Prasad Shrikant Purohit Vs. State of Maharashtra & ANR. [April 15, 2015]
2015 Latest Caselaw 301 SC

Prasad Shrikant Purohit Vs. State of Maharashtra & ANR.

[Criminal Appeal Nos.1969-1970 of 2010]

[Criminal Appeal No.1971 of 2010]

[Criminal Appeal Nos.1994-98 of 2010]

[Criminal Appeal No.58 of 2011]

[Criminal Appeal No. 636 of 2015 @ SLP (CRL.) No.8132 of 2010]

[Criminal Appeal Nos. 639-40 of 2015 @ SLP (CRL.) Nos.9370-71 of 2011 SLP (CRL.) 9303 of 2011 SLP (CRL.) No.9369 of 2011]

Fakkir Mohamed Ibrahim Kalifulla, J.

Leave granted in SLP (Crl.) No.8132 of 2010 and SLP (Crl.) Nos.9370-71 of 2011. As in all the above appeals the issue that arises for consideration is the applicability of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter called "MCOCA"), all these appeals are disposed of by this common judgment.

Criminal Appeal Nos.1969-70/2010 have been preferred by Lt. Col. Prasad Shrikant Purohit challenging the judgment in Criminal Appeal No.867 of 2009 which was disposed of by the common order passed by the Division Bench of the Bombay High Court in Criminal Appeal Nos.866, 867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the said order the Division Bench reversed the order of the Special Judge dated 31.7.2009 passed in Special Case No.1 of 2009 wherein he held that the charges against the accused in C.R.No.18 of 2008 registered with Anti-Terrorist Squad, Mumbai (hereinafter referred to as "ATS") under the MCOCA do not survive and were discharged from the case.

The Special Court by invoking Section 11 of the MCOCA directed the case to be tried by the regular Court. The Division Bench while allowing the Criminal Appeal Nos.866 to 869 of 2009 set aside the order of the Special Judge 31.07.2009 in Special Case No.1 of 2009 as well as orders passed in Bail Application Nos.40 to 42 of 2008, restored those applications to the file in MCOCA Special Case No. 01 of 2009 for being decided on merits by Special Judge himself. In Criminal Appeal No.1024 of 2009 while allowing the said appeal, Bail Application No.41 of 2008 was directed to be restored in MCOCA Special Case No. 01 of 2009 for being heard and decided on merits.

The appellant-Lt. Col. Prasad Shrikant Purohit is the first respondent in Criminal Appeal No.867 of 2009. The appeals arising out of SLP (Crl.) No.9370-71/2011 have also been preferred by the very same appellant, namely, Lt. Col. Prasad Shrikant Purohit challenging the common order passed in Criminal Bail Application No.333 of 2011 with Criminal Application No.464 of 2011 along with Criminal Application No.556 of 2011 dated 9th November 2011 by the learned Single Judge of the Bombay High Court. By the said order the learned Judge allowed the Criminal Application No.556 of 2011 filed by Ajay Ekanath Rahirkar by granting him bail by imposing certain conditions. In the case of appellant herein, the challenge made in Criminal Application No.464 of 2011 was the order of the Special Judge after the order of remand passed by the Division Bench dated 19.07.2010.

The Special Judge by the order dated 30.12.2010 rejected the appellant's application for bail. The learned Single Judge after detailed discussion, dismissed the Criminal Bail Application No.333 of 2011 as well as Criminal Application No.464 of 2011 by the order impugned in these appeals. The appeal arising out of SLP(Crl.) No.8132/2010 has been filed by one Pragyasinh Chandrapalsinh Thakur challenging the common order dated 19.07.2010 passed by the Division Bench of the Bombay High Court in Criminal Appeal No.866 of 2009 which is identical to the case of the appellant in Criminal Appeal Nos.1969-70 of 2010. Criminal Appeal No.1971 of 2010 is preferred by one Rakesh Dattaray Dhawade challenging the order dated 19.07.2010 passed by the Division Bench of the Bombay High Court in Criminal Appeal No.868 of 2009.

The appeal arising out of SLP (Crl.) No.9303/2011 is preferred by one Sudhakar Dhar Dwivedi and Ramesh Shivji Upadhyay challenging the order dated 20.10.2011 of the learned Single Judge of the Bombay High Court. By the said judgment, the learned Single Judge declined to interfere with the order of Special Judge in Misc. Application No.98/2011 permitting police custody to the first respondent, namely, National Investigation Agency (NIA) for 8 days from 22.07.2011 up to 30.07.2011. In fact, the said case was originally investigated by ATS and final report was submitted on 30.01.2009 and supplementary charge-sheet vide MCOCA No.8/2011 was filed on 21.4.2011.

Thereafter by order dated 1.4.2011 of the Ministry of Home Affairs, Government of India, investigation was transferred to NIA and an FIR was registered as Crime No.5/2011 by police station NIA on 13.4.2011. Thereafter NIA sought for police custody which was granted by order passed in Misc. Application No.98/2011 dated 19.07.2011. The said SLP is not argued before us and, therefore, the same is delinked from this batch of cases and the same shall be heard separately.

We heard arguments of Mr. U.R. Lalit, learned senior counsel who appeared before us for the appellants in Criminal Appeal Nos.1969-70/2010 as well as Criminal Appeal Nos.1994-98/2010, Mr. Triloki Nath Razdan, learned counsel for the appellant in appeal arising out of SLP (Crl.) No.9303/2011, Mr. Basava Prabhu S. Patil, learned senior counsel in the appeal arising out of SLP (Crl.) No.8132/2010 and Mr. Vikas Mehta, learned counsel in Criminal Appeal No.1971 of 2010. Mr. U.R. Lalit, learned senior counsel in his submissions referred to the brief facts which led to the initiation of the proceedings against the appellants under the provisions of MCOCA. As the narration goes, there was a bomb blast at the place called Malegaon in Mumbai on 29.9.2008. With reference to the said occurrence, FIR No.130/2008 was registered in the Azad Nagar police station in Malegaon on 30.9.2008.

