ORDER (Per B. H. Marlapalle, J.)

1. In MCOC Special Case No. 1 of 2009, 11 accused are facing trail. Accused Nos. 6, 7 and 9 filed bail applications i.e Bail Application Nos. 40, 41 and 42 of 2008 respectively, for being released on bail and while deciding these applications, the learned Special Judge by his order dated 31/7/2009 was pleased to discharge all the accused under the provisions of Section 227 of Cr. P. C. from the offences punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control of Organized Crime Act, 1999 (for short the MCOC Act) and consequently the case came to be transferred in exercise of the powers under Section 11 of the said Act to the regular court having jurisdiction under Cr. P. C. for trial of the offences punishable under Sections 302, 307, 326, 324, 427, 153-A, 120-B of IPC read with Sections 25(1) and 25 (3) of the Arms Act read with Sections 3, 4, 5, 6 of Explosive Substance Act read with Sections 15, 16, 17, 18, 20 and 23 of Unlawful Activities (Prevention) Act, 1967 (Amended) 2004. The bail applications came to be rejected. The order of prior approval under Section 23(1)(a) of the MCOC Act passed on 20/11/2008 by the Deputy Inspector General of Police and ATS, Mumbai in C.R No. 18 of 2008 and the sanction given by the Additional Director General of Police, Railways, Mumbai on 15/1/2009 under Section 23(2) of the said Act came to be quashed and set aside by a separate order passed below Exh. 1 on the same day i.e 31/7/2009.

2. Criminal Appeal No. 866 of 2009 has been filed by the State of Maharashtra against the order dated 31/7/2009 passed below Exh. 1 by the learned Special Judge holding that the charges for the offences under the MCOC Act against the accused in C.R No. 18 of 2008 registered with the ATS Mumbai do not survive and the accused came to be discharged for the offences under the said Act in MCOC Special Case No. 1 of 2009. Criminal Appeal No. 867 of 2009 has been filed by the State against accused no. 9 - Lt. Colonel Prasad Shrikant Purohit, who has been discharged from the charges punishable under the MCOC Act while rejecting his Bail Application No. 42 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 868 of 2009 has been filed against accused no. 7 - Rakesh Dattatray Dhawade, who has also been discharged from the offences punishable under the MCOC Act while rejecting his Bail Application No. 40 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 869 of 2009 has been filed by the State against accused no. 6 - Ajay Eknath Rahirkar who was discharged from the offences punishable under the MCOC Act while rejecting his Bail Application No. 41 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 1024 of 2009 has been filed by accused no. 6 against the rejection of his Bail Application No. 41 of 2008 by the learned Special Judge as per the order dated 31/7/2009.

3. The operative part of the order passed below Exh. 1 on 31/7/2009 by the Special Court reads as under:-

“Accused No. 1 Pragyasingh Chandrapalsingh Thakur @ Swami Purnachetanand Giri, No. 2 Shivanarayan Gopalsingh Kalsangra, No. 3 Shyam Bhavarlal Sahu, No. 4 Ramesh Shivji Upadhyaya, No. 5 Sameer Sharad Kulkarni @ Chanakya Sameer, No. 6 Ajay @ Raja Eknath Rahirkar, No. 7 Rakesh Dattatray Dhawde, No. 8 Jagdish Chintaman Mhatre, No. 9 Prasad Shrikant Purohit, No. 10 Sudhakar Udaybhan Dhar Dwivedi @ Dayanand Pande @ Swami Amrutanand Devtirth and No. 11 Sudhakar Omkarnath Chaturvedi @ Chanakya Sudhakar are discharged from the charge of the offences punishable under Sec. 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control of Organized Crime Act, 1999.

The case is transferred u/s 11 of the Maharashtra Control of Organized Crime Act, 1999 to the regular court having jurisdiction under the Code of Criminal Procedure for the trial of the offences under Secs. 302, 307, 326, 324, 427, 153-A, 120-B of the Indian Penal Code r/w 3, 5, 25 Arms Act, r/w 3, 4, 5, 6 of Explosive Substance Act r/w 15, 16, 17, 18, 20 and 23 of Unlawful

Activities (Prevention) Act, 1967 (Amended) 2004. It will first have to be filed in the court of the Judicial Magistrate having territorial jurisdiction for committal to the Sessions Court as it involves sessions triable offences.

Registrar (S) is directed to ascertain the court having jurisdiction under the Code of Criminal Procedure to which the charge-sheet is to be sent. All accused be produced before that court on the next date of appearance.”

Whereas the operative part of the order passed on 31/7/2009 rejecting Bail Application Nos. 40, 41 and 42 of 2008 reads as under:

“Application is rejected and disposed off. Attested true copy of this order be annexed with the order on Ext. 1 in MCOC Special Case No. 01 of 2009 of today's date.”

