. Criminal Appeal No. 866 of 2009 has been filed by the
State of Maharashtra against the order dated 31/7/2009 passed below
Exh. 1 by the learned Special Judge holding that the charges for the
offences under the MCOC Act against the accused in C.R. No. 18 of
2008 registered with the ATS Mumbai do not survive and the accused
came to be discharged for the offences under the said Act in MCOC
Special Case No. 1 of 2009. Criminal Appeal No. 867 of 2009 has been
filed by the State against accused no.9 – Lt. Colonel Prasad Shrikant
Purohit, who has been discharged from the charges punishable under
the MCOC Act while rejecting his Bail Application No. 42 of 2008 as per
the order dated 31/7/2009. Criminal Appeal No. 868 of 2009 has been
filed against accused no. 7 – Rakesh Dattatray Dhawade, who has also
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been discharged from the offences punishable under the MCOC Act
while rejecting his Bail Application No. 40 of 2008 as per the order dated
31/7/2009. Criminal Appeal No. 869 of 2009 has been filed by the State
against accused no. 6 – Ajay Eknath Rahirkar who was discharged from
the offences punishable under the MCOC Act while rejecting his Bail
Application No. 41 of 2008 as per the order dated 31/7/2009.
Criminal Appeal No. 1024 of 2009 has been filed by
accused no. 6 against the rejection of his Bail Application No. 41 of
2008 by the learned Special Judge as per the order dated 31/7/2009.
3. The operative part of the order passed below Exh. 1 on
31/7/2009 by the Special Court reads as under:
“ Accused No.1 Pragyasingh Chandrapalsingh
Thakur @ Swami Purnachetanand Giri, No.2
Shivanarayan Gopalsingh Kalsangra, No. 3 Shyam
Bhavarlal Sahu, No. 4 Ramesh Shivji Upadhyaya, No.
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5 Sameer Sharad Kulkarni @ Chanakya Sameer, No.6
Ajay @ Raja Eknath Rahirkar, No. 7 Rakesh Dattatray
Dhawde, No. 8 Jagdish Chintaman Mhatre, No. 9
Prasad Shrikant Purohit, No. 10 Sudhakar Udaybhan
Dhar Dwivedi @ Dayanand Pande @ Swami
Amrutanand Devtirth and No. 11 Sudhakar Omkarnath
Chaturvedi @ Chanakya Sudhakar are discharged
from the charge of the offences punishable under Sec.
3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra
Control of Organized Crime Act, 1999.
The case is transferred u/s 11 of the Maharashtra
Control of Organized Crime Act, 1999 to the regular
court having jurisdiction under the Code of Criminal
Procedure for the trial of the offences under Secs. 302,
307, 326, 324, 427, 153A, 120B of the Indian Penal
Code r/w 3, 5, 25 Arms Act, r/w 3, 4, 5, 6 of Explosive
Substance Act r/w 15, 16, 17, 18, 20 and 23 of Unlawful
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Activities (Prevention) Act, 1967 (Amended) 2004. It
will first have to be filed in the court of the Judicial
Magistrate having territorial jurisdiction for committal to
the Sessions Court as it involves sessions triable
offences.
Registrar (S) is directed to ascertain the court
having jurisdiction under the Code of Criminal
Procedure to which the chargesheet is to be sent. All
accused be produced before that court on the next
date of appearance.”
Whereas the operative part of the order passed on
31/7/2009 rejecting Bail Application Nos. 40, 41 and 42 of 2008 reads as
under:
“ Application is rejected and disposed off.
Attested true copy of this order be annexed with
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the order on Ext. 1 in MCOC Special Case No. 01 of
2009 of today’s date.”
4. Paras 4 and 5 of the order passed below Exh.1 read as
under:
“4. In view of the above discussion, the prior
approval under Sec. 23(1)(a) of Maharashtra Control of
Organized Crime Act, 1999 in this case given on
20/11/2008 given by Dy. Inspector General of Police,
Anti Terrorism Squad (ATS), Mumbai in C. R. No. 18 of
2008 registered with Police Station ATS Mumbai (C.R.
No.130/08 of Police Station Azad Nagar, Malegaon),
against all the accused in this case is quashed.
Similarly, the sanction given by the Addl. Director
General of Police, Railways, Mumbai dated 15/1/2009
under Sec. 23(2) of the Maharashtra Control of
Organized Crime Act, 1999 is also quashed.
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5. As a consequence of the above discussion, all
the accused in this case are entitled for being
discharged of the charges of the offences under the
MCOC Act, 1999 levelled against them. As per the
provisions of Sec. 11 of the Act, the case will have to
be transferred to the regular court for trial of the
offences under the Indian Penal Code, Unlawful
Activities (Prevention) Act, 1967 etc.”
5. It would also be useful to reproduce paras 42 to 44 of the
order rejecting the bail applications:
“42. In view of the above discussion, it is clear that as
on 20/11/2008, though two chargesheets were filed
against accused Rakesh Dattatray Dhawde who is
accused No. 7 in Crime No. 18/08 registered with
Police Station ATS, Mumbai, the competent court had
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not taken cognizance of the offences against him and
more particularly of the offence under Sec. 153A of the
Indian Penal Code. Hence, one of the basic ingredients
of the offence of continuing unlawful activity as defined
in Sec.2(d) of MCOC Act was not present on 20/11/08.
Hence, the prior approval cannot sustain in the eyes of
law and needs to be quashed. Consequently, the
sanction under Sec. 23(2) of MCOC Act, 1999 given on
15/1/2009 by the Addl. Director General of Police,
Railways, Mumbai, also does not survive. (Emphasis
supplied).
43. In view of the above discussion, it will have to be
held that the charges for the offences under the MCOC
Act, against the applicant accused as well as all o ther
accused in C.R. No. 18/08 registered with police station
ATS Mumbai, do not survive and they will have to be
discharged from those offences. Order is accordingly
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passed below Exh.1 in MCOC Special Case No. 01/09
which is filed for C.R.No. 18/08, registered with police
station ATS, Mumbai.
44. As a consequence of the above finding, the
applicant accused is entitled to be released on bail as
per the provisions of Sec. 21(4) of the MCOC Act, as
there are reasonable grounds for believing that he is
not guilty of the offences under the MCOC Act.
However, in view of the finding arrived at in the above
paragraph, as all the accused are entitled to be
discharged of the offences under the MCOC Act, I am
not considering the case of the applicant – accused for
the offences under the Indian Penal Code, Unlawful
Activities (Prevention) Act 1967, Arms Act, Indian
Explosive Substance Act etc., because this court is a
special court for trying offences under the MCOC Act.
Once it is held that the accused cannot be tried by this
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court, the case will have to be sent to the competent
court having jurisdiction under the Code of Criminal
Procedure as per the Sec. 11 of the MCOC Act. As the
applicant accused as well as all the accused in C.R.
No. 18/08 registered with police station ATS, Mumbai
against whom chargesheet is filed and given MCOC
Special Case No. 01/09 will have to be discharged of
the offences under the MCOC Act, it is not necessary
to consider the submissions of both sides on the other
grounds and the merits of the evidence against the
applicant accused in the chargesheet.”
6. The main ground for passing the impugned order would find
place in para 3 of the order passed below Exh. 1 and it reads as under:
“3. In view of the above discussion, it is clear that as
on 20/11/08, though two chargesheets were filed
against Rakesh Dattatray Dhawde, who is accused no.
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7 in crime no. 18/08 registered with Police Station ATS,
Mumbai, the competent court had not taken
cognizance of the offences against him and more
particularly of the offence under Section 153A of the
Indian Penal Code. Hence, one of the basic
ingredients of the offence of continuing unlawful activity
as defined in Sec.2(d) of MCOC Act was not present
on 20/11/08. Hence, the prior approval cannot sustain
in the eyes of law and needs to be quashed.
Consequently, the sanction under Sec. 23(2) of MCOC
Act, 1999 given on 15/1/2009 by the Addl. Director
General of Police, Railways, Mumbai, also does not
survive.” (Emphasis supplied).
7. Sections 2, 11 and 23 of the MCOC Act, read as under:
“2. Definitions. (1) In this Act, unless the context
otherwise requires,
(a) “abet”, with its grammatical variations and

