State Of Maharashtra, Through ... vs Sheikh Mehmood Sheikh Mehboob And ...
2021 Latest Caselaw 222 Bom

                                                 1                               cr.appeal65.16.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                          CRIMINAL APPEAL NO. 65 OF 2016


  State of Maharashtra,
  Through Police Station Officer,
  Police Station Akot File, Akola,
  District -Akola                                                           . . . APPELLANT

                         ...V E R S U S..

  1.Sheikh Mehmood Sheikh Mehboob,
    Aged Major.

  2.Sallam Khan Karim Kha,
    Aged Major,

  3. Nasirkha @ Baba Dhabekar s/o Ajij Kha,
     Aged Major,

     Respondent nos. 1 to 3
     r/o Purpidit Quarter, Akot file.

  4. Naushad Kha Gaffar Kha,
     Aged Major,
     R/o Near Sabriya Majid, Akot File.

  5. Ayyub Kha @ Lala Yunus Kha,
     Aged Major,
     R/o Purpidit Quarter, Akot File.

  6. Rahim Kha Shakur Kha,
     Aged Major,
     R/o Mominpura, Police Station,
     Ramdaspeth, Akola.                                               . . . RESPONDENTS

 ------------------------------------------------------------------------------------------------
                   Shri T.A.Mirza, APP for the appellant/State.
                   Shri S.K.Sable, Advocate for the respondent no.1.
                   Shri A.K.Bhangade, Advocate for the respondent nos.2 to 6.
 -----------------------------------------------------------------------------------------------




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                           CORAM :       Z. A. HAQ AND
                                         AMIT B. BORKAR, JJ.

DATED : 06/01/2021.

ORAL JUDGMENT (PER : Z.A.HAQ, J.) :

1. Heard Shri T.A. Mirza, learned Additional Public Prosecutor

for the appellant - State, Shri S.K.Sable, learned Advocate for the

respondent no.1/ accused and Shri A.K.Bhangade, learned Advocate for

the respondent nos.2 to 6 - accused.

2. Charge-sheet for offences under Sections 3 and 4 of the

Maharashtra Control of Organised Crime Act, 1999 ( for short "the Act

of 1999") came to be filed against the respondents - accused before the

Special Judge (MCOCA), Amravati. As the charge-sheet did not show

that the respondents - accused were liable for prosecution under

Sections 3 and 4 of the Act of 1999 alongwith any other offences under

the Indian Penal Code or any other law, the respondents - accused

nos.3 to 6 had filed application under Section 227 of the Code of

Criminal Procedure, praying for discharge. This application is decided

by the learned Special Judge by the impugned order. The accused nos.1

and 2 had not moved any application before the learned Special Judge,

Amravati, praying for their discharge, however, while dealing with the

application filed by the accused nos.3 to 6, the learned Special Judge

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found that the accused nos.1 and 2 also deserve to be discharged for the

same reasons. Being dissatisfied with the order passed by the learned

Special Judge, the State has filed the present appeal under Section 12 of

the Maharashtra Control of Organised Crime Act, 1999.

3. The learned Additional Public Prosecutor has pointed out

that the main consideration for discharging the accused is that the

prosecution has not brought on record any material, prima facie, to

show that there was an organised crime and the activity of the

organised crime syndicate was with the objective of gaining pecuniary

benefit or gaining undue economic or other advantage. The learned

Special Judge, while accepting the contentions of the accused, relied on

the judgment given by the Division Bench of this Court in the case of

Madan Ramkisan Gangwani Vs. State of Maharashtra reported in 2009

ALL MR (Cri.) 1447. The learned Additional Public Prosecutor has

pointed out that the view taken by the Division Bench of this Court in

the case of Madan Ramkisan Gangwani (supra) was referred for

reconsideration to the larger Bench, and the Full Bench of this Court,

by the judgment delivered in the case of State of Maharashtra Vs. Jagan

Gagansingh Nepali @ Jagya & Anr. And Smt. Sandhya Prafulla Patil

reported in 2011 ALL MR (Cri) 2961 has answered the reference

holding that the term, "other advantage" occurring in Section 2 (e) of

the Act of 1999, cannot be read as ejusdem generis with the words

4 cr.appeal65.16.odt

"pecuniary benefits" and "undue economic". It is clear that in view of

the law laid down by the Full Bench of this Court in the case of State of

Maharashtra Vs. Jagan Nepali, the law laid down by the Division Bench

of this Court in the case of Jagan Gagansingh Nepali @ Jagya & Anr.

And Smt. Sandhya Prafulla Patil (supra) cannot be said to be laying

down the correct position of law.

4. On going through the impugned order passed by the

learned Special Judge, we find that the only reason recorded for

discharge of the accused is that there is no evidence on record to show

that there existed any organised crime and the activity of the organised

crime syndicate was with the object of gaining "pecuniary benefits" or

gaining "undue economic advantage".

