1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 84 OF 2008 Madhu Kuttappan Kottiyatil, @ Madhu Kutty. .. Appellant Vs The State of Maharashtra. .. Respondent -- Shri S.R. Chitnis, Sr. Advocate along with Shri P.R. Pendar and P.D. Karale for the Appellant. Ms A.S. Pai for the Appellant-State. -- CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J DATED : 24TH JUNE, 2009. P.C. We have heard learned counsel appearing for the parties. Appeal is taken up for hearing and final disposal. 2. The Appellant is arraigned and charged under Section 120(B), 420 of the Indian Penal Code read with Sections 3, 7 , 10 and 25 of the Arms Act, 1959 further read with Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999. The Special Judge under MCOC Act for Greater Bombay at Sewree had directed the case to be transferred and made over to the Special Judge, MCOC Act, Thane. The correctness of this order was questioned before this Court by 2 the State. However, vide order dated 18th February, 2009 the said Criminal Application No.3073 of 2008 came to be dismissed and the order of the Learned Trial Judge was upheld. 3. After Transfer of the case, the matter was heard by the Special Judge, MCOC Act, Thane, before whom an application was filed under Section 227 of the Code of Criminal Procedure Code wherein the accused had asked for discharge on different grounds. It is not necessary for us to refer to the grounds taken up by the Appellant/Accused including the question of jurisdiction as well as the sanction by the State being not in consonance with the provisions of the Act. 4. Learned Special Judge, MCOC Act, Thane, by an order dated 29th November, 2007 rejected the said application primarily on the ground that the matter had been made over to that Court ( i.e. Special Judge, MCOC Act, Thane ) and it found that the application was therefore devoid of any substance and that the High Court vide its Order dated 28th March, 2007 while rejecting the bail application had directed the trial to be expedited. The contention raised before us is that the learned Judge erred in law in not considering the various contentions 3 raised by the Applicant, as it is the right of the accused to pray for discharge at the very threshold particularly on the ground of question of law apparent from the face of record. There is no doubt that the application contains various grounds besides the question of jurisdiction. The learned Counsel further argued that keeping in view the provisions of Section 5(2) of the Act, the question of jurisdiction is to be determined by the State Government. 5. As far as the first contention is concerned, we find some merit that the Court should have dealt with the Discharge Application on merits and should have recorded the proper reasons rather than referring to the order of transfer of the case to that Court. However, as far as the second contention is concerned, it has certainly no merit inasmuch as the order of transferring the case to the Special Judge, MCOC Act, Thane, was challenge before this Court and the same is now upheld. Thus, the challenge failed. 6. Another incidental argument raised by the learned Counsel appearing for the Appellant is that certain observations have been made by a Division Bench of this Court in its order 4 dated 23rd November, 2007 passed in Criminal Appeal No.536 of 2007 in the case of Anil Sadashiv Nanduskar v. The State of Maharashtra. In paragraph 20 of that judgment, the Division Bench has observed that the decision of the Apex Court in the case of Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat, (1997)7 SCC 744 is no more a good law as was specifically declared to be per incurium by the Apex Court in the case of Prakash Kumar Alias Prakash Bhutto v. State of Gujarat, (2005)2 SCC 409. It has been submitted that the position of law has been incorrectly stated with certain other observations by the Bench. We think that judicial propriety demands that an equi bench should not interfere with the observations on facts and law made by the Division Bench of this Court in Anil Sadashiv Nanduskar’s case (supra) and it would be inappropriate to go into the facts and find out whether they are correct or incorrect. There is a remedy open to the aggrieved party to take appropriate steps in relation to the correction of the judgment either on fact or law. It would not be proper that after having heard this matter at some length, we comment that the judgment referred was not correct exposition of law and refer the matter to a larger bench. We have nothing to do with that, in the facts and circumstances of the case in 5 hand and leave that question open. 7. For the reasons afore-recorded, we partially allow the Appeal and set aside the order dated 29th November, 2007 and request the Trial Court to hear the Discharge Application of the appellant afresh and decide the same in accordance with law. In our view, within the scope of the appeal, the application for bail need not be entertained by us. However, we make it clear that the application should be heard and decided by the Learned Special Judge, MCOC Act, Thane, as expeditiously as possible and in any case not later than four weeks from today. 8. Records be sent forthwith. CHIEF JUSTICE S.C. DHARMADHIKARI, J