(1.) This Appeal has been filed by the Appellant, wife of deceased Prafull Patil, challenging the order passed by the Special Judge (MCOCA) for Greater Bombay, at Exhibit 21, dated 7.10.2011, in MCOC Special Case No. 9 of 2011, discharging the Accused for offences punishable under the provisions of the Maharashtra Control of Organised Crime Act, 1999. Criminal Appeal No. 722 of 2012 has been filed by the State of Maharashtra, questioning the same order passed by the Trial Judge. When these Appeals alongwith the other Misc. Applications were taken up for hearing, the learned Counsel for the parties submitted that the question of maintainability of Criminal Appeal No. 1325 of 2011 be decided first as according to the learned Counsel for the Respondents, the said Appeal is not maintainable. With the consent of the learned Counsel for the parties therefore, Criminal Appeal No. 1325 of 2011 is being decided first and particularly, the question regarding maintainability of the Appeal. Since the question of maintainability of the Appeal is being decided, none of the aspects touching the merits of the matter have been examined by us and we are only dealing with the question of the maintainability of the Appeal.
(2.) Mr. Amit Desai, learned Senior Counsel for the Appellant has urged before us that the Appeal filed by the Appellant i.e. the victim is maintainable in the light of the provisions of Section 372 of the Code of Criminal Procedure. It is also urged before us that once an order discharging the accused under the provisions of the MCOC Act is passed, the case would then be referred for trial to another Additional Sessions Judge and consequently, unless and until there is an appeal questioning the order of the Trial Court discharging the accused under the provisions of MCOC Act, the Additional Sessions Judge to whom the case may be allotted for trial would not have the jurisdiction to decide the question regarding the applicability of the provisions of the MCOC Act. Mr. Desai, learned Senior Counsel for the Appellant therefore submits that an order of the Trial Court holding that the provisions of the MCOC Act are not applicable, though in law, may be an order discharging the accused, the same would have the effect of acquittal of the accused under the MCOC Act and consequently, an Appeal at the behest of the victim under Section 372 of the Code of Criminal Procedure would certainly be maintainable. Mr. Desai, learned Senior Counsel for the Appellant has further urged before us that in the light of the present judicial trend of protecting the rights of the victim and giving the victim an opportunity of questioning orders of the Trial Court which may be adverse to the victim, the provisions of the MCOC Act will have to be read in that background and therefore, the victim would have a right to file an appeal. It is also urged by Mr. Desai, learned Senior Counsel for the Appellant that the provisions of the Code of Criminal Procedure are not excluded in their entirety and the right of the victim to file an Appeal would certainly be a right which would be protected and preserved under the provisions of the MCOC Act.
(3.) Mr. Subhash Jha, Mr. A.H.H. Ponda and Mr. Nilesh Ojha, learned Counsel for the Respondents have urged before us that an appeal is a creature of statute and therefore, unless a statute expressly provides the right to file an Appeal, the same cannot be inferred. It is further urged before us that Section 372 of the Code of Criminal Procedure would not be applicable in the present case particularly, in respect of the order impugned in the present Appeal as the said order does not acquit the accused but only discharges them of the provisions of the MCOC Act. It is, therefore, urged before us that the Appeal filed by the Appellant would not be maintainable and the Appeal therefore deserves to be dismissed.