5. As we expressed that the impugned order cannot sustain

the scrutiny of law in view of the authoritative pronouncement on the

point, the learned Advocate appearing for the accused submitted that

the charge-sheet filed by the prosecution against the accused,

simplicitor for offences under Sections 3 and 4 of the Act of 1999

cannot sustain the scrutiny of law. This point is also dealt with by the

learned Special Judge in the impugned order. It is not disputed on

behalf of the accused that the charge-sheet is filed against 14 accused,

including the present respondents - accused, for offences under

5 cr.appeal65.16.odt

Sections 147, 148, 149, 302, 307 and 120-B of the Indian Penal Code

read with Sections 3, 4 and 25 of the Arms Act, and the accused

therein (including the respondents here) are being prosecuted vide

Sessions Trial No.95 of 2010. The learned Special Judge has recorded

in paragraph 6 of the impugned order that another charge-sheet was

submitted on 20.01.2014 and Sessions Trial No.51 of 2014 is pending

against the accused/respondent no.3 before the Sessions Court, Akola.

After recording the relevant factual aspects in paragraph no.7 of the

impugned order as to how the prosecution had failed to take

appropriate steps to ensure that the other charge-sheets filed against the

accused are brought before the Special Court on imposition of the Act

of 1999 against the accused, the learned Special Judge has recorded

that he had taken steps to ensure that the charge-sheets are before the

Special Court.

6. In paragraph no.8 of the impugned order, the learned

Special Judge has considered the legal position on the aspect as to

whether charge-sheet simplicitor for offences punishable under the Act

of 1999 can be filed against the accused, relying on the earlier

charge-sheets, and has rightly recorded that though separate

charge-sheets are pending against the accused, they can be clubbed

together. The learned Advocates for the respondents - accused made

submissions that the charge-sheets simplicitor for offences punishable

6 cr.appeal65.16.odt

under Sections 3 and 4 of the Act of 1999 cannot be filed against the

accused, however, they have not been able to show that the conclusions

of the learned Special Judge that the charge-sheet filed under the Act of

1999 can be clubbed with the earlier charge-sheets is not correct.

7. The learned Advocate for the respondent nos.2 to 6

referred to the judgment delivered by the Hon'ble Supreme Court in the

case of State of Maharashtra Vs. Shiva @ Shivaji Ramaji Sonawane and

Ors. reported in 2015 ALL MR (Cri) 3310 (S.C.) and submitted that the

view taken by the learned Special Judge about clubbing of the

charge-sheet filed under the Act of 1999 with the earlier charge-sheets

cannot be sustained.

In paragraph nos.8 and 9 of the judgment, the Hon'ble

Supreme Court has referred to the facts of that case, which show that

the accused in that case were acquitted in the prosecutions, pursuant to

the earlier charge-sheets and the charge-sheet under the Act of 1999

simplicitor was pending against those accused. The judgment relied

upon by the learned Advocate for the respondent nos.2 to 6 does not

help the respondents.

8. The learned Advocate for the respondent nos.2 to 6 further

relied on the order delivered by this Court in the case of Sk.Mehmood

7 cr.appeal65.16.odt

Sk.Mehboob Vs. State of Maharashtra, reported in 2015 ALL MR(Cri)

3124. This order was passed on the bail application of accused no.1 -

Sheikh Mehmood. It is well settled that any order or judgment passed

while dealing with the bail application cannot have any effect on the

subsequent substantive proceedings in the Sessions Trial.

9. In view of the above, we find that the impugned order

cannot sustain the scrutiny of law. Hence, we pass the following order:

(i) The order passed by the Special Judge (MCOCA), Amravati

in Special (MCOCA) Case no.3 of 2011 on 8 th May 2015 discharging the

respondents/accused is set aside and the application filed by the

accused nos.3 to 6 under Section 227 of the Code of Criminal Procedure

is dismissed.

(ii) The matter is remanded to the Special Judge (MCOCA)

Amravati, for further trial, according to law.

(iii) The Public Prosecutor, Amravati and the

respondents/accused Sheikh Mehmood Sheikh Mehboob, Sallam Khan

Karim Kha, Nasirkha @ Baba Dhabekar s/o Ajij Kha, Naushad Kha

Gaffar Kha, Ayyub Kha @ Lala Yunus Kha and Rahim Kha Shakur Kha

shall appear before the learned Special Judge (MCOCA) Amravati on

29th January 2021 at 11.00 a.m. If any accused fails to appear before

the Special Judge (MCOCA) Amravati on 29 th January, 2021 at 11.00

8 cr.appeal65.16.odt

a.m., the learned Special Judge shall issue non-bailable warrant against

the concerned accused.

(iv) As the matter is old, learned Special Judge (MCOCA)

Amravati, is directed to conduct the trial expeditiously and dispose it

till 9th April 2021.

Criminal Appeal is allowed accordingly.

                JUDGE                                 JUDGE

 Ambulkar