4. Paras 4 and 5 of the order passed below Exh.1 read as under:-

“4. In view of the above discussion, the prior approval under Sec. 23(1)(a) of Maharashtra Control of Organized Crime Act, 1999 in this case given on 20/11/2008 given by Dy. Inspector General of Police, Anti Terrorism Squad (ATS), Mumbai in C. R. No. 18 of 2008 registered with Police Station ATS Mumbai (C.R No. 130/08 of Police Station Azad Nagar, Malegaon), against all the accused in this case is quashed. Similarly, the sanction given by the Addl. Director General of Police, Railways, Mumbai dated 15/1/2009 under Sec. 23(2) of the Maharashtra Control of Organized Crime Act, 1999 is also quashed.

5. As a consequence of the above discussion, all the accused in this case are entitled for being discharged of the charges of the offences under the MCOC Act, 1999 levelled against them. As per the provisions of Sec. 11 of the Act, the case will have to be transferred to the regular court for trial of the offences under the Indian Penal Code, Unlawful Activities (Prevention) Act, 1967 etc.”

5. It would also be useful to reproduce paras 42 to 44 of the order rejecting the bail applications:

“42. In view of the above discussion, it is clear that as on 20/11/2008, though two charge-sheets were filed against accused Rakesh Dattatray Dhawde who is accused No. 7 in Crime No. 18/08 registered with Police Station ATS, Mumbai, the competent court had not taken cognizance of the offences against him and more particularly of the offence under Sec. 153-A of the Indian Penal Code. Hence, one of the basic ingredients of the offence of continuing unlawful activity as defined in Sec. 2(d) of MCOC Act was not present on 20/11/08. Hence, the prior approval cannot sustain in the eyes of law and needs to be quashed. Consequently, the sanction under Sec. 23(2) of MCOC Act, 1999 given on 15/1/2009 by the Addl. Director General of Police, Railways, Mumbai, also does not survive. (Emphasis supplied).

43. In view of the above discussion, it will have to be held that the charges for the offences under the MCOC Act, against the applicant accused as well as all o ther accused in C.R No. 18/08 registered with police station ATS Mumbai, do not survive and they will have to be discharged from those offences. Order is accordingly passed below Exh.1 in MCOC Special Case No. 01/09 which is filed for C.R No. 18/08, registered with police station ATS, Mumbai.

44. As a consequence of the above finding, the applicant accused is entitled to be released on bail as per the provisions of Sec. 21(4) of the MCOC Act, as there are reasonable grounds for believing that he is not guilty of the offences under the MCOC Act. However, in view of the finding arrived at in the above paragraph, as all the accused are entitled to be discharged of the offences under the MCOC Act, I am not considering the case of the applicant - accused for the offences under the Indian Penal Code, Unlawful Activities (Prevention) Act 1967, Arms Act, Indian Explosive Substance Act etc., because this court is a special court for trying offences under the MCOC Act. Once it is held that the accused cannot be tried by this court, the case will have to be sent to the competent court having jurisdiction under the Code of Criminal Procedure as per the Sec. 11 of the MCOC Act. As the applicant accused as well as all the accused in C.R No. 18/08 registered with police station ATS, Mumbai against whom chargesheet is filed and given MCOC Special Case No. 01/09 will have to be discharged of the offences under the MCOC Act, it is not necessary to consider the submissions of both sides on the other grounds and the merits of the evidence against the applicant accused in the charge-sheet.”

6. The main ground for passing the impugned order would find place in para 3 of the order passed below Exh. 1 and it reads as under:

“3. In view of the above discussion, it is clear that as on 20/11/08, though two charge-sheets were filed against Rakesh Dattatray Dhawde, who is accused no. 7 in crime no. 18/08 registered with Police Station ATS, Mumbai, the competent court had not taken cognizance of the offences against him and more particularly of the offence under Section 153-A of the Indian Penal Code. Hence, one of the basic ingredients of the offence of continuing unlawful activity as defined in Sec. 2(d) of MCOC Act was not present on 20/11/08. Hence, the prior approval cannot sustain in the eyes of law and needs to be quashed. Consequently, the sanction under Sec. 23(2) of MCOC Act, 1999 given on 15/1/2009 by the Addl. Director General of Police, Railways, Mumbai, also does not survive.” (Emphasis supplied).

7. Sections 2, 11 and 23 of the MCOC Act, read as under:

“2. Definitions. (1) In this Act, unless the context otherwise requires, -

(a) “abet” with its grammatical variations and cognate expressions, includes, - (i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate;

(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and

(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate.

(b) “Code” means the code of Criminal Procedure, 1973 (2 of 1974);

(c) “Competent Authority” means the Competent Authority appointed under section 13;

(d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

(e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;

(f) “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;

(g) “Special Court” means the Special Court constituted under section 5.

(2) Words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in the Code.

11. Power to transfer cases to regular Courts.-

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.

