Mumbai: The Bombay High Court has set aside a lower court order which had kept the trial against a bomb blast accused in abeyance as he was facing charges in another case under Maharashtra Control of Organised Crime Act (MCOCA).
Rakesh Dhawade, accused in a blast which occurred in Masjid at Jalna in 2004, had challenged an order of a sessions court in which the Judge held that the case should be kept in abeyance in view of Section 10 of MCOCA.
This provision says that trial by a Special Court shall have precedence over the trial of any other case against an accused in any other court.
However, Justice A V Nirgude, while directing that the sessions case would continue, observed that looking into the facts and circumstances of the case, the sessions Judge should not have kept the trial against the accused in abeyance.
"The sessions case is pending since 2007. Most of the trial is almost over. On the other hand, the case under MCOCA is pending and has not made significant progress in the trial. Even the charge is not framed. So, it would have been proper for the Sessions Judge in Jalna to continue with the trial and dispose of the case," the judge recently observed.
"He (the Sessions Judge) could have taken the view (which he has taken in the impugned order) only if the State had objected to the continuation of the sessions case. Even they did not want to get precedence to the trial of the special case over the sessions case," Justice Nirgude noted.
"It is clear from the wording of Section 10 that the
Legislature wanted precedence to the cases filed under MCOCA for trial over other cases. The Section does not stop at that but makes it obligatory that in case a trial of any offence punishable under the MCOCA is pending against a person, other cases against such person shall remained in abeyance. It is apparent that the word `shall` used in Section 10 is mandatory in nature and not directory," the judge remarked.
"Apparently, two cases have nothing in common except the applicant being accused in both the cases. The prosecution thus took pragmatic view of the situation and did not object the continuation of the trial. It seems at the belated stage rather half heartedly the state is now stuttering a plea which in my view is not tenable at all," the judge said.
However, the High Court made it clear that the Sessions Judge shall record the statement of the accused first and relieve him and should not seek his presence before the Court thereafter unless it is utmost necessary. He shall not take any step while trying this case to hamper the progress of special case pending against the accused under MCOCA.
The accused was arrested in 2008 in the sessions case in which a bomb had exploded in a Masjid in Jalna on August 27, 2004. He was subsequently arrested in another case in Mumbai under MCOCA.