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1. The Appellant-State of Maharashtra has preferred this Appeal challenging the judgement and order passed by the learned Special Judge, MCOC Act, Nashik in MCOC Case No. 2 of 2002. By the Judgement and order dated 2nd September 2002 the learned Special Judge has allowed an application preferred by the respondents-original accused for transfer of the case under Section 11 of MCOC Act, 1999 (for short referred to as "MCOC Act).

2. In the view of learned Judge the application preferred by the accused, prior to framing of charges, is capable of being allowed because there is no material to arrive at a prima facie conclusion that the accused can be prosecuted under the MCOC Act and more particularly Section 3 thereof.

16. After the application and reply thereto was taken on record the learned Judge heard both sides and by the impugned order held that there is no prima facie evidence to connect the accused with the crime. The statements of the prosecution witnesses and the material collected by the prosecution in the form of pecuniary benefits, is not sufficient to apply provisions of Section 3 of MCOC Act. The learned Judge was of the view that it was the duty of the prosecution to show that the acts of the accused amount to continuing unlawful activities of an organized crime syndicate and such activities fall within the definition of term "Organized Crime" appearing in MCOC Act. In other words, prosecution must show that the accused have formed a syndicate for committing the organized crime and that they have got together to derive pecuniary benefits or advantages. While it is true that there are two rival gangs and criminal cases are pending against each other, yet, the order of sanction/approval is not enough to prosecute the acts u/s.3 of MCOC Act. Merely because several cases are pending it is not that MCOC Act has to be applied. Hence, after the relevant provisions of the Enactment to be applied are considered in the light of the materials collected it is seen, prima facie, that the illegal or unlawful activities have not been committed by the accused as members of organized crime syndicate in order to get pecuniary benefits or advantages. Hence, the application could be considered even before framing charge and the Court need not wait till entire evidence is led. For all these reasons, prima facie conclusion was recorded and the case was transferred to the Court of Additional Sessions Judge, Shrirampur, District Ahamednagar for trial in accordance with law.

20. Shri Chitnis submits that the order also cannot be said to be erroneous and vitiated by non application of mind. On the other hand, the learned Special Judge while considering the application of the respondents even at the prima facie stage has gone by the order of sanction and approval to apply MCOC Act. Having gone through those orders the learned Judge has opined that they do not make out a case for applicability of MCOC Act.

21. In this behalf, the argument of Shri Chitnis is that the incident arose out of gang rivalry. The offence was registered at Shrirampur Police Station vide CR No. 134 of 2001. Shri Chitnis has invited my attention to page 182 of the paper book which is an order dated 17th September 2001. The said order refers to a letter dated 14th September 2001 addressed by the Superintendent of Police, Ahamednagar. The order is rendered in the context of the offence covered by this CR No. 134 of 2001 and punishable under sections 302, 307, 324, 325, 143, 147 to 149 of IPC r/w Sections 4 and 25 of Arms Act. The Superintendent of Police, Ahamednagar has sought permission to include Section 3 of MCOC Act in this C.R.... According to Shri Chitnis, the order passed by the Special Inspector General of Police, Nashik Division, Nashik is not in consonance with Section 23(1)(a) i.e. it is not an approval but a permission to include MCOC along with other offences in C.R.no.134 of 2001. The order does not refer to any material by which it could be concluded that the provisions of a stringent and harsh Enactment like MCOC Act should be applied. Thus, the approval itself is contrary to the provisions of MCOC Act. Shri Chitnis submits that the MCOC Act was not invoked initially but afterwards. Sanction is accorded bearing in mind provisions of MCOC Act which define "continuing unlawful activities", "organised crime", "organised crime syndicate". However, no material is produced on record to support gaining of pecuniary benefits or advantages to the accused. Shri Chitnis has thereafter referred to the sanction under Section 23(2) of MCOC Act granted on 12th January 2002. He submits that the order granting sanction merely relies upon the earlier order of Special IGP, Nashik Region dated 17th September 2001. That apart, it refers to the evidence collected during investigation of Shrirampur City Police Station CR No. 134 of 2001. It refers specifically to the activities of gang headed by Shatrughan Ghavane and his associates and the alleged attack and assault on the members of rival gang resulting in grievous and serious injuries to one Jakir Hamid Shah. It merely refers to the fact as to how a complaint was lodged by this injured Jakir and the reference therein to the respondents before this Court leading to their arrest. Thereafter, Shri Chitnis relies upon sanction order in which it is observed that all accused persons are members of an organized crime syndicate and jointly and singly have committed several serious offences against human body and property. It is stated that they have created a sense of terror and insecurity in the minds of public at large in Shrirampur City and adjacent areas. It is observed that these persons have tried to cover up their criminal activities by getting affiliation and patronage of some of the political parties to escape the clutches of law. Shri Chitnis assails the conclusion that the gang leader Shatrughna Gavane and associates run an organized crime syndicate with a view to gaining pecuniary benefits and other advantages and supremacy over the rival gang of Ayub Papa Shaikh by use of violence, intimidation and other coercive means. However, no material at all is referred to in his sanction order or even produced at this prima facie to support the conclusion in the sanction order. Thus, according to Shri chitnis, the order of sanction passed by the Additional D.G. of Police (Law and Order), M.S; Mumbai cannot be made basis of even a prima facie conclusion and to hold that offences punishable u/s 3 of MCOC Act are committed.

22. He relies upon several judgements of Supreme Court enunciating the principles with regard to approval and sanction for applying stringent provisions like MCOC Act. He submits that same principles will govern the approval and sanction insofar as MCOC Act is concerned. He submits that approach of the sanctioning authority is casual, to say the least. He submits that this is the basis of the application made before the Special Judge. The learned Judge has taken cognizance of the pleas raised therein and in the light of the definitions of relevant terms in MCOC Act, appreciated the contentions of both sides. He submits that once both, approval as also sanction, is vitiated as above, then no cognizance can be taken pertaining to the alleged offence under MCOC Act. There is no need to face trial in such cases. Learned Judge, therefore, has rightly held that MCOC Act being not attracted, for trial of offences under IPC, the case must go back to the competent Sessions Court.