IMPORTANT POINT
The M.C.O.C. Act can be applied to individuals as members of an organized crime syndicate based on their involvement in organized crime, regardless of their individual charge history.

ORAL JUDGMENT

A. S. Gadkari, J. - Appellants, Original accused Nos.2 & 4 respectively, have filed present Appeal under Section 12 of The Maharashtra Control of Organised Crime Act, 1999 (for short, 'M.C.O.C. Act'), impugning the Order dated 29th December 2022 passed below Exh.6 in Special Case No. 431 of 2021 by the learned Special Judge, City Civil & Sessions Court, Greater Bombay, rejecting the said application for dropping the charges under M.C.O.C. Act and for transferring the said case to the Court of Additional Sessions Judge, as contemplated under Section 11 of the M.C.O.C. Act.

2. Heard Mr. Sejpal, learned Advocate for Appellants and Ms. Takalkar, learned A.PP for Respondent-State. Perused entire record and the Affidavit dated 12th April 2023 filed by Mr. Nitin K. Jadhav, Assistant Commissioner of Police, Deonar Division, Mumbai.

3. At the outset, it is to be noted here that, Mr. Sejpal, learned Advocate for the Appellants submitted that, he is challenging the application of provisions of M.C.O.C. Act to the present crime and not the provisions of other Acts applied to it. He submitted that, after dropping of the provisions of the M.C.O.C. Act from the present crime, the case of the Appellants will have to be transferred to a Court having jurisdiction under the Cr.PC. as per Section 11 of M.C.O.C. Act.

3.1. Mr. Sejpal, learned Advocate for Appellants submitted that, in the present crime, the provisions of M.C.O.C. Act have been wrongly applied by the prosecution at least qua the Appellants. That, the Appellants did not actively participate in commission of the said crime. That, the medical report of the first informant indicates that, he suffered only blunt trauma and therefore Section 307 of the Indian Penal Code (I.PC.) has been wrongly applied to the present crime. He submitted that, the Appellants are falsely implicated in the present crime due to business rivalry between the accused No.1 Shravan @ Aawan J. Chavan and the father of the informant. There is no pecuniary gain from the crime, as per as the Appellants are concerned. That, the Appellants are not accused in the other two crimes registered against the head of Organised Crime Syndicate i.e. accused No.1 Shravan @ Aawan and therefore the basic ingredients of M.C.O.C. Act are not complied with against the Appellants. There is no material to indicate that, the Appellants were the members of the said crime syndicate headed by Shravan @ Aawan. That, there is no role at all prescribed to the Appellant No.2. That, no Test Identification Parade (T.I.P) is conducted by the prosecution to establish the identity of the Appellant No.2, to contend that he was present at the scene of offence. That, there is no material for application of the provisions of the M.C.O.C. Act against the Applicants and therefore the said provisions may be dropped from the present case. In support of his contentions he relied on three decisions of this Court namely, (i) State of Maharashtra Vs. Bharat Baburao Gavhane & Ors., reported in 2006 ALL MR (Cri.) 2895, (ii) Sherbahadur Akram Khan & Ors. Vs. State of Maharashtra, reported in 2007 ALL MR (Cri.) 1 and (iii) State of Maharashtra Vs. Jagan Gagansingh Nepali @ Jagya & Anr., reported in 2011 ALL MR (Cri.) 2961. He submitted that, the trial Court has committed error in not appreciating the aforenoted points and therefore the Appeal may be allowed.

4. Per contra, learned A.PP opposed the Appeal and submitted that, there is sufficient material available on record to show the active involvement of the Appellants in the present crime along with their gang leader i.e. Accused No.1 Shravan @ Aawan. She submitted that, the present crime is committed by an Organised Crime Syndicate for pecuniary gains and therefore the Competent Authority has rightly accorded sanction to apply the provisions of M.C.O.C. Act and to prosecute the Appellants and co-accused under the said Act. She submitted that, the trial Court has rightly considered the material available