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cognate expressions, includes,
(i) the communication or association with any
person with the actual knowledge or having reason to
believe that such person is engaged in assisting in any
manner, an organised crime syndicate;
(ii) the passing on or publication of, without any
lawful authority, any information likely to assist the
organised crime syndicate and the passing on or
publication of or distribution of any document or matter
obtained from the organised crime syndicate; and
(iii) the rendering of any assistance, whether
financial or otherwise, to the organised crime
syndicate.
(b) “Code” means the code of Criminal
Procedure, 1973 (2 of 1974);
(c) “Competent Authority” means the Competent
Authority appointed under section 13;
(d) “continuing unlawful activity” means an
activity prohibited by law for the time being in force,
which is a cognizable offence punishable with
imprisonment of three years or more, undertaken either
singly or jointly, as a member of an organised crime
syndicate or on behalf of such syndicate in respect of
which more than one chargesheets have been filed

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before a competent Court within the preceding period
of ten years and that Court has taken cognizance of
such offence;
(e) “organised crime” means any continuing
unlawful activity by an individual, singly or jointly, either
as a member of an organised crime syndicate or on
behalf of such syndicate, by use of violence or threat of
violence or intimidation or coercion, or other unlawful
means, with the objective of gaining pecuniary
benefits, or gaining undue economic or other
advantage for himself or any other person or promoting
insurgency;
(f) “organised crime syndicate” means a group
of two or more persons who, acting either singly or
collectively, as a syndicate or gang indulge in activities
of organised crime;
(g) “Special Court” means the Special Court
constituted under section 5.
(2) Words and expressions used but not defined in
this Act and defined in the Code shall have the
meanings respectively assigned to them in the Code.
11. Power to transfer cases to regular Courts.

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Where, after taking cognizance of an offence, a
Special Court is of the opinion that the offence is not
triable by it, it shall, notwithstanding that it has no
jurisdiction to try such offence, transfer the case for
trial of such offence to any Court having jurisdiction
under the Code and the Court to which the case is
transferred may proceed with the trial of the offence as
if it had taken cognizance of the offence.
23. Cognizance of, and investigation into, an
offence. (1) Notwithstanding anything contained in
the Code,
(a) no information about the commission of an
offence of organised crime under this Act, shall be
recorded by a police officer without the prior approval
of the police officer not below the rank of the Deputy
Inspector General of Police;
(b) no investigation of an offence under the
provisions of this Act shall be carried out by a police
officer below the rank of the Deputy Superintendent of
Police.
(2) No Special Court shall take cognizance of any