On 26.10.2008, the said FIR was transferred and registered as C.R. No. 18/2008 and the investigation was taken over by ATS. Thereafter the appellant in Criminal Appeal No. 1971/2010, namely, one Rakesh Dattaray Dhawade was arrested by ATS on 02.11.2008. Subsequent to his arrest, the appellant in Crl. Appeal Nos. 1969-1970/2010 was arrested on 05.11.2008. On 20.11.2008, approval was given as per Section 23(1) (a) of MCOCA by DIG, ATS for recording of information about the commission of an offence and for applying the provisions of Section 3(1)(i),3(2) and 3(4) of MCOCA against all the accused in C.R. No. 18/2008. Be that as it may, earlier on 21.11.2003, there was a bomb explosion at Mohmedia Masjid, Nanalpeth, Parbhani which was registered as C.R. No.161 of 2003/Parbhani.

There was another bomb explosion at Kaderia Masjid, Jalna during Friday Namaz which was registered as C.R.No. 194 of 2004/Jalna. In the case pertaining to Parbhani, the charge-sheet was filed on 07.09.2006 against A1-Sanjay Choudhary for the offences punishable under Sections 302, 307, 324, 337, 338, 285, 286 and 295 read with 34, IPC and Sections 3, 4, 6 of the Explosives Act and Section 25(1) and (3) of the Arms Act. The case was registered as RCC No.467/2006.

A supplementary chargesheet-I was filed in Parbhani case against four accused for the above referred to offences as well as Sections 120-B & 153-A read with 34 of IPC on 29.9.2006. In Jalna case, charge-sheet was filed against A-1 for the offences punishable under Sections 307, 436, 324, 323, 120-B, 153-A read with 34 of IPC and Sections 3, 4, 6 of Explosives Act on 30.9.2006. In Jalna case, two supplementary charge-sheets were filed on 7.1.2008 against four additional accused and against five accused on 14.1.2008. On 13.11.2008, supplementary charge-sheet-2 was filed against the appellant in Crl. Appeal No.1971 of 2010-Rakesh Dattaray Dhawade in Parbhani Case and a supplementary charge- sheet-3 was filed against him in Jalna Case on 15.11.2008.

Thereafter, on 20.11.2008, charge-sheet in Malegaon Blast Case was filed by ATS against the appellants herein under the MCOCA. On 15.01.2009, sanction under Section 23(2) of MCOCA was also granted. In the above stated background, Mr. U.R. Lalit, learned senior counsel made as many as five submissions to contend that MCOCA was not attracted as against the appellants and, therefore, the orders impugned are liable to be set aside. Mr. U.R. Lalit, learned senior counsel prefaced his submissions by stating that appellants were all proceeded against based on the footing that they were members of an organization called "Abhinav Bharat" which was registered in 2007 and that they were now being prosecuted under the provisions of MCOCA.

The learned senior counsel submitted that in order to prosecute the appellants under the MCOCA, the definition of "continuing unlawful activity", "organized crime" and "organized crime syndicate" as defined under Section 2(1)(d),(e) and (f) of MCOCA should be satisfied. The learned senior counsel while referring to the above definitions submitted that the prosecuting agency were relying upon the Parbhani case and Jalna case which occurred in 2003 and 2004 and which were organized by RSS and Bajrang Dal with which neither Abhinav Bharat nor the appellants were in anyway connected and, therefore, the definition of "continuing unlawful activity" or "organized crime" as well as "organized crime syndicate" was not fully established.

The next submission of Mr. U.R. Lalit, learned senior counsel was that in order to attract Section 2(1)(d) for an offence to be a 'continuing unlawful activity' within a period of preceding ten years from the date of the third occurrence, two prior cases falling under the said Section should have been filed and taken cognizance of and that the date with reference to which the preceding ten years is to be counted is the date of third occurrence. The learned senior counsel, therefore, submitted that the Malegaon bomb blast occurred on 29.09.2008, the arrest of Rakesh Dattaray Dhawade was on 02.11.2008, supplementary charge-sheet against him was filed in Parbhani case on 13.11.2008 and in Jalna case on 15.11.2008 and in Parbhani, the case was committed to Sessions Court only on 29.4.2009 i.e. not within the preceding 10 years of the occurrence in Malegaon and, therefore, the definition of Section 2(1) (d) was not satisfied.

Even with reference to Jalna, the learned senior counsel submitted that the Express Order of cognizance was taken only on 28.11.2008 i.e. after the occurrence in Malegaon, namely, 29.09.2008. Therefore, the requirement of preceding ten years in order to bring the earlier two occurrences in Parbhani and Jalna within the definition of 2(1)(d) as continuing unlawful activities was not made out. The learned senior counsel in this context submitted that the conclusion of the Division Bench that cognizance is always with reference to the offence and not the offender, is not the correct legal position.

The learned senior counsel after referring to Sections 173(2)(i)(a), 190(1)(b) and 178 of the Code of Criminal Procedure (Cr.P.C.) submitted that a close reading of the above Sections shows that the cognizance will be with reference to the offender and not the offence. The learned senior counsel, therefore, submitted that in the case of Jalna the Express Order of cognizance was taken on 28.11.2008 after the supplementary charge-sheet dated 15.11.2008 against Rakesh Dattaray Dhawade, which was long after the date of occurrence of Malegaon, namely, 29.09.2008, and, therefore, the requirement of two earlier cases as stipulated under Section 2(1)(d) was not satisfied.

