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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 239 OF 2011
The State of Maharashtra ... Appellant.
(Org.Complainant)
V/s.
Rahul Ramchandra Taru ... Respondent.
Age-24 yrs., Occ.-Service, R/a. 354- (Org.Accused)
Bhoiraj Society,Sahakar Nagar No.1,
Pune -411 009. (in Yerwada Central Prison)
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Mr. Y.P. Yagnik, APP for the Appellant/State.
Mr. S.R.Pasbola i/by Rahul Arote for the Respondent.
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CORAM : P. V. HARDAS & M.N.GILANI,JJ.
DATE : Judgment reserved on 28th April, 2011.
Judgment pronounced on 06th May, 2011.
JUDGMENT : (PER M.N. GILANI, J.)
1 This appeal under section 12 of the Maharashtra Control of
Organised Crime Act, 1999 (for short, “MCOCA”) is directed against the
order dated 21.08.2008 passed by the Special Judge, Special Court, Pune
in Special Case No. 2 of 2007, whereby, the learned Special Judge
discharged the respondent- accused for the offence under MCOCA.
2 Special Case No. 2/2007 is arising out of Crime No. 562/2006
registered with the Kothrud Police Station, Pune under sections 302, 307,
143, 148, 149, 120-B and 109 of the Indian Penal Code and Section 3/25
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of Arms Act, The incident occurred on 14.10.2006. It is alleged that one
Sachin Pote and his associates attacked one Sandeep Mohol (since
deceased) while latter was proceeding in his Scorpio Jeep. The firearms
and other deadly weapons were used by the accused while assaulting the
deceased. Sandeep Mohol succumbed to the injuries which resulted in
registration of the crime as indicated above.
3 The investigation revealed that the accused are the persons of the
organised crime syndicate and therefore, provisions of MCOCA were
invoked against them.
4 The respondent submitted an application vide Exh. 99, seeking his
discharge from the offence punishable under section 3(i), 3(ii), 3(iii) and
3(iv) of the MCOCA. It was submitted that the material placed on
record does not disclose any offence under the provisions of MCOCA.
There is no evidence to show that the respondent-accused was at any
point of time was a member of the organized crime syndicate. The State
resisted this application. The learned Special Judge after considering the
rival submissions, held that the material placed on record does not
disclose offence punishable under the MCOCA. He therefore, discharged
the respondent-accused from the offences punishable under the MCOCA.
Being aggrieved, by this order, the State has preferred this appeal.
5 Learned APP submitted that the order of discharge passed by the
learned Special Judge is erroneous and inconsistent with the
documentary evidence placed on record. According to him there is ample
material to show that the respondent-accused is a member of the
organized crime syndicate. He alongwith the other is involved in
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continuing unlawful activity and this is evident from the chargesheets
filed against him within preceding period of ten years and that the court
has taken cognizance of such offence.
6 Similar submissions were advanced before the learned Special
Judge, Special Court, Pune. As regards two previous chargesheets, one
being Sessions Case No. 418 of 2006 under section 395, 143, 147, 148 of
the IPC and other being regular Criminal Case No. 120 of 2000 under
sections 324, 323, 504 read with 34 of the IPC, the learned Special
Judge observed that these offences were not committed by the
organized crime syndicate. As regards the allegations in special case no.
02 of 2007, the offence with which the respondent-accused and others
have been charged have not been committed with an objective of gaining
pecuniary benefits or gaining undue economic or other advantage to the
respondent-accused. Therefore, he discharged the respondent-accused.
7 Before we consider the merits of the present case, it would be
appropriate to set out certain provisions of the MCOCA, in particular
Sections 2(d), 2(e) and 2(f) of the MCOCA as under :
“Sec. 2(d). “Continuing unlawful activity” means an activity
prohibited by law for the time being in force, which is a
cognizable offence punishable with imprisonment of three
years or more, undertaken either singly or jointly, as a
member of an organised crime syndicate or on behalf of such
syndicate in respect of which more than one chargesheets
have been filed before a competent Court within the::: Downloaded on – 09/06/2013 17:15:56 :::
spb/-4 J-A239-11.sxw preceding period of ten years and that Court has taken cognizance of such offence".“Sec.2(e) “Organised crime” means any continuing unlawful
activity by an individual, singly or jointly, either as a member
of an organized crime syndicate or on behalf of suchsyndicate, by use of violence or threat of violence or
intimidation or coercion, or other unlawful means, with the
objective of gaining pecuniary benefits, or gaining undueeconomic or other advantage for himself or any other person
or promoting unsurgency”.