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offence under this Act without the previous sanction of
the police officer not below the rank of Additional
Director General of Police.”
8. To understand the meaning of “organised crime”, as
defined under Clause (e) of Section 2(1) of MCOC Act, it would be
necessary to understand the meaning of “continuing unlawful activity”
and “organised crime syndicate” as defined under Clause (d) and (f) of
the said Section. If so understood, for charging a person of organised
crime or being a member of organised syndicate, it would be necessary
to prove that the accused concerned have indulged in,
(i) an activity,
(ii) which is prohibited by law,
(iii) which is a cognizable offence punishable with
imprisonment for three years or more.
(iv) undertaken either singly or jointly,
(v) as a member of organised crime syndicate i.e. acting as
a syndicate or a gang, or on behalf of such syndicate.
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(vi) (a) in respect of similar activities (in the past) more than
one chargesheets have been filed in competent court
within the preceding period of ten years,
(b) and the court has taken cognizance of such offence.
(vii) the activity is undertaken by;
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means
(viii)(a) with the object of gaining pecuniary benefits or
gaining undue or other advantage or himself or any other
person, or
(b) with the object of promoting insurgency.
9. The constitutional validity of the MCOC Act and more
particularly the provisions of Section 2(1)(d), (e) and (f) and Sections 3,
4 and 13 to 16 as well as Section 21(5) has been considered by the
Supreme Court in the case of State of Maharashtra vs. Bharat Shantilal
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Shah and ors. [(2008) 13 SCC 5]. The constitutional validity of all these
provisions has been upheld and the words “or under any other Act” from
Section 21(5) of the said Act were struck down. Once again the
constitutional validity of Section 2(1)(e) of the MCOC Act was
challenged and the said challenge has been negatived by the Supreme
Court in the case of Zameer Ahmed Latifur Rehman Sheikh vs. State of
Maharashtra and ors. [(2010) 5 SCC 246]. The Supreme Court
reiterated the meaning of “insurgency”, as was adopted earlier in the
case of Sarbananda Sonowal vs. Union of India [(2005) 5 SCC 665],
and as follows:
“Insurgency is undoubtedly a serious form of internal
disturbance which causes grave threat to the life of
people, creates panic situation and also hampers the
growth and economic prosperity of the State”
The term “unlawful means”, as appearing in Section 2(1)(e),
had also fallen for consideration before the Supreme Court in the case
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of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and anr.
[(2005) 5 SCC 294] and the Supreme Court stated thus,
“32. The Statement of Objects and Reasons clearly
stated as to why the said Act had to be enacted. Thus,
it will be safe to presume that the expression `any
unlawful means’ must refer to any such act which has a
direct nexus with the commission of a crime which
MCOCA seeks to prevent or control. In other words, an
offence falling within the definition of organised crime
and committed by an organised crime syndicate is the
offence contemplated by the Statement of Objects and
Reasons. There are offences and offences under the
Indian Penal Code and other penal statutes providing
for punishment of three years or more and in relation to
such offences more than one chargesheet may be
filed. As we have indicated hereinbefore, only because
a person cheats or commits a criminal breach of trust,
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more than once, the same by itself may not be
sufficient to attract the provisions of MCOCA.”
10. Section 9 of the MCOC Act deals with the procedure and
powers of the Special Court. The Special Court may take cognizance of
any offence when the accused being committed to it for trial upon
receiving a complaint of facts which constitute such offence or upon
police report of such facts.
Section 11 of the MCOC Act states that where, after taking
cognizance of an offence, a Special Court is of the opinion that the
offence is not triable by it, it shall notwithstanding that it has no
jurisdiction to try such offence, transfer the case for trial of such offence
to any Court having jurisdiction under the Code and the Court to which
the case is transferred may proceed with the trial of the offence as if it
had taken cognizance of the offence. The Special Court can exercise
this power on its own or on an application submitted before it and the
Special Court has no jurisdiction to try the case if in its opinion the
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offence of which cognizance has been taken is not triable by it.
Section 23 of the MCOC Act provides the procedure for
cognizance of and investigation into an offence. No information about
the commission of an offence of an organised crime under the MCOCO
Act shall be recorded by a police officer without the prior approval of the
police officer not below the rank of Deputy Inspector General of Police
and no investigation of an offence under the provisions of the said Act
shall be carried out by a police officer below the rank of the Deputy
Superintendent of Police. No court shall take cognizance of any offence
under the MCOC Act without the previous sanction of the police officer
not below the rank of Additional Director General of Police.
11. In the instant case, C. R. No. 130 of 2008 came to be
registered with the Azad Maidan Police Station at Malegaon regarding
the incident of bomb blast that had taken place on 29/9/2008 and 6
persons lost their lives and 101 persons were injured. Respondent Nos.
1 to 3 came to be arrested on 23/10/2008 and respondent no.7 was
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arrested on 2/11/2008. During the course of investigation, the alleged
involvement of respondent no.7 in C.R. No. 161 of 2003 registered with
Nanal Peth Police Station, Parbhani and in C.R. No. 194 of 2004
registered with the Sadar Bazar Police Station, Jalna was noticed. C. R.
No. 161 of 2003 registered with the Nanal Peth Police Station at
Parbhani was in respect of the incident of blast that had taken place on
21/11/2003 and some persons were injured in the same. A charge
sheet was filed against accused no.1 – Sanjay Choudhary on 7/9/2006
for the offences punishable under Sections 302, 307, 324, 337, 338,
285, 286 and 295 read with Section 34 of IPC and Section 3, 4, 6 of
Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act
and the case came to be registered as RCC No. 467/06. On 29/9/2006
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a supplementary chargesheet (2 chargesheet) came to be filed
against 4 accused for the offences punishable under Sections 302,
307, 324, 337, 338, 285, 285, 295, 120B, 153A read with Section 34 of
IPC and Sections 3, 4, 6 of Explosive Substance Act and Sections
25(1) and 25(3) of the Arms Act. A third chargesheet came to be filed
in the said case on 13/11/2008 against respondent no.7 for the offences
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punishable under Sections 302, 307, 324, 337, 338, 285, 286, 295, 120
B, 153A read with Section 34 and Sections 3, 4, 6 of Explosive
Substance Act and Sections 25(1) and 25(3) of the Arms Act.
C.R. No. 194 of 2004 registered with the Sadar Bazar
Police Station at Jalna was in respect of the incident of blast that had
taken place on 27/8/2004 and the first chargesheet was filed against
accused no.1 on 30/9/2006 for the offences punishable under Sections
307, 436, 324, 323, 153A, 120B read with Section 34 of IPC and
Sections 3, 4, 6 of Explosive Substance Act and the case came to be
registered as RCC No. 504/06. The case was committed to the
Sessions Court on 12/2/2007 and came to be registered as Sessions
Case No. 28 of 2007. Second chargesheet was filed on 7/1/2008
against four additional accused and the third chargesheet was filed
against 5 accused on 14/1/2008. Committal order was passed on
both the chargesheets by the learned CJM at Jalna on 11/8/2008 and
22/8/2008 respectively. The fourth chargesheet was filed on
15/11/2008 against the present respondent no. 7 and separate case i.e.
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RCC No. 648/08 came to be registered.
12. As per the learned Special Judge that on 20/11/2008, i.e.
on the day the approval order was passed under Section 23(1)(a) of the
MCOC Act, the competent court at Parbhani as well as at Jalna had not
taken cognizance of the offences against accused no.7 and more
particularly of the offence under Section 153A of IPC and thus one of
the ingredients of the offence of continuing unlawful activity, as defined
under Section 2(d) of the MCOC Act, was not present. The learned
Special Judge, therefore, concluded that the approval granted under
Section 23(1)(a) of the MCOC Act on 20/11/2008 could not sustain in
the eyes of law and was required to be quashed and consequently the
order of sanction passed on 15/1/2009 under Section 23(2) of the said
Act by the Additional Director General of Police, Railways, Mumbai also
did not survive. Based on these conclusions, the learned Special Judge
further held that the charges for the offences punishable under the
MCOC Act against all the accused in Special Case No. 01 of 2009 did
not survive and hence the accused came to be discharged from the
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offences punishable under the MCOC Act. By invoking the powers
under Section 11 of the MCOC Act, the learned Special Judge
transferred the case arising from C.R. No. 18 of 2008 registered with the
ATS, Mumbai to the court having jurisdiction under Cr.P.C. i.e. the
regular court of sessions.
13. Mr. Amit Desai, the learned Senior Counsel, appearing for
the appellant – State Government, submitted that the impugned orders
were illegal, without application of mind to the facts as well as the
scheme of the MCOC Act, grossly erroneous and in excess of
jurisdiction and, therefore, the said orders are required to be quashed
and set aside. He pointed out that even if the cognizance for the
offence punishable under Section 153A of IPC was not taken, the
cognizance for the remaining offences in both the cases i.e. at Parbhani
and Jalna was taken by the concerned courts of CJM and just because
cognizance was not taken or could not have been taken for the offence
punishable under Section 153A of IPC, it cannot be held that the
cognizance taken for the other offences was a nullity or no such