The learned senior counsel relied upon the decisions in Ajit Kumar Palit v. State of West Bengal - AIR 1963 SC 765 and Dilawar Singh v. Parvinder Singh @ Iqbal Singh & Anr. - 2005 (12) SCC 709 in support of his submissions. Mr. U.R. Lalit, learned senior counsel then contended that the event of cognizance being taken as defined under Section 2(1) (d) can only be with reference to 'competent court' and in the case of Parbhani and Jalna as the offences were under Sections 302, 307/308 etc., Sessions Court was the competent court and not the Chief Judicial Magistrate.

The learned senior counsel pointed out that in the case of Parbhani, the committal order was passed only on 29.04.2009 i.e. long after the Malegaon case occurrence, namely, 29.09.2008. Therefore, the requirement of two earlier cases which were taken cognizance of by the competent court cannot be held to have been satisfied.

In support of the said submission, learned senior counsel relied upon Fakhruddin Ahmad v. State of Uttaranchal and Anr. - (2008) 17 SCC 157. The learned senior counsel then contended that in order to attract the provisions of MCOCA, in all the three cases, the same gang must have been involved. Elaborating his submission, the learned senior counsel contended that Rakesh Dattaray Dhawade who has been added as A-7 in Malegaon case was arrested on 02.11.2008 and his arrest was shown in Parbhani and in Jalna on 13.11.2008 and 15.11.2008 as directed by the Additional Police Commissioner of ATS and even going by the statement of A-7, he procured some materials and gave them to one principal accused in Parbhani and Jalna, namely, Devle and going by the said statement, there is no scope to link the appellant with the cases which related to Parbhani and Jalna and, therefore, the requirement of involvement of the same gang in all the three cases was not satisfied.

The learned senior counsel submitted that in any event, the appellants were not concerned with Parbhani and Jalna, that they were not even aware of A-7's involvement in those two occurrences, as they were not members of those gangs which were involved in Parbhani and Jalna and, therefore, the invocation of MCOCA was not made out. The learned senior counsel further contended that it was all the more reason to hold that cognizance should be with reference to the offender and not the offence which has to be mandatorily satisfied. The learned senior counsel lastly submitted that going by the definition of 'organized crime' under Section 2(1) (e), there must have been a pecuniary gain accompanied by the act of violence, that the appellant had not taken any money from anybody and when such pecuniary advantage should have been present in all the three cases, it cannot be held that the case against the appellant would come under the definition of 'organized crime'.

According to learned senior counsel, in the case of Parbhani and Jalna, only violence was the basis and promoting insurgency was not even the case of prosecution which may have a semblance of application in Malegaon case and certainly not in Parbhani and Jalna. The learned senior counsel, therefore, contended that the application of MCOCA as against the appellants was wholly inappropriate and consequently, the order of the Division Bench and the subsequent order of the Special Court in declining to grant bail was liable to be set aside.

The learned senior counsel submitted that the appellants made out a case to show that there were reasonable grounds for believing that he was not guilty of such offence under MCOCA and as provided under Section 21(4)(b) of MCOCA and should have been granted bail. The learned senior counsel further submitted that the appellant in Criminal Appeal Nos.1969-70 of 2010 as well as in SLP (Crl.) Nos.9370-71 of 2011 has been in jail for more than six years and he is entitled for grant of bail. Mr. Triloki Nath Razdan, learned counsel appearing for the appellants in the appeal arising out of SLP (Crl.) No.9303/2011 while adopting the arguments of Mr. U.R. Lalit, learned senior counsel for the appellant in Crl.A.No.1969-70/2010 contended that the Objects and Reasons of MCOCA shows that the very purport of the enactment was to curb the accumulation of illegal wealth, that in order to attract the provisions of MCOCA, involvement in organized crime by an organized crime syndicate in all the three cases must be satisfied.

By referring to the sanction order dated 15.01.2009, learned counsel submitted that when the arrest of Rakesh Dattaray Dhawade was in the month of November, 2008, the requirement of Section 2(1) (d) relating to two previous cases of continuing unlawful activity was not satisfied. In other words, according to learned counsel, as the requirement of continuing unlawful activity in respect of an organized crime by the organized crime syndicate was not shown, MCOCA was not attracted. The learned counsel relied upon in Central Bank of India v. State of Kerala and others - (2009) 4 SCC 94 and Ranjitsing Brahamjeetsing Sharma v. State of Maharashtra & Anr. - (2005) 5 SCC 294.

Mr. Patil, learned senior counsel appearing for the appellant in SLP (Crl.) No.8132/2010 referred to the impugned judgment of the Division Bench, in particular, paragraph 18 and submitted that the question which was posed for consideration by the Division Bench was limited to the extent of examining the issue of taking cognizance of the offences by the Chief Judicial Magistrate at Parbhani and its counterpart at Jalna. Sofaras the appellant in the present appeal was concerned, learned senior counsel submitted that she became a Sanyasin after performing appropriate Hindu religious rites and prayers on 30.01.2007, that she was residing in an ashram at Jabalpur, Madhya Pradesh and that she owned a two wheeler LML-

Freedom which she sold out to one Sunil Joshi of Madhya Pradesh way back in October, 2004 for a sale consideration of Rs.24,000/- and she also signed the necessary transfer application Forms in October, 2004 itself and that thereafter she had no control over the said vehicle. The learned senior counsel submitted that inspite of her disclosing the above facts, the officials of ATS applied third degree methods upon her and insisted that the said vehicle was involved in Malegaon blast occurrence and, therefore, she was also involved in the said occurrence.

The learned senior counsel submitted that she was implicated in the Malegaon case while she is innocent simply because the vehicle bearing registration No.MH-15-P-4572, which she owned, was stated to have been involved in the Malegaon blast. The learned senior counsel then submitted that if the Objects and Reasons is read for interpreting Section 3, a strict application of the Act should be made, in which event, in order to invoke the provisions of MCOCA Section 2(1)(d), (e) and (f) should be satisfied. It was contended that for implicating a person it is to be mandatorily shown that he was involved in a 'continuing unlawful activity' as a member of crime syndicate or on behalf of it on two earlier occasions, that the appellant was not involved in either the Parbhani case or in Jalna case and, therefore, the invocation of MCOCA against the appellant was not maintainable.