“Sec. 2(f) “Organised crime syndicate” means a group of two
or more persons who, acting either singly or collectively, as a
syndicate or gang indulge in activities of organised crime. ”(emphasis supplied)
8 Under section 2(d) of MCOCA, “continuing unlawful activity”
means an activity prohibited by law for the time being in force which is a
cognizable offence punishable with imprisonment for three years ormore, undertaken either singly or jointly, as a member of the organized
crime syndicate or on behalf of such syndicate in respect of which more
than one chargesheets have been filed. It is, therefore, clear that one ormore chargesheets, containing allegations that the alleged offence was
committed either singly or jointly as a member of the organized crime
syndicate or on behalf of such syndicate, is sine qua non for invoking
stringent provisions of MCOCA. This follows that mere filing of more
than one chargesheets within the preceding period of ten years, alleging
commission of congnizable offence punishable with imprisonment of::: Downloaded on – 09/06/2013 17:15:56 :::
spb/-5 J-A239-11.sxw three years or more, is not enough. 9 In the case of Ranjeetsingh Brahmajeetsing Sharma Vs.State of Maharashtra & Anr. (2005 ALL MR (Cri) 1538 (S.C.), the
Supreme Court observed that :“The Statement of Objects and Reasons clearly states
as to why the said Act had to be enacted. Thus it willbe safe to presume that the expression ‘any unlawful
means’ must refer to any such act, which has a directnexus with the commission of a crime which the MCOC
Act seeks to prevent or control. In other words, an
offence falling within the definition of organized crimeand committed by an organized crime syndicate is the
offence contemplated by the Statement of Objects and
Reasons. There are offences and offences under the
Indian Penal Code and other penal statutes providing
for punishment of three years or more and in relationto such offences more than one chargesheet may be
filed. As we have indicated hereinbefore, only because
a person cheats or commits a criminal breach of trust,
more than once, the same by itself may not be
sufficient to attract the provisions of MCOCA”.(emphasis supplied)
In order to constitute “continuing unlawful activity” following
requirements of law should be satisfied :-i. more than one chargesheet, alleging commission of
congnizable offence punishable with imprisonment of three years
or more;ii a chargesheet should consists of averments, alleging
unlawful activity undertaken either singly or jointly by the
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6 J-A239-11.sxw iii as a member of organized crime syndicate or on behalf of such syndicate; iv the congnizance of such offence is taken by the competent court. 10 In order to bring an alleged act within the ambit of the MCOCA,the aforementioned requirements are mandatory. The word “in respect of
which” occurring in the definition clause of “continuing unlawful activity”connotes that it is not a normal chargesheet, alleging commission of
congnizable offence punishable with imprisonment of 3 years or more.
The chargesheet sans allegations that the alleged act is undertakeneither singly or jointly by the accused who is a member of an organized
crimes syndicate or is undertaken on behalf of such syndicate, would not
fall within the ambit of the expression “continuing unlawful activity”,occurring in MCOCA.
11 In Prafulla s/o. Uddhav Shende vs. State of Maharasthra,
(2009 ALL MR(Cri.) 870), the learned single Judge of this court whiledealing with the bunch of appeals arising out of judgments passed by the
Special Court at Nagpur, placed reliance on the various decisions, mainly,
the decision in Ranjeetsingh Brahmajeetsing Sharma;s case (supra),also made a reference to the case of Sherbahadur Akram Khan (Supra)
and observed in paragraphs 29, 43 and 44 that :“29. Since the definitions, though intertwined in a cyclic order,
are clear and unambiguous, it would follow that each ingredient
in the definitions, or the alternative thereof provided by the::: Downloaded on – 09/06/2013 17:15:56 :::
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definitions themselves, would have to be proved. Viewed thus,
for charging a person of organised crime or being a member oforganised crime syndicate, it would be necessary to prove that
the persons concerned have indulged in :(i) an activity,
(ii)which is prohibited by law,
(iii)which is a congnizable offence punishable with
imprisonment for three years or more,(iv)undertaken either singly or jointly,
(v)as a member of organised crime syndicate i.e. acting as a
syndicate or a gang, or on behalf of such syndicate.(vi)(a) in respect of similar activities (in the past) more than
one chargesheets have been filed in competent court
within the preceding period of ten years,(b) and the court has taken cognizance of such offence.
(vii)the activity is undertaken by :
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means.
(viii)(a) with the object of gaining pecuniary benefits or
gaining undue or other advantage or himself or any
other person, or(b) with the object of promoting insurgency.
“43. This fortifies the conclusion that mere proof of filing
chargesheets in the past is not enough. It is only one of the::: Downloaded on – 09/06/2013 17:15:56 :::
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requisites for constituting offence of organised crime. If only
the past charge-sheets were to be enough to constitute offenceof organised crime, it could have offended the requirement of
Article 20(1) of the Constitution and possibly Article 20(2) as
well, (and in any case Section 300, Cr.P.C.). Had thesejudgments of the Supreme Court and Division Benches of this
Court been cited before the learned single Judge deciding
Amarsingh Vs. State (2006 ALL MR (Cri.)407) the learnedSingle Judge, without doubt, would not have held that the
matter was simply one of an arithmetical equation. The said
judgment cannot be reconciled with the judgments of divisionbenches in Jaising Vs. State (2003 ALL MR (Cri) 1506 and
Bharat Shah vs. State 2003, ALL MR (Cri) 1061 which I am
bound to follow.
44. …………….. Therefore, since the previous criminal history
of the applicants denotes that they had been or are being
separately charged/tried for those offence before competent
courts, there is no question of such offences constituting offenceof organised crime.”.