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cognizance was taken. The cognizance is taken for the offences and
not for the offenders (the accused). The learned Special Judge was in
gross error in holding that cognizance was required to be taken qua
accused no.7. The meaning of the word “cognizance” cannot be defined
in a straight jacket formula and it depends on the facts and
circumstances of each case. When the order of committal under Section
209 of Cr.P.C. was passed prior to the order of approval dated
20/11/2008, it was not permissible for the Special Court to hold that the
learned CJM had not taken cognizance after the chargesheet was
filed. Once the cognizance is taken and the committal order is passed,
it is not necessary that for supplementary chargesheet, the court takes
cognizance because the cognizance is taken for the offence and
not for the added offenders. It was further urged that while
deciding the applications for bail, the Special Court could not
have proceeded to decide the legality of the order of approval dated
20/11/2008 and the order of sanction dated 15/1/2009, more
particularly when challenge to the said orders was not raised in the bail
applications. It was further submitted that the Special Court could have
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allowed or rejected the bail applications, but certainly it could not have
discharged the accused from the offences punishable under the MCOC
Act under Section 227 of Cr.P.C. and then transferred the case to the
regular court i.e. the Sessions Court by invoking the powers under
Section 11 of the MCOC Act for other offences, while deciding the bail
applications. As per Mr. Desai, if the Special Court was of the view that
there was, prima facie, no material to support the charges under the
MCOC Act or no such charges could be, prima facie, made out by the
prosecution, it could have at the most allowed the bail applications. He
further urged that when the Special Court had taken cognizance of the
offence under Section 9(1) of the MCOC Act by its speaking order, it
could not have, in the eyes of law, held that both the Court of the Chief
Judicial Magistrate at Parbhani and Jalna had not taken cognizance of
the offences, before 20/11/2008, except for the offence punishable
under Section 153A of IPC and thus the Special Court committed a
gross error of law. It was further submitted that the prosecution had
placed sufficient material before the Special Court so as to support its
case that in R.C.C. No.467/2006 and R.C.C. No.504/2006 the

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respective courts had taken cognizance and the Special Court failed to
apply its mind to the same and, therefore, to hold that cognizance was
not taken prior to 20/11/2008 is an error apparent on the face of the
record. Mr. Desai thus limited his arguments only on the issue as to
whether cognizance was taken by the respective courts at Parbhani and
Jalna and of offences other than Section 153A of IPC against the
accused. As noted earlier, the other offences are punishable under
Sections 302, 307, 324, 337, 338, 285, 286, 295, 120B read with
Section 34 of IPC along with other offences punishable under the
Explosive Substance Act and the Arms Act. In support of his arguments
to set aside the impugned orders, Mr. Desai has placed reliance on the
following decisions:
(a) Raghubans Dubey v. State of Bihar [AIR 1967 SC 1167]
(b) CREF Finance Ltd. v. Shree Shanthi Homes Pvt.Ltd. &
another [AIR 2005 SC 4284]
(c) State of Karnataka and anr. v. Pastor P. Raju [(2006) 6
SCC 728]
31
(d) S.K. Sinha, Chief Enforcement Officer v. Videocon
International Ltd. And ors. [(2008) 2 SCC 492].
14. Mr.Jethmalani, the learned senior counsel appearing for
respondent no.1, while supporting the impugned orders, submitted that
mere passing of committal order cannot lead to a presumption that the
learned CJM had taken cognizance of the offence or the offences and
passing of an order of committal is merely a ministerial function. He
relied upon the decision in the case of Sanjay Gandhi vs. Union of India
and ors. [AIR 1978 SC 514] and Raj Kishore Prasad vs. State of Bihar
and nar. [AIR 1996 SC 1931]. In support of his contentions that the
courts at Parbhani and Jalna had not taken cognizance of the offences,
Mr. Jethmalani relied upon the decision in the case of CREF Finance
Ltd. vs. Shree Shanthi Homes Pvt. Ltd. and anr. [AIR 2005 SC 4284].
He also pointed out that so far as the case before the court at Parbhani
was concerned, cognizance was not taken before the order of approval
was passed on 20/11/2008. The learned Senior Counsel, by referring to
the scheme of Section 11 of the MCOC Act, submitted that the Special
32
Court could invoke the said powers on its own and without any
application being made by any of the party. As per Mr.Jethmalani, both
the Courts at Parbhani as well as Jalna ought to have passed a specific
order stating that cognizance of the offence or offences was taken and
no such order was ever passed by both the Courts before 20/11/2008.
He also urged before us that these being appeals filed under Section 12
of the MCOC Act, all the issues raised by the respondents could be
decided on merits rather than confining the scope only to find out
whether the Courts at Parbhani and Jalna had taken cognizance of the
offences before the approval order under Section 23(1)(a) of the MCOC
Act was passed on 20/11/2008. It was also submitted that the words “in
respect of which” refers to the crime syndicate and if so considered,
there was no crime syndicate involved in any of the cases at Parbhani
and Jalna.
15. Mr. Lalit, the learned Senior Counsel appearing for
respondent no.10 submitted that the filing of more than one charge
sheets before a competent court within the period of preceding 10 years
33
has to be read with reference to the date of incident, which is a subject
matter in the subsequent CR i.e. C.R. No. 130/08 registered with the
Malegaon Police Station and not with reference to the order of approval
passed under Section 23(1)(a) of the MCOC Act. He also submitted
that in the instant case, the prosecution failed to make out a case of
“continuing unlawful activity” by an individual – singly or jointly, as a
member of an organised crime syndicate and, in fact, there was no
orgnised crime syndicate as defined in Clause (f) of Section 2(1) of the
MCOC Act, when the chargesheets were filed and cognizance was
taken by the learned CJM at Parbhani as well as at Jalna. Mr. Lalit
referred to the observations made by the learned Special Judge in para
39 of his order below Exh.1 and submitted that there was no case of
offences under the MCOC Act made out by the prosecution and rightly
the Special Court passed the impugned orders. He has also submitted
that in the instant case the objective of gaining pecuniary benefits or
gaining undue economic or other advantage for the accused or any
other person or promoting insurgency is totally absent and, therefore,
the Special Court was fully justified in discharging the accused from the
34
charges under the MCOC Act by invoking its powers under Section 227
of Cr.P.C. and transferring the case for trial to the regular Sessions
Court by setting aside the order of approval as well as the order of
sanction. It was submitted by Mr. Lalit that while taking recourse to
provisions of MCOC Act a great responsibility has been cast on the
authorities in ensuring that the provisions of the said Act are strictly
adhered to and followed, as the Act has the effect of curtailing the
liberty of an individual and keeping him virtually incarcerated. In the
instant case, respondent no.7 has been roped in in the Malegaon blast
case and subsequently additional chargesheets, by way of an after
thought, have been filed against him in the Parbhani as well as Jalna
case so as to implicate all other accused under the MCOC Act, while, in
fact, there was no case of “continuing unlawful activity” existing when
the Malegaon blast had taken place.
16. The learned counsel for other respondents have adopted the
arguments advanced by Mr.Jethmalani as well as Mr.Lalit. Mr.Jamdar,
the learned counsel appearing for respondent no.7 has invited our
35
attention to the following observations made in the case of Fakhruddin
Ahmad Vs. State of Uttarnchal & anr. [(2008) 17 SCC 157].
“17. Nevertheless it is well settled that before a Magistrate
can be said to have taken cognizance of an offence, it is
imperative that he must have taken notice of the accusations
and applied his mind to the allegations made in the
complaint or in the police report or the information received
from a source other than a police report, as the case may be,
and the material filed therewith. It needs little emphasis that
it is only when the Magistrate applies his mind and is
satisfied that the allegations, if proved, would constitute an
offence and decides to initiate proceedings against the
alleged offender, that it can be positively stated that he has
taken cognizance of the offence. Cognizance is in regard to
the offence and not the offender.”
He also supported the view of the learned Special Judge that

