* 1 * Cri.Appln. 5500.2010 1.02.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5500 OF 2010 Smt. Sandhya Prafulla Patil ....... Applicant V/S. 1. Ajay @ Krushnachand Jagdish Pandey 2. Gulam Rasul Nathu Shaikh 3. Vishal Chandrakant Mhatre 4. Rajeshsingh @ Rajesh Jiledar Singh 5. The State of Maharashtra (at the instance of Navghar Police Station, Navghar, Thane) ..... Respondents * * * * * * Mr. A.A. Kumbhakoni, Senior Counsel i/by. Mr. V.V. Purwant, Advocate for the applicant. Mr. Shirish Gupte, Senior Counsel i/by. Mr. M.M. Kocharekar Advocate for respondents no.1 and 2. Mr. Vinayak Patil, Advocate for respondent no.3. None for respondent no.4. Mr P.S. Hingorani, APP for the State-respondent no.5. Coram : Smt. R.P. SondurBaldota, J. 1 February, 2011 * 2 * Cri.Appln. 5500.2010 1.02.2011 P.C. : 1. This application is for transfer of MCOC Case No. 12 of 2010 pending in the court of the learned Special Judge (M.C.O.C. Act), Thane to any other Special Judge (M.C.O.C. Act) in the State of Maharashtra and preferably to the Special Judge (M.C.O.C.) at Bombay. The case concerns murder of one Prafulla Kashinath Patil, leader of Congress (I) Party in Mira-Bhayender, Thane. The applicant is his widow. 2. On 8th May, 2010 a murderous assault was committed on Prafulla Patil with weapons like fire arms, chopper and sword by unknown persons. Prafulla Patil died in the hospital on the same day within a couple of hours. The brother of Prafulla Patil lodged FIR with Navghar Police Station alleging that Vishal Chandrakant Mhatre (respondent no.3), Chandrakant Dattu Mhatre, Yashwant Gopal Patil, Milan Narayan Patil and one unknown resident of Sai Complex had killed Prafulla Patil by giving contract of killing to unknown assailants. During the course of investigation, the police found involvement of respondent no.1(accused no.1), respondent no. * 3 * Cri.Appln. 5500.2010 1.02.2011 2 (accused no.2), one Gulam Rasul Nathu Shaikh (accused no.3), Vishal Chandrakant Mhatre (accused no.4) and Rajesh Jiledar Singh (accused no.5). Accused nos.1, 2 and 4 have been arrested and are in police custody till date. Accused no.3 is at large. By the order dated 19th July, 2010 Additional Director of Police (Law and Order) Maharashtra State granted approval under Section 23(1)(a) for applying the provisions of the Maharashtra Control of Organised Crime (hereinafter referred to as the M.C.O.C. ) Act, 1999 to the “ ” complaint in this case. 3. The sole basis of the present application for transfer of the proceedings, is the order dated 12th October, 2010 passed by the learned Special Judge, M.C.O.C. Act, Thane. A specific mention has been made in the arguments on behalf of the applicant that there are neither any personal allegations made in the application, nor, any bias expressed. The application is opposed by the respondents alleging that any error in passing judicial orders cannot form the basis of application for transfer. 4. The order complained of was passed on 9th August, 2010 on * 4 * Cri.Appln. 5500.2010 1.02.2011 the application filed by respondent no.3 herein seeking to quash and set aside the case under the provisions of the M.C.O.C. Act, on the ground that none of the provisions of the Act are attracted or applicable in the case to him. That application, after contest, came to be allowed by the order dated 12th October, 2010 and the approval given by the authority of, applying the provisions of M.C.O.C. Act to respondent no.3 herein, was quashed. The brother of Prafulla Patil challenged that order in this Court by filing Criminal Appeal No. 785 of 2010 contending that the applicability of M.C.O.C. Act could be considered by the learned Special Judge, Thane only after cognizance of the offence was taken by him in view of Section 11 of the M.C.O.C. Act. This Court by its judgment and order dated 29th November, 2010 after observing the legal position that the scheme of Section 11 makes it implicitly clear that the Special Court has jurisdiction to transfer the case only after taking cognizance of the offence under the M.C.O.C. Act and not otherwise, set aside the order dated 12th October, 2010 keeping open the issues raised in the application by respondent no.3. * 5 * Cri.Appln. 5500.2010 1.02.2011 5. Mr. Kumbhakoni, the learned Senior Counsel for the applicant, submits that the learned Special Judge had passed the order dated 12th October, 2010 despite the specific provision under Section 11 of the M.C.O.C. Act and despite his apparent awareness of the provision. In order to show the awareness of the learned Judge of the provision, Mr. Kumbhakoni refers to the order dated 12th August, 2010 passed by the learned Sessions Judge in another M.C.O.C. Case being C.R. No.-I-65/2010 registered with Rabale Police Station for the offences punishable under Sections 386, 387, 34 Indian Penal Code and under Section 3(1)(i), 3(2), 3(4) of M.C.O.C. Act, passed on the application for bail. It was contended in the bail application that the approval for applying the provisions of the M.C.O.C. Act to the applicant was not justified. The learned Judge rejected the contention holding that The propositions of law and “ fact after applying the provisions therefor needs to be seen when the matter will come to the stage of trial or even to the stage of framing of charge. At the stage of grant of bail, observing that the approval is incorrect or illegal may negate the entire trial and * 6 * Cri.Appln. 5500.2010 1.02.2011 affect the merits of the trial. I refrain myself from making such remark. It is necessary at this stage to quote from the same ” order the context of the above observations. It states One of “ home calls pointed out to the Court by Special P.P. which is much prior to the alleged incident of the threats. Secondly, the record as placed before me indicates that the applicant/accused was trapped and was arrested on the spot. The mobile phone having number 98207976175. Having gone through the record of the conversation of cell phone, Ld. Spl. P.P. has considered a fact that there is no trace of conversation between the applicant and the complainant on cell after the incident. Pursuant to this fact, apparently it is clear that this must have been placed before the concerned authority which has accorded approval for applying the provisions of MCOC Act . ” 6. Mr. Kumbhakoni, submits that, after learning about the earlier order expressing the above view, the applicant has lost confidence in the learned Judge and requests for transfer. Relying upon the decision of the Karnataka High Court in the case of Adam Basha * 7 * Cri.Appln. 5500.2010 1.02.2011 V/s. The State of Karnataka reported in 1975 Cri.L.J. page 744, he submits that while considering an application for transfer, the Court must appreciate reasonable apprehension in the mind of the party and not veracity of the existence of actual apprehension. He submits that it is sufficient if the circumstances could create reasonable apprehension that a fair and impartial decision will not be had from the Court and the Court must look at the matter as it would appear to him. There can be no dispute about this legal submission advanced. However, at the same time it can also not be disputed that the apprehension must be reasonable. 7. Undoubtedly, as has been submitted by Mr. Kumbhakoni, the provisions of Section 11 of MCOC Act is specific and clear. It empowers the Special Court, if it is of the opinion that the offence is not triable by it to transfer the case to regular courts. This power can be exercised only after the Special Court takes cognizance of the offence and not at any time prior to that. In view of this clear provision, this Court by its order dated 29th November, 2010 had set aside the order passed by the Special * 8 * Cri.Appln. 5500.2010 1.02.2011 Court holding that the provisions of MCOC Act were not attracted to the case and applicable to respondent no.3. But this would at the highest mean that there was a judicial error committed by the learned Judge in passing the order. According to the petitioner, this judicial error gets aggravated in view of the order dated 12th August, 2010 passed by the same court in another MCOC case on an application for bail, a portion of which order has already been quoted above. Perusal of the same does not indicate specific awareness of the learned Judge of the provisions of Section 11 of MCOC Act. Therefore, it would be difficult to say that the Special Court despite knowledge of the provision of law consciously passed an order contrary to it. At this place, the statement made by Mr.Kumbhakoni at the commencement of the argument that the petitioner has not made any allegations of bias or prejudice against the learned Judge presiding over the Special Court, is to be noted. A note will also have to be taken of the fact that after passing of the order dated 12th October, 2010 when the Special Court had to consider an application for bail by one of the accused persons, in * 9 * Cri.Appln. 5500.2010 1.02.2011 this case he had rejected the same by his order dated 30th October, 2010. Therefore, in my opinion the apprehension felt by the applicant that the Special Court may not do justice to the matter is not a reasonable apprehension. A judicial error in passing orders cannot be a ground for transfer of proceedings. 8. It may not be out of place to mention here that the record of this case also shows that almost at every stage of the proceedings, some person or the other on behalf of the deceased has been challenging the orders passed by the learned Special Judge in the matter. After the application for bail by respondent no.3 was heard and posted for orders by the learned Special Judge, the brother of the deceased without even waiting until passing of the order by the learned Special Judge, had approached this Court by filing a Writ Petition seeking a speculatory relief of stay of order granting bail, if passed by the learned Special Judge. He later withdrew the petition. He had also challenged the order dated 12th October, 2010 though the State had also preferred a challenge thereto. This application is a third application filed at the instance of relatives * 10 * Cri.Appln. 5500.2010 1.02.2011 of the deceased. 9. The application is dismissed. 10. There is an oral application for stay of all the further proceedings of MCOC Case No.12 of 2010 pending before the learned Special Judge (MCOC Act), Thane for a reasonable period. The request is rejected. [Smt. R.P. SondurBaldota, J]