Bombay High Court rules out application of MCOCA in assault case between two groups

Stating that the order of the Special Court order cannot be faulted, the High Court held it is obligatory on the part of the prosecution to establish that their activities would attract provisions of MCOCA showing continuing unlawful activity and organised crime.

“While looking at one of the chargesheets in one of the FIRs of 2014, we find that provisions of MCOCA cannot be attracted. It is a case of assault by two groups against each other,” said the court. According to a Bench of Justice Naresh Patil and Prakash Naik, the prosecution failed to make out any case of gaining pecuniary benefits or other advantage by the accused. The FIRs in which chargesheets were filed were registered in Antop Hill where the informant in one of the cases was the accused in another case.

The state argued that the special court had committed an error in allowing the application of the accused persons. There were more than one case, where chargesheets were filed and cognizance of the same had been taken, as is required to book someone under the Act. “Even if the court found some error or deficiencies in the order (for attracting MCOCA), the same could be tested during evidence in the trial. There is no need to allow application on account of alleged defects pointed out by the accused in approval or sanction order (by the competent authority). Two chargesheets were filed and cognizance was taken and, therefore, in the facts, there was sufficient compliance of provisions of MCOCA,” said the public prosecutor.

The defence lawyers submitted that considering the stringent provisions of MCOCA, it’s the responsibility of the prosecution to satisfy that the case is made out by the prosecution to registered offences under MCOCA but the prosecution has failed to satisfy these conditions. The lawyers argued that a mere fight between two groups cannot attract provisions of MCOCA. “There are cross cases based on an incident. The sanctioning authority, without application of mind, gave sanction. It is defective in nature,” argued advocate Abdul Wahab Khan along with advocate Naima Shaikh.