23. Cognizance of, and investigation into, an offence.- (1) Notwithstanding anything contained in the Code,- (a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any

18 offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.”

8. To understand the meaning of “organised crime” as defined under Clause (e) of Section 2(1) of MCOC Act, it would be necessary to understand the meaning of “continuing unlawful activity” and “organised crime syndicate” as defined under Clause (d) and (f) of the said Section. If so understood, for charging a person of organised crime or being a member of organised syndicate, it would be necessary to prove that the accused concerned have indulged in,

(i) an activity,

(ii) which is prohibited by law,

(iii) which is a cognizable offence punishable with imprisonment for three years or more.

(iv) undertaken either singly or jointly,

(v) as a member of organised crime syndicate i.e acting as a syndicate or a gang, or on behalf of such syndicate.

(vi) (a) in respect of similar activities (in the past) more than one charge-sheets have been filed in competent court within the preceding period of ten years,

(b) and the court has taken cognizance of such offence.

(vii) the activity is undertaken by;

(a) violence, or

(b) threat of violence, or intimidation or

(c) coercion or

(d) other unlawful means

(viii)(a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or (b) with the object of promoting insurgency.

9. The constitutional validity of the MCOC Act and more particularly the provisions of Section 2(1)(d), (e) and (f) and Sections 3, 4 and 13 to 16 as well as Section 21(5) has been considered by the Supreme Court in the case of State of Maharashtra v. Bharat Shantilal Shah and ors. [(2008) 13 SCC 5]. The constitutional validity of all these provisions has been upheld and the words “or under any other Act” from Section 21(5) of the said Act were struck down. Once again the constitutional validity of Section 2(1)(e) of the MCOC Act was challenged and the said challenge has been negatived by the Supreme Court in the case of Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and ors. [(2010) 5 SCC 246]. The Supreme Court reiterated the meaning of “insurgency” as was adopted earlier in the case of Sarbananda Sonowal v. Union of India [(2005) 5 SCC 665], and as follows:

“Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State”

The term “unlawful means” as appearing in Section 2(1)(e), had also fallen for consideration before the Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and anr.

[(2005) 5 SCC 294] and the Supreme Court stated thus,

“32. The Statement of Objects and Reasons clearly stated as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression ‘any unlawful means’ must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA.”

10. Section 9 of the MCOC Act deals with the procedure and powers of the Special Court. The Special Court may take cognizance of any offence when the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon police report of such facts.

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. The Special Court can exercise this power on its own or on an application submitted before it and the Special Court has no jurisdiction to try the case if in its opinion the offence of which cognizance has been taken is not triable by it.

Section 23 of the MCOC Act provides the procedure for cognizance of and investigation into an offence. No information about the commission of an offence of an organised crime under the MCOCO Act shall be recorded by a police officer without the prior approval of the police officer not below the rank of Deputy Inspector General of Police and no investigation of an offence under the provisions of the said Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. No court shall take cognizance of any offence under the MCOC Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.

11. In the instant case, C. R. No. 130 of 2008 came to be registered with the Azad Maidan Police Station at Malegaon regarding the incident of bomb blast that had taken place on 29/9/2008 and 6 persons lost their lives and 101 persons were injured. Respondent Nos. 1 to 3 came to be arrested on 23/10/2008 and respondent no. 7 was arrested on 2/11/2008. During the course of investigation, the alleged involvement of respondent no. 7 in C.R No. 161 of 2003 registered with Nanal Peth Police Station, Parbhani and in C.R No. 194 of 2004 registered with the Sadar Bazar Police Station, Jalna was noticed. C. R. No. 161 of 2003 registered with the Nanal Peth Police Station at Parbhani was in respect of the incident of blast that had taken place on 21/11/2003 and some persons were injured in the same. A charge-sheet was filed against accused no. 1 - Sanjay Choudhary on 7/9/2006 for the offences punishable under Sections 302, 307, 324, 337, 338, 285, 286 and 295 read with Section 34 of IPC and Section 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act and the case came to be registered as RCC No. 467/06. On 29/9/2006 a supplementary charge-sheet (2nd charge-sheet) came to be filed against 4 accused for the offences punishable under Sections 302, 307, 324, 337, 338, 285, 285, 295, 120-B, 153-A read with Section 34 of IPC and Sections 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act. A third charge-sheet came to be filed in the said case on 13/11/2008 against respondent no. 7 for the offences punishable under Sections 302, 307, 324, 337, 338, 285, 286, 295, 120-B, 153-A read with Section 34 and Sections 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act. C.R No. 194 of 2004 registered with the Sadar Bazar Police Station at Jalna was in respect of the incident of blast that had taken place on 27/8/2004 and the first charge-sheet was filed against accused no. 1 on 30/9/2006 for the offences punishable under Sections 307, 436, 324, 323, 153-A, 120-B read with Section 34 of IPC and Sections 3, 4, 6 of Explosive Substance Act and the case came to be registered as RCC No. 504/06. The case was committed to the Sessions Court on 12/2/2007 and came to be registered as Sessions Case No. 28 of 2007. Second charge-sheet was filed on 7/1/2008 against four additional accused and the third charge-sheet was filed against 5 accused on 14/1/2008. Committal order was passed on both the charge-sheets by the learned CJM at Jalna on 11/8/2008 and 22/8/2008 respectively. The fourth charge-sheet was filed on 15/11/2008 against the present respondent no. 7 and separate case i.e RCC No. 648/08 came to be registered.