36
cognizance was required to be taken by the learned CJM at Parbhani
and Jalna, against respondent no.7 specifically and it was not so taken,
before 20/11/2008.
17. Mr.Shivade, the learned counsel appearing for accused no.9
invited our attention to the order dated 28/11/2008 passed by the Chief
Judicial Magistrate at Jalna in Regular Criminal Case No. 648 of 2008
below Exhibit 1 by which order cognizance of the offence was taken and
submitted that for the first time such an order was passed and obviously
after 20/11/2008. There is nothing on record to show that such an order
was passed by the learned Chief Judicial Magistrate, Parbhani or the
learned Chief Judicial Magistrate at Jalna on any date prior to
20/11/2008 in the respective cases. He, therefore, urged that the view
taken by the Special Court cannot be termed as erroneous so as to
cause interference in the same by these appeals. It was submitted by
Mr.Shivade that Shri Mohan Kulkarni, Assistant Commissioner of Police,
ATS, Mumbai for the first time had sent a fax on 7/11/2008 informing
that during the investigation in C.R. No.18 of 2008 registered with the
37
Azad Nagar Police Thane, Malegaon, nine accused were arrested and
during the interrogation of one of the accused i.e. Rakesh Dhawade it
was revealed that he was involved in transporting the trainees for
making arms and other explosive materials in the year 2003 near
Singhgad. Consequent to this fax message accused no.7 – Dhawade
came to be arrested for the first time on 2/11/2008. It was, therefore,
urged that prior to 7/11/2008 there was no whisper of any offence
punishable under the MCOC Act in any of the three blast cases
i.e .Parbhani, Jalna and Malegaon.
18. We make it clear that the scope of these appeals is only limited to
examine the issue of taking cognizance of the offences by the Chief
Judicial Magistrate at Parbhani and his coutnerpart at Jalna. As far as
the merits of the charge under the MCOC Act or other issues covered in
the arguments of Mr.Jethmalani and Mr.Lalit are concerned, it would not
be expedient to deal with them in these appeals and the prosecution
must be given due opportunity to deal with the same before the Special
Court as and when such an occasion arises. It was fairly conceded by
38
Mr.Desai, the learned Senior Counsel that even while considering the
applications for bail, the Special Court would be justified in examining
as to whether the MCOC charges were made out, prima facie, by the
prosecution against the accused.
19. Chapter XII of Cr. P. C. deals with the conduct of investigation of
both, cognizable and noncognizable offences and the steps to be taken
in that regard culminating in the filing of the report of investigation under
Section 173(2) of the said Code. The powers under Section 156(3) can
be invoked by a learned Magistrate at a precognizance stage, whereas
powers under Section 202 of the Code are to be invoked after
cognizance is taken on a complaint but before issuance of process.
Once a Magistrate takes cognizance of the offence, he is, thereafter,
precluded from ordering an investigation under Section 156 (3) of the
Code. It is well settled that while ordering an investigation under the
said Section, the Magistrate is not empowered to take cognizance of the
offence and such cognizance is taken only on the basis of the complaint
of the facts received by him which includes a police report of such facts
39
or information received from any person, other than a police officer,
under Section 190 of the Code.
Chapter XIV of the Code deals with conditions requisite for
initiation of proceedings and Section 190 in the said Chapter empowers
a Magistrate to take cognizance of an offence in certain circumstances.
The said Section reads as under:
“190. Cognizance of offences by Magistrates. (1) Subject
to the provisions of this Chapter, any Magistrate of the first
calss, and any Magistrate of the second class specially
empowered in this behalf under subsection (2), may take
cognizance of any offence
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other
than a police officer, or upon his own knowledge, that such
40
offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under sub
section (1) of such offences as are within his competence to
inquire into or try.”
Section 196 in the said Chapter states that no court shall take
cognizance of any offence punishable under Chapter VI or under
Section 153A, Section 295A or Section 501 (1) of IPC or a criminal
conspiracy to commit such offence or any such abetment as described
in Section 108A of IPC except with the previous sanction of the Central
Government or the State Government.
Chapter XV of the Code relates to complaints to Magistrates and
covers cases before actual commencement of proceedings in a court
or before a Magistrate. Section 200 of the Code requires a Magistrate
taking cognizance of offence to examine the complainant and his

