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1. These two criminal appeals have been preferred bythe accused challenging the order of the Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as "the MCOC Act"). The order has been passed on an application filed by the accused for discharging them from MCOC Special Case No. 4 of 2004 arising out of Powai Police Station C.R. No. 77 of 2004. The appellants have prayed that the charges levelled against them under the MCOC Act should be dropped. Criminal Appeal No. 202 of 2006 has been filed by the accused Nos. 1, 2, 4, 6, 7, 8 and 11. Criminal Appeal No. 980 of 2006 has been filed by the accused No. 1.

2. One Navinchandra Dube and Hausila Upadhyaya, claimed to be members of Vishwa Hindu Parishad. When they were proceeding home, they were allegedly killed by the accused. The complainant who was with them, lodged the F.I.R. and a crime was registered under the C.R. No. 77 of 2004 for offences punishable under Sections 143 to 149, 302 and 34 of the Indian Penal Code read with Sections 4 and 25 of the Arms Act. The accused were arrested on different dates and remanded to judicial custody which was extended from time to time. The provisions of the MCOC Act were applied and the accused were produced before the Special Court under the MCOC Act on 23.5.2005.

4. Undisputedly, the accused have been charged for offences punishable under the aforesaid sections. The sanction, necessary for trying them under the MCOC Act, was obtained from the Commissioner of Police, Brihanmumbai on 28.7.2004 under Section 23(2) of the MCOC Act. This sanction was accorded since the Commissioner of Police was convinced that the accused were members of an organised crime syndicate, namely, the Sherbahadur Khan gang. According to the Commissioner, there was sufficient evidence to prove continuous unlawful activities of this organised crime syndicate and that more than one chargesheet had beenfiled before competent Courts within the last 10 years against the accused and the Court had taken cognizance of these chargesheets.

5. The learned counsel appearing for the accused submitted that there was no evidence at all on record that the accused were members of the Sherbahadur Khan gang, Sherbahadur Khan being accused No. 1 in the present case. It was submitted that there were no chargesheets pending against Sherbahadur Khan himself except for the present chargesheet and C.R. No. 449 of 2000 from Sakinaka Police Station where he has been charged alongwith accused Nos. 2 and 8 under Sections 323 and 324 read with 34 of the Indian Penal Code. The learned counsel points out that accused No. 6 had more than two chargesheets filed against him and he was involved in cases relating to some of the offences punishable under the Penal Code. It was further submitted that accused No. 11 who is the wife of accused No. 1 has no case pending against her and, therefore, the prosecution against her and others under the MCOC Act as members of the gang of Sherbahadur Khan under the MCOC Act, was unsustainable. According to the learned counsel, although some of the accused have been charged for offences punishable for more than three years in more than one case, none of these cases would give anypecuniary advantage to the accused. None of these offences had been committed with the object of gaining pecuniary benefits or undue economic or other advantage for the accused. It is submitted that the provisions of law under which the accused are prosecuted, namely, Sections 323, 324, 325, 326 and 34 do not give any pecuniary or other advantage to the alleged perpetrator of those offences. The learned counsel urges that, there is no basis for the police to draw the conclusion that the accused were members of an organised crime syndicate. The accused were merely members of a family of which Sherbahadur Khan i.e. accused No. 1 was the oldest member. Some of the accused are his sons, while others are his nephews. Accused No. 11 is his wife. This, according to the learned counsel would not constitute an organised crime syndicate. Reliance was placed on the judgment of the Supreme Court in the case of Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra and Anr. reported in 2005 ALL MR (Cri) 1538 (S.C.) and the Division Bench judgment of this Court delivered in a group of writ petitions, the first beingCri. W.P.No. 689 of 2005 between Altaf Ismail Sheikh and Ors. v. The State of Maharashtra and ors. as well asState of Maharashtra v. Bharat Baburao Gavhane and ors. reported in 2006 All MR (Cri) 2895, to support the submissions made by the learned counsel for the accused.