Judgment:
Oral Judgment: (A.S. Gadkari J.)
1. This is an Appeal under Section 12 of the Maharashtra Control of Organized Crime Act 1999. The Appellant is an accused in MCOC Special Case No.18 of 2012. The Appellant by the present Appeal has challenged the charge framed against him below Exhibit 11 under Section 397 read with 34, 400 read with 34 of the Indian Penal Code and under Section 25 read with 3 of the Arms Act 1959 and under Section 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (œMCOC Act?).
2. Brief facts giving rise to the present Appeal can be stated in nutshell as under:
i) A crime bearing No.151 of 2009 under Sections 397, read with 34 of the Indian Penal Code and under Sections 3, 25 and 27 of the Arms Act was registered on 24 April 2009 at Dahisar Police Station by Suresh, the complainant against initially two unknown persons. That the complainant was carrying gold bangles in a green cotton bag when two unidentified accused persons fired three rounds from a fire arm thereby causing grievous hurt to the complainant and robbed him of the valuables including the gold bangles. It further appears that the investigation of the said crime was subsequently transferred to DCB, CID, Mumbai.
ii) That after receipt of the papers pertaining to the said investigation, DCB, CID, Mumbai renumbered the said crime as CR No.68 of 2009. It is revealed during the course of investigation by the Crime Branch, Mumbai that the organized crime syndicate headed by Mohammad Ayub Aalimuddin Shaikh @ Ayub Chikna was involved in the said crime and hence, a proposal was submitted by the Inspector of Police, Unit -12, DCB, CID, Mumbai for invoking the provisions of the MCOC Act to the said CR No.68 of 2009 (originally registered at Dahisar Police Station as CR No.151 of 2009). The competent authority i.e. the Joint Commissioner of Police, (Crime), Mumbai after recording his subjective satisfaction granted prior approval as contemplated under Section 23(1)((a) of the MCOC Act by its order dated 17 July 2009, for invoking the provisions of the MCOC Act and to investigate the said crime.
iii) It further appears from the record that after completion of the investigation, the Assistant Commissioner of Police, DCB, CID submitted a report dated 29 July 2009 to the competent authority i.e. the Commissioner of Police, Mumbai for according sanction under Section 23(2) of the MCOC Act. That the competent authority i.e. the Commissioner of Police, Mumbai by its order dated 3 August 2009 accorded sanction under Section 23(2) of the MCOC Act for taking cognizance by the concerned Special Court constituted for drawing the offence against seven accused persons and the absconding accused person viz. Khansab.
iv) That after submitting the charge-sheet before the Hon'ble Special Court under the MCOC Act for Greater Mumbai, the same was numbered as MCOC Special Case No.7 of 2009. In the said special case in all seven accused persons were tried under the various provisions of the Indian Penal Code and under the provisions of the MCOC Act. The Learned Trial Court by its judgment and order dated 19 May 2011 was pleased to acquit of the seven accused persons under Section 3(1)(ii), 3(2) and 3(4) of the MCOC ACT. The Learned Trial Court by its judgment and order dated 19 May 2011 was further pleased to acquit accused Nos.1 to 5 and 7 from the offences punishable under the various Sections of the Indian Penal Code. The Learned Trial Code, however, was pleased to convict original accused No.6 “ Aaftab Javed Siddhiqui @ Altaf Ashfaq Siddhiqui @ Aasif under Section 394 read with 397 of the Indian Penal Code and under Section 3/25 and 5 read with 27(1) of the Arms Act and sentenced him to suffer rigorous imprisonment for a period of eight years and to pay a fine of Rs.1,000/-.
3. It further appears from the record that the present Appellant was arrested on 21 July 2012. The present Appellant was absconding and who had been referred to as Khansab in the sanctioned order dated 3 August 2009 as afore stated. The record further reveals that the present Appellant after his arrest was put in test identification parade wherein the complainant has identified him as 'the firer' along with the convicted accused No.6.