41
witnesses on oath. Chapter XVI of the Code applies only after
cognizance of an offence has been taken by a Magistrate under
Chapter XIV. Thus, it is clear that, “initiation of proceedings” dealt with
in Chapter XIV, is different from “commencement of proceedings”
covered by Chapter XVI. For commencement of proceedings, there
must be initiation of proceedings. In other words, initiation of
proceedings must precede commencement of proceedings and without
initiation of proceedings under Chapter XIV, there cannot be
commencement of proceedings before a Magistrate under Chapter XVI.
20. The term “taking of cognizance” has not been defined under the
Code. As per the Black’s Law Dictionary the word “cognizance” means
a court’s right and power to try and to determine cases, the taking of
judicial or authoritative notice or acknowledgment or admission of an
alleged fact. In the case of R.R. Chari vs. State of U.P. [AIR 1951 SC
207], the Supreme Court dealt with the question as to when cognizance
of the offence could be said to have been taken by the Magistrate under
Section 190 of the Code and it held as under:
42
“It is clear from the wording of the section that the initiation
of the proceedings against a person commences on the
cognizance of the offence by the Magistrate under one of
the three contingencies mentioned in the section. The first
contingency evidently is in respect of noncognizable
offences as defined in Cr.P.C. on the complaint of an
aggrieved person. The second is on a police report, which
evidently is the case of a cognizable offence when the
police have completed their investigation and come to the
Magistrate for the issue of a process. The third is when the
Magistrate himself takes notice of an offence and issues the
process......”
In the case of Narayandas Bhagwandas Madhavdas vs. State of
W.B. [AIR 1959 SC 1118], it was observed that when cognizance is
taken of an offence depends upon the facts and circumstances of each
case and it is impossible to attempt to define what is meant by taking
43
cognizance. In the case of Ajit Kumar Palit vs. State of W.B. [AIR 1963
SC 765], the Supreme Court observed thus,
“The word “cognizance” has no esoteric or mystic
significance in criminal law or procedure. It merely means
become aware of and when used with reference to a Court or
Judge to take notice of judicially. It was stated in Gopal
Marwari v. Emperor (AIR 1943 Pat 245) by the learned Judges
of the Patna High Court in a passage quoted with approval by
this Court in R.R.Chari v. State of Uttar Pradesh (1951 SCR
312, 320) that the word, `cognizance’ was used in the Code to
indicate the point when the Magistrate or Judge takes judicial
notice of an offence and that it was a word of indefinite import,
and is not perhaps always used in exactly the same sense. As
observed in Emperor v. Sourindra Mohan Chuckerbutty (1910
ILR 37 Cal 412, 416), “taking cognziance does not involve any
formal action; or indeed action of any kind, but occurs as soon
as a Magistrate, as such, applies his mind to the suspected
44
commission of an offence.” Where the statute prescribes the
materials on which alone the judicial mind shall operate before
any step is taken, obviously the statutory requirement must be
fulfilled.”
In the case of Darshan Singh Ram Kishan vs. State of
Maharashtra [AIR 1971 SC 2372], the Supreme Court held that taking
cognizance does not involve any formal action or in deed action of any
kind or occurs as soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance, therefore, takes
place at a point when a Magistrate first takes judicial notice of an
offence. In the case of State of W.B. vs. Mohd. Khalid [(1995) 1 SCC
684], the Supreme Court, after taking note of the fact that the
expression “taken cognizance” had not been defined in the Code, stated
as under:
“In its broad and literal sense, it means taking notice of
an offence. This would include the intention of initiating