12. As per the learned Special Judge that on 20/11/2008, i.e on the day the approval order was passed under Section 23(1)(a) of the MCOC Act, the competent court at Parbhani as well as at Jalna had not taken cognizance of the offences against accused no. 7 and more particularly of the offence under Section 153-A of IPC and thus one of the ingredients of the offence of continuing unlawful activity, as defined under Section 2(d) of the MCOC Act, was not present. The learned Special Judge, therefore, concluded that the approval granted under Section 23(1)(a) of the MCOC Act on 20/11/2008 could not sustain in the eyes of law and was required to be quashed and consequently the order of sanction passed on 15/1/2009 under Section 23(2) of the said Act by the Additional Director General of Police, Railways, Mumbai also did not survive. Based on these conclusions, the learned Special Judge further held that the charges for the offences punishable under the MCOC Act against all the accused in Special Case No. 01 of 2009 did not survive and hence the accused came to be discharged from the offences punishable under the MCOC Act. By invoking the powers under section 11 of the mcoc act, the learned Special Judge transferred the case arising from C.R No. 18 of 2008 registered with the ATS, Mumbai to the court having jurisdiction under Cr.P.C i.e the regular court of sessions.

13. Mr. Amit Desai, the learned Senior Counsel, appearing for the appellant - State Government, submitted that the impugned orders were illegal, without application of mind to the facts as well as the scheme of the MCOC Act, grossly erroneous and in excess of jurisdiction and, therefore, the said orders are required to be quashed and set aside. He pointed out that even if the cognizance for the offence punishable under Section 153-A of IPC was not taken, the cognizance for the remaining offences in both the cases i.e at Parbhani and Jalna was taken by the concerned courts of CJM and just because cognizance was not taken or could not have been taken for the offence punishable under Section 153-A of IPC, it cannot be held that the cognizance taken for the other offences was a nullity or no such cognizance was taken. The cognizance is taken for the offences and not for the offenders (the accused). The learned Special Judge was in gross error in holding that cognizance was required to be taken qua accused no. 7. The meaning of the word “cognizance” cannot be defined in a straight jacket formula and it depends on the facts and circumstances of each case. When the order of committal under Section 209 of Cr.P.C was passed prior to the order of approval dated 20/11/2008, it was not permissible for the Special Court to hold that the learned CJM had not taken cognizance after the charge-sheet was filed. Once the cognizance is taken and the committal order is passed, it is not necessary that for supplementary charge-sheet, the court takes cognizance because the cognizance is taken for the offence and not for the added offenders. It was further urged that while deciding the applications for bail, the Special Court could not have proceeded to decide the legality of the order of approval dated 20/11/2008 and the order of sanction dated 15/1/2009, more particularly when challenge to the said orders was not raised in the bail applications. It was further submitted that the Special Court could have allowed or rejected the bail applications, but certainly it could not have discharged the accused from the offences punishable under the MCOC Act under Section 227 of Cr.P.C and then transferred the case to the regular court i.e the Sessions Court by invoking the powers under section 11 of the mcoc act for other offences, while deciding the bail applications. As per Mr. Desai, if the Special Court was of the view that there was, prima facie, no material to support the charges under the MCOC Act or no such charges could be, prima facie, made out by the prosecution, it could have at the most allowed the bail applications. He further urged that when the Special Court had taken cognizance of the offence under Section 9(1) of the MCOC Act by its speaking order, it could not have, in the eyes of law, held that both the Court of the Chief Judicial Magistrate at Parbhani and Jalna had not taken cognizance of the offences, before 20/11/2008, except for the offence punishable under Section 153-A of IPC and thus the Special Court committed a gross error of law. It was further submitted that the prosecution had placed sufficient material before the Special Court so as to support its case that in R.C.C No. 467/2006 and R.C.C No. 504/2006 the respective courts had taken cognizance and the Special Court failed to apply its mind to the same and, therefore, to hold that cognizance was not taken prior to 20/11/2008 is an error apparent on the face of the record. Mr. Desai thus limited his arguments only on the issue as to whether cognizance was taken by the respective courts at Parbhani and Jalna and of offences other than Section 153-A of IPC against the accused. As noted earlier, the other offences are punishable under Sections 302, 307, 324, 337, 338, 285, 286, 295, 120-B read with Section 34 of IPC along with other offences punishable under the Explosive Substance act and the arms act. In support of his arguments to set aside the impugned orders, Mr. Desai has placed reliance on the following decisions:-

(a) Raghubans Dubey v. State Of Bihar [AIR 1967 SC 1167]

(b) CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd. & another [AIR 2005 SC 4284]

(c) State of Karnataka and anr. v. Pastor P. Raju [(2006) 6 SCC 728]

(d) S.K Sinha, Chief Enforcement Officer v. Videocon International Ltd. And ors. [(2008) 2 SCC 492].

