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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.930 OF 2009
Ganesh Nivrutti Marne, age 30 )
years, Occ. Business, R/at Gururaj )
Society, Mantri Vihar, Flat No.6, )
Paud Road, Kothrud, Pune - 411 )
038. ) ... Appellant
Versus
The State of Maharashtra through )
Kothrud Police Station, Pune. ) ... Respondent
Mr. S.R. Chitnis, senior counsel with Mr. Ashish Sawant for
the appellant.
Ms. P.H. Kantharia, A.P.P. for the State.
CORAM: MRS. RANJANA DESAI &
MRS. V.K. TAHILRAMANI, JJ.
DATE ON WHICH THE ORDER IS
RESERVED : 28TH APRIL, 2010.
DATE ON WHICH THE ORDER IS
PRONOUNCED: 7TH MAY, 2010.
JUDGMENT :- (Per Smt. Ranjana Desai, J.)
1. The appellant is accused 7 in MCOCA Special Case
No.2 of 2007 pending in the court of Special Judge (under
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MCOCA), Pune. In this appeal filed under Section 12 of the
Maharashtra Control of Organized Crimes Act, 1999 (for
short, “the MCOCA”), the appellant has challenged order
dated 19/8/2009 whereby his application for discharge
was rejected.
2 The prosecution case needs to be shortly stated. It is
as under:
The appellant along with other accused hatched
conspiracy and committed murder of Sandeep Mohol (for
convenience, “the deceased”) on 4/10/2006 at about
11.30 a.m. while he was proceeding in his four wheeler
near a traffic signal near Paud Flyover Bridge, Paud Road,
Pune. The appellant and others committed murder of the
deceased with the aid of chopper, sickle, revolver, etc. on
account of previous enmity and rivalry between the two
gangs. The appellant heads the Ganesh Marane Gang
and all the accused are members of the said gang. The
appellant and other members of the organized crime
syndicate have committed several offences of similar
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nature in the past to gain an edge over the rival gang and
to achieve supremacy in the local area. The appellant and
other accused acting in a synchronized manner planned
and conspired to murder the deceased on 4/10/2006. The
accused came on motorcycles and surrounded the four
wheeler in which the deceased was sitting. They broke
the glasses of the windows of the four wheeler of the
deceased and attacked the deceased in a well planned
manner. After successfully commissioning the crime, they
fled away. Offences punishable under Sections 302, 307,
143, 147, 148, 149, 120-B and 109 of the Indian Penal
Code (for short, “the IPC”) and Section 3(25) of the Arms
Act were registered vide C.R. No.562 of 2006 at Kothrud
Police Station, Pune on the complaint lodged by Mr.
Prakash Dagdu Karpe against five named accused and 3-4
unknown persons. During the course of investigation,
police came to the conclusion that the appellant and other
accused are members of organized crime syndicate
headed by the appellant and they were indulging in
organized crime with a view to gaining pecuniary benefits.
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Therefore, after obtaining approval under Section 23(1) of
the MCOCA, offences under Sections 3(1), 3(2) and 3(4) of
the MCOCA came to be added. Thereafter, sanction under
Section 23(2) of the MCOCA was obtained from the
Competent Authority. The appellant and others came to
be arrested on 25/10/2006. The application preferred by
the appellant praying for discharge has been rejected vide
the impugned order and, hence, the appellant has
preferred this appeal.
3. We have heard, at some length, Mr. Chitnis, senior
counsel appearing for the appellant. Mr. Chitnis has taken
us through the Statement of Objects and Reasons and the
Preamble of the MCOCA. He has also taken us through
the relevant provisions of the MCOCA more particularly
Sections 2(1)(d), 2(1)(e) and 2(1)(f). Mr. Chitnis submitted
that Section 2(1)(e) of the MCOCA describes “organized
crime” as continuing unlawful activity by an individual,
singly or jointly, either as a member of an organized crime
syndicate or on behalf of such syndicate, by use of
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violence or threat of violence or intimidation or coercion,
or other unlawful means, with the object of gaining
pecuniary benefits, or gaining undue economic or other
advantage for himself or any other person or promoting
insurgency. Mr. Chitnis submitted that if we read the
Statement of Objects and Reasons of the MCOCA and the
Preamble thereof and definition of the term “organized
crime”, it is clear that the continuing unlawful activity
must be indulged in 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 undue economic or other advantage. Mr. Chitnis
submitted that pecuniary benefits is the main ingredient
of this section and unless there is material to show that
the continuing unlawful activity was carried out for
pecuniary benefit, the provisions of the MCOCA cannot be
attracted. In this connection, Mr. Chitnis relied on the
judgment of the Division Bench of this court in
Sherbahadur Akram Khan & Ors. v. State of
Maharashtra, 2007 ALL MR (Cri.) 1. Mr. Chitnis relied
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upon the observations made by the Division Bench that
the provisions of the MCOCA would be attracted only if it
is established that unlawful activity is undertaken by a
person with the objective of gaining pecuniary benefits or
gaining undue economic or other advantage for himself or
any other person or for promoting insurgency. Mr. Chitnis
submitted that in this case this court has made it clear
that the words in Section 2(1)(e) – “with the objective of
gaining pecuniary benefits, or gaining undue economic or
other advantage” will have to be given some effective
meaning and applying the principle of ejusdem generis,
the words “other advantage” would have to be
interpreted in the same manner as the previous terms
“pecuniary benefits” or “undue economic advantage”. On
the doctrine of `ejusdem generis’, Mr. Chitnis relied on R.
