Mubeen Kadar Shaikh vs The State Of Maharashtra
2022 Latest Caselaw 4709 Bom

                                              cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

R.M. AMBERKAR
 (Private Secretary)
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION


                                      CRIMINAL APPEAL NO. 220 OF 2022

                       Mubin Kadar Shaikh                                      .. Appellant
                                  Versus
                       The State of Maharashtra                                .. Respondent

                                                  WITH
                                      CRIMINAL APPEAL NO. 221 OF 2022

                       1.Ansar Ahmad Basdshah Shaikh
                       2.Mubin Kadar Shaikh
                       3.Farooque Sharfoddin Tarkash
                       4.Yasir Anis Sayyed                                     .. Appellants
                                  Versus
                       The State of Maharashtra                                .. Respondent


                                                  WITH
                                   CRIMINAL APPEAL (ST) NO. 4762 OF 2022
                                                  WITH
                               CRIMINAL INTERIM APPLICATION NO. 987 OF 2022
                                                   AND
                               CRIMINAL INTERIM APPLICATION NO. 989 OF 2022

                       Mubin Kadar Shaikh                                      .. Appellant
                                  Versus
                       The State of Maharashtra                                .. Respondent
                                                   ....................
                        Mr. Mubin Solkar a/w Mr. Aamir Sopariwala i/by Ms. Tahera
                         Qureshi for the Appellants
                        Mr. A.M. Chimalkar, a/w Mr. Siddharth Jagusthe, Special P.P. for
                         the State
                        Ms. M.M. Deshmukh, APP for the State
                        Mr. Prashant Sawant, API for CIU
                                                   ...................

                                          CORAM                 : SMT SADHANA S. JADHAV &
                                                                  MILIND N. JADHAV, JJ.

Reserved on : APRIL 22, 2022 Pronounced on : MAY 04, 2022

1 of 7 cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

P.C. : [ PER MILIND N,JADHAV, J.]

1. Criminal Appeal No. 220 of 2022 has been filed by the

Appellant - Mubin Kadar Shaikh to quash and set aside the order

dated 24.04.2019 whereby the Appellant's application under Exhibit

396 has been rejected by the Trial court in Sessions Case No. 4 of

2015 (previously numbered as MCOCA Special Case No. 4 of 2009).

2. Appellant is accused No. 8 in Sessions Case No. 4 of 2015

pending with the Special Court constituted under the NIA Act, 2008

arising out of C.R. Nos. 152/2008 and 162/2008 of DCB-CID,

Mumbai. On 26.02.2013, the Appellant and one another co-accused

filed an application vide Exhibit '623' before the then Special MCOCA

Court challenging quashing of the invocation of the provisions of

Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act, 1999 in Sessions

Case No. 4 of 2015 on the ground that there was no prima facie

material to frame charges against the applicants under the said

provisions.

3. During pendency of the aforesaid application under Exhibit

'623', on 10.12.2013 charges were framed against the accused thereby

making the application filed vide Exhibit '623' redundant.

4. On 15.04.2014, the learned Special Judge called upon the

prosecution to explain as to why the charges under the MCOC Act

2 of 7 cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

should not be dropped in view of the judgment of the Supreme Court

in Civil Appeal No. 1975 of 2008 in the case of Zameer Ahmed Latifur

Rehman Shaikh Vs. State of Maharashtra & Ors. However, on

01.09.2014, the said Exhibit '623' was disposed of as 'not survived'.

5. The prosecution has filed a reply under Exhibit 402 to the

application of the appellant under Exhibit 396 claiming that the

Appellant was well aware that he has not only been prosecuted under

the provisions of the MCOC Act but also under the provisions of the

UAP Act, 1967 which is triable by the Special Court constituted under

Section 22 of the NIA Act, 2008. Hence, the prosecution asserted that

the application filed by the Appellant was not maintainable. On

15.05.2015, the learned Sessions Court has framed a question as to

why the charges under MCOC Act should not be dropped.

6. The prosecution has asserted that due process of law as laid

down under the provisions of Sections 226 and 227 of the Cr.P.C. was

followed and the learned Sessions Court proceeded to frame the

charges on 10.12.2013. It is further stated that the Appellant and

other accused gave their no-objection to framing of the charges when

the charges were framed by the Sessions Court. Therefore, it was not

open for the Appellant (accused No. 8) to file a fresh application

under Exhibit '396' to re-agitate the same issue which was

the subject matter of the earlier application under Exhibit '623' which

3 of 7 cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

was disposed of. The prosecution has relied upon the decision of the

Supreme Court in the case of Radial Bhanji Vs. Stae of Maharashtra 1

which states that once the charge is framed, the Magistrate has no

power under Section 227 of the Cr.P.C. or under any other provision

of the Code to consider a discharge application and revisit the earlier

stage of proceedings at the stage of Section 273 of the Cr.P.C. to

discharge the accused and the natural course would therefore be to

proceed with the trial and pronounce the judgment. In short, the

prosecution has submitted that after framing of the charge, court

cannot discharge the accused.

