Taking Cognizance Under MCOC Act Does Not Automatically Enable Court To Frame Charges Against Accused : Bombay HC [Read Judgment]

A division bench of Justice Indrajit Mahanty and Justice Sarang Kotwal was hearing an appeal filed by Amol Vahile and five others under Section 12 of the MCOC Act, seeking discharge from an MCOC Special case under Section 227 of the CrPC. Their discharge applications were rejected by the Special Judge. All six appellants are original accused in the FIR registered against them for committing the murder of one Avinash Tekawade, a political rival of Amol Vahile's father.

Case Background

According to the prosecution, Amol Vahile was the head of an organised crime syndicate. His father had contested municipal council elections in the year 2007 against Avinash Tekawade. In the said election, Maruti Bhapkar, an independent candidate, was elected.

Amol believed that because of the division of votes between his father and Avinash, Maruti had won the election. He was also aggrieved by a notice issued by the Pimpri­ Chinchwad Corporation in respect of demolition of a cattle shed. Amol suspected that the notice was issued at the instance of Avinash. Therefore, Amol held a strong grudge against Avinash and entered into a conspiracy with other accused to commit Avinash's murder, the prosecution said.

Submissions and Judgment

APP SV Sonawane argued on behalf of the State. She contended that the accused were history­sheeters and Amol was the leader of the organised crime syndicate which had created tension in the area by committing various serious offences. It was also contended that there were a number of charge sheets filed in the concerned courts of which the cognizance was taken.

Special MCOC Judge relied on the judgment of the high court in the case of Farman Imran Shah & Karu Vs. State of Maharashtra, and went on to observe that the court had noted – "accused could not insist for discharge unless objection regarding defects in such approval or sanction related to inherent lack of jurisdiction of authority granting it". Based on these observations, the discharge application was rejected.

Senior counsel PK Dhakephalkar appeared on behalf of the appellant-accused and submitted that the approach of the judge was erroneous. It was his duty to consider the entire material before him and reach a prima facie satisfaction regarding the applicability of the provisions of the MCOC Act. The learned judge completely misconstrued the case of Farman Shah (supra) and therefore, there was miscarriage of justice, Dhakephalkar said.

After examining submissions from both parties, the court concluded that the Special Judge had misconstrued the Farman Shah case: "Special Judge has completely misconstrued the Judgment of this Court in the case of Farman Shah (supra). The said Judgment itself shows that the Division Bench of this Court had considered the material against the accused on merits while deciding whether the accused should be discharged from the offences under the MCOC Act."

The court observed further: "The question of framing of charges arises only after cognizance is taken by the Special Court. Importantly, framing of the charge is a distinct and subsequent step after taking cognizance of the offence under the MCOC Act. Taking cognizance under the MCOC Act does not automatically enable the Special Court to frame charges against the accused under the MCOC Act. For that purpose, the Special Court has to apply all the settled legal principles in framing charges against the accused. In the instant case before us, this exercise was not undertaken by the learned Special Judge."

Thus, the court allowed the appeal and directed the Special Judge under the MCOC Act to consider afresh the discharge applications filed by the accused.

Read the Judgment Here