& B. Falcon (A) PTY Ltd. v. Commissioner of
Income-tax (2008) 12 SCC 466 and the
Commissioner of Income-tax v. McDowell & Co.
Ltd. (2009) 10 SCC 755. Mr. Chitnis submitted that in
Sherbahadur Khan, this court has agreed with the view
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taken by learned Single Judge of this court in State of
Maharashtra v. Bharat Baburao Gavhane & Ors.
2006 ALL MR (Cri.) 2895 that merely stating that a
gang leader and his associates run a crime syndicate with
a view to gaining pecuniary benefits and advantages and
supremacy over rival gangs by violence, intimidation and
other coercive means, is not sufficient to maintain a
prosecution under the MCOCA. There must be some
material even at prima facie stage in that behalf. Counsel
submitted that there is absolutely no material in this case
to indicate that the offence in question was committed to
gain pecuniary benefit or advantage. Counsel submitted
that the view taken by learned Special Judge that
whenever there is a gang war and a murder, it is
necessarily prompted by a desire to have pecuniary gain
or pecuniary advantage is a wrong view of law.
4. Counsel also relied on Madan s/o. Ramkisan
Gangwani v. State of Maharashtra 2009 All MR
(Cri.) 1447 in support of his submission that continuing
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unlawful activity evidenced by more than one charge-
sheets is one of the ingredients of the offence of
organized crime and the purpose thereof is to see
antecedents and not to convict without proof of other
facts which constitute the ingredients of Section 2(1)(e).
Therefore, two charge-sheets cannot be considered by
themselves. There has to be something more. The object
of the organized crime has to be to gain pecuniary
advantage.
5. Mr. Chitnis then submitted that learned Special Judge
ignored the order passed by his predecessor discharging
accused Taru. Mr. Chitnis submitted that learned Special
Judge was bound by that order and he should have
followed it. Learned Special Judge has not given any
reasons why he has departed from the view taken in the
case of co-accused where obviously same facts are
involved. Counsel urged that the Special Judge has
merely made a reference to Sherbahadur Khan and
Bharat Gavhane and has not discussed and indicated
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why he has not followed these judgments which were
followed by his predecessor. Counsel submitted that the
predecessor of learned Special Judge has referred to
Niranjan Singh Karam Singh Punjabi v. Jitendra
Bhimraj Bijja & Ors. AIR 1990 SC 1962. This judgment
has great relevance to the issues involved in this case and
learned Special Judge has not even referred to it.
6. Counsel submitted that approval under Section 23(1)
(a) of the MCOCA is bad in law because it discloses non
application of mind. There is a Jawak letter referred to in
the approval order which is not forthcoming. Counsel
submitted that it is wrong on the part of the State to
suppress the said letter on the ground that it is a
confidential document. In this connection, he relied on
the judgment of the Supreme Court in Anirudhsinhji
Karansinhji Jadeja & Anr. v. State of Gujarat,
(1995) 5 SCC 302. He submitted that in this judgment,
the Supreme Court was considering an identical provision
pertaining to approval under Terrorist and Distruptive
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Activities (Prevention) Act, 1987 (for short, “the TADA”)
and the Supreme Court has referred to the entire
proposal, which was forwarded by the police. He
submitted that therefore, there is nothing confidential in
this letter and this letter ought to have been furnished to
the appellant. Counsel submitted that in this judgment,
the Supreme Court has found fault with the police
because while granting approval, they had considered the
accused statements. Counsel submitted that the ratio of
this judgment is squarely applicable to this case.
7. Lastly, counsel submitted that the approval and
sanction must contain the individual role of every
accused. Role of each accused should be highlighted. In
this connection, counsel relied on paragraphs 3, 4 and 5
of the judgment of the Supreme Court in Rambhai
Nathabhai Gadhvi & Ors. v. State of Gujarat,
(1997) 7 SCC 744. Counsel also relied on judgment of
the Division Bench of this court to which one of us
(Tahilramani, J.) is a party in Adnan Bilal Mulla v.
