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Can’t challenge discharge of MCOCA accused: Bombay HC

india Updated: Jun 24, 2013 12:22 IST
Kanchan Chaudhari
Kanchan Chaudhari
Hindustan Times
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Though the victim has the right to challenge acquittal of accused persons, he or she cannot challenge discharge of accused persons from stringent charges under the Maharashtra Control of Organised Crime Act (MCOCA), the Bombay high court has held.

“On a plain reading of the provisions of Section 12 (which deals with appeals) of the MCOCA, it is clear that the right of appeal is available only to the parties to the proceedings/lis and not to any other person, even a victim,” the division bench of Justice PV Hardas and Justice AR Joshi observed.

The bench dismissed an appeal filed by Bhayander resident Sandhya Patil challenging discharge of four alleged killers.

Sandhya’s counsel argued that the appeal was maintainable in the light of provisions of Section 372 of the Code of Criminal Procedure (CrPC), which confers right of appeal on the victim of a crime, in addition to the state and the complainant in the case.

This argument, however, failed to impress upon the judges of her husband, Prafulla, from stringent provisions of the MCOCA declaring it as not maintainable.

“Section 12 of the MCOCA does not specify as to who can file an appeal,” the bench observed, adding, “In the Section 372 confers a right on a victim to file an appeal, only if the judgment acquits the accused or convicts the accused for a lesser offence or awards inadequate compensation,” the judges noted.

The judges held that the order discharging accused from stringent provisions of the MCOCA is not an order acquitting the accused. absence of the express language of the statute, it has to be inferred that the right of appeal is available only to the parties to the lis (proceedings, i.e. the state government).”

The bench was required to decide maintainability of Sandhya’s appeal after accused in the case -- Ajay Pande, Gulam Shaikh, Vishal Mhatre and Rajesh Singh took strong objection to its maintainability.

Sandhya’s counsel, Amit Desai, had argued that the appeal was maintainable in the light of provisions of Section 372 of the Code of Criminal Procedure (CrPC), which confers right of appeal on the victim of a crime, in addition to the state and the complainant in the case.

The senior advocate had further argued that the order of discharging accused from stringent provisions of the MCOCA is a final order and since there is no bar under the provisions of stringent legislation on victim filing an appeal, an appeal filed by the victim challenging discharge of accused must be treated as maintainable.