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2. Criminal Appeal No. 866 of 2009 has been filed by the State of Maharashtra against the order dated 31/7/2009 passed below Exh. 1 by the learned Special Judge holding that the charges for the offences under the MCOC Act against the accused in C.R. No. 18 of 2008 registered with the ATS Mumbai do not survive and the accused came to be discharged for the offences under the said Act in MCOC Special Case No. 1 of 2009. Criminal Appeal No. 867 of 2009 has been filed by the State against accused no.9 - Lt. Colonel Prasad Shrikant Purohit, who has been discharged from the charges punishable under the MCOC Act while rejecting his Bail Application No. 42 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 868 of 2009 has been filed against accused no. 7 - Rakesh Dattatray Dhawade, who has also been discharged from the offences punishable under the MCOC Act while rejecting his Bail Application No. 40 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 869 of 2009 has been filed by the State against accused no. 6 - Ajay Eknath Rahirkar who was discharged from the offences punishable under the MCOC Act while rejecting his Bail Application No. 41 of 2008 as per the order dated 31/7/2009.

12. As per the learned Special Judge that on 20/11/2008, i.e. on the day the approval order was passed under Section 23(1)(a) of the MCOC Act, the competent court at Parbhani as well as at Jalna had not taken cognizance of the offences against accused no.7 and more particularly of the offence under Section 153-A of IPC and thus one of the ingredients of the offence of continuing unlawful activity, as defined under Section 2(d) of the MCOC Act, was not present. The learned Special Judge, therefore, concluded that the approval granted under Section 23(1)(a) of the MCOC Act on 20/11/2008 could not sustain in the eyes of law and was required to be quashed and consequently the order of sanction passed on 15/1/2009 under Section 23(2) of the said Act by the Additional Director General of Police, Railways, Mumbai also did not survive. Based on these conclusions, the learned Special Judge further held that the charges for the offences punishable under the MCOC Act against all the accused in Special Case No. 01 of 2009 did not survive and hence the accused came to be discharged from the offences punishable under the MCOC Act. By invoking the powers under Section 11 of the MCOC Act, the learned Special Judge transferred the case arising from C.R. No. 18 of 2008 registered with the ATS, Mumbai to the court having jurisdiction under Cr.P.C. i.e. the regular court of sessions.

13. Mr. Amit Desai, the learned Senior Counsel, appearing for the appellant - State Government, submitted that the impugned orders were illegal, without application of mind to the facts as well as the scheme of the MCOC Act, grossly erroneous and in excess of jurisdiction and, therefore, the said orders are required to be quashed and set aside. He pointed out that even if the cognizance for the offence punishable under Section 153-A of IPC was not taken, the cognizance for the remaining offences in both the cases i.e. at Parbhani and Jalna was taken by the concerned courts of CJM and just because cognizance was not taken or could not have been taken for the offence punishable under Section 153-A of IPC, it cannot be held that the cognizance taken for the other offences was a nullity or no such cognizance was taken. The cognizance is taken for the offences and not for the offenders (the accused). The learned Special Judge was in gross error in holding that cognizance was required to be taken qua accused no.7. The meaning of the word "cognizance" cannot be defined in a straight jacket formula and it depends on the facts and circumstances of each case. When the order of committal under Section 209 of Cr.P.C. was passed prior to the order of approval dated 20/11/2008, it was not permissible for the Special Court to hold that the learned CJM had not taken cognizance after the charge-sheet was filed. Once the cognizance is taken and the committal order is passed, it is not necessary that for supplementary charge-sheet, the court takes cognizance because the cognizance is taken for the offence and not for the added offenders. It was further urged that while deciding the applications for bail, the Special Court could not have proceeded to decide the legality of the order of approval dated 20/11/2008 and the order of sanction dated 15/1/2009, more particularly when challenge to the said orders was not raised in the bail applications. It was further submitted that the Special Court could have allowed or rejected the bail applications, but certainly it could not have discharged the accused from the offences punishable under the MCOC Act under Section 227 of Cr.P.C. and then transferred the case to the regular court i.e. the Sessions Court by invoking the powers under Section 11 of the MCOC Act for other offences, while deciding the bail applications. As per Mr. Desai, if the Special Court was of the view that there was, prima facie, no material to support the charges under the MCOC Act or no such charges could be, prima facie, made out by the prosecution, it could have at the most allowed the bail applications. He further urged that when the Special Court had taken cognizance of the offence under Section 9(1) of the MCOC Act by its speaking order, it could not have, in the eyes of law, held that both the Court of the Chief Judicial Magistrate at Parbhani and Jalna had not taken cognizance of the offences, before 20/11/2008, except for the offence punishable under Section 153-A of IPC and thus the Special Court committed a gross error of law. It was further submitted that the prosecution had placed sufficient material before the Special Court so as to support its case that in R.C.C. No.467/2006 and R.C.C. No.504/2006 the respective courts had taken cognizance and the Special Court failed to apply its mind to the same and, therefore, to hold that cognizance was not taken prior to 20/11/2008 is an error apparent on the face of the record. Mr. Desai thus limited his arguments only on the issue as to whether cognizance was taken by the respective courts at Parbhani and Jalna and of offences other than Section 153-A of IPC against the accused. As noted earlier, the other offences are punishable under Sections 302, 307, 324, 337, 338, 285, 286, 295, 120-B read with Section 34 of IPC along with other offences punishable under the Explosive Substance Act and the Arms Act. In support of his arguments to set aside the impugned orders, Mr. Desai has placed reliance on the following decisions:-

15. Mr. Lalit, the learned Senior Counsel appearing for respondent no.10 submitted that the filing of more than one charge-

sheets before a competent court within the period of preceding 10 years has to be read with reference to the date of incident, which is a subject matter in the subsequent CR i.e. C.R. No. 130/08 registered with the Malegaon Police Station and not with reference to the order of approval passed under Section 23(1)(a) of the MCOC Act. He also submitted that in the instant case, the prosecution failed to make out a case of "continuing unlawful activity" by an individual - singly or jointly, as a member of an organised crime syndicate and, in fact, there was no orgnised crime syndicate as defined in Clause (f) of Section 2(1) of the MCOC Act, when the charge-sheets were filed and cognizance was taken by the learned CJM at Parbhani as well as at Jalna. Mr. Lalit referred to the observations made by the learned Special Judge in para 39 of his order below Exh.-1 and submitted that there was no case of offences under the MCOC Act made out by the prosecution and rightly the Special Court passed the impugned orders. He has also submitted that in the instant case the objective of gaining pecuniary benefits or gaining undue economic or other advantage for the accused or any other person or promoting insurgency is totally absent and, therefore, the Special Court was fully justified in discharging the accused from the charges under the MCOC Act by invoking its powers under Section 227 of Cr.P.C. and transferring the case for trial to the regular Sessions Court by setting aside the order of approval as well as the order of sanction. It was submitted by Mr. Lalit that while taking recourse to provisions of MCOC Act a great responsibility has been cast on the authorities in ensuring that the provisions of the said Act are strictly adhered to and followed, as the Act has the effect of curtailing the liberty of an individual and keeping him virtually incarcerated. In the instant case, respondent no.7 has been roped in in the Malegaon blast case and subsequently additional charge-sheets, by way of an after thought, have been filed against him in the Parbhani as well as Jalna case so as to implicate all other accused under the MCOC Act, while, in fact, there was no case of "continuing unlawful activity" existing when the Malegaon blast had taken place.