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2007 DIGILAW 1453 (BOM)

Vijay Kisan Mate v. State of Maharashtra

2007-10-08

C.L.PANGARKAR

body2007
ORAL JUDGMENT: Rule. 2. Returnable forthwith. 3. Heard finally with consent of parties. 4. This is an appeal by accused No.3 Vijay under Section 12 of Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the Act). 5. The facts are as follows: The appellant-accused No.3 is facing Sessions Trial No. 554/2002 for having committed a murder . The said Sessions Case is still pending. A separate charge sheet is filed against the accused under Section 3 of the Act before the Special Court being Special Case No. 3 of 3003. Special Court framed charge under Section 3(i)(ii) of the Act against the accused. The prosecution therefore sought to frame the charge by adding Sub Sections 4 and 5 of Section 3 and also Section 4 and filed an application to that effect being Ex. 79. While moving this application under Section 216 of Criminal Procedure Code the prosecution made the following averments: That this Hon'ble Court has already framed charge under section 3(1)(i)(ii) of Maharashtra Control of Organised Crime Act against the accused persons. That, the Investigating Agency has already filed charge sheet against the accused No.1 to 8 and some other accused persons for committing the murder of Swapnil Shirke and the said sessions case bearing Sessions Case No. 554/02 is pending before this Hon'ble Court. That, it is submitted that by framing the charge under Sec. 3(1)(i) M. C. O. C. Act against the accused persons, it is charged that the accused in this case have committed the murder of Swapnil Shirke. However, the prosecution would not like to adduce the evidence in respect of the murder of Swapnil Shirke in this case as separate trial is pending against the accused No.1 to 8 and others before this Hon'ble Court. The learned Special Judge allowed the application and amended the charge. It is thereafter that the trial of Special Case No. 3 of 2003 commenced and one Vijaya Shirke the mother of Swapnil was put in witness box. The accused therefore moved an application for deferring the cross examination till the conclusion of the Sessions Trial No. 554 of 2002 under Section 302 Indian Penal Code. That application was rejected by the learned Special Judge, hence this appeal. 6. I have heard Shri R. M. Daga learned counsel for the appellant and Shri Doifode learned Additional Public Prosecutor for the State/respondent. 7. That application was rejected by the learned Special Judge, hence this appeal. 6. I have heard Shri R. M. Daga learned counsel for the appellant and Shri Doifode learned Additional Public Prosecutor for the State/respondent. 7. Sessions Case No. 554/02 is filed against the present accused applicant under Section 302 for having committed murder of one Swapnil Shirke. The said Sessions Trial is still pending. After this a Sessions Case was filed as stated earlier, charge sheet is filed against the accused/applicant under M. C. O. C. Act. In this case charge is framed against accused and one of the grounds for application for MCOCA is alleged murder of Swapnil by the accused. For application of M. C. O. C. A. it has to be shown that the Court has taken cognizance of atleast two cases of use of violence for purpose of financial gain. One of the cases or charge sheet is this offence under Section 302 i. e. the murder of Swapnil Shirke. It may be mentioned here that in an offence under the Act the actual proof of crime need not be offered unless that crime is also being tried together. What is required to be proved is filing of charge sheet and Court having taken cognizance thereof. Section 7 of the Act permits the Special Court to try the substantive offence with M. C. O. C. A. offence. This power it seems is given to the Special Court because of bar given under Section 10. Both Sections 7 and 10 of the Act reads as follows: 7. Power of Special Courts with respect to other offences- (1) When trying any offence punishable under this Act, a Special Court may also try any other offence with which the accused may, under the Code, be charged at the same trial, if the offence is connected with such other offence. (2) If, in the course of any trial of any offence under this Act, it is found that the accused persons has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and may pass any sentence authorised by this Act or, as the case may be, such other law, for the punishment thereof. 10. 10. Trial by Special Courts to have precedence- The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference of the trial of such other case and accordingly the trial of such other cases shall remain in abeyance. Thus Section 10 says that until conclusion of trial under the MCOCA the trials of substantive offences are to be stayed and precedence is to be given to the M. C. O. C. A. case. 8. In the instant case, the prosecution though had mentioned in application Ex. 79 for amendment of charge that it will not adduce any evidence in respect of murder of Swapnil Shirke in the M. C. O. C. case as separate trial is pending has put the eye witness in the said murder case in the witness box. It is apparent that the prosecution has resiled from its own statement and written assurance that it does not intend to adduce evidence of murder in M. C. O. C. case. It was very unfair on the part of the prosecutor to have resiled from the statement in Ex. 79. Strangely enough the learned Special Judge allowed the witness to be examined contrary to his own order and the statement of prosecution itself. He has strangely even rejected the application for differing cross examination. If the eye witness is examined in M. C. O. C. case before the murder case is tried it would cause serious prejudice to the accused and will adversely affect him. The accused will have to disclose his defence in this M. C. o. C. case and that may prejudiced the trial of Sessions Case for murder. It is in fact to avoid such type of contingency that Section 7 and 10 have been introduced. Section 3 also permits joint trial of both offences. The prosecution therefore should have applied either for joint trial or as envisaged by Section 10 should have proceeded only with M. C. O. C. case and there was no need to examine eye witness in the M. C. O. C. case. 9. In the circumstances order passed by the Sessions Judge rejecting the prayer to deffer cross examination is set aside. 9. In the circumstances order passed by the Sessions Judge rejecting the prayer to deffer cross examination is set aside. However, merely setting aside this order may not solve the problem for the law mandates that the trial under M. C. O. C. must be completed first. It would, therefore, be necessary to make further order. Therefore, as a necessary corollary the act of the Special Judge allowing the eye witness of a murder case to be examined in M. C. O. C. trial without there being a joint trial of both offences will have to be quashed and it will have to be directed that said witness shall not be further examined in M. C. O. C. case and it should be tried as if the said witness P. W. 9 Vijaya was never examined in M. C. O. C. trial. The trial of M. C. O. C. case shall now proceed as if Vijaya was never examined. Order accordingly.