ANIL BHAIYAJI RAUT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an application under Section 439 read with Section 21 of the Maharashtra Control of Organised Crime Act, 1999 (for short "mcoca" ). The applicant has been in custody since 3rd August, 2004 after the offence in respect of which the applicant was apprehended was treated as one under MCOCA. The learned counsel for the applicant pointed out that for application of provisions of MCOCA, it is necessary for the prosecution to show that the applicant was either member of organised crime syndicate or operating on behalf of such syndicate and he was indulging in continuing unlawful activities by use of violence or threat of violence for gaining pecuniary benefits, or gaining undue economic or other advantages. According to the learned counsel, out of six offences listed in the reply filed by learned A. P. P. three are prior to the year 1999 when the Act came into force. Therefore, they deserve to be excluded from the consideration except for showing criminal antecedents, as held by this Court in Criminal Application No. 3301 of 2005 (Sanjay Bhadre Vs. State of Maharashtra ). Fourth offence is one punishable under Section 324 of the Penal Code which has nothing to do with gaining any undue economic advantage. In respect of fifth offence punishable under Sections 399 and 402 of the Penal Code, even the learned A. P. P. confirms that the applicant has been acquitted. THIS leaves only one offence punishable under Sections 397 and 398 of the Penal Code. In that case, the applicant is already on bail.

(2.) The learned counsel for the applicant further submitted that mere filing of the charge-sheet in number of crimes would not be enough to attract the application of MCOCA, since MCOCA ought to be applied only in relation to some crime which is committed as a part of organised crime. Since the material on which the prosecution relies does not prima-facie show that there is any offence which the applicant could be said to have committed as a part of continuing unlawful activity either as a member of organised crime syndicate or on behalf of such syndicate, bar of Section 21 of MCOCA may not apply.