1 cr.appeal-874.10-- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 874 OF 2010 The State of Maharashtra. ... Appellant. V/s. Shri Vishal Chandrakant Mhatre. ... Respondents. WITH CRIMINAL APEAL NO. 785 OF 2010 Amol Kashinath Patil. ... Appellant. V/s. The State of Maharashtra and Anr. ... Respondents. Mrs.A.S.Pai, Addl.P.P. for the appellant- State (in Cr.Appeal No.874/2010). A.A.Kumbhakoni with V.V.Purwant for the appellant (in Cr.Appeal No.785/2010). A.P.Mundargi, Senior Advocate with S.V.Kotwal i/b. Vinayak Patil for the respondent- Accused. 2 cr.appeal-874.10-- CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. DATED : 29th November 2010. P.C. : This appeal is directed against the order dated 12th October, 2010 passed by the Special Judge, M.C.O.C.Act, Thane. The Addl. Public Prosecutor has submitted that the original accused No.4 Vishal Chandrakant Mhatre submitted an application dated 9th August, 2010 before the Special Judge, M.C.O.C.Act, Thane; wherein it was stated that none of the provisions of the sections of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the “M.C.O.C.Act”) are attracted and/or are applicable to the case and prayed that the order dated 19th July, 2010 whereby prior approval which was granted for applying the provisions of the M.C.O.C.Act be quashed and set aside. 2. The Addl. Public Prosecutor contended that the Special Court allowed the application and the operative part of the said order dated 12th October, 2010 reads as under: 1. The prior approval given by the Authority by Order No.14/Reader/2965/2010 dtd. 19/07/2010 for applying the 3 cr.appeal-874.10-- provisions of MCOC Act to applicant Shri Vishal Chandrakant Mhatre is quashed. 2. Inform concerned Investigating Officer. 3. The Addl. Public Prosecutor further contended that there is no provision under the M.C.O.C.Act under which respondent No.1 can make such an application. Similarly, there is no power vested with the Special Judge, M.C.O.C.Act to entertain such application nor he could have passed the impugned order whereby the earlier order dated 19th July, 2010 could have been quashed and set aside. It is, therefore, contended that the impugned oder is wholly without jurisdiction and totally against the scheme of the provisions of the M.C.O.C.Act and, therefore, cannot be sustained in law and liable to be quashed and set aside. 4. Learned Addl. Public Prosecutor has brought to the notice of the Court the provisions of section 11 of the M.C.O.C.Act which read thus: “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 4 cr.appeal-874.10-- 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.” It is contended that in view of the said provision the Special Court after taking cognizance of the offence, if of the opinion that the offence is not triable by it, has jurisdiction to 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 is required to proceed with the trial of the offence as if it had taken cognizance of the offence. 5. Learned Addl. Public Prosecutor further submitted that at the time of passing of impugned order the Special Court had not taken cognizance as contemplated under the provisions of the M.C.O.C.Act and, therefore, the Special Court could not have passed the impugned order. It is submitted that the impugned order being without jurisdiction is liable to be quashed and set aside. 6. Learned senior counsel appearing for the respondent- original Accused No.4 submitted that as per the scheme of section 11 of the M.C.O.C.Act the 5 cr.appeal-874.10-- power to transfer can be exercised by the Special Court only after taking cognizance of the offence and the Court being satisfied or, in the opinion of the Court, if the offence is not triable by it. It is also not disputed by learned senior counsel that in the instant case at the time of passing impugned order cognizance, in fact, was not taken by the Special Court. He, however, submits the Special Court now, on 26th November, 2010, has taken cognizance of the offence. Learned senior counsel further submitted that in case the Court is inclined to allow the appeal filed by the State, in that event, the contentions raised by the respondent- accused in the application dated 9th August, 2010 including maintainability of the said application may kindly be kept open. 7. We have considered the contentions canvassed by learned Addl. Public Prosecutor as well as leaned senior counsel and perused the relevant provisions of the Act. 8. In the instant case, it is not in dispute that as per the requirement of section 23(1)(a) of the Act prior approval of the police officer not below the rank of the Deputy Inspector General of Police was taken. Similarly, as per the provision of section 23(2) prior sanction of the police officer not below 6 cr.appeal-874.10-- the rank of Additional Director General of Police was also taken. However, before taking cognizance of the offence under the M.C.O.C.Act, the Special Court passed the impugned order dated 12th October, 2010 and allowed the application by quashing and setting aside the order of approval dated 19th July, 2010. 9. The short question which falls for our consideration is whether the impugned order, in the light of the scheme of the provisions of the M.C.O.C.Act, is sustainable in law, particularly, in view of the provisions of section 11 thereof. Section 11 of the M.C.O.C.Act clearly demonstrates that the Special Court, after taking cognizance of the offence, if of the opinion that the offence is not triable by it, needs to 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. The scheme of section 11 makes it implicitly clear that the Special Court though has a jurisdiction to transfer the case if it is of the opinion that the offence is not triable by it, the said power can be exercised by the Special Court only after taking cognizance of the offence under the M.C.O.C.Act and not otherwise. This proposition of law is not in dispute. 7 cr.appeal-874.10-- 10. For the reasons stated hereinabove, Criminal Appeal No.874/2010 is allowed. The impugned order dated 12th October, 2010 is hereby quashed and set aside keeping open the issues raised in the application dated 9th August, 2010 submitted by respondent- accused before the Special Court on which impugned order dated 12th October, 2010 came to be passed. 11. For the reasons stated in this order, we dispose of Criminal Appeal No.785/2010 accordingly since it also raises the similar questions of law and facts. Appeal allowed in above terms. (SMT.V.K.TAHILRAMANI, J.) (D.D.SINHA, J.)