2023:BHC-AS:23631-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 579 OF 2023 The State of Maharashtra ...Appellant Versus Shiva Rishipal Tusambad @ Tusamad ...Respondent Mr. Raja Thakare, Senior Advocate a/w Mr. Siddharth Jagushte & Ms.

P.P.Shinde, for the Appellant-State.

Mr. Veerdhawal Deshmukh, Appointed Advocate for the Respondent.

CORAM : REVATI MOHITE DERE &

GAURI GODSE, JJ.

DATE : 17 th AUGUST, 2023 ORDER (PER REVATI MOHITE DERE J.) :

1. Heard learned Counsel for the parties.

2. Rule. Rule is made returnable forthwith with the consent of the parties and is taken up for final disposal.

3. By this appeal, preferred by the State of Maharashtra, the appellant seeks the following reliefs;

“(b)Record and proceedings of above mentioned Remand Report Dated 25.04.2023 passed by the Learned Special Judge (MCOC), Thane in respect of the Respondent/Orig.Accused in Remand Report Dated 25.04.2023 in C.R.No.I 61/2023, registered with Dombivali Police Station, Dist.:Thane, be called for;

(c) the impugned Order dated 25.04.2023 passed by the Learned Special Judge (MCOC), Thane in respect of the Respondent/Orig. Accused in Remand Report Dated 25.04.2023 in C.R.No. I 61/2023, registered with Dombivali Police Station, Dist. : Thane be quashed and set aside and the police custody of the Respondent / accused may be granted for interrogation purpose to the investigating agency forthwith.”

4. Mr. Thakare, learned Senior Counsel appearing for the appellant – State states that at the stage of remand, no such order could have been passed by the learned Special Judge, MCOC, Thane, discharging the respondent from the offences punishable under the MCOC Act. He submits that the said order, therefore, is contrary to Section 11 of the MCOC Act. He submits that in this view of the matter, the impugned order dated 25th April, 2023 passed by the learned Special Judge (MCOC) Thane, to the extent that it observes /

holds that “no case is made out as against Shiva Rishipal Tusambad @

Tusamad for the alleged offences under MCOC Act and thus, he needs to be discharged from the said offences” ought to be quashed and set aside.

5. Perused the papers. On 12th May, 2023, this Court (Coram: Amit Borkar & Kamal Khata, JJ.) passed the following order;

“1. Issue notice to respondent No.1 returnable on 19th June, 2023.

2. Perusal of the impugned order dated 25th April, 2023, it appears that the learned Special Judge based on validity of approval has recorded a finding of fact that the approval is granted based on single crime registered in the year 2022. According to the appellant there are four offences registered against Respondent No.1 in the year 2022 and 2023. It appears that the learned Special Judge has virtually discharged the respondent No.1, at the stage of remand. Learned APP has placed on record the chart indicating involvement of appellant in atleast four offences. The four offences registered against the appellant are as under :-

3. Therefore, prima facie, it appears that the impugned order is based on factually incorrect reason. Hence, the appellant has made out the case for grant of ad-interim relief.

4. Till 19th June, 2023, there shall be ad-interim relief in terms of prayer clause (d).

5. In view of the aforesaid order, the Investigating Agency is permitted to apply for the Police custody of respondent No.1.”

6. In our Order dated 21st July, 2023, w