By A.Mirsab, TwoCircles.net,
Mumbai: After couple of hours argument on 26th June 2014 by Advocate General D J Khambatta for Maharashtra State and renowned Supreme Court Adv. Mahmood Pracha for the defense, divisional bench of Bombay High court sent back MCOCA revocation order to the Special Judge A L Pansare to decide it afresh considering factual aspects of the case which were in the opinion of High court not included in 26 page order of Special Judge. The matter was remitted back to Special Judge by High Court only with the consent of both the counsels appearing for state and defense.
The special judge A L Pansare on 11th February 2014 dismissed MCOCA charges from JM road Pune 2012 blasts case holding that MCOCA charges cannot be attracted in terror cases which are categorized only as ‘insurgency’ and not as ‘promoting insurgency’.
The special judge had said in its order that in one of the Supreme Court judgment it had upheld the constitutional validity of MCOCA but had clearly stated that MCOCA can be used only to punish those offences which ‘promote insurgency’ and not for the ‘insurgency’ offences and thereby had said that the present case of prosecution was of ‘insurgency’ and not of ‘promoting insurgency’.
At another place Special Judge had said,”…if the crime alleged in the present case is examined, it is not the case of prosecution that the organization named “Indian Mujahideen” has ever acted as organized crime syndicate or has ever indulged in the organized crime for gaining pecuniary benefits or gaining undue economic or other advantages, particularly in terms of the object of MCOC Act.”
Fearing the wider implication of the Special Judge Order of revocation of MCOCA from terror case which could have served as basis for quashing of MCOCA from all terror cases running in Maharashtra, the state had appealed the order before Bombay High court.
The matter came for argument on 26th June before Divisional bench of Justices P.V. Haridas and Smt. Anuja Prabhudessai. Advocate General D J Khambatta argued along with Adv. Raja Thakare for state whereas Supreme Court Adv. Mahmood Pracha argued for the defense. Mr. Khambatta pointed out before the Divisional bench, omission of factual aspects in the Special Judge order that in his opinion were important in deciding the matter.
Adv. Mahmood Pracha stood with his earlier argument which he had presented and succeeded with before Special Judge. The High Court asked him if he is ready to remit back the matter to Special Judge for inclusion of factual aspects which were missing in his 26 page order, to which he accorded his consent and finally the High court sent back the matter to Special Judge with time bound of 3 months to decide the matter.
High court said, “On perusal of the order it is disclosed that on factual aspects of the case also there is no consideration and no finding has been recorded. With the consent of the learned Counsel for the parties therefore, the order which is impugned in the present Appeal is hereby quashed and set aside and the matter is remitted back to the Trial Court for a decision afresh in accordance with law.”`
Supreme Court Adv. Mahmood Pracha told TCN, “There were certain legal issues such as applicability of central UAPA in the offence against state, jurisdiction of Magistrate trying UAPA cases and Sec. 6 of NIA Act which were not included in the special judge order and hence it was considered better to remit matter back to special judge”.
“Special judge has already opined in our favor therefore remitting back matter ( to special Judge) for inclusion of factual aspects of the case will only strengthen the order for us” he added.
He also told TCN that as the trial proceedings in the Pune blasts case and other allegedly Indian Mujahideen terror cases which are running before special judge A L Pansare are pending till decision of applicability of MCOCA, Bombay High court has asked Special judge to decide the remitted matter within 3 months.
With the recent High court order, 7/11 Mumbai train blasts case which is in the final stage of trial – will have to wait another 6 or more months to get High court’s decision on the applicability of MCOCA in terror cases before the defense or prosecution can benefit from the High court order which has legal binding upon the special court.
Related:
Special Court order may act as deterrent for ATS applying MCOCA in terror cases