1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2107 OF 2009 Chenna Boyanna Krishna Yadav .. Petitioner. Vs. Central Bureau of Investigation & Anr. .. Respondents. Mr.S.G.Ladda with Mr.M.Roopender for the petitioner. Mr. Raja Thakare and Mr.A.M.Chimalkar for respondent no.1. Mrs. P. P. Shinde, APP for State. CORAM : B.H.MARLAPALLE & ANOOP V.MOHTA, JJ. DATED : 22ND JUNE, 2010. P.C. 1. Heard learned counsel for the petitioner. 2. This petition filed under Article 226 and 227 of the Constitution prays for the following reliefs: “(b) A writ of mandamus or any other appropriate writ or order or direction be kindly 2 issued to the effect that the invocation of the provisions of the Maharashtra Control of Organised Crime Act, 1999 against the petitioner be declared as illegal and without any authority of law; and (c) The Charges framed against the petitioner by the Ld. Special Judge, Pune under MCOC Act on 04.04.2009 below Exhibit-1766-A in Special Case No.2 of 2003 for the alleged offences punishable U/Sec.120-B of the Indian Penal Code and Section 3(2) and 24 of the Maharashtra Control of Organized Crime Act, 1999 be quashed and set aside and the proceeding against the present petitioner be kindly dropped; and” 3. The petitioner is accused no.53 in MCOCA Special Case no.2 of 2003 presently pending before the learned Special Judge at Pune. He had filed an application for discharge under Section 227 of the Cr. P. C. on the grounds, inter alia, that there was no triable case against him and the requirements of section 2(d) of the said Act were not fulfilled in his case. This application came to be rejected by a reasoned order dated 21.8.2004 and he did not challenge the said order any further. 4. Accused No. 44 – Shri Dilip Pandurang Kamath had filed Criminal Writ Petition No. 2744 of 2006 before this court praying for 3 quashing of the charges framed against him under Section 3(2) of the MCOC Act and also prayed for his released from the said case. On 17/7/2007, the Division Bench disposed off this petition by directing the learned Special Judge to take up a suo motu enquiry in the matter of framing of charges in accordance with law and this court further observed that the charge already framed was not valid, proper and could not stand the scrutiny of law. In obedience of the order passed by this court on 17/7/2007, the learned Special Judge by his order dated 6/8/2008 decided to frame charges against all the accused, facing the trial in Special MCOC Case No. 2 of 2003. This order passed by the learned Special Judge came to be challenged by accused no. 45 – Anil Umrao Gote by filing Criminal Appeal No. 827/07 and by accused no. 61 – Mohammad Chand Mulani by filing Criminal Appeal No. 830/07. Both these appeals came to be decided by a common order dated 4/10/2007 by the Division Bench. The matter was remanded back to the Special Court to frame charges separately against each of the accused as the charges framed on 26/6/2007 and 28/6/2007 against all the accused disclosed errors/defects. The observations made in para 12 and 13 in the common order dated 4/10/2007 are reproduced as under:- “12. In the facts and circumstances of the case, therefore, it is not necessary to consider the other points which are sought to be raised nor as to whether the observations made in the order dated 17.7.2007 are exclusively in relation to the case of 4 Dilip Kamath or same would lay down guide-lines for the trial Court in relation to the other accused person or not. Suffice to observe, that both the appeals succeed on the limited ground, that is, on account of failure on the part of the learned Special Judge to take into consideration whether the charges already framed in relation to the appellants and the other accused person disclose any error or defect therein which would require re-framing of those charges. 13. Hence, the impugned order to the extent it decides to re-frame the charges without considering whether the charges framed against all the accused disclose any defect or error therein is hereby set aside and the matter is remanded to the trial Court to decide the said aspect before proceeding to re- frame the charges. The appeals accordingly stand disposed of with no order as to costs.” 4. Criminal Writ Petition No. 1698 of 2008 was brought before this court by one of the accused (accused No. 62) challenging the order dated 2/8/2008 passed by the Special Court thereby rejecting the applications filed at Exhs. 2084 and 2096 for being discharged under Section 227 of Cr.P.C. The Division Bench, while rejecting the petition for being discharged, referred to the earlier order dated 4/10/2007 passed in Criminal Appeal Nos. 827 and 830 of 2007. It held that the reasoning set out by the Special Court in rejecting the 5 application for discharge did not suffer from any errors. This court also referred to the judgment in the case of Bharat Parikh vs. C.B.I. And anr. (Criminal Appeal No. 1076 of 2008 decided on 14/7/2008) and held that once the accused persons were heard under Section 227 of Cr.P.C. and the charges framed again on 26/6/2007 or the order passed on 4/10/2007 by this court could not be a reason to entertain an application under Section 227 of Cr. P. C. 5. In the instant case as well, the application filed under Section 227 of Cr. P. C. by the petitioner has already been rejected and the petitioner wants to re-agitate the very same ground as to whether there is any offence made out against him under the MCOC Act. It is pertinent to note that the order dated 21/8/2007 passed by the Special Court rejecting the petitioner’s application filed under Section 227 of Cr. P. C. has reached its finality and the order dated 4/10/2007 passed in Criminal Appeal Nos. 827 and 830 of 2007 directing the Special Court to hear all the accused and frame charge against all the individual accused would not give rise to provide one more stage to the petitioner to file a discharge application under Section 227 of Cr. P. C. The relief prayed for in this petition is nothing short of discharge from the case or to set aside the charges framed against him. The ultimate result is the same and, therefore, by relying upon the decision in the case of Bharat Parikh Vs. C.B.I. And anr. In Criminal Appeal No. 1076 of 2008, this petition is also required to be rejected at the threshold. 6 6. Hence, this petition fails and the same is hereby dismissed. (ANOOP V. MOHTA,J.) (B. H. MARLAPALLE,J.)