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The high court was hearing an appeal filed by the Maharashtra Government against the order of the Special MCOC Court discharging the accused booked under MCOC
A division bench of the Bombay High Court comprising Justice Revati Mohite Dere and Justice Gauri Godse recently held that an accused booked under the Maharashtra Control of Organized Crime Act (MCOCA) cannot be discharged at the stage of remand before taking cognisance.
“It is, therefore, evident that at the stage of remand, before cognizance is taken the respondent/accused could not have been discharged as done in the present case,” the court said.
The high court was hearing an appeal filed by the Maharashtra Government against the order of the Special MCOC Court discharging the accused booked under MCOC.
Senior Advocate Raja Thakare, representing the State Government, argued that at the remand stage, the special judge could not have issued an order discharging the accused from the charges under the MCOCA Act. He highlighted that such an order was in violation of Section 11 of the MCOCA Act.
Section 11 of the MCOC Act states that “Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence”
In response to the accused's failure to appear despite being served notice, the high court designated advocate Veerdhawal Deshmukh from the High Court Legal Services Committee's Panel of Lawyers.
Veerdhwala contended that the accused's no offence under the MCOCA is made out against the accused. Nevertheless, he emphasized that during the remand phase, an order discharging the accused could not be passed.
The high court concurred with the arguments put forth by the counsels and set aside the Special Judge's order to discharge the accused, who had been charged under the MCOCA Act.
Case title: State of Maharashtra vs Shiva Rishipal Tusambad
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