The learned senior counsel also submitted that having regard to the relevant dates with reference to the committal order in Jalna case, namely, 11.8.2008, the subsequent charge-sheet against A-7 on 15.11.2008 on which date the case was registered afresh as RCC No.648/2008 and on 28.11.2008 when committal order was passed, the sanction order in Malegaon case being 20.11.2008, there was no scope to hold that there were two earlier cases falling within the definition of continuing unlawful activity as defined under Section 2(1)(d) of the Act. The learned senior counsel, therefore, contended that the order of the trial Court dated 31.07.2009 discharging all the accused was justified and the Division Bench ought not to have interfered with the said order.

The learned senior counsel also submitted that the Division Bench having noted that the offence under Section 153A, IPC was not laid after getting prior sanction as required under Section 196 Cr.P.C. even as against A-7 Rakesh Dattaray Dhawade, there was no valid cognizance taken by the trial Court in respect of the earlier cases of Parbhani and Jalna. The learned Senior Counsel, therefore, contended that in the absence of the 'continuing unlawful activity' as defined under Section 2(1)(d) of an 'organized crime' by 'organized crime syndicate' shown, application of MCOCA was not justified.

As far as the preceding 10 years as prescribed under Section 2(1)(d) is concerned, learned senior counsel submitted that Section 2(1)(d) specifically refers to 'activity' for calculating the preceding 10 years and, therefore, 29.09.2008 would be the relevant date and calculated on that basis the claim of the prosecution that there were two earlier cases as stipulated under Section 2 (1)(d) was not satisfied.

In support of this submission, learned senior counsel relied upon the decisions of this Court reported as Mahipal Singh v. Central Bureau of Investigation & Anr. - 2014 (11) SCC 282, State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr. - (2007) 4 SCC 171, State of Maharashtra v. Bharat Shanti Lal Shah and Ors. - 2008 (13) SCC 5 and Tolaram Relumal & Anr. v. The State of Bombay - AIR 1954 SC 496. Mr. Vikas Mehta, learned counsel appearing for the appellant in Criminal Appeal No.1971/2010, namely, Rakesh Dattaray Dhawade after making reference to the judgment in Mahipal Singh (supra) contended that prior to the registration of FIR No.130 of 2008 on 30.09.2008 in the Malegaon blast case, the appellant was not involved in any 'continuing unlawful activity'.

According to him, if a strict interpretation is to be placed on the definition of 'continuing unlawful activity' as stated in the said decision of this Court, the appellant having been not involved in the commission of any offence prior to registration of FIR No.130/2008 either singly or jointly as a member of an 'organized crime syndicate, invocation of MCOCA was not justified.

The learned counsel then contended that in order to invoke MCOCA all the three definitions of Section 2 (1) (d), (e) and (f) should be satisfied in which event it should be by the same gang in all the three cases. The learned counsel then contended that since strict interpretation is to be made as directed by this Court while upholding the validity of the Act, it should be construed only in that manner. The learned counsel by relying upon the decisions in Ranjitsing Brahamjeetsing Sharma (supra), Lalit Somdatta Nagpal (supra) and Mahipal Singh (supra) contended that the requirement of satisfaction of 'continuing unlawful activity' of an 'organized crime' by an 'organized crime syndicate' insofar as it related to the appellant was not made out and the application of the MCOCA was not justified.

Mr. S.S. Shamshery, learned counsel appearing for the appellant in Criminal Appeal No.58/2011 submitted that he is adopting the arguments of Mr. U.R. Lalit, learned senior counsel for appellant in Criminal Appeal No.1969-70 of 2010 and the judgment of the Division Bench is liable to be set aside. As against the above submissions made on behalf of the appellants, Mr. Anil Singh, learned ASG for the respondent State submitted that the Division Bench after formulating the question in paragraph 18 ascertained the relevant dates when cognizance was taken in Parbhani case and in Jalna case by the Committal Court and in both the cases cognizance was taken as early as on 07.09.2006 in Parbhani and on 30.9.2006 in Jalna which were borne out by records and, therefore, the Division Bench was justified in setting aside the order of the Special Court.

In support of his submission that taking a fresh cognizance is not a requirement of law in a case where cognizance is already taken in respect of the same offence, reliance was placed upon R.R. Chari v. State of Uttar Pradesh - AIR 1951 SC 207, Raghubans Dubey v. State of Bihar - AIR 1967 SC 1167, Darshan Singh Ram Kishan v. State of Maharashtra - AIR 1971 SC 2372, State of West Bengal v. Salap Service Station & Ors. - 1994 (3) Suppl. SCC 318, CREF Finance Limited v. Shree Shanthi Homes (P) Ltd. and another - 2005 (7) SCC 467, State of Karnataka v. Pastor P. Raju - 2006 (6) SCC 728, S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. & Ors. - (2008) 2 SCC 492, Fakhruddin Ahmad (supra) and Sarah Mathew v. Institute of Cardio Vascular Diseases By its Director Dr. K.M. Cherian & Ors.- (2014) 2 SCC 62. According to learned ASG, in respect of an offence under MCOCA, for invoking its provisions, cognizance of the offence taken as provided under Section 190 Cr.P.C. was sufficient.