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State of Maharashtra 2010 All M.R. (Cri.) 1212.
Counsel also relied on judgment of the Supreme Court in
Yogesh alias Sachin Jagdish Joshi v. State of
Maharashtra (2008) 10 SCC 394 in support of his
submission that if while examining an application praying
for discharge the court comes to a conclusion that two
views are possible and evidence produced before the
court gives rise to suspicion only as distinguished from
grave suspicion, the court will be within its right to
discharge the accused. Counsel submitted that the
present case is fully covered by the ratio of Yogesh and,
hence, the impugned order needs to be set aside.
8. We have also heard Ms. Kantharia, learned A.P.P.
appearing for the State. She submitted that the present
case is completely covered by the judgment of this court
in Anil Sadashiv Nanduskar v. State of
Maharashtra, 2008 (3) Mh.L.J. (Cri.) 650. She
submitted that every point which is argued before this
court was also argued in Anil Nanduskar and this court
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has expressly rejected those submissions. Learned A.P.P.
submitted that in Anil Nanduskar, this court has taken a
view that if the sanction or the approval order does not ex
facie show consideration of all the materials and or
application of mind, the prosecution is entitled to establish
the same by leading necessary evidence regarding
production of material before the concerned authority.
This court has observed that the accused cannot be
discharged merely on this basis. Learned A.P.P. submitted
that the reliance placed by counsel for the petitioner on
Sherbahadur Khan is totally misplaced. In Anil
Nanduskar, this court has held that Sherbahadur Khan
does not lay down a binding principle because in that
case, this court was not dealing with the definition of the
expression “organized crime” under Section 2(1)(e) but
the court was discussing the matter in relation to the facts
of a particular case. Learned A.P.P. pointed out that even
in Govind Sakharam Ubhe v. State of Maharashtra,
2009 All M.R. (Cri) 1903, a Division Bench of this court
to which one of us (Smt. Ranjana Desai, J.) was a party
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has observed that in the facts of Sherbahadur Khan,
the offences could, by no stretch of imagination, be
considered to give the accused any pecuniary or undue
economic or other advantage. Sherbahadur Khan must
be, therefore, restricted to its own facts. Learned A.P.P.
pointed out that in Bharat Gavhane, a learned Single
Judge of this court has rejected the submission that the
words “or other advantage for himself or any other
person” appearing in the definition of the term “organized
crime” would take their colour from earlier part of the
words i.e. the principle of ejusdem generis would apply.
Learned A.P.P. pointed out that in Sidharth Ramesh
Janmejay v. State of Maharashtra, 2005 (1)
Bom.C.R. (Cri.) 372, another Single Judge of this court
has taken a similar view. Learned A.P.P. submitted that in
Ranjitsingh Brahmajeetsing Sharma v. State of
Maharashtra & Anr. 2005(2) Bom.C.R. (Cri.) 567 SC,
the Supreme Court has expressly kept this question open.
Learned A.P.P. submitted that therefore this submission
deserves to be rejected.
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9. Learned A.P.P. submitted that there is sufficient
material on record to indicate the complicity of the
appellant and, therefore, application of the MCOCA is
justified. Learned A.P.P. submitted that this is not a case
where two views are possible. The only view which is
possible is that the application of the MCOCA is justified.
Learned A.P.P. submitted that so far as the discharge of
the co-accused is concerned, the State is taking steps to
appeal against that order and, therefore, that order
should not weigh with this court while considering the
present appeal. Learned A.P.P. submitted that in the
circumstances, no interference is called for with the
impugned order.
10. Since we are dealing with a discharge application, we
shall first ascertain the principles which should guide us
while dealing with a discharge application. In Govind
Ubhe, this court has considered all the relevant
judgments including the judgment of the Supreme Court
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in State of Karnataka v. L. Muniswamy & Ors.
(1977) 2 SCC 699 and summarized the law in the
following manner.
“25. The principles laid down by the
Supreme Court in the above cases need
to be summarized. It is settled law that
at the stage of Section 227 of the Code,the court has power to sift the
materials collected by the prosecutionto find out whether there is prima facie
case against the accused or not. The
court has to be satisfied that there isground for presuming that the accused
has committed the offence or that
there is no sufficient ground for
proceeding against him. The Court’senquiry must not be directed to find out
whether the case will end in conviction.
However, though roving enquiry is not
permissible, the court can consider
whether the material collected by the
prosecution if accepted as it is withoutbeing subjected to cross-examination
gives rise to strong and grave suspicion
for presuming that the accused has
committed the offence and thatunrebutted material will lead to a
conviction. If at the stage of Section
227 or Section 228, the scales as to the
guilt or innocence of the accused are
even then the court must proceed to
frame a charge. There is no question of
giving benefit of doubt to the