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1. This is an Appeal under Section 12 of The Maharashtra Control of Organised Crimes Act, 1999 (hereinafter referred to as the 'MCOC Act') preferred by the Appellants who are the original accused nos.1 to 6 in MCOC Special Case No.5 of 2016 pending before the learned Special Judge (under the MCOC Act), Pune. Vide his order dated 16/03/2017 passed below Exh.16 in the said case, the learned Judge rejected the application preferred by the present Appellants under Section 227 of the Cr.P.C. for their discharge. The application URS 2 of 12 3 APEAL 376-17 Judgment.odt for discharge was limited for their discharge from the offences punishable under Sections 3(1)(i), 3(2) and 3(4) of the MCOC Act. The said order is impugned before us in the present Appeal.

4. On 16/03/2017, the Appellants preferred application for discharge from the offences under the MCOC Act. The said application was rejected by the learned Special Judge as mentioned earlier. Though the application for discharge from the MCOC Act was made on several grounds, main thrust was to demonstrate as to how the offences under the MCOC Act were not made out in the background of the definition of the organised crime given under the MCOC Act. The prosecution opposed the said application by filing say at Exh.17. It was contended by the prosecution that the accused were history-sheeters and the accused no.1 was the leader of the organised crime syndicate which had created tension in the area by committing various serious offences. It was also contended that against the accused no.1, there were number charge-sheets filed in the concerned Courts of which the cognizance was taken. The learned Judge considered only one question and that was as to whether at that stage, the accused could claim discharge from the offences under the MCOC Act when the competent authorities had accorded approval and sanction under Section 23(1)(a) and 23(2) of the MCOC Act. The learned Judge relied on the Judgment of a Division Bench of this Court in the case of Farman Imran Shah & Karu Vs. State of URS 6 of 12 7 APEAL 376-17 Judgment.odt Maharashtra, reported in (2014) ALL MR (Cri) 1571. The learned Judge went on to observe that this Court had observed that when the competent authorities had recorded the subjective satisfaction while granting prior approval and had accorded sanction, the question of validity of approval or sanction could not be decided unless the prosecution was afforded an opportunity to lead evidence in that regard and according to the learned Judge, the said Judgment observed that the accused could not insist for discharge unless objection regarding defects in such approval or sanction related to inherent lack of jurisdiction of authority granting it. Based on these observations, the discharge application was rejected. However, there was absolutely no discussion on the merits of the case. There was no discussion as to whether the provisions of the MCOC Act were attracted from the material produced.

7. On the other hand, Mrs. S. V. Sonawane, learned APP for State, submitted that there was nothing wrong with the approach of the learned Special Judge as he had rightly considered that the validity of sanction and the approval could only be decided during trial and not at the stage of consideration of the discharge application.

8. We have considered both these submissions. We have perused the impugned order. We are of the view that the learned URS 8 of 12 9 APEAL 376-17 Judgment.odt Special Judge has completely misconstrued the Judgment of this Court in the case of Farman Shah (supra). The said Judgment itself shows that the Division Bench of this Court had considered the material against the accused on merits while deciding whether the accused should be discharged from the offences under the MCOC Act. In that context, the Division Bench also observed that insofar as the attack on the approval or sanction was concerned, it could only be taken to its logical end during trial and not at the discharge stage. By no stretch of imagination, this Judgment rules that at the time of deciding the discharge application, the merits of the case cannot be taken into consideration and only limited scope available to the accused is to challenge the application of MCOC Act on the competency of according sanction or approval. The Judgment itself demonstrates that the entire material has to be considered to arrive at a prima facie finding that the offence under the MCOC Act is made out. Section 2(1)(d), 2(1)(e) and 2(1)(f) define continuing unlawful activity, organised crime and organised crime syndicate respectively. Even at the stage of framing of the charge, the Court is obliged to consider the entire material for recording its satisfaction that there was sufficient material to frame charges under the provisions of the MCOC Act.

(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectivly, as a syndicate or gang indulge in activities or organised crime;
(g) ....."
The Court has to be satisfied that ingredients of each of these definitions are at least prima facie made out against the accused before charge can be framed against them under the provisions of the MCOC Act. The grant of approval and according sanction are important procedural steps. Order under Section 23(1)(a) enables the URS 10 of 12 11 APEAL 376-17 Judgment.odt investigating agency to invoke the provisions of the MCOC Act and also enjoins the duty on the competent authority to nominate a superior police officer to investigate the case whereas sanction under Section 23(2) enables the Special Court to take cognizance of the offence. The question of framing of charges arises only after cognizance is taken by the Special Court. Importantly, framing of the charge is a distinct and subsequent step after taking cognizance of the offence under the MCOC Act. Taking cognizance under the MCOC Act does not automatically enable the Special Court to frame charges against the accused under the MCOC Act. For that purpose, the Special Court has to apply all the settled legal principles in framing charges against the accused. In the instant case before us, this exercise was not undertaken by the learned Special Judge. Therefore, we are in agreement with the submissions made by learned Senior Advocate Mr. Dhakephalkar that this is a fit case wherein the matter has to be remanded back to the trial Court for fresh consideration of merits of the case for deciding framing of the charges for the offences punishable under the provisions of the MCOC Act. The present Appeal is pending before this Court since 2017 and some of the Appellants are still in custody. Therefore, it is necessary that the URS 11 of 12 12 APEAL 376-17 Judgment.odt discharge application is decided afresh by the trial Court expeditiously. Hence, the following order.