The learned ASG then submitted that in order to ascertain a 'continuing unlawful activity' as defined under Section 2 (1) (d) of the MCOCA what is required is commission of such an offence as a member of either 'organized crime syndicate' or on behalf of 'organized crime syndicate' would mean any 'organized crime syndicate' and not the same 'organized crime syndicate'. As far as the contention relating to two earlier cases in the preceding 10 years, the learned ASG submitted that in the Malegaon case, the occurrence was on 29.09.2008 and in the preceding 10 years i.e. on 07.09.2006 cognizance was taken in the Parbhani case and in Jalna case cognizance was taken on 30.09.2006 and, therefore, the same was sufficient to hold that the appellants were involved in a 'continuing unlawful activity' and thereby satisfied the requirement of 2 (1) (d) (e) and (f) of MCOCA.

The learned ASG sought to distinguish the case in Mahipal Singh (supra). The learned ASG by relying upon Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors. - 2010 (5) SCC 246 submitted that insurgency is a grave disturbance of public order and, therefore, the question of pecuniary advantage was not needed where promotion of insurgency formed the basis for prosecuting the appellants under MCOCA. On 'other advantage', learned ASG relied upon State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya -2011 (5) Mh.L.J. 386.

Mr. Mariaarputham, learned senior counsel appearing for the State of Maharashtra and NIA after referring to the accusations against the accused submitted that going by the allegations and the gravity of the offence, they are not entitled for bail. The learned senior counsel also submitted that apart from offences under the MCOCA, the appellants are also proceeded under the Unlawful Activities (Prevention) Act, 1967, in particular, offences under Sections 13, 15, 16, 17, 18, 18B, 20, 23 etc. and the maximum penalty for offences under Sections 15 to 23 is the death penalty and that under Section 43D(5) for grant of bail, severe restrictions have been imposed and, therefore, both because the question raised about the implications of MCOCA, as well as, having regard to the offences for which the appellants are proceeded against, they are not entitled for grant of bail.

The learned senior counsel then contended that in order to constitute an offence as an 'organized crime' under Section 2 (1)(e) of MCOCA, it is not necessary that for the commission of such aggressive offences, there should be allegation of pecuniary advantage also. According to learned senior counsel, insofar as, promotion of insurgency is concerned, even without any allegation of pecuniary gain, the said act by itself would constitute an 'organized crime'. The learned senior counsel, therefore, contended that even in the absence of any allegation of pecuniary gain, the offence alleged would fall under the category of 'organized crime'.

The learned senior counsel further contended that in any event there were materials to show that the appellant in Criminal Appeal 1969-70/2010 as well as the appellant in Criminal Appeal No.1971/2010 had pecuniary advantage. The learned senior counsel then contended that cognizance of the offence was taken by the Magistrate based on the charge- sheet and when once there was application of judicial mind with a view to proceed with the matter, the requirement of cognizance was fulfilled. Insofar as the offences pertaining to Parbhani and Jalna were concerned, the learned senior counsel contended that they were all IPC offences and, therefore, taking cognizance of those offences need not be tested on the anvil of the provisions of MCOCA.

The learned senior counsel placed reliance upon the decisions in Gopal Marwari & Ors. v. Emperor -AIR 1943 Patna 245 which was affirmed by this Court in R.R. Chari (supra). He also placed reliance upon Darshan Singh Ram Kishan (supra), State of West Bengal & Anr. v. Mohd. Khalid & Ors.- (1995) 1 SCC 684, CREF Finance Limited (supra), Pastor P. Raju (supra), Mona Panwar v. High Court of Judicature at Allahabad Through its Registrar & Ors. - (2011) 3 SCC 496 and Sarah Mathew (supra).

On the submission relating to competent Court, learned senior counsel submitted that in Parbhani and Jalna reference needs to be made only to Sections 190, 200, 201, 202 read with Section 4 Cr.P.C. and when on a complaint filed by the prosecution, the CJM having taken cognizance, the same was sufficient for the fulfillment of requirement of the 'continuing unlawful activity' as defined under Section 2 (1) (d) of the MCOCA. According to learned senior counsel, for the purpose of taking cognizance under the above provisions, the presence of the accused was not necessary.

As far as the relevant date is concerned, according to learned senior counsel, even if the date of occurrence of Malegaon blast, namely, 29.9.2008 is taken as the relevant date, the committal Court having taken cognizance by receipt of the charge-sheet dated 07.09.2006 in respect of Parbhani and on 30.09.2006 in the case of Jalna and the committal order was on 12.02.2007 in Jalna, the cognizance was well before 29.09.2008 and, therefore, there was nothing lacking for the purpose of invoking the provisions of MCOCA. The learned senior counsel further contended that as long as all the three incidents were committed by a group of persons and one common individual was involved in all the three incidents, that would attract invocation of MCOCA.

Mr. Tushar Mehta, learned ASG also appearing for NIA submitted that in the event of granting bail, having regard to the nature of offence alleged to have been indulged in by the appellants, severe conditions should be imposed and that the agency is entitled for custodial interrogation and also the presence of the accused at the time of trial should be ensured. By way of reply Mr. U.R. Lalit, learned senior counsel submitted that the prosecution has not shown involvement of 'Abhinav Bharat' in the Parbhani case or Jalna case in which event if 'Abhinav Bharat' is to be excluded, the linking of the appellants by making reference to Abhinav Bharat will also entitle them to contend that MCOCA cannot be invoked.

The learned senior counsel submitted that since MCOCA has been invoked for the purpose of ascertaining the cognizance of the offence, reference to Section 2(1)(d) would alone be made and not under Section 190 Cr.P.C. The learned senior counsel further contended that cognizance by the competent Court in the facts and the nature of offence alleged in Parbhani and Jalna would only mean the Sessions Court under Section 209 Cr.P.C. and, therefore, there is a serious doubt as to the application of MCOCA. The learned senior counsel, therefore, contended that such doubt should be held in favour of the appellants under Section 21(4)(b) of MCOCA and the appellants should be granted bail.