(emphasis supplied)
12 In the present case, the prosecution relied upon two charesheets
one relating to CR No. 113 of 2006 and the other relating to CR No.87 of
2000 registered at Sahakar Nagar Police Station, Pune under sections
323, 324, 506 read with section 34 of the IPC.
13 In R.C. No. 87 of 2000, the complainant Ritesh in his complaint
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dated 07.05.2000 lodged on the night of 06.05.2000, stated that when
he intervened in the quarrel going on between the respondent and his
associates on one hand and one Sunil on the other hand, the respondent
inflicted knife blow on his fingers of left hand. This has resulted into the
filing of the chargesheet being crime no. 129 of 2000 before the court of
Judicial Magistrate, First Class, Court No.4 ,Pune. The respondent was
acquitted in this case on 26.03.2008. Here, we are only concerned about
the filing of chargesheet on the date when the MCOCA was invoked.
The perusal of the allegations in the aforesaid chargesheet, by no stretch
of imagination, point out that the aforesaid offence was committed by the
accused in the capacity as a member of organized crime syndicate or
while acting as a syndicate or a gang or on behalf of such syndicate. It
cannot be said that such allegations has any nexus with the Statement of
Objects and Reasons under the MCOCA. To put it differently, such
allegations do not satisfy all the mandatory requirements contemplated by
the expression “continuing unlawful activity” occurring under MCOCA.
14 The learned APP placed reliance on unreported judgment in the
case of Ganesh Nivrutti Marne vs. The State of Maharashtra in
Criminal Appeal No. 930 of 2009 decided on 07th May, 2010. That
appeal also had arisen from the Special Case No. 02 of 2007 which was
filed by the accused no.7 whose application for discharge was rejected by
the Special Judge, Special Court, Pune. It appears that the appellant in
the said case was operating his own gang called as “Ganesh Marne
Gang”. Allegations against him were that he was operating a crime
syndicate and committed several offences of similar nature in the past to
gain an edge over the rival gang and to achieve supremacy in the local
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area. The Division Bench in the case (supra) examined the facts in
Special Case No. 2 of 2007 qua the appellant before analysing
expressions “continuing unlawful activity”, “organised crime” and
“organized crime syndicate”. A reference was made to the judgment of
the Division Bench of this court in the case of Sherbahadur Akram Khan
vs. State of Maharashtra (2007 ALL MR (Cri.) 1) and held that
Sherbahadur Akram Khan’s case must be restricted to its own facts. The
Division Bench while rejecting appeal laid great emphasis on the
decision in the case of Anil Sadashiv Nanduskar vs. State of
Maharashtra [2008 (3) MAH. L.J. (CRI) 650]. In the cases of Ganesh
Nivrutti Marne as well as Anil Nanduskar, the question which was
addressed by the Division Bench was whether expressions “other
advantage” occurring under section 2(1)(e) are to be construed “ejusdem
generis” with the earlier terms or it should be given wider meaning.
The Division Bench in the case of Ganesh Nivrutti Marne has also made
reference to the Supreme Court decision in the case of Ranjeetsingh
Brahmajeetsing Sharma vs. State of Maharashtra (Supra) and observed
that “the Supreme Court has expressly kept this question open.”.
15 We propose to clarify that to address the question which is posed in
this appeal, interpretation of expressions “or other advantage” and “or
other unlawful means”, occurring under section 2(1)(e) of MCOCA, is
not strictly necessary. Even if, both the terms are given wider meaning,
the prosecution is not absolved of its duty to prove that within the
preceding period of 10 years more than one chargesheets, alleging
commission of cognizable offence punishable with imprisonment of three
years or more, have been filed and further to prove that in such
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chargesheets, it has been alleged that the accused either singly or jointly
and as a member of organized crime syndicate or on behalf of such
syndicate committed the unlawful activity. This follows that merely
alleging that more than one chargesheets in respect of cognizable
offence punishable with imprisonment of three years or more have been
filed, is not sufficient. This does not satisfy requirements of law. This
is what precisely held by the Supreme Court in the case of Ranjeetsingh
Brahmajeetsing Sharma (supra). The unlawful activity alleged in the
previous chargesheets should have nexus with the commission of the
crime which MCOCA seeks to prevent or control. An offence falling
within the definition of organized crime and committed by organized
crime syndicate is the offence contemplated by the Statement of Objects
and Reasons under the MCOCA.
16 On careful examination of one of the chargesheets, which exercise
was also undertaken by the learned Special Judge, we have reached to
the conclusion that the act constituting offence was not alleged to have
been committed by the accused as a member of organized crime
syndicate or on behalf of such syndicate.
17 For the foregoing reasons, we do not find any substance in the
appeal.
18 Appeal is dismissed.
19 At this stage, learned APP requests for grant of stay for four weeks
in order to enable the State to file appropriate proceedings in the
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Supreme Court. In that light of the matter, therefore, we grant stay for
four weeks as requested by the learned APP.
[M.N.GILANI,J.] [P.V. HARDAS, J.]
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