14. Mr. Jethmalani, the learned senior counsel appearing for respondent no. 1, while supporting the impugned orders, submitted that mere passing of committal order cannot lead to a presumption that the learned CJM had taken cognizance of the offence or the offences and passing of an order of committal is merely a ministerial function. He relied upon the decision in the case of Sanjay Gandhi v. Union of India and ors. [AIR 1978 SC 514] and Raj Kishore Prasad v. State of Bihar and nar. [AIR 1996 SC 1931]. In support of his contentions that the courts at Parbhani and Jalna had not taken cognizance of the offences, Mr. Jethmalani relied upon the decision in the case of CREF Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd. and anr. [AIR 2005 SC 4284]. He also pointed out that so far as the case before the court at Parbhani was concerned, cognizance was not taken before the order of approval was passed on 20/11/2008. The learned Senior Counsel, by referring to the scheme of section 11 of the mcoc act, submitted that the Special Court could invoke the said powers on its own and without any application being made by any of the party. As per Mr. Jethmalani, both the Courts at Parbhani as well as Jalna ought to have passed a specific order stating that cognizance of the offence or offences was taken and no such order was ever passed by both the Courts before 20/11/2008. He also urged before us that these being appeals filed under section 12 of the mcoc act, all the issues raised by the respondents could be decided on merits rather than confining the scope only to find out whether the Courts at Parbhani and Jalna had taken cognizance of the offences before the approval order under Section 23(1)(a) of the MCOC Act was passed on 20/11/2008. It was also submitted that the words “in respect of which” refers to the crime syndicate and if so considered, there was no crime syndicate involved in any of the cases at Parbhani and Jalna.

15. Mr. Lalit, the learned Senior Counsel appearing for respondent no. 10 submitted that the filing of more than one charge-sheets before a competent court within the period of preceding 10 years has to be read with reference to the date of incident, which is a subject matter in the subsequent CR i.e C.R No. 130/08 registered with the Malegaon Police Station and not with reference to the order of approval passed under Section 23(1)(a) of the MCOC Act. He also submitted that in the instant case, the prosecution failed to make out a case of “continuing unlawful activity” by an individual - singly or jointly, as a member of an organised crime syndicate and, in fact, there was no orgnised crime syndicate as defined in Clause (f) of Section 2(1) of the MCOC Act, when the charge-sheets were filed and cognizance was taken by the learned CJM at Parbhani as well as at Jalna. Mr. Lalit referred to the observations made by the learned Special Judge in para 39 of his order below Exh.-1 and submitted that there was no case of offences under the MCOC Act made out by the prosecution and rightly the Special Court passed the impugned orders. He has also submitted that in the instant case the objective of gaining pecuniary benefits or gaining undue economic or other advantage for the accused or any other person or promoting insurgency is totally absent and, therefore, the Special Court was fully justified in discharging the accused from the charges under the MCOC Act by invoking its powers under Section 227 of Cr.P.C and transferring the case for trial to the regular Sessions Court by setting aside the order of approval as well as the order of sanction. It was submitted by Mr. Lalit that while taking recourse to provisions of MCOC Act a great responsibility has been cast on the authorities in ensuring that the provisions of the said Act are strictly adhered to and followed, as the Act has the effect of curtailing the liberty of an individual and keeping him virtually incarcerated. In the instant case, respondent no. 7 has been roped in in the Malegaon blast case and subsequently additional charge-sheets, by way of an after thought, have been filed against him in the Parbhani as well as Jalna case so as to implicate all other accused under the MCOC Act, while, in fact, there was no case of “continuing unlawful activity” existing when the Malegaon blast had taken place.

16. The learned counsel for other respondents have adopted the arguments advanced by Mr. Jethmalani as well as Mr. Lalit. Mr. Jamdar, the learned counsel appearing for respondent no. 7 has invited our attention to the following observations made in the case of Fakhruddin Ahmad v. State of Uttarnchal & anr. [(2008) 17 SCC 157].

“17. Nevertheless it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender.”

He also supported the view of the learned Special Judge that cognizance was required to be taken by the learned CJM at Parbhani and Jalna, against respondent no. 7 specifically and it was not so taken, before 20/11/2008.