Mr. Patil, learned senior counsel for the appellant in appeal arising out of SLP(Crl.) No.8132/2010 submitted that when the case of the said appellant is considered with reference to additional charge-sheet, appellant being a lady suffering from cancer and her implication was because of sale of her two wheeler four years before the occurrence, applying the decision in Salap Service Station (supra), she is entitled for the grant of bail. Having noted the submissions of respective counsel, at the outset, we want to note the specific challenges made in these appeals. As far as the appellant in Criminal Appeal No.1969-70 of 2010 is concerned, he along with the other appellants is aggrieved by the common judgment of the Division Bench of the Bombay High Court in Crl.A. Nos.866, 867, 868, 869 and 1024 of 2009 dated 19.07.2010.

By the said judgment, the Division Bench set aside the order of the Special Judge dated 31.07.2009 in Special Case No.1/2009. While setting aside the said order of the Special Judge, the Division Bench directed the Special Judge to consider the bail applications in Bail Application Nos.40-42 of 2008 and pass orders on merits. In fact, the Special Judge in his order dated 31.07.2009 took the view that MCOCA was not applicable to Special Case No.1/2009 and consequently by invoking Section 11 of MCOCA, directed the case to be tried by the regular Court. Therefore, when we examine the correctness of the judgment of the Division Bench dated 19.07.2010 in Crl. A Nos.866/2009 and connected appeals, if the said judgment is to be upheld, the consequence would be to the consideration of the bail applications under Section 21 of the MCOCA. It is relevant to note that after the order of the Division Bench dated 19.7.2010, the Special Judge dealt with the Bail Applications Nos. 40-42 of 2008 and dismissed all the applications.

Thereafter, those orders were the subject matter of challenge in Criminal Bail Application No.333/2011 with Criminal Application No.464/2011 insofar as the appellant in Criminal Appeal No.1969-70/2010 is concerned. One other appellant namely, Ajay Eknath Rahirkar filed Criminal Application No.556/2011 which was allowed by the Bombay High Court and he was granted bail by imposing certain conditions. As far as Criminal Application No.333/2011 was concerned, the said application was rejected and the main Criminal Application No.464/2011 was disposed of by the High Court. The appellant in Criminal Appeal No.1971 of 2010 was one of the respondents in Criminal Appeal No.868 of 2009 which was disposed of by the Division Bench of the Bombay High Court by its order dated 19.07.2010 along with the connected appeals preferred by the State of Maharashtra through ATS which is the prosecuting agency in respect of the Special Case No.1 of 2009 on the file of the Special Judge under MCOCA.

The said appellant was also aggrieved by the order of the Division Bench referred to above in having set aside the order of the Special Judge dated 31.07.2009. The appellant in the appeal arising out of SLP (Crl.) No.8132/2010 is also similarly placed like that of the appellants in Criminal Appeal Nos.1969-70/2010 and Criminal Appeal No.1971/2010. Having thus noted the grievances of the appellants in the above referred to appeals as against the order of the Division Bench dated 19.07.2010 as well as the subsequent order of the learned Single Judge in having declined to grant bail by confirming the order of the Special Court in Bail Application No.42 of 2008, from the above referred to details gathered from the appeal papers as well as the orders impugned in these appeals the scope for consideration in these appeals pertains to the questions:-

Whether the common order of the Division Bench dated 19.07.2010 in having set aside the order of the Special Judge in Special Case No.1 of 2009 discharging the appellants from the said case on the ground that MCOCA was not applicable to the said case and consequently the case was to be tried by the Regular Court under Section 11 of MCOCA calls for interference? If answer to question No.

(a) is in the negative, whether for the purpose of grant of bail under Section 21(4)(b) of MCOCA, can it be held that the application of the said Act is not made out against the appellants and consequently the rejection of bail by the trial Court and as confirmed by the learned Single Judge of the Bombay High Court is justified?

Having thus ascertained the scope involved in these appeals by virtue of the orders impugned herein, when we consider the submissions of learned counsel for the appellants, we find that the sum and substance of the submissions can be summarized as under: "That the definition of 'continuing unlawful activity', 'organized crime' or 'organized crime syndicate' as defined under Section 2(1)(d)(e) and (f) of MCOCA was not cumulatively satisfied in order to proceed with the Special Case No.1 of 2009 for the alleged commission of offence of organized crime under Section 3 of MCOCA." In order to find an answer to the said question a detailed reference to some of the provisions of MCOCA, its Objects and Reasons and some other provisions of the Cr.P.C. are required to be noted.

The prime provisions which are relevant under MCOCA are Sections 2(1) (d), (e) & (f), 3, 21 (4)

(b), 23 (1) & (2) of MCOCA. As far as the Cr.P.C. is concerned, reference will have to be made to Sections 4, 173(2) & (8), 190, 191, 192, 193, 200, 201 and 209. In order to appreciate the said provisions the same are extracted as under: "The Maharashtra Control of Organized Crime Act, 1999 Section 2 (1)

(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 organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

(e) "organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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 organized crime;

3. Punishment for organized crime. -

(1) Whoever commits an offence of organized crime shall -

(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organized crime or any act preparatory to organized crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(4) A person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(5) Whoever holds any property derived or obtained from commission of an organized crime or which has been acquired through the organized crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs.

21.(4)(b) Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

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 organized 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 offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police."

Code of Criminal Procedure, 1973

4. Trial of offences under the Indian Penal Code and other laws.-

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

173. Report of police officer on completion of investigation:

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(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - the names of the parties; the nature of the information; the names of the persons who appear to be acquainted with the circumstances of the case; whether any offence appears to have been committed and, if so, by whom; whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties; whether he has been forwarded in custody under Section 170; whether the report of medical examination of the woman has been attached where investigation relates to an offence under Section 376, 376A, 376B, 376C, Section 376D or Section 376E of the Indian Penal Code (45 of 1860)

(ii) the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of offence was first given.

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).