7. The Appellant in reply has referred to and relied upon the

decision of this Court in the case of Vikrant Rajkumar Gupta Vs. The

State of Maharashtra2 which states that an opportunity of hearing is

required to be given to the accused before the charge is framed. The

impugned order has been passed merely on the ground that when the

Sessions Case was taken up for framing of charge, the accused had

given their no-objection and therefore, the grievance of the accused

that no opportunity of hearing was given is not true. However it is an

admitted position that the application under Exhibit '623' for quashing

of charges under the provisions of the MCOC Act was pending and it

remained to be heard on the date of framing of charge i.e. on

1 AIR 1979 SC 94 2 2015 ALL MR (Cri) 1572

4 of 7 cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

10.12.2013 and was subsequently disposed of as 'not survived'.

8. The application filed by the Appellant and original accused

No. 6 vide Exhibit '623' for quashing of the charges under the MCOC

Act which was pending on the date of framing of the charge ought to

have been decided by the Trial court before proceeding to frame the

charges. Once the Court had taken cognizance of the pending

application under Exhibit '623' and also framed the question calling

upon the prosecution to show cause as to why the charges under

MCOC Act should not be dropped, it was not open to the Trial court to

have disposed of the application as 'not surviving'. The same should

have been decided by the Trial court before proceeding to frame the

charges. Further Exhibit '623' could not have been disposed of as 'not

surviving' subsequent to the framing of charges when a valuable right

is accrued upon the accused under the provisions of Section 216 of the

Cr.P.C. wherein the Court is empowered to add or alter a charge at

any time before the judgment is pronounced and even after the

charges have been framed. It is also asserted by the Appellant that the

order dated 10.12.2013 of framing of the charge does not disclose that

the Appellant / accused or their counsel were heard on the point of

charge before it was framed and thus the same is in violation of the

provisions of Section 227 and 228 of the Cr.P.C. At this stage, we

would not like to enter into the merits of the case and the rival

5 of 7 cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

contentions, save and except to state that since the application under

Exhibit '623' was admittedly pending and remained unheard as

specifically noted by the Trial court in the impugned order, we are of

the opinion that Appellant's valuable right is jeopardized.

9. The Appellant and the original co-accused No.6 is given

liberty to file a fresh application for quashing of the charges under the

MCOC Act before the Trial court within a period of four weeks from

today. The prosecution shall file its affidavit-in-reply to the said

application within a period of four weeks thereafter before the Trial

court and the learned Trial court is directed to decide the said

application finally within a period of sixteen weeks thereafter strictly

in accordance with law after hearing the parties and by passing a

speaking order. All rights and contentions of the parties are kept open

before the Trial court.

10. Criminal Appeal No. 220 of 2022 thus stands disposed of

accordingly.

11. Criminal Appeal No. 221 of 2022 has been filed by four

accused persons in Sessions Case No. 4 of 2015 (the Appellant in

Criminal Appeal No. 220 of 2022 is Appellant No. 2 in this Criminal

Appeal) to quash and set aside the charges framed on 10.12.2013 by

the learned Special Judge under the MCOC Act and for a direction to

the Trial court to frame the charges afresh. However in view of the

6 of 7 cri apeal 220-22 st 4762-2 ia 989-22 987-22 & apeal 221-22.doc

order passed while disposing of Criminal Appeal No. 220 of 2022 and

directing the Trial court to consider the fresh application filed by the

Appellant, Criminal Appeal No. 221 of 2022 is not pressed by the

Appellants. The learned counsel appearing on behalf of the Appellants

has sought to withdraw Criminal Appeal No. 221 of 2022. Criminal

Appeal No. 221 of 2022 is accordingly disposed of as withdrawn.

12. In view of the aforestated order, Criminal Appeal (St.) No.

4762 of 2022 seeking bail as well as Criminal Interim Application

Nos. 987 of 2022 and 989 of 2022 also stand disposed of.

[ MILIND N. JADHAV, J. ] [SMT. SADHANA S. JADHAV, J.] Digitally signed by RAVINDRA RAVINDRA MOHAN MOHAN AMBERKAR AMBERKAR Date:

2022.05.04 14:18:55 +0530

7 of 7