45
judicial proceedings against the offender in respect of that
offence or taking steps to see whether there is any basis for
initiating judicial proceedings or for other purposes. The word
`cognizance’ indicates the point when a Magistrate or a Judge
first takes judicial notice of an offence. It is entirely a different
thing from initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate or
the Judge. Cognizance is taken of cases and not of persons.”
In the case of Raghubans Dubey vs. State of Bihar (Supra), the
Supreme Court held that, once cognizance has been taken by the
Magistrate, he takes cognizance of an offence and not the offenders;
once he takes cognizance of an offence it is his duty to find out who the
offenders, really are and once he comes to the conclusion that apart
from the persons sent up by the police some other persons are
involved, it is his duty to proceed against those persons. The
summoning of the additional accused is part of the proceeding initiated
by his taking cognizance of an offence. In the case of CREF Finance
46
Ltd. (Supra), the Supreme Court held,
“..... The cognizance is taken of the offence and not of the
offender and, therefore, once the court on perusal of the
complaint is satisfied that the complaint discloses the
commission of an offence and there is no reason to reject the
complaint at that stage, and proceeds further in the matter, it
must be held to have taken cognizance of the offence. One
should not confuse taking of cognizance with issuance of
process. Cognizance is taken at the initial stage when the
Magistrate peruses the complaint with a view to ascertain
whether the commission of any offence is disclosed. The
issuance of process is at a later stage when after considering
the material placed before it, the Court decides to proceed
against the offenders against whom a prima facie case is
made out.....”
21. On the backdrop of this settled legal position, let us examine the
47
record of the case before the Chief Judicial Magistrate, Parbhani and
the Chief Judicial Magistrate at Jalna. It has been fairly conceded before
us that in the first supplementary chargesheet submitted on 29/9/2006
before the CJM, Parbhani, the charge punishable under Section 120B
and Section 153A of IPC was added and in the second chargesheet
submitted on 13/11/2008 was filed for similar offences or very same
offences but in the original chargesheet submitted on 7/9/2006 the
charges levelled were punishable under Sections 201, 307, 324, 337 and
338, 284, 286, 295 read with Section 34 of IPC, Sections 3, 4, and 6 of
Explosive Substances Act and Section 25(1) and 25(3) of the Indian
Arms Act. Similarly in the first chargesheet filed on 30/9/2006 before
the Chief Judicial Magistrate at Jalna the offences punishable were
under Sections 307, 436, 324, 323, 153A, 120B read with Section 34 of
IPC and Sections 3, 4, 5 of Explosive Substances Act. We have to
examine whether both the Courts i.e. the Court at Parbhani as well as
the Court at Jalna had taken cognizance of the offences (providing for
sentence of three years or more) except the offences punishable under
Sections 120B and 153A of IPC before 20/11/2008.
48
22. When the first chargesheet was submitted in RCC No.467 of
2006 on 7/9/2006, the learned CJM passed the following order:
“Chargesheet is submitted by Police Station Nanel Peth,
Parbhani. It is registered as Regular Cri. Case. Accused is in
jail. Hence, case is posted for committal order.”
This chargesheet was filed for the offences punishable under
Section 302, 307, 324, 337, 338, 285, 295 read with Section 34 of IPC
and Sections 3, 4, 6 of Explosive Substance Act and Sections 25(1) and
25(3) of the Arms Act. The second chargesheet was filed on 29/9/2006,
whereas the third chargesheet was filed on the arrest of respondent no.
7, on 13/11/2008. The order passed by the learned CJM on the same
date, reads as under:
“Be enclosed with the chargesheet i.e. RCC No. 467/06,
State vs. Sanjay and others.”
49
Admittedly, by letter dated 13/11/2008 sanction to take cognizance
for the offence under Section 153A of IPC was sought and no sanction
was received.
23. In the case at Jalna i.e. RCC No. 504 of 2006, the first charge
sheet was filed on 30/9/2006 and the learned CJM passed the following
order on that date:
“The chargesheet submitted by Police Station S.B. Jalna
along with accused. List of documents filed by the police
station S.B. Jalna (74) filed as per list. Order passed on Exh.
1. Register the case in RCC No.504/06 and accused taken in
MCR till 13/10/2006. Application for permission to obtain
signature of the accused on V.P. allowed. Bail petition filed
by the accused rejected. An application filed by the Police
Station L.C.B. PI Jalna for further investigation..”
50
This chargesheet was filed for the offences punishable under
Sections 307, 436, 324, 323, 153A, 120B read with Section 34 of IPC
and Sections 3,4, 6 of Explosive Substance Act. The second charge
sheet came to be filed on 7/1/2008, the third chargesheet was filed on
15/11/2008 and the case was directed to be registered as RCC No.
29/08. On 3/5/2008 the learned CJM passed the following order:
“Issue process against accused nos. 1 to 5 under Sections
307, 436, 324, 323, 153A, 295, 120B read with Section 34 of
IPC and Sections 3, 4, 5 of Explosive Substance Act. “
Finally the case was committed by the learned CJM on 11/8/2008.
Whereas in RCC No. 467/06, the committal order came to be passed on
29/4/2009 i.e. after the approval order under Section 23(1)(a) of the
MCOC Act was passed.
The above stated factual position is not in dispute and the record,
as placed before the Special Court, raises no doubts on the same.
51
24. In RCC No.504/06 after the committal order was passed on
11/8/2008, a third chargesheet was filed on 15/11/2008 against the
present respondent no.7, when he was produced before the court and
the learned CJM passed the order, “Case be registered as RCC No.
648/08” and on 28/11/2008 he passed the following order:
“Perused the chargesheet. Prima facie charges are disclosed.
Therefore, proceedings started against Rakesh Dhavde under
Sections 307, 436, 324, 323, 153A, 295 of IPC and Sections
3, 4, 5 of the Explosive Substance Act”.
A committal order came to be passed on the very same day in RCC No.
648/08.
As per Mr. Shivade the order passed on 28/11/2008 was the very
first order taking cognizance and there were no such orders passed
either in RCC Nos. 467/06 and 504/06. However, these submissions do
52
not impress us, as the accused had filed an application at Exh.4
specifically praying before the court not to take cognizance of the
offence against the added accused i.e. present respondent no.7 and it
was under these circumstances that after hearing the parties, the said
application at Exh.4 was rejected by the order, which has been relied
upon by Mr. Shivade. Hence it cannot be accepted that the order dated
28/11/2008 passed below Exhibit 4 was the only order of taking
cognizance.
25. As noted earlier and as is clear from catena of decisions the word
“taking cognizance” includes “taking note of” and on filing of the charge
sheet at the first instance in both the cases, the court directed the case
to be registered as Regular Criminal Case and it is thus clear that in
both the cases the respective courts had taken cognizance of some of
the offences with sentence of three years or more and prior to
20/11/2008. It is pertinent to note that the first chargesheet filed in
RCC No. 504/06, the offences under Section 153A and 120B of IPC
were included, in addition to the offence punishable under Section 307
53
of IPC and at the same time, there was no compliance of Section 196 of
Cr.P.C. for these two offences i.e. 153A and 120B of IPC. This would
at the most mean that the cognizance for the offences punishable under
Sections 153A and 120B read with Section 34 of IPC was not taken by
the learned CJM at Jalna on 30/9/2006 or when the first or second
chargesheet was filed. However, the case was committed to the
Sessions Court on 11/8/2008 and subsequently on filing of the charge
sheet against the present respondent no.7, the case was registered as
RCC No. 648/08 and was committed on 28/11/2008. We are not
required to examine the effect of the committal orders passed either
before 20/11/2008 or thereafter in both the cases. It is clear that the
learned Special Judge was overwhelmed by the fact that there was no
approval obtained under Section 196 of Cr.P.C. for taking cognizance of
the offences punishable under Sections 153A and 120B read with
Section 34 of IPC. However, that noncompliance by itself would not
lead to a conclusion that for the other offences i.e. under Sections 307,
436, 324, 323 read with Section 34 of IPC the court had not taken
cognizance. This aspect has not been gone into by the Special Court
54
and, therefore, there is an error apparent in the orders impugned before
us.
As is the settled legal position, cognizance is taken of an offence
and not of an offender. Hence, the learned Special Judge was not right
in holding that the competent court was required to take cognizance of
the offences against respondent no.7. Cognizance is taken at the initial
stage when the very first report under Section 173(2) of Cr.P.C., which is
more popularly known as chargesheet, is submitted and the
commission of an offence or offences is disclosed. Thus the view taken
by the Special Court by saying,
“..... It is clear that as on 20/11/2008 though two charge
sheets were filed against accused – Rakesh Dattatray
Dhawade, who is accused no.7 in Crime No. 18 of 2008
registered with Police Station ATS, Mumbai, the competent
court had not taken cognizance of the offences against
him......”
55
is against the well settled legal position and referred to hereinabove.
26. The setting aside of the order of approval dated 20/11/2008
and the sanction order dated 15/1/2009 is consequent to the finding
recorded by the Special Court that cognizance was not taken of the
offences, against respondent no.7 and more particularly of the offences
under Section 153A of IPC. At the same time, the Special Court
thought it fit to invoke powers under Section 11 of the MCOC Act after it
quashed and set aside the order of approval as well as the sanction
order. Hence, all these consequent orders are required to be quashed
and set aside and the Bail Applications would stand restored to the file
of the Special Court for being decided afresh on their own merits.
27. In the premises, Criminal Appeal Nos.866, 867, 868 and
869 of 2009 are hereby allowed and the order passed below Exh.1 in
MCOC Special Case No. 01 of 2009 as well as the orders passed in
Bail Application Nos.40 to 42 of 2008 are hereby quashed and set

