1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 981 OF 2009 Madhu Kuttappan Kottiyatil @ Madhu Kutty.. ... ... ... ... Appellant. (Orig.Accused No.2) Versus The State of Maharashtra. ... ... ... Respondent. Mr. S. R. Chitnis, Sr. Advocate with Mr. Pankaj Kavale for the Appellant. Ms. A. S. Pai, APP for the Respondent. CORAM : J. N. PATEL and A. A. SAYED, JJ. DATED : 24TH NOVEMBER,2009. P. C.: 1. This appeal has been filed by the Appellant/Accused No.2 challenging the order dated 2nd September, 2009 passed by the Special Judge, (MCOC Act), Thane, whereby the discharge application filed by the Appellant / Accused No.2 (along with Accused Nos.1 and 3) under Section 227 of the Criminal Procedure Code, 1973 came to be rejected. 2. The Appellant abovenamed along with two other co-Accused are being 2 prosecuted for offences punishable under Sections 120(b) and 420 of the Indian Penal Code and Sections 3, 7, 10 and 25 of the Arms Act read with Sections 3(1) (ii), 3(2) and 3(4) of the MCOC Act, 1999. 3. We have heard the learned Senior Counsel appearing for the appellant and the learned APP on behalf of the State. 4. The discharge application being Misc. Application No. 250 of 2007 was originally filed before the Special Judge (MCOC Act), Mumbai in MCOC Special Case No. 21 and 21-A of 2005. However, the said MCOC Special Case No. 21 and 21-A of 2005 came to be transferred vide order dated 16th October, 2007 to the Special Judge (MCOC Act), Thane, for trial. Subsequently the said Misc. Application No. 250 of 2007 was decided by the Special Judge, (MCOC Act) Thane, and the same came to be rejected on 29th November, 2007. This order was challenged by Accused No.2 (Appellant herein) before this Court by filing the Criminal Appeal No. 84 of 2008. By an order dated 24th June, 2009 the Division Bench of this Court presided over by the Hon’ble the Chief Justice partially allowed the appeal and set aside the order dated 29th November, 2007 and directed the trial Court to hear the discharge application of the appellant afresh and decide the same in accordance with law. This Court further directed the learned trial Court to decide the application as expeditiously as possible and in any case not later than four weeks. 5. On remand, the Special Judge, (MCOC Act) Thane, heard and decided 3 the matter afresh and rejected the discharge application by its order dated 2nd September, 2009, which order is impugned in the present appeal. 6. The Learned Senior Counsel pointed out the order dated 24th June, 2009 of this Court and submitted that the trial Court has not dealt with the merits of the case in the impugned order. However, on going through the original discharge application being Misc. Application No. 250 of 2007, we find that insofar as grounds for discharge are concerned, the only ground taken in the Misc. Application is, `lack of territorial jurisdiction’. On pointing this out to the learned Senior Counsel for the appellant, the learned Senior Counsel fairly conceded that except for this technical ground regarding territorial jurisdiction, no other grounds on merits has been taken in the discharge application. Learned Senior Counsel fairly stated that he shall make a fresh application for discharge under Section 227 of the Criminal Procedure Code and does not press the present appeal and sought leave of this Court to withdraw the appeal with liberty to file fresh application for discharge before the trial court incorporating all grounds open to the appellant in law. 7. In the circumstances, we dispose of the appeal as withdrawn with liberty to the appellant to file a fresh application for discharge under Section 227 of the Criminal Procedure Code. The learned Special Judge shall decide the application, if so made, on its own merits and in accordance with law without being influenced by the orders mentioned hereinabove. 4 8. Learned Senior Counsel for the appellant states that the said application for discharge shall be made by the appellant within a period of one week from today. Upon such an application being made, we direct the learned Special Judge (MCOC Act), Thane, to decide the same within a period of six weeks from the date of filing of the said application, subject to co-operation from the learned Counsel appearing on behalf of the appellant. 9. Appeal to stand disposed of, accordingly. Sd/- (J. N. PATEL, J.) Sd/- (A. A. SAYED, J.)