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Shaikh’s application could not have been dismissed as infructuous after the charges were filed where a valuable right is accrued upon the accused according to the CrPC: Bombay High Court

The decision that the application of Mubin Kadar Shaikh, one of the accused in the 2008 Indian Mujahideen (IM) case, could not have been dismissed as infructuous after the charges were filed where a valuable right is accrued upon the accused is upheld by the High Court of Bombay through the learned bench led by HONOURABLE SMT. JUSTICE SADHANA S. JADHAV and HONOURABLE MR. JUSTICE MILIND N. JADHAV in the case of Mubin Kadar Shaikh Versus The State of Maharashtra (CRIMINAL APPEAL NO. 220 OF 2022).

FACTS OF THE CASE- Brief facts of the case are that Shaikh and 20 others were detained by Mumbai police in 2008 for allegedly being members of the IM media cell. Under sections of the Indian Penal Code, MCOCA, the Unlawful Activities (Prevention) Act, the Arms Act, and the Explosive Act, they were charged with criminal conspiracy and waging a war against the country. The prosecution claimed that in August 2008, emails were sent to media organisations claiming responsibility for a series of bombings in Ahmedabad, Gujarat, that killed more than 50 people and injured many more. Shaikh has filed an appeal with the HC, challenging the special court’s April 2019 ruling dismissing his application against the invocation of MCOCA.

Shaikh filed a second appeal after the special court framed the accusations in the case. The counsel for Applicant Mubin Solkar, claimed that while their petition was pending before the special court, the special court drafted accusations against him and other defendants on December 10, 2013, rendering their plea obsolete. He contended that the special court established charges against them in the case while their cases against MCOCA were underway. He also claimed in the high court that the special court “violated the provisions of Sections 227 and 228 of the Code of Criminal Procedure” by failing to hear the accused on their defence to the MCOCA accusations.

The counsel for Respondent, AM Chimalkar, on the other hand, maintained that the accused had agreed to the accusations being laid. He cited the case of Radial Bhanji Vs. the State of Maharashtra, which stated that once the charge is framed, the Magistrate has no power under Section 227 of the Cr.P.C. or any other provision of the Code to consider a discharge application and return to the earlier stage of proceedings at the stage of Section 273 of the Cr.P.C. to discharge the accused, and that the natural course would be to continue with the trial and pronounce the judgement. In brief, the prosecution claims that the court cannot discharge the accused after the charge is framed. The Appellant also relied on the case of Vikrant Rajkumar Gupta Vs. The State of Maharashtra which highlighted the fact that an opportunity of hearing is required to be given to the accused before the charge is framed.

JUDGEMENT- The court said that the appellant’s application to dismiss the MCOCA accusations should have been considered by the trial court before proceeding to frame the charges. The Hon’ble judges said that it was not open to the trial court to have disposed of the motion as ‘not surviving’ once the court had taken cognizance of the pending application and had formulated the question calling upon the prosecution to show reason why the charges under MCOCA should not be withdrawn. While overturning the special court’s decision, the judges noted that the accused’s “valuable right” had been compromised because the application (before the special court) was still pending and had not been heard. The court ordered the accused to file a new application for the quashing of charges under the MCOCA within four weeks, and the trial court to rule on it within four months after the prosecution files its response.

JUDGEMENT REVIEWED BY- ATIVA GOSWAMI

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