2023:BHC-AS:23631-DB
5. APEAL 579-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 579 OF 2023
The State of Maharashtra ...Appellant
Versus
Shiva Rishipal Tusambad @ Tusamad ...Respondent
Mr. Raja Thakare, Senior Advocate a/w Mr. Siddharth Jagushte & Ms.
P.P.Shinde, for the Appellant-State.
Mr. Veerdhawal Deshmukh, Appointed Advocate for the Respondent.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
DATE : 17th AUGUST, 2023
ORDER (PER REVATI MOHITE DERE J.) :
1. Heard learned Counsel for the parties.
2. Rule. Rule is made returnable forthwith with the consent
of the parties and is taken up for final disposal.
3. By this appeal, preferred by the State of Maharashtra, the
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appellant seeks the following reliefs;
“(b) Record and proceedings of above mentioned
Remand Report Dated 25.04.2023 passed by the Learned
Special Judge (MCOC), Thane in respect of the
Respondent/Orig.Accused in Remand Report Dated
25.04.2023 in C.R.No.I 61/2023, registered with
Dombivali Police Station, Dist.:Thane, be called for;
(c) the impugned Order dated 25.04.2023 passed by the
Learned Special Judge (MCOC), Thane in respect of the
Respondent/Orig. Accused in Remand Report Dated
25.04.2023 in C.R.No. I 61/2023, registered with
Dombivali Police Station, Dist. : Thane be quashed and set
aside and the police custody of the Respondent / accused
may be granted for interrogation purpose to the
investigating agency forthwith.”
4. Mr. Thakare, learned Senior Counsel appearing for the
appellant – State states that at the stage of remand, no such order
could have been passed by the learned Special Judge, MCOC, Thane,
discharging the respondent from the offences punishable under the
MCOC Act. He submits that the said order, therefore, is contrary to
Section 11 of the MCOC Act. He submits that in this view of the
matter, the impugned order dated 25 th April, 2023 passed by the
learned Special Judge (MCOC) Thane, to the extent that it observes /
holds that “no case is made out as against Shiva Rishipal Tusambad @
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Tusamad for the alleged offences under MCOC Act and thus, he needs
to be discharged from the said offences” ought to be quashed and set
aside.
5. Perused the papers. On 12th May, 2023, this Court
(Coram: Amit Borkar & Kamal Khata, JJ.) passed the following order;
“1. Issue notice to respondent No.1 returnable on 19 th
June, 2023.
2. Perusal of the impugned order dated 25 th April,
2023, it appears that the learned Special Judge based on
validity of approval has recorded a finding of fact that the
approval is granted based on single crime registered in the
year 2022. According to the appellant there are four
offences registered against Respondent No.1 in the year
2022 and 2023. It appears that the learned Special Judge
has virtually discharged the respondent No.1, at the stage
of remand. Learned APP has placed on record the chart
indicating involvement of appellant in atleast four offences.
The four offences registered against the appellant are as
under :-
Sr. Police Offences Date of Status
No. Station Registration
1 Dombivali C.R.No. I 61 14.02.2023 Under
of 2023 investigation
u/s. 392, 397,
506-II & 34 of
IPC
2 Dombivali C.R.No. I 165 28.04.2022 Pending for
of 2022 trial
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u/s. 392 & 34
of IPC
3 Manpada C.R.No. I 234 01.04.2023 Pending
of 2023 investigation
u/s. 395 & 34
of IPC
4 Dombivali C.R.No. I of From chart Pending
08 of 2022 at page
No.35
3. Therefore, prima facie, it appears that the
impugned order is based on factually incorrect reason.
Hence, the appellant has made out the case for grant of
ad-interim relief.
4. Till 19th June, 2023, there shall be ad-interim
relief in terms of prayer clause (d).
5. In view of the aforesaid order, the Investigating
Agency is permitted to apply for the Police custody of
respondent No.1.”
6. In our Order dated 21st July, 2023, we have recorded that
though the respondent Shiva Rishipal Tusambad @ Tusamad, lodged
in Aadharwadi Jail, Kalyan, was served with a copy of the petition,
none appeared on his behalf and hence, again notice was issued notice
to the respondent, making the same returnable on 31 st July, 2023. The
respondent was put to notice that the appeal would be heard on the
next date, even if, none appeared on his behalf. The appellant – State
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of Maharashtra (through its officer) was permitted to serve the
respondent through the Superintendent of Aadharwadi Jail, Kalyan
and to take acknowledgment of the said notice.
7. On 31st July, 2023, though the respondent was served,
none appeared on his behalf and hence, we appointed Mr. Veerdhawal
Deshmukh from the list of Panel Lawyers of the High Court Legal
Services Committee, Mumbai, to espouse the case of the respondent.
8. Learned Counsel for the respondent states that no offence
under the MCOCA is made out/disclosed against the respondent.
Learned Counsel for the respondent, however, does not dispute the
fact that at the remand stage, no order discharging the
respondent/accused could have been passed.
9. The short question that arises for consideration in the
aforesaid appeal is, whether at the stage of remand, the learned Judge
could have been discharged the respondent/accused from the case i.e.
of the offences under the MCOC Act even before cognizance of the
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offence was taken. Section 11 of the MCOC Act reads as under;
“Section 11. Power to transfer cases to regular Courts. -
Where, after taking cognizance of an offence, a Special
Court is of the opinion that the offence is not triable by it, it
shall, notwithstanding that it has no jurisdiction to try such
offence, transfer the case for trial of such offence to any
Court having jurisdiction under the Code and the Court to
which the case is transferred may proceed with the trial of
the offence as if it had taken cognizance of the offence.”
10. It is, therefore, evident that at the stage of remand, before
cognizance is taken the respondent/accused could not have been
discharged as done in the present case.
11. It is pertinent to note, that pursuant to the interim relief
granted by this Court vide order dated 12th May, 2023, the appellant –
State of Maharashtra, took Police custody of the respondent.
Thereafter, sanction was obtained under Section 23(2) of the MCOC
Act and chargesheet has now been filed as against the
respondent/accused.
12. In view of the aforesaid, the appeal stands allowed and the
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impugned order, to the extent, that it discharges the
respondent/accused from the offences punishable under the MCOC
Act, is quashed and set aside.
13. We make it clear that we have not heard the petition, as to
whether the provisions of MCOC Act have been correctly invoked or
not, qua the respondent/accused and as such, it is open for the
respondent to file an appropriate application / petition, as
maintainable in law, before the appropriate Court.
14. The Petition is accordingly disposed of.
15. Registry to forthwith communicate a copy of this order the
the respondent, who is lodged in Aadharwadi Jail.
16. All concerned to act on the authenticated copy of this
order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
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Signed by: Rupali Wakodikar
Designation: PA To Honourable Judge
Date: 23/08/2023 11:12:42
