High Court of Bombay

Somsay Dalasay Madvi and Ors. Vs. National Investigating Agency and Ors. (Neutral Citation: 2024:BHC-AS:22882-DB)

MANU/MH/3469/2024

11.06.2024

Criminal

Stringent the provisions of an Act are, the stricter is its compliance

Appeals are filed under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 impugning the Orders passed by the trial Court rejecting their Applications for dropping the charges/provisions of the M.C.O.C. Act from the said case.

Appellants are being prosecuted for the offences punishable under Sections 302, 353, 427, 120-B, 121, 121A, 147, 148 and 149 of the Indian Penal Code, 1860 along with Sections 3, 4 and 5 of the Explosive Substances Act, Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 and Sections 3(1)(i)(ii), 3(2) and 3(4) of the M.C.O.C. Act.

Hon'ble Supreme Court in the case of Mahipal Singh Vs. C.B.I. and Anr., on the date of lodgment of the crime to which the provisions of M.C.O.C. Act are applied, the cognizance of both the cases must have been taken by the trial Court, otherwise the prior approval granted by the concerned authority is bad in law and the accused cannot be prosecuted for the offence under the provisions of the said Act.

Submission of charge-sheet in more than one case and taking cognizance in such number of cases are ingredients of the offence under Section 3 of the M.C.O.C. Act and are to be satisfied on the date on which crime was committed or came to be known. It is the settled position of law that, stringent the provisions of an Act are, the stricter is its compliance.

In the present case, the offence in question was committed on 1st May, 2019 and it is registered on 2nd May, 2019. In Sessions Case, the concerned Court took cognizance on 30th May, 2019 i.e. much after the date of committal of crime and/or its registration on 2nd May, 2019. Thus, on the date of commission of the offence and/or on the date of its registration in Sessions case No.99 of 2019, the concerned Court had not taken cognizance and therefore it legally did not comply with the requirement of Section 2(d) of the M.C.O.C. Act.

Though the Competent Authority in the Order of Prior Approval under Section 23(1)(a) of the M.C.O.C. Act has stated therein that, more than 23 cases have been registered against the principal accused. It is thus clear that, the principle of law enunciated by the Hon'ble Supreme Court in the case of Mahipal Singh has not been followed by the Competent Authority. Therefore, present Court have no other option than to set aside the impugned prior approval dated 7th February, 2020 and to hold that, the Appellants cannot be prosecuted for the offence under Section 3 of the M.C.O.C. Act.

Perusal of impugned Orders indicates that, the trial Court has not taken into consideration the aforestated aspects and has considered the Applications of the Appellants on merits i.e. dealing with the evidence against the Appellants. The impugned Orders passed are set aside. Appeals allowed.

Tags : Charges Prosecution Prior approval

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