17. Mr. Shivade, the learned counsel appearing for accused no. 9 invited our attention to the order dated 28/11/2008 passed by the Chief Judicial Magistrate at Jalna in Regular Criminal Case No. 648 of 2008 below Exhibit 1 by which order cognizance of the offence was taken and submitted that for the first time such an order was passed and obviously after 20/11/2008. There is nothing on record to show that such an order was passed by the learned Chief Judicial Magistrate, Parbhani or the learned Chief Judicial Magistrate at Jalna on any date prior to 20/11/2008 in the respective cases. He, therefore, urged that the view taken by the Special Court cannot be termed as erroneous so as to cause interference in the same by these appeals. It was submitted by Mr. Shivade that Shri Mohan Kulkarni, Assistant Commissioner of Police, ATS, Mumbai for the first time had sent a fax on 7/11/2008 informing that during the investigation in C.R No. 18 of 2008 registered with the

Azad Nagar Police Thane, Malegaon, nine accused were arrested and during the interrogation of one of the accused i.e Rakesh Dhawade it was revealed that he was involved in transporting the trainees for making arms and other explosive materials in the year 2003 near Singhgad. Consequent to this fax message accused no. 7 - Dhawade came to be arrested for the first time on 2/11/2008. It was, therefore, urged that prior to 7/11/2008 there was no whisper of any offence punishable under the MCOC Act in any of the three blast cases i.e Parbhani, Jalna and Malegaon.

18. We make it clear that the scope of these appeals is only limited to examine the issue of taking cognizance of the offences by the Chief Judicial Magistrate at Parbhani and his coutnerpart at Jalna. As far as the merits of the charge under the MCOC Act or other issues covered in the arguments of Mr. Jethmalani and Mr. Lalit are concerned, it would not be expedient to deal with them in these appeals and the prosecution must be given due opportunity to deal with the same before the Special Court as and when such an occasion arises. It was fairly conceded by Mr. Desai, the learned Senior Counsel that even while considering the applications for bail, the Special Court would be justified in examining as to whether the MCOC charges were made out, prima facie, by the prosecution against the accused.

19. Chapter XII of Cr. P. C. deals with the conduct of investigation of both, cognizable and non-cognizable offences and the steps to be taken in that regard culminating in the filing of the report of investigation under Section 173(2) of the said Code. The powers under Section 156(3) can be invoked by a learned Magistrate at a pre-cognizance stage, whereas powers under section 202 of the code are to be invoked after cognizance is taken on a complaint but before issuance of process. Once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156 (3) of the Code. It is well settled that while ordering an investigation under the said Section, the Magistrate is not empowered to take cognizance of the offence and such cognizance is taken only on the basis of the complaint of the facts received by him which includes a police report of such facts or information received from any person, other than a police officer, under section 190 of the code.

Chapter XIV of the Code deals with conditions requisite for initiation of proceedings and Section 190 in the said Chapter empowers a Magistrate to take cognizance of an offence in certain circumstances. The said Section reads as under:

“190. Cognizance of offences by Magistrates. - (1) Subject to the provisions of this Chapter, any Magistrate of the first calss, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.”

Section 196 in the said Chapter states that no court shall take cognizance of any offence punishable under Chapter VI or under Section 153-A, Section 295-A or Section 501 (1) of IPC or a criminal conspiracy to commit such offence or any such abetment as described in Section 108-A of IPC except with the previous sanction of the Central Government or the State Government.

Chapter XV of the Code relates to complaints to Magistrates and covers cases before actual commencement of proceedings in a court or before a Magistrate. section 200 of the code requires a Magistrate taking cognizance of offence to examine the complainant and his witnesses on oath. Chapter XVI of the Code applies only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Thus, it is clear that, “initiation of proceedings” dealt with in Chapter XIV, is different from “commencement of proceedings” covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings and without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI.

20. The term “taking of cognizance” has not been defined under the Code. As per the Black's Law Dictionary the word “cognizance” means a court's right and power to try and to determine cases, the taking of judicial or authoritative notice or acknowledgment or admission of an alleged fact. In the case of R.R Chari v. State of U.P [AIR 1951 SC 207], the Supreme Court dealt with the question as to when cognizance of the offence could be said to have been taken by the Magistrate under section 190 of the code and it held as under:-

“It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in Cr.P.C on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process……”

In the case of Narayandas Bhagwandas Madhavdas v. State of W.B [AIR 1959 SC 1118], it was observed that when cognizance is taken of an offence depends upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. In the case of Ajit Kumar Palit v. State of W.B [AIR 1963 SC 765], the Supreme Court observed thus,

“The word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a Court or Judge to take notice of judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943 Pat 245) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R Chari v. State Of Uttar Pradesh (1951 SCR 312, 320) that the word, ‘cognizance’ was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty (1910 ILR 37 Cal 412, 416), “taking cognziance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.” Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled.”

