1 wp 1368-2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1368 OF 2011 Mr.Gurpal Singh Sethi ...Petitioner vs. Mr.Bharat Shantilal Shah & Ors. ...Respondents Mr.Prakash Naik for the Petitioner . Mr.Y.S. Shinde, APP for the State. CORAM : B.H. MARLAPALLE & U.D. SALVI, JJ. JUNE 20, 2011 P.C. :- 1 Heard Mr.Naik, the learned Counsel for the petitioner. The State is represented by Mr.Shinde. 2 This petition filed under Article 226 of the Constitution of India by a social worker seeks directions against the State of Maharashtra to initiate appropriate action against respondent no.1 in consonance with the directions given by the Apex 2 wp 1368-2011 Court in the case of State of Maharashtra vs. Bharat Shantilal Shah & Others. {(2008) 13 Supreme Court Cases Page 5}. 3 MCOC Special Case No.4/2001 was before the learned Special Judge for the offences punishable under Sections 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (‘the MCOC Act’ for short) and respondent no.1 was accused no.3 in the said case. They were also charged under Section 120B and 387 of IPC as also under Section 3(i)(ii) of the MCOC Act. The learned Special Judge concluded the trial and by his order dated 1st October, 2003 convicted accused no.2 for the offences punishable under Sections 3(2), 3(i)(ii) read with 3(4) of the MCOC Act as well as under Section 506(II) of the IPC. Accused no.1 was convicted under Section 3(i)(ii), 3(2) and 3(4) of the MCOC Act as well as Section 120B and Section 387 of IPC. 3 wp 1368-2011 4 However, accused no.3 has been convicted for the offences punishable under Section 118 of IPC, Sections 383 and 387 of IPC and 3(i)(ii) of the MCOC Act, for voluntary illegal omission on his part despite his awareness of unlawful activity of the extortion by organised crime syndicate operated by Chhota Shakeel through accused no.1. Hence, accused no.3 has filed Criminal Appeal No.1301/2003 and the State of Maharashtra has filed Criminal Appeal no. 1423/2003 against the order passed by the learned Special Judge on 1st October, 2003. Both the appeals have been clubbed and they are pending. 5 While MCOC Special Case No.4/2001 was pending before the Special Court under the MCOC Act, Criminal Writ Petition Nos.1738/2002 and 110/2003 came to be filed before this Court challenging the constitutional validity of the MCOC Act, and more particularly, the provisions of Section 2(d), (e) and (f) as well as Sections 3, 4 and 13 to 16 and Section 4 wp 1368-2011 21(5) of the said Act. On 5th March, 2003, this Court decided the petitions and upheld the constitutional validity of Section 2(d), (e) and (f) as well as Sections 3 and 4 of the MCOC Act. However, this Court struck down Sections 13 to 16 of the said Act. This Court held that the Parliament alone has the power to make a law in that regard as provided for under Entry 31 of List-1 of the 7th Schedule to the Constitution and that already Indian Telegraph Act, 1885 which is a Central Act is in operation. This Court also struck down Sub-Section 5 of Section 21 of the MCOC Act holding that the same was violative of the provisions of Article 14 of the Constitution. 6 The State of Maharashtra challenged the judgment of this Court before the Supreme Court and by the above cited decision, the Supreme Court has set aside the second part of the judgment. The Supreme Court held that Sections 13 to 16 of the MCOC Act are constitutionally valid and so far as Section 5 wp 1368-2011 21(5) of the said Act is concerned, the Supreme Court directed to delete the words “or under any other Act” from the sub-section. In para 51 of its judgment dated 1st September, 2008, the Supreme Court gave the following directions :- “51. Consequential orders, if any, in terms of the observations and directions passed in these appeals, may be passed by the concerned Court(s) where any proceeding under MCOCA is pending.” They are sought to be implemented in this petition but against respondent no.1. 7 We called upon Mr.Naik to point out the action to be taken by the State of Maharashtra against the respondent no.1 (Original accused no.3) consequent to the directions issued by the Supreme Court and it was submitted that in the pending appeals arising from the said order passed by the learned Special Judge on 1st October, 2003, the State of Maharashtra is required to take steps and more 6 wp 1368-2011 particularly, because the trial court did not take into account the evidence which was available before it in the form of telephone conservation. 8 We have gone through the judgment of the trial court and it did not hold that such evidence could not be considered on account of Section 14 of the MCOC Act having declared as constitutionally invalid by this Court. Even otherwise, if the State of Maharashtra is required to take any steps pursuant to the directions of the Supreme Court, we cannot presume today that the State will not pay heed to the same when the pending appeals i.e. Criminal Appeal Nos.1301/2003 and 1423/2003 came up for final hearing. It appears that the petitioner himself is not clear as to what directions have been issued by the Supreme Court so as to proceed against the respondent no.1. In any case, the trial before the MCOC Special Court has concluded and the appeals are pending before this Court and hence there is no case 7 wp 1368-2011 made out to give directions as prayed for at this stage. 9 Hence, the petition must fail at the threshold and the same is hereby rejected. (U.D. SALVI, J) (B.H. MARLAPALLE, J)