56
aside. Bail Application Nos. 40 to 42 of 2008 are restored to the file in
MCOC Special Case No. 01 of 2009 for being decided on merits.
Criminal Appeal No. 1024 of 2009 accordingly stands allowed
partly and Bail Application No. 41 of 2008 stands restored in MCOC
Special Case No. 01 of 2009 for being heard and decided on merits.
Criminal Bail Application Nos. 40 to 42 of 2008 be heard and
decided as expeditiously as possible and preferably within a period of
two months from the date of appearance of the applicants before the
Special Court.
The Bail Applicants to appear before the Special Court on
23/07/2010.
Criminal Application Nos. 539 of 2010 and 1318 of 2009 do not
survive and disposed as such.
(ANOOP V. MOHTA,J.) (B. H. MARLAPALLE,J.)
57
Oral application for stay, made by Mr. Jha, is hereby
rejected.
(ANOOP V. MOHTA,J.) (B. H. MARLAPALLE,J.)

Malegaon Blast Case Bombay High Court Judgement On Applicability of MCOCA

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Malegaon Blast Case Bombay High Court Judgement On Applicability of MCOCA

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1

Mr. Mahesh Jethmalani, Senior Advocate i/by Mr. Ganesh Sovani for

1. In MCOC Special Case No. 1 of 2009, 11 accused are

under the provisions of Section 227 of Cr. P. C. from the offences

jurisdiction under Cr. P. C. for trial of the offences punishable under

applications came to be rejected. The order of prior approval under

and the sanction given by the Additional Director General of Police,

Railways, Mumbai on 15/1/2009 under Section 23(2) of the said Act

2. Criminal Appeal No. 866 of 2009 has been filed by the

Criminal Appeal No. 1024 of 2009 has been filed by

3. The operative part of the order passed below Exh. 1 on

“ Accused No.1 Pragyasingh Chandrapalsingh

Thakur @ Swami Purnachetanand Giri, No.2

Shivanarayan Gopalsingh Kalsangra, No. 3 Shyam

Dhawde, No. 8 Jagdish Chintaman Mhatre, No. 9

Dhar Dwivedi @ Dayanand Pande @ Swami

Chaturvedi @ Chanakya Sudhakar are discharged

Control of Organized Crime Act, 1999 to the regular

court having jurisdiction under the Code of Criminal

Activities (Prevention) Act, 1967 (Amended) 2004. It

will first have to be filed in the court of the Judicial

the Sessions Court as it involves sessions triable

Registrar (S) is directed to ascertain the court

having jurisdiction under the Code of Criminal

accused be produced before that court on the next

Whereas the operative part of the order passed on

4. Paras 4 and 5 of the order passed below Exh.1 read as

“4. In view of the above discussion, the prior

Organized Crime Act, 1999 in this case given on

No.130/08 of Police Station Azad Nagar, Malegaon),

against all the accused in this case is quashed.

Similarly, the sanction given by the Addl. Director

under Sec. 23(2) of the Maharashtra Control of

the accused in this case are entitled for being

discharged of the charges of the offences under the

MCOC Act, 1999 levelled against them. As per the

be transferred to the regular court for trial of the

offences under the Indian Penal Code, Unlawful

on 20/11/2008, though two charge­sheets were filed

against accused Rakesh Dattatray Dhawde who is

accused No. 7 in Crime No. 18/08 registered with

law and needs to be quashed. Consequently, the

15/1/2009 by the Addl. Director General of Police,

Railways, Mumbai, also does not survive. (Emphasis

44. As a consequence of the above finding, the

not guilty of the offences under the MCOC Act.

paragraph, as all the accused are entitled to be

the offences under the Indian Penal Code, Unlawful

Activities (Prevention) Act 1967, Arms Act, Indian

court having jurisdiction under the Code of Criminal

against whom chargesheet is filed and given MCOC

grounds and the merits of the evidence against the

on 20/11/08, though two charge­sheets were filed

Mumbai, the competent court had not taken

cognizance of the offences against him and more

Indian Penal Code. Hence, one of the basic

in the eyes of law and needs to be quashed.

Act, 1999 given on 15/1/2009 by the Addl. Director

General of Police, Railways, Mumbai, also does not

“2. Definitions. (1) In this Act, unless the context

(a) “abet”, with its grammatical variations and

lawful authority, any information likely to assist the

organised crime syndicate and the passing on or

on 20/11/2008, though two chargesheets were filed

on 20/11/08, though two chargesheets were filed

which more than one chargesheets have been filed

11. Power to transfer cases to regular Courts.

offence. (1) Notwithstanding anything contained in

one chargesheets have been filed in competent court

such offences more than one chargesheet may be

B, 153A read with Section 34 and Sections 3, 4, 6 of Explosive

Case No. 28 of 2007. Second chargesheet was filed on 7/1/2008

22/8/2008 respectively. The fourth chargesheet was filed on

punishable under Section 153A of IPC, it cannot be held that the