1 3082.11 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.3082 OF 2011 Mohammed Shamim Badgujar ...Petitioner Versus The State of Maharashtra & Anr. ...Respondents ...... Mr.Girish Kulkarni a/w Mr.M.G.Shukla for Petitioner. Mr.J.P.Yagnik, A.P.P. for Respondent State. ...... CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. DATED:- OCTOBER 18, 2011. P.C. 1. Heard Counsel for the petitioner and the learned A.P.P. 2. In this Petition, the substantive relief prayed is to quash and set-aside F.I.R.No.479/2010 registered with Malad Police Station. The background in which this Petition is filed needs to be adverted to. 3. A private complaint was filed by Shri B.K.Appa alleging commission of offence punishable under the provisions of The Maharashtra Control of Organised Crime Act, 1999 (`MCOC Act’) as also several Indian Penal Code (`I.P.C.’) offences before the MCOC Court. On the basis of the said private complaint, direction was issued to the A.C.P. Of Economic Offence 2 3082.11 Wing under Section 156(3) of the Code of Criminal Procedure. On the basis of the said direction, MECR No.1/2009 came to be registered. In the said MECR, the Investigating Officer submitted report under Section 169 before the MCOC Court. The said report was not accepted and the MCOC Court directed another A.C.P. for further investigation. Pursuant to the said direction, MECR No.3/2009 came to be registered. 4. Suffice it to observe that later on, the Special Judge, MCOC Court on 7th September, 2010 passed the following order: “1. ACP Shri.T.R.Chavan of Borivali Division Mumbai is directed to register separate crime against accused no.2 Mohammed Shaemeem Badgujar accused no.3 Rajendra Sadashiv Nikalje @ Chhota Rajan, accused no.4 Sanjay Kamalakant Rao at Malad Police Station and after completion of investigation to file charge sheet against them in the Court of Additional Chief Metropolitan Magistrate 17th Court, Borivali, Mumbai. 2. Accordingly the application is disposed of.” 5. This decision was challenged by Sanjay Kamlakant Rao, one of the co-accused named along with the petitioner in the said offence by way of Criminal Appeal No.919/2010. The petitioner herein (originally named as accused No.2), also filed Criminal Writ Petition no.3346/2010. Both these proceedings came to be disposed of by the learned Single Judge on August 3 3082.11 1, 2011. The learned Single Judge has noticed that the Officer had concluded that the petitioner herein and Sanjay along with others had committed offences under Sections 504, 506, 427, 323, 406, 418 and 420 r/w 34 and 120-B of the I.P.C. and that there was sufficient material to submit a charge-sheet against them. The Officer opined that since I.P.C. offences were disclossed, a fresh case be registered for those offences and after completion of investigation, charge-sheet could be filed before the Additional Chief Metropolitan Magistrate, 17th Court, Borivali, Mumbai for which he sought appropriate orders. On the said report, the Magistrate passed order dated 7th September, 2010. The learned Single Judge while deciding the challenge in the Writ Petition filed by the petitioner herein, in particular, in Paragraph 6 of its decision, observed that there can be no question of registering a second FIR in respect of the same crime. As the crime is already registered, the Officer was obliged to report to the MCOC Court about the conclusion reached by him during the investigation. The learned Judge then went on to observe that no charge-sheet under the provisions of MCOC Act could be filed on the basis of the said investigation but offences under the I.P.C. had been made out by the investigation carried. That submission of the A.P.P. has been noticed by the learned Single Judge. The learned Single Judge held that the registration of 4 3082.11 second F.I.R. was unnecessary. In that view of the matter, the second F.I.R. registered as F.I.R. No.479/2010, cannot be taken forward. 6. At the same time, the question is: whether the offence registered against the petitioner on the basis of the direction issued by the MCOC Court would get buried because of the order passed by the Special Judge and the order of the Single Judge of this Court. Even though we are in agreement with the conclusion of the learned Single Judge that registration of second F.I.R. for the same crime was not necessary, however, at the same time, we may hold that that will not come in the way of proceeding with the criminal action against the petitioner on the basis of material disclosing commission of I.P.C. offences as was already registered as per the direction of the Special Court. That will have to be taken to its logical end. 7. In our opinion, the appropriate course in such a situation for the Special Judge of the MCOC Court as well as the Single Judge of this Court was to exercise powers under Section 11 of MCOC Act to transfer the I.P.C. offences for further inquiry and trial before the regular Court, as it had no jurisdiction to try I.P.C. offences simplilcitor. That could have obviated the argument arising due to registration of second F.I.R. 5 3082.11 8. In the interest of justice, therefore, even if we may agree with the grievance of the petitioner in the present Petition that the registration of F.I.R. No.479/2010 for the same crime was inappropriate and not warranted, as has been held by the learned Single Judge, the petitioner and other co-accused will have to be proceeded in accordance with law in connection with the I.P.C. offences which was originally registered pursuant to the direction issued by the Special Judge of MCOC Court on the basis of the private complaint. That process will have to be taken forward by resorting to transfer of proceedings relating to offences not triable by the MCOC Special Court, before the regular Court. The Investigating Officer may have to take appropriate steps in that behalf, as may be advised. 9. The learned A.P.P. appearing for the respondent No.1 states that appropriate proceedings will be resorted to for that purpose even though the petitioner will not be proceeded against in connection with F.I.R. No. 479/2010. If such proceeding is filed, we have no manner of doubt that the appropriate Court will have to pass directions, as may be warranted in the fact situation of the present case, to ensure that the complaint registered against the petitioner and other co-accused on the basis of direction issued 6 3082.11 by the MCOC Court at least for I.P.C. offences will have to be taken to its logical end in accordance with law. 10. Petition disposed of on the above terms. 11. Counsel for the petitioner submits that ad-interim order operating in favour of the petitioner be continued for some time, so that the petitioner can apply before the appropriate Court for further protection, if any. 12. In view of the statement made by the learned A.P.P. that keeping in mind the observations made by the learned Single Judge of this Court, F.I.R. No.479/2010 cannot be taken forward, we do not think it necessary to observe any further in relation to the last request made by the Counsel for the petitioner. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)