In the case of Darshan Singh Ram Kishan v. State Of Maharashtra [AIR 1971 SC 2372], the Supreme Court held that taking cognizance does not involve any formal action or in deed action of any kind or occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. In the case of State of W.B v. Mohd. Khalid [(1995) 1 SCC 684], the Supreme Court, after taking note of the fact that the expression “taken cognizance” had not been defined in the Code, stated as under:-

“In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.”

In the case of Raghubans Dubey v. State Of Bihar (Supra), the Supreme Court held that, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders, really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. In the case of CREF Finance Ltd. (Supra), the Supreme Court held,

“….. The cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out…..”

21. On the backdrop of this settled legal position, let us examine the record of the case before the Chief Judicial Magistrate, Parbhani and the Chief Judicial Magistrate at Jalna. It has been fairly conceded before us that in the first supplementary charge-sheet submitted on 29/9/2006 before the CJM, Parbhani, the charge punishable under Section 120-B and Section 153-A of IPC was added and in the second charge-sheet submitted on 13/11/2008 was filed for similar offences or very same offences but in the original charge-sheet submitted on 7/9/2006 the charges levelled were punishable under Sections 201, 307, 324, 337 and 338, 284, 286, 295 read with Section 34 of IPC, Sections 3, 4, and 6 of Explosive Substances Act and Section 25(1) and 25(3) of the Indian Arms Act. Similarly in the first charge-sheet filed on 30/9/2006 before the Chief Judicial Magistrate at Jalna the offences punishable were under Sections 307, 436, 324, 323, 153-A, 120-B read with Section 34 of IPC and Sections 3, 4, 5 of Explosive Substances Act. We have to examine whether both the Courts i.e the Court at Parbhani as well as the Court at Jalna had taken cognizance of the offences (providing for sentence of three years or more) except the offences punishable under Sections 120-B and 153-A of IPC before 20/11/2008.

22. When the first charge-sheet was submitted in RCC No. 467 of 2006 on 7/9/2006, the learned CJM passed the following order:

“Charge-sheet is submitted by Police Station Nanel Peth, Parbhani. It is registered as Regular Cri. Case. Accused is in jail. Hence, case is posted for committal order.”

This charge-sheet was filed for the offences punishable under Section 302, 307, 324, 337, 338, 285, 295 read with Section 34 of IPC and Sections 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act. The second charge-sheet was filed on 29/9/2006, whereas the third charge-sheet was filed on the arrest of respondent no. 7, on 13/11/2008. The order passed by the learned CJM on the same date, reads as under:

“Be enclosed with the charge-sheet i.e RCC No. 467/06, State v. Sanjay and others.”

Admittedly, by letter dated 13/11/2008 sanction to take cognizance for the offence under Section 153-A of IPC was sought and no sanction was received.

23. In the case at Jalna i.e RCC No. 504 of 2006, the first charge-sheet was filed on 30/9/2006 and the learned CJM passed the following order on that date:

“The charge-sheet submitted by Police Station S.B Jalna along with accused. List of documents filed by the police station S.B Jalna (74) filed as per list. Order passed on Exh.

1. Register the case in RCC No. 504/06 and accused taken in MCR till 13/10/2006. Application for permission to obtain signature of the accused on V.P - allowed. Bail petition filed by the accused rejected. An application filed by the Police Station L.C.B PI Jalna for further investigation..”

This charge-sheet was filed for the offences punishable under Sections 307, 436, 324, 323, 153-A, 120-B read with Section 34 of IPC and Sections 3, 4, 6 of Explosive Substance Act. The second charge-sheet came to be filed on 7/1/2008, the third charge-sheet was filed on 15/11/2008 and the case was directed to be registered as RCC No. 29/08. On 3/5/2008 the learned CJM passed the following order:

“Issue process against accused nos. 1 to 5 under Sections 307, 436, 324, 323, 153-A, 295, 120-B read with Section 34 of IPC and Sections 3, 4, 5 of Explosive Substance Act.”

Finally the case was committed by the learned CJM on 11/8/2008. Whereas in RCC No. 467/06, the committal order came to be passed on 29/4/2009 i.e after the approval order under Section 23(1)(a) of the MCOC Act was passed.

The above stated factual position is not in dispute and the record, as placed before the Special Court, raises no doubts on the same.

24. In RCC No. 504/06 after the committal order was passed on 11/8/2008, a third charge-sheet was filed on 15/11/2008 against the present respondent no. 7, when he was produced before the court and the learned CJM passed the order, “Case be registered as RCC No. 648/08” and on 28/11/2008 he passed the following order:

“Perused the charge-sheet. Prima facie charges are disclosed. Therefore, proceedings started against Rakesh Dhavde under Sections 307, 436, 324, 323, 153-A, 295 of IPC and Sections 3, 4, 5 of the Explosive Substance Act”

A committal order came to be passed on the very same day in RCC No. 648/08.

