The court emphasized the importance of deciding pending applications for quashing of charges before proceeding to frame the charges.

ORDER

Milind N, Jadhav, J. - 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 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 was disposed of. The prosecution has relied upon the decision of the Supreme Court in the case of Radial Bhanji Vs. Stae of Maharashtra, AIR 1979 SC 94 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 Maharashtra, 2015 ALL MR (Cri) 1572 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