4. It is to be noted here that while granting prior approval dated 17 July 2009, the competent authority had specifically granted prior approval under Section 23(1)(a) of the MCOC Act for invoking the provisions of the MCOC Act, also against the then wanted accused viz. Khansab along with other seven accused persons. After the arrest of the Appellant and after completion of the investigation with respect to the Appellant in the said CR No.68 of 2009 registered with DCB, CID, the concerned Investigating Officer submitted his report dated 17 September 2012 before the competent authority i.e. the Commissioner of Police, Mumbai for according sanction under Section 23(2) of the MCOC Act.
5. The record further reveals that by an order dated 27 September 2012, the competent authority i.e. the Commissioner of Police, Mumbai accorded sanction under Section 23(2) of the MCOC Act against the present Appellant i.e. Anwar Elahi s/o Fazal Elahi Khan @ Khansab @ Khan for taking cognizance by the Special Court constituted for trying the offences under the MCOC Act.
6. The Learned Trial Court on 16 January 2014 has framed charge below Exhibit 11 under Section 397 read with 34, 400 read with 34 of the Indian Penal Code and under Section 25 read with Section 3 of the Arms Act and under Section 3(1)(ii), 3(2) and 3(4) of the MCOC Act 1999. The said charge dated 16 January 2014 is at page No.17 of the present compilation.
7. Heard learned counsel appearing for the Appellant and the learned Additional Public Prosecutor at length and also scrutinized the entire record produced before us. Learned counsel for the Appellant has submitted before us that all the seven accused persons from same CR No.68 of 2009, who faced trial in MCOC Special Case No.7 of 2009 have been acquitted by the Learned Trial Court from the charges under the provisions of the MCOC Act and only original accused No.6 i.e. Aaftab Javed Siddhiqui @ Altaf Ashfaq Siddhiqui @ Aasif has been convicted under the provisions of the Indian Penal Code only and therefore the present Appellant now at this belated stage cannot be charged with, under the provisions of the MCOC Act. He has further submitted that the judgment of acquittal dated 19 May 2011 passed by the Special Court itself, ought to have been taken into consideration by the Learned Trial Court while framing the charge against the Appellant below Exhibit 11 and as the accused persons have been already acquitted under the provisions of the MCOC Act, the charge under the provisions of the MCOC Act cannot be framed against the Appellant at all. He further urged that the present Appeal may be allowed. The learned Additional Public Prosecutor on the other hand supported the framing of charge below Exhibit 11 and prayed that the present Appeal be dismissed.
8. At the outset, we may state and observe that the conviction and acquittal of the other seven accused persons in MCOC Special Case No.7 of 2009 arising out of the same CR i.e. CR No.68 of 2009 registered with DCB, CID, Mumbai will not have any bearing on the framing of charge against the present Appellant for the simple reason that when the other accused persons were charged and subsequently tried in MCOC Special Case No.7 of 2009, the Appellant was absconding. The Appellant was arrested only on 21 July 2012 i.e. much after the judgment and order dated 19 May 2011 passed by the MCOC Special Court in Special case No.7 of 2009. It is pertinent to note here that the seven accused persons in MCOC Special case No.7 of 2009 were also charged under the provisions of the Indian Penal Code and also under the provisions of the MCOC Act and after a full fledged trial they came to be acquitted from the charges under the MCOC Act. As stated herein above, original accused No.6 has been convicted under the provisions of the Indian penal Code.
9. We have scrutinized the evidence available against the Appellant on record and we are of the firm opinion that the evidence available on record against the Appellant is more than sufficient to frame charge under Section 228 of the Criminal Procedure Code and to proceed against him in the matter. It is clear from the record that prior to framing of the charge below Exhibit 11 in the present case, the Appellant did not prefer an application for discharge under Section 227 of the Criminal Procedure Code and the charge has now been framed. We are therefore of the firm opinion that the Learned Trial Court has correctly framed the charge under the various provisions of law dated 16 January 2014 below Exhibit 11 and we do not find any legal infirmity in the same. Accordingly, we dismiss the present Appeal with no order as to costs.