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2019 Supreme(Bom) 773
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE, R.G. AVACHAT, JJ.
TANAJI - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No. 100, 101 of 2018, 170, 37, 146, 35, 36 of 2019
Decided on : 02-05-2019
Advocate Appeared:
G.J. Kore, Adv., S.A. Gaikwad, Adv., S.B. Joshi, Adv.
Headnote:
Maharashtra Control of Organised Crime Act, 1999 – Sections 7, 11 – Indian Penal Code, 1860 – Sections 396, 397, 364, 411, 412 and 201, 107, 108 – Discharge Applications – Appeals are directed against the judgments and orders passed by the Special Court constituted for trial of the offences under the Maharashtra Control of Organised Crime Act, 1999 rejecting discharge applications moved by the appellants herein – The appellants are some of the accused in Special (M.C.O.C.) Case – Held, Upon perusal of the confessional statements available on record, it is found that there is non- compliance of this Rule except in case of the confessional statement of accused - Govind @ Rama Pawar. – A confessional statement, sans memorandum under Rule 3(6), is not admissible in evidence. [Bharatbhai Vs. State of Gujarat, (2003) AllMR(Cri) 164 (SC)] and [Mohammad Iqbal Shaikh Vs. State of Maharashtra, (2007) AllMR(Cri) 631]. – It would, however, be a question of appreciation of the evidence during trial of the case. – A contemporaneous record about satisfaction of recording officer after writing of confession that confession was voluntarily made may cure the defect. – Court have, therefore, looked into the confessional statements at this stage. – The offence dates back to April, 2014. – The offence is serious one. Without making any observation about the evidentiary value of the material relied upon, suffice it to say that it is necessary to direct the Special Court to frame Charge and conclude trial within a period of one year. – Special Court may simultaneously consider bail applications, if any, that may be filed by the appellants or any one of them or even by the co- accused, presently not before this Court. – Since court, prima facie, found it to be a case of organised crime, the case in respect of one and all the accused connected with the crime, need to be tried by the Special Court only. – This observation is required to be made because, in our opinion, accused - Sham s/o. Balbhim Sachane can only be charged with the offence under Section 411 of I.P.C. or any other related offence under the I.P.C. – His case cannot be separated and sent to the regular Court for trial. Law does not expect more than one simultaneous trial based on the same evidence against different accused. Section 7(1) of the M.C.O.C. Act permits the Special Court to try any other offence, with which the accused may, under the I.P.C., be charged with at the same trial, if the offence is connected with such other offence, when trying any offence punishable under this Act. – Section 11 of M.C.O.C. Act states - "Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence." – Terminology of Section 11 undoubtedly indicates that, if the Special Court finds that it is not an offence punishable under any of the Sections of M.C.O.C. Act, but it makes out an offence under Indian Penal Code or any other Statute, then only it shall transfer the case for trial of such offence to any Court having jurisdiction under the Code to try the same. – When court have prima facie found it to be an organised crime, the Special Court has jurisdiction to try the same, the persons accused of different offences committed in the course of same transaction need to be charged and tried together. – Section 7 of the M.C.O.C. Act gives the Special Court jurisdiction to try persons accused of different offences committed in the course of same transaction. – Criminal Appeals Partly Allowed
R. G. AVACHAT, J.
1. Heard.
2. Admit. Learned APP waives notice on behalf of the respondents. With the consent of learned Counsel for the parties, appeals are heard finally.
3. These appeals are directed against the judgments and orders passed by the Special Court constituted for trial of the offences under the Maharashtra Control of Organised Crime Act, 1999 (M.C.O.C. Act), rejecting discharge applications moved by the appellants herein. The appellants are some of the accused in Special (M.C.O.C.) Case No.4 of 2014.
Since common questions of law and facts arise, the appeals were heard together and are being decided by this common judgment.
4. Brief facts, giving rise to these appeals, are as follows :-
Dinesh Kumar (first informant) hails from village Manjani, Tq.Atur, Dist.Selum (State of Tamil Nadu). He is a driver by profession. He was employed to drive truck, bearing registration No.TN-34-E-8071. One Punrasu Kannan (deceased) was the co-driver. In the last week of April, 2014, the first informant and deceased Punrasu were carrying 324 bags of Sago, worth Rs.10,00,000/-, from Selum to Bhilwada (Rajasthan). On 30.04.2014, they were passing through Maharashtra. By 09.00 p.m. on 30.04.2014, the first informant and Punrasu took dinner at Solapur and started for onward journey. It was about 02.00 a.m. on 01.05.2014 they were travelling along Tuljapur - Osmanabad road. Near village Yedshi, one Scorpio vehicle overtook the truck and blocked its way. Four persons alighted from Scorpio vehicle. They entered the truck's cabin; two from driver's side and others from cleaner's. Two of them were armed with wooden rods. The FIR contained their description. Two of them started assaulting the first informant and other two dealt with Punrasu. They tied their hands with a Lungi. One of them took control of the truck and proceeded towards Kallam. After proceeding for about 10-12 kms., they robbed two cell-phones of the first informant and Punrasu, besides Rs.15,000/-. Then, the four made the duo to get down from the truck and board Scorpio vehicle and proceeded towards Yermala. The first informant and Punrasu were severely beaten up and then dropped in a dry well behind Yedeshwari temple. The first informant regained consciousness on the next day by 12.00 noon. Punrasu was not around to be seen. The first informant came up on the road and approached Police Station, Yermala and lodged report of the incident.
5. Crime came to be registered for the offences punishable under Sections 396, 397, 364, 412 and 201 of the Indian Penal Code ("I.P.C.", for short). On the next day, the dead body of Punrasu was found near a pond behind Yedeshwari temple.
6. On completion of investigation of the crime registered under Indian Penal Code, charge-sheet was filed. During further investigation, it was found that the offence was committed by an organised crime syndicate headed by one Raja Pawar. Prior approval for registration of the offences under the M.C.O.C. Act was, therefore, granted by the competent authority. The Deputy Superintendent of Police took up the investigation. Some of the accused gave confessional statements. It was revealed that Punrasu was murdered. Some of the stolen Sago bags were sold. On completion of investigation and after obtaining sanction for prosecution, charge-sheet for the offences punishable under the M.C.O.C. Act, came to be submitted. The Special Court took cognizance of the offence.
7. The appellants herein moved the applications for discharge. The Special Court rejected the applications by separate orders.
8. Mr.Kore and Mr.Gaikwad, learned Counsel appearing for the appellants, would submit (averred in the appeal memos) that as the FIR was filed against five unknown persons only, how come involvement of eighteen persons in the offences in question. The appellants were arrested on suspicion. A co-accused, who was similarly situated with most of the appellants herein, has been discharged from the offence under M.C.O.C. Act. Hi
