1 cr-wp-281-11 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 281 OF 2011 Mr. Vinod Damodar Gogle ..Petitioner Vs. The State of Maharashtra and Ors. ..Respondents .... Mr. S.R.Borulkar Advocate i/b Mr. M.K.Kocharekar Advocate for Petitioner Mr. D.P.Adsule A.P.P. for the State .... CORAM : P.V.HARDAS AND N.D.DESHPANDE, JJ. RESERVED ON : MARCH 17, 2011 DECLARED ON : MARCH 21, 2011 ORDER [PER P.V.HARDAS, J.] : 1 By this petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of certiorari for quashing and setting aside the sanction dated 6th February, 2010 granted by respondent 2 under Section 23(2) of the Maharashtra Control of Organized Crime Act, 1999. The other reliefs prayed for by the petitioner pertain to the ad-interim orders which the petitioner has requested this Court to pass. 2 cr-wp-281-11 2 It appears that by order dated 6th February, 2010 the Commissioner of Police Brihanmumbai in exercise of powers conferred under Section 23(2) of the Maharashtra Control of Organized Crime Act, 1999, hereinafter referred to as 'the M.C.O.C. Act', accorded sanction for the prosecution of the accused named in the aforesaid order. The petitioner who is one of the accused in M.C.O.C. Special Case No. 2 of 2010 along with M.C.O.C. Special Case No. 7 of 2010 filed an application i.e. Misc. Application No. 54 of 2010 before the designated Court under the M.C.O.C. Act, Greater Bombay for his discharge under Section 227 of the Code of Criminal Procedure in Crime No. 286 of 2009 which was initially registered by Vikroli Police Station and thereafter in DCB CID Crime No. 154 of 2009. The designated Court by its order dated 29th December, 2010 dismissed the aforesaid application. It appears that the petitioner has amended this petition and has also prayed for setting aside the impugned order passed by the designated Court, dated 29th December, 2010. 3 The learned Counsel for the petitioner has urged only one point before us and according to the learned Counsel for the petitioner only one crime is registered against Prasad Pujari viz. Crime No. 244 of 2007 and the same crime is also registered against Kumar Pille. Prasad 3 cr-wp-281-11 Pujari has been acquitted in the other crime. The learned Counsel for the petitioner contends that as per the provisions of the M.C.O.C. Act, it was incumbent for the prosecution to show that the syndicate identified as Kumar Pille and Prasad Pujari are being prosecuted in more than one offence. Since the prosecution has not been able to place on record the charge sheet of another crime against the syndicate referred to above, the applicant is entitled to be discharged as the provisions of the M.C.O.C. Act could not have been invoked. For the aforesaid purpose the learned Counsel for the petitioner has invited our attention to the definition contained in Section 2(d) of the M.C.O.C. Act. 4 Section 2(d) which defines the continuing unlawful activity reads as under: “2(d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such 4 cr-wp-281-11 offence.” 5 On plain reading of the said Section 2(d), it is obvious that where an unlawful activity is continued on behalf of such syndicate then the requirement of more than one charge-sheets within the preceding period of ten years is necessary. In the present case what is alleged is a single charge sheet in respect of the syndicate referred to above. Against Prasad Pujari another charge sheet was also filed in which he has been acquitted. In such circumstances therefore according to us, the applicant is not entitled to claim his discharge. Moreover, the applicant has also prayed for quashing of the sanction order, which cannot be done at this stage as the prosecution is entitled to lead evidence in respect of the sanction order. 6 We have perused the order passed by the trial Court and upon such perusal particularly paragraph 6 of the order of the trial Court which discloses that six cases and the charge sheet had been filed against the gangster Kumar Pille and two charge sheets had been filed against Prasad Pujari as the offence being serious would require no interference at this stage. It further transpires that charge has been framed against the other accused and the case is now fixed for framing of charge against the present applicant on 23rd March, 2011. 5 cr-wp-281-11 7 Thus considering all the aspects of this petition, we find that no case for interference is made out. We hasten to add that any observations made by us if touching the merits of the case should not be construed as any findings on merits as the observations have been made for the limited purpose of deciding the present writ petition and thus observations are not on merits and the trial Court should not be influenced by these observations while deciding the case on merits. 8 Learned Counsel for the petitioner has placed reliance on the Division Bench judgment of this Court in `Govind Sakharam Ubhe Vs. State of Maharashtra' 2009 (3) Bombay Cases Reporter (Cri.) 144. According to us the facts of the said reported judgment being different, the ratio laid down in the said judgment particularly the observations made by the Court at paragraphs 31, 32 and 37 would not apply to the facts of the present case. 9 The trial Court has rightly rejected the application filed by the petitioner and in our opinion therefore no interference is called for in this petition and this petition is accordingly dismissed with no order as to costs. [N.D.DESHPANDE, J.] [ P.V.HARDAS, J. ]