190. Cognizance of offences by Magistrates.-

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (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, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such 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. (a) upon receiving a complaint of facts which constitutes 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 offence has been committed.

191. Transfer on application of the accused.-

When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

192. Making over of cases to Magistrates.-

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

193. Cognizance of offences by Courts of Session.-

Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

200. Examination of complainant.-

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examined them.

201. Procedure by Magistrate not competent to take cognizance of the case.-

(1) If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall.-

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court. 209. Commitment of case to Court of Session when offence is triable exclusively by it.-when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Sessions, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session. In the first instance, it will be profitable to examine the scheme of MCOCA by making a cursory glance to the Objects and Reasons and thereafter to make an intensive reading of the above referred to provisions.

When we peruse the Objects and Reasons, it discloses that organized crime has been posing very serious threat to our society for quite some years and it was also noted that organized crime syndicates had a common cause with terrorist gangs. In the Objects and Reasons, the foremost consideration was the serious threat to the society by those who were indulging in organized crimes in the recent years apart from organized crime criminals operating hand in glove with terrorist gangs.

It is common knowledge that for the terrorist gangs, the sole object is to create panic in the minds of peace loving members of the society and in that process attempt to achieve some hidden agenda which cannot be easily identified, but certainly will not be in the general interest or well being of the society.

Those who prefer to act in such clandestine manner and activities will formulate their own mind- set and ill-will towards others and attempt to achieve their objectives by indulging in unlawful hazardous criminal activities unmindful of the serious consequences and in majority of such cases it results in severe loss of life of innocent people apart from extensive damage to the properties of public at large.

It was further found that the existing legal framework, that is the penal and procedural laws and the adjudicatory system, were found to be inadequate to curb or control the menace of 'organized crime'. The Objects and Reasons also states that such 'organized crimes' were filled by illegal wealth generated by contract killing, extrusion, smuggling in contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money, money laundering etc. Keeping the above serious repercussions referred to in the Objects and Reasons, when we examine Section 2(1)(d)(e) & (f), which defines 'continuing unlawful activity', 'organized crime' or 'organized crime syndicate', we find that the three definitions are closely interlinked.

The definition of 'continuing unlawful activity' under Section 2(1)(d) mainly refers to an activity prohibited by law. The said activity should be a cognizable offence, punishable with imprisonment of three years or more. The commission of such offence should have been undertaken either by an individual singly or by joining with others either as a member of an 'organized crime syndicate' or even if as an individual or by joining hands with others even if not as a member of a 'organized crime syndicate' such commission of an offence should have been on behalf of such syndicate. It further states that in order to come within the definition of 'continuing unlawful activity' there should have been more than one charge-sheet filed before a competent Court within the preceding period of 10 years and that the said Court should have taken cognizance of such offence.

Before getting into the nuances of the said definition of 'continuing unlawful activity', it will be worthwhile to get a broad idea of the definition of 'organized crime' under Section 2(1)(e) and 'organized crime syndicate' under Section 2(1)(f). An 'organized crime' should be any 'continuing unlawful activity' either by an individual singly or jointly, either as a member of an 'organized crime syndicate' or on behalf of such syndicate.

The main ingredient of the said definition is that such 'continuing unlawful activity' should have been indulged in by use of violence or threat of violence or intimidation or coercion or other unlawful means. Further such violence and other activity should have been indulged in with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. Therefore, an 'organized crime' by nature of violent action indulged in by an individual singly or jointly either as a member of an 'organized crime syndicate' or on behalf of such syndicate should have been either with an object for making pecuniary gains or undue economic or other advantage or for promoting insurgency. If the object was for making pecuniary gains it can be either for himself or for any other person. But we notice for promoting insurgency, there is no such requirement of any personal interest or the interest of any other person or body.

The mere indulgence in a violent activity etc. either for pecuniary gain or other advantage or for promoting insurgency as an individual, either singly or jointly as a member of 'organized crime syndicate' or on behalf of a such syndicate would be sufficient for bringing the said activity within the four corners of the definition of 'organized crime'. An 'organized crime syndicate' is a group of two or more persons who by acting singly or collectively as a syndicate or gang indulge in activities of 'organized crime'.

By conspectus reading of the above three definitions, if in the preceding 10 years from the date of third continuing unlawful activity if more than one charge-sheet has been filed before a competent Court which had taken cognizance of such offence which would result in imposition of a punishment of three years or more, undertaken by a person individually or jointly either as a member of an 'organized crime syndicate' or on its behalf, such crime if falls within the definition of 'organized crime', the invocation of MCOCA would be the resultant position.

Keeping the above broad prescription as the outcome of the definition of Section 2(1)(d)(e) & (f) in mind, when we refer to Section 3, we find that it is a penal provision under which, the various punishments for the commission of 'organized crime' have been set out and such punishment can be up to life imprisonment and even death, apart from fine subject to minimum of Rupees one lakh to maximum of Rupees five lakhs. The imprisonment ranges from five years to life imprisonment and can also result in imposition of death penalty. Section 17 prescribes Special Rules of evidence notwithstanding anything contrary contained in Cr.P.C. or the Indian Evidence Act for the purposes of trial and punishment for offences under MCOCA.

Section 18 of the Act is again a non-obstante clause which states that irrespective of any provision in the Code or in the Indian Evidence Act, and subject to the provisions of said Section, a confession made by a person before a police officer not below the rank of Superintendent of Police and recorded by such police officer either in writing or in any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced shall be admissible in the trial of such person or co-accused abettor or conspirator provided they are charged and tried in the same case together with the accused. Section 20 is yet another provision under MCOCA which prescribes that where a person is convicted of any of the offence punishable under MCOCA, the Special Court may in addition to awarding any punishment, by order in writing declare that any property, movable or immovable or both, belonging to the accused and specified in the order shall stand forfeited to the State Government free from all encumbrances etc.