As per Mr. Shivade the order passed on 28/11/2008 was the very first order taking cognizance and there were no such orders passed either in RCC Nos. 467/06 and 504/06. However, these submissions do not impress us, as the accused had filed an application at Exh.4 specifically praying before the court not to take cognizance of the offence against the added accused i.e present respondent no. 7 and it was under these circumstances that after hearing the parties, the said application at Exh.4 was rejected by the order, which has been relied upon by Mr. Shivade. Hence it cannot be accepted that the order dated 28/11/2008 passed below Exhibit 4 was the only order of taking cognizance.

25. As noted earlier and as is clear from catena of decisions the word “taking cognizance” includes “taking note of” and on filing of the charge-sheet at the first instance in both the cases, the court directed the case to be registered as Regular Criminal Case and it is thus clear that in both the cases the respective courts had taken cognizance of some of the offences with sentence of three years or more and prior to 20/11/2008. It is pertinent to note that the first charge-sheet filed in RCC No. 504/06, the offences under Section 153-A and 120-B of IPC were included, in addition to the offence punishable under Section 307 of IPC and at the same time, there was no compliance of Section 196 of Cr.P.C for these two offences i.e 153-A and 120-B of IPC. This would at the most mean that the cognizance for the offences punishable under Sections 153-A and 120-B read with Section 34 of IPC was not taken by the learned CJM at Jalna on 30/9/2006 or when the first or second charge-sheet was filed. However, the case was committed to the Sessions Court on 11/8/2008 and subsequently on filing of the charge-sheet against the present respondent no. 7, the case was registered as RCC No. 648/08 and was committed on 28/11/2008. We are not required to examine the effect of the committal orders passed either before 20/11/2008 or thereafter in both the cases. It is clear that the learned Special Judge was overwhelmed by the fact that there was no approval obtained under Section 196 of Cr.P.C for taking cognizance of the offences punishable under Sections 153-A and 120-B read with Section 34 of IPC. However, that non-compliance by itself would not lead to a conclusion that for the other offences i.e under Sections 307, 436, 324, 323 read with Section 34 of IPC the court had not taken cognizance. This aspect has not been gone into by the Special Court and, therefore, there is an error apparent in the orders impugned before us.

As is the settled legal position, cognizance is taken of an offence and not of an offender. Hence, the learned Special Judge was not right in holding that the competent court was required to take cognizance of the offences against respondent no. 7. Cognizance is taken at the initial stage when the very first report under Section 173(2) of Cr.P.C, which is more popularly known as charge-sheet, is submitted and the commission of an offence or offences is disclosed. Thus the view taken by the Special Court by saying,

“….. It is clear that as on 20/11/2008 though two charge-sheets were filed against accused - Rakesh Dattatray Dhawade, who is accused no. 7 in Crime No. 18 of 2008 registered with Police Station ATS, Mumbai, the competent court had not taken cognizance of the offences against him……” is against the well settled legal position and referred to hereinabove.

26. The setting aside of the order of approval dated 20/11/2008 and the sanction order dated 15/1/2009 is consequent to the finding recorded by the Special Court that cognizance was not taken of the offences, against respondent no. 7 and more particularly of the offences under Section 153-A of IPC. At the same time, the Special Court thought it fit to invoke powers under section 11 of the mcoc act after it quashed and set aside the order of approval as well as the sanction order. Hence, all these consequent orders are required to be quashed and set aside and the Bail Applications would stand restored to the file of the Special Court for being decided afresh on their own merits.

27. In the premises, Criminal Appeal Nos. 866, 867, 868 and 869 of 2009 are hereby allowed and the order passed below Exh.1 in MCOC Special Case No. 01 of 2009 as well as the orders passed in Bail Application Nos. 40 to 42 of 2008 are hereby quashed and set aside. Bail Application Nos. 40 to 42 of 2008 are restored to the file in MCOC Special Case No. 01 of 2009 for being decided on merits.

Criminal Appeal No. 1024 of 2009 accordingly stands allowed partly and Bail Application No. 41 of 2008 stands restored in MCOC Special Case No. 01 of 2009 for being heard and decided on merits.

Criminal Bail Application Nos. 40 to 42 of 2008 be heard and decided as expeditiously as possible and preferably within a period of two months from the date of appearance of the applicants before the Special Court.

The Bail Applicants to appear before the Special Court on 23/07/2010.

Criminal Application Nos. 539 of 2010 and 1318 of 2009 do not survive and disposed as such.

(ANOOP V. MOHTA, J.) (B. H. MARLAPALLE, J.)

Oral application for stay, made by Mr. Jha, is hereby rejected.

(ANOOP V. MOHTA, J.) (B. H. MARLAPALLE, J.)