Mumbai: The Bombay High Court has ruled that an accused who has been booked under the stringent Maharashtra Control of Organized Crime Act (MCOCA) cannot be discharged during the remand stage before taking cognizance.
A division bench composed of Justices Revati Mohite-Dere and Gauri Godse quashed the discharge of Shiva Tusambad from the MCOCA charges on August 17. The bench observed, "It is evident that the respondent/accused could not have been discharged during the remand stage before taking cognisance, as was done in the present case."
Appeal filed by the Maharashtra Government
The High Court was addressing an appeal filed by the Maharashtra Government, challenging the April 25th order of the Special MCOC Court in Thane, which discharged Tusambad from the MCOCA charges.
Senior Advocate Raja Thakare, representing the State government, argued that the special judge could not have issued a discharge order for the accused under the MCOCA Act during the remand stage. He contended that this action violated Section 11 of the MCOCA Act.
According to Section 11 of the MCOC Act, '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 its lack of jurisdiction, transfer the case for trial to a Court that has jurisdiction under the Code. The receiving Court may proceed with the trial as if it had taken cognizance of the offence.'
As no advocate represented Tusambad, the High Court appointed Veerdhawal Deshmukh, an advocate from the High Court Legal Services Committee's Panel of Lawyers.
Advocate argues no offence established against accused
Advocate Deshmukh argued that no offence had been established against Tusambad under the MCOCA. However, he did not dispute the fact that no order discharging the respondent/accused could have been passed during the remand stage.
During the ongoing hearing, the High Court had granted an interim stay on Tusambad's discharge in May and instructed the police to continue the investigation.
The High Court noted that following the stay, the police took custody of Tusambad. Subsequently, the police obtained sanction under Section 23(2) of the MCOC Act and filed a chargesheet against him.
While quashing the special court’s order, the High Court clarified that it had not made a determination on whether MCOCA was applicable to Tusambad. The High Court stated, '... it is open for the respondent (Tusambad) to file an appropriate application/petition, as permissible by law, before the appropriate Court.'"
This version maintains the original meaning while making some minor adjustments for clarity and flow.
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