Under Section 21, which again is a non- obstante clause, the provisions of the Act notwithstanding anything contained in the Code or any other law shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code and "cognizable case" as defined in that clause should be constructed accordingly. Under Section 21(4) notwithstanding anything contained in the Code, no person accused of an offence punishable under MCOCA, when he is in custody, should be released on bail on his own bond unless under sub-clause (b) of sub-section (4) even when the Public Prosecutor opposes the application for bail, the Court is satisfied that there are reasonable grounds for believing that the said accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

Under Section 22 there is a rebuttable presumption of commission of organized crime punishable under Section 3 unless the contrary is proved. Under Section 23 a safeguard is provided to the effect that under Section 23(1)(a) no information about the commission of an offence of organized crime under MCOCA should be recorded by a police officer without the prior approval of a police officer not below the rank of Deputy Inspector General of Police.

Further under Section 23(1)(b) no investigation of an offence under MCOCA shall be carried out by a police officer below the rank of Deputy Superintendent of Police. Under sub-Section (2) of Section 23, no Special Court should take cognizance of any offence under MCOCA without the previous sanction of the police officer not below the rank of Additional Director General of Police. Reference to the above provisions thus discloses that the Act is very stringent in its operation when it comes to the question of dealing with an 'organized crime' committed by an 'organized crime syndicate' in respect of a 'continuing unlawful activity'.

With the above salient features of the provisions of MCOCA in mind, when we consider the various submissions of the learned counsel, the main submissions of the learned counsel for the appellants were five-fold. The first submission was that the present appellants were all alleged to have been involved in a bomb blast which occurred on 29.09.2008 at a place called 'Malegaon'. According to the prosecuting agency, the appellants were either member of an organization called 'Abhinav Bharat' which was registered in the year 2007 or the commission of the offence was jointly with the members of the said organization for and on its behalf.

The contention in the foremost was that in order to rope in the appellants on the above footing, the requirement of Section 2(1)(d), namely, 'continuing unlawful activity' must have been satisfied. In order to demonstrate such compliance, it was contended on behalf of the prosecuting agency that there were two earlier occurrences of bomb blasts one in Parbhani on 21.11.2003 and another at Jalna on 27.08.2004, that on those two earlier occurrences A- 7, namely, Rakesh Dattaray Dhawade was involved who is also a member of the present gang and consequently the definition of 'continuing unlawful activity' is satisfied.

The learned counsel for the appellants on the other hand contended that A-7 was not a member of the so-called 'Abhinav Bharat', that 'Abhinav Bharat' as an organization was not indisputably involved in the two earlier occurrences in the year 2003 and 2004, therefore, when such clear demarcation existed as between the appellants, the so-called members of Abhinav Bharat and the earlier occurrences of 2003 and 2004, as well as, the exclusion of A-7 as member of 'Abhinav Bharat' there was no scope to invoke MCOCA. We are, in the first instance, concerned with the appellant's challenge to the order of the Division Bench dated 19.07.2010 wherein the sole question considered pertains to the application of MCOCA based on the definition of 'continuing unlawful activity' under Section 2(1)(d) for the purpose of grant of bail under Section 21(4)(b) of MCOCA.

To recapitulate the background of this litigation, it was the order of discharge passed by the Special Judge in Special Case No.1 of 2009 dated 31.07.2009 on the footing that cognizance of two earlier cases within preceding 10 years from the date of third occurrence dated 29.09.2008 was not satisfied and based on the said conclusion the Special Judge passed the order of discharge and also simultaneously passed an order under Section 11 for the transfer of the Special Case No.1 of 2009 to the Regular Court which went before the Division Bench at the instance of the State and the prosecuting agency.

The Division Bench while dealing with the said conclusion of the Special Court took a contrary view holding that the Special Judge misdirected himself by stating that the cognizance was with reference to the offender and not the offence which led to the passing of such an illegal order dated 31.07.2009. The Division Bench took the view that going by the provisions contained in Section 2(1)(d) read along with Sections 190 and 173(3) of the Cr.P.C., as well as the settled principles in the various decisions of this Court, the cognizance of offence was taken as early as on 07.09.2006 in the Parbhani case and 30.09.2006 in the Jalna case, which were within the preceding 10 years from the date of the occurrence of Malegaon case, namely, 29.09.2008 and therefore, the order of discharge passed by the Special Judge was not sustainable and valid in law.

Having recapitulated the background to the above extent when we examine the contentions raised, it must be stated that the conclusion of the Division Bench as regards the cognizance aspect cannot be held to be totally erroneous when it struck down the order of the Special Judge dated 31.07.2009. Keeping aside for the present the various other submissions and considering the opening submission of the counsel while assailing the order of Division Bench wherein we confine to the question relating to taking cognizance of the offence as set out apparently in Section 2(1)(d) of MCOCA. In that perception, on the opening submission of the learned counsel for the appellants we too have no hesitation to hold that the cognizance of the offence as stated to have been rightly taken into account in respect of Parbhani and Jalna based on the charge-sheets dated 07.09.2006 and 30.09.2006 respectively was perfectly in order to apply the definition of 'continuing unlawful activity' for the purpose of invoking MCOCA with reference to Malegaon occurrence.

We, however, wish to examine in detail the justification for our above conclusion when we deal with the other contentions where submissions were made in extenso with particular reference to the involvement of A-7 in the alleged occurrences of Parbhani and Jalna, more particularly with reference to the date of supplementary charge-sheet, arrest made and the arrest made with reference to Malegaon occurrence and the alleged nexus as between the appellants and A-7 in order to find out whether application of MCOCA could still be held to be validly made by the prosecuting agency. For the present by reaching our conclusion as above on the first submission, we proceed to deal with the next submission of learned counsel for the appellants.

The submission of the learned counsel for the appel