Bombay High Court: In two appeals made under Section of the (“MCOCA”), against the orders of the Special Judge, City Civil and Sessions Court, Greater Mumbai, rejecting the applications of the accused persons for the dropping of charges under MCOCA, the Division Bench comprising of AS Gadkari* and Shyam C Chandak, JJ., held that the failure of the Trial Court in taking timely cognizance of offence under Section 3, as stipulated under Section 2(d) MCOCA, left them with no choice but to disallow prosecution of the accused persons, who were allegedly affiliated with a banned terrorist organisation†, for charges under MCOCA.
Background
The Court was considering two appeals filed under Section of the (“MCOCA”) against the orders of the Special Judge, City Civil and Sessions Court, Greater Mumbai, rejecting the applications of the appellants for dropping the charges under MCOCA.
The accused persons were being prosecuted for offences under Sections , , , , , , , , and of the (“IPC”), along with Sections 3,4 and 5 of the Explosive Substances Act (“ESA”), Sections , , , , , , and of the (“UAPA”), and Section 3 of the MCOCA.
Given the gravity of the offences, the Government appointed the National Investigation Agency (“NIA”) as the investigating agency. The investigation revealed that the offences committed by the organised crime syndicate of a banned terrorist organisation, and the arrested principal accused had had 23 cases registered against them in the last 10 years. The Deputy Inspector General (“DIG”), NIA, passed an order in 2020, granting permission to apply the provisions of the MCOCA to the offences.
Aggrieved by the DIG’s order, the appellants filed applications before the Trial Court to have themselves discharged from the provisions of the MCOCA, which were rejected by the Trial Court through its impugned order of March 2023.
Court’s analysis and judgment
The Court noticed that the NIA had submitted its report to their DIG for applying the provisions of the MCOCA to the offences in the instant case that had been approved, while considering two crimes registered against the terrorist organisation, the cognizance of which had been taken by the Trial Court previously.
The Court perused Section 2(d) of the MCOCA, wherein “continuing unlawful activity” has been defined as meaning a cognizable offence punishable by imprisonment of three years or more, undertaken singly or jointly as a member of an organised crime syndicate or on its behalf, for which more than one chargesheet has been filed before the Competent Court within the last 10 years, and that Court had taken the cognizance of such offence.
The Court relied on Mahipal Singh v. CBI, , wherein the Supreme Court held that for the application of Section 3 of the MCOCA, all ingredients of a “continuing unlawful activity” should be satisfied. In Mahipal (supra), the Court had not taken cognizance of the offence on the date of commission of offence or notice of commission of offence to the investigating agency. Therefore, all the ingredients (one of which is the taking of cognizance by the Competent Court on the date of commission of the offence) were not satisfied
In the light of the relied case, the instant Court reiterated that stringent the provisions of a legislation are, the stricter is its compliance.
The Court noted in the instant case that the offence in question was committed on 01-05-2019 and it was registered with the police on 02-05-2019, the cognizance of which was taken on 30-05-2019, much after the date of commission of the offence. Therefore, the Court noted that the cognizance of the offence was not taken by the Competent Court (the Trial Court), as stipulated by Section 2(d) of the MCOCA, and the principle enunciated in Mahipal (supra).
The Court therefore stated that it had no option but to set aside the impugned orders of the NIA and held that the appellants could not be prosecuted for the offence under Section 3 of the MCOCA, thereby quashing and setting aside the impugned orders.
[Somsay Dalasay Madvi v. National Investigation Agency, Criminal Appeal No. 472 of 2023, decided on 11-06-2024]
*Judgment authored by: Justice AS Gadkari*
†Editorial Note: The judgment states CPI (M) to be a banned terrorist organisation. As per the list of provided by the NIA- Communist Party of India (Maoist) all its formations and front organizations and Communist Party of India (Marxist-Leninist) — People’s War, all its formations and front organizations have been categorised as banned terror outfits.
Whereas, Communist Party of India (Marxist) is abbreviated as CPI (M) or CPIM or CPM and is one of the major national parties in India.
Advocates who appeared in this case :
For the appellants: Gaurav Bhawnani, Khan Abdul Wahab, Muskan Shaikh, Kritika Agarwal, Advocates
For the respondents: Aruna S Pai and Shreekant V Gavand, Additional Public Prosecutor
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