The main legal point established in the judgment is that for an activity to constitute an organized crime under the MCOC Act, it must meet the requirements of 'continuing unlawful activity' as defined under the Act, and the court cannot go into the question of the validity of the action of filing of the previous chargesheets.

(Per ABHAY.M.THIPSAY, J)

1. These two Appeals can be conveniently disposed of by this common order as they take exception to the same order i.e. the order dated 7th October 2011 passed by the Judge of the Special Court under the Maharashtra Control of Organized Crime Act (hereinafter referred to as “MCOC Act”) for Greater Bombay in MCOC Special Case No.9 of 2011 which was pending before him. The respondents herein are the accused in the said case.

2. The respondent no.3 had filed an application (Exhibit-21) before the Trial Court praying that the proceedings under the MCOC Act be dropped, and the case be sent for trial to the Court of Sessions. It was the contention of the respondent no.3 that since no offence punishable under the provisions of the MCOC Act was disclosed from the police report and accompanying documents, the said Special Court had no jurisdiction to try the offence in question. The learned Judge after hearing the parties, came to the conclusion that the offence allegedly committed by the respondents, as disclosed from the chargesheet, was not falling 'within the purview of the provisions of the MCOC Act' and that, therefore, he had no jurisdiction to try the said offence/offences. He, therefore, by the impugned order, directed the case to be transferred to the Court of Sessions for Greater Bombay, as empowered by section 11 of the MCOC Act. Being aggrieved thereby, these two appeals have been filed.

3. Criminal Appeal No.722 of 2012 has been filed by the State of Maharashtra while Criminal Appeal No.1325 of 2011 has been filed by one Sandhya Prafulla Patil who is the wife of the deceased Prafulla Patil, claiming to be a victim of the alleged offence/offences.

4. We have heard Mrs.M.M.Deshmukh, learned APP for the State in support of the Appeal filed by the State. We have also heard Mr.Amit Desai, learned Senior Advocate who appeared for the wife of the deceased. We have also heard Mr.Nilesh Oza, Advocate for respondent nos.1 and 2, Mr.H.H. Ponda for respondent no.3 and Mr.A.P. Mundargi, learned Senior Advocate for respondent no.4.

5. A reference to the facts of the case as appearing from the police report and the accompanying documents would be necessary at this stage. In brief, the prosecution case is that one Prafulla K. Patil who was a leader of Congress I party, a former Mayor, and President of an Education Trust and who as such, was well known as a social worker in Thane District, was having inimical relations with the respondents. The respondents attempt to grab government land was obstructed by the said Prafulla Patil and therefore, the respondents were having grudge against him. That, on 15th March 2010, the respondents had trespassed upon the property belonging to the educational trust run by Prafulla Patil and had damaged the property situated therein. That, on 8th May 2010, Prafulla Patil had gone to inspect the newly constructed building of the said educational institution. At that time, he was fired at by some unknown persons, and was also assaulted by deadly weapons like choppers causing serious injuries to him. He was removed to the hospital, but was declared dead. Amol Patil, brother of Prafulla Patil, lodged a report with Navghar Police Station, alleging commission of offences punishable under section 302 of the IPC, 120-B of the IPC read with section 34 of the IPC, and an offence punishable under the Arms Act; and in this report, he expressed suspicion against the respondent no.3 – Vishal Mhatre and others. In the course of investigation, the involvement of the respondents was revealed and they were arrested on different dates. The Investigating Agency came to the conclusion that the offence in question was an organized crime as defined under section 2(e) of the MCOC Act. After obtaining prior approval under section 23(1) of the MCOC Act, a case in respect of offences punishable under sections 3(1) (i), 3(2) and 3(4) of the MCOC Act was registered, and further investigation was carried out