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Fakkir Mohamed Ibrahim Kalifulla, J.

Leave granted in SLP (Crl.) No.8132 of 2010 and SLP (Crl.) Nos.9370-71 of 2011.

As in all the above appeals the issue that arises for consideration is the applicability of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter called "MCOCA"), all these appeals are disposed of by this common judgment.

Criminal Appeal Nos.1969-70/2010 have been preferred by Lt. Col. Prasad Shrikant Purohit challenging the judgment in Criminal Appeal No.867 of 2009 which was disposed of by the common order passed by the Division Bench of the Bombay High Court in Criminal Appeal Nos.866, 867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the said order the Division Bench reversed the order of the Special Judge dated 31.7.2009 passed in Special Case No.1 of 2009 wherein he held that the charges against the accused in C.R.No.18 of 2008 registered with Anti-Terrorist Squad, Mumbai (hereinafter referred to as "ATS") under the MCOCA do not survive and were discharged from the case. The Special Court by invoking Section 11 of the MCOCA directed the case to be tried by the regular Court. The Division Bench while allowing the Criminal Appeal Nos.866 to 869 of 2009 set aside the order of the Special Judge 31.07.2009 in Special Case No.1 of 2009 as well as orders passed in Bail Application Nos.40 to 42 of 2008, restored those applications to the file in MCOCA Special Case No. 01 of 2009 for being decided on merits by Special Judge himself. In Criminal Appeal No.1024 of 2009 while allowing the said appeal, Bail Application No.41 of 2008 was directed to be restored in MCOCA Special Case No. 01 of 2009 for being heard and decided on merits.

In the above stated background, Mr. U.R. Lalit, learned senior counsel made as many as five submissions to contend that MCOCA was not attracted as against the appellants and, therefore, the orders impugned are liable to be set aside.

Mr. U.R. Lalit, learned senior counsel prefaced his submissions by stating that appellants were all proceeded against based on the footing that they were members of an organization called "Abhinav Bharat" which was registered in 2007 and that they were now being prosecuted under the provisions of MCOCA. The learned senior counsel submitted that in order to prosecute the appellants under the MCOCA, the definition of "continuing unlawful activity", "organized crime" and "organized crime syndicate" as defined under Section 2(1)(d),(e) and (f) of MCOCA should be satisfied. The learned senior counsel while referring to the above definitions submitted that the prosecuting agency were relying upon the Parbhani case and Jalna case which occurred in 2003 and 2004 and which were organized by RSS and Bajrang Dal with which neither Abhinav Bharat nor the appellants were in anyway connected and, therefore, the definition of "continuing unlawful activity" or "organized crime" as well as "organized crime syndicate" was not fully established.

We are now pitted with the question as to whether the taking of cognizance of the offence by the Competent Court under Section 2(1)(d) of MCOCA is referable only to the Court of Sessions or even to a Magistrate of first class under Section 190. In this context, when we read Section 2(1)(d) along with 190 and 193 in the absence of any specific stipulation either under Section 2(1)(d) of MCOCA or any other provision under the said Act in the ordinary course of interpretation it can be validly stated that on fulfillment of Section 190, when a Judicial Magistrate of first class or an empowered second class Magistrate, takes cognizance of any offence that would fulfill the requirement of Section 2(1)(d) relating to competent court. We have noted under MCOCA that beyond what has been stipulated under Section 2(1)(d) there is no other provision dealing with the matter relating to a Competent Court for the purpose of taking cognizance. When under the provisions of Cr.P.C., Judicial Magistrate of first class has been empowered to take cognizance of any offence based on a Police Report, we fail to see any hurdle to state that on taking cognizance in that manner, the said court should be held to be the competent court for satisfying the requirement of Section 2(1)(d) of MCOCA. In this respect, we will have to bear in mind that the implication of MCOCA would come into play only after the third occurrence takes place and only after that it will have to be seen whether on the earlier two such occasions involvement of someone jointly or singly, either as a member of an 'organized crime syndicate' or on its behalf indulged in a crime in respect of which a charge-sheet has already been filed before the Competent Court which Court had taken cognizance of such offence.

(emphasis added) A reading of paragraph 31 shows that in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organized crime, if a nexus either with an accused who is a member of an 'organized crime syndicate' or with the offence in the nature of an 'organized crime' is established that would attract the invocation of Section 3(2) of MCOCA. Therefore, even if one may not have any direct role to play relating to the commission of an 'organized crime', but when the nexus of such person with an accused who is a member of the 'organized crime syndicate' or such nexus is related to the offence in the nature of 'organized crime' is established by showing his involvement with the accused or the offence in the nature of such 'organized crime', that by itself would attract the provisions of MCOCA. The said statement of law by this Court, therefore, makes the position clear as to in what circumstances MCOCA can be applied in respect of a person depending upon his involvement in an organized crime in the manner set out in the said paragraph. In paragraphs 36 and 37, it was made further clear that such an analysis to be made to ascertain the invocation of MCOCA against a person need not necessarily go to the extent for holding a person guilty of such offence and that even a finding to that extent need not be recorded. But such findings have to be necessarily recorded for the purpose of arriving at an objective finding on the basis of materials on record only for the limited purpose of grant of bail and not for any other purpose. Such a requirement is, therefore, imminent under Section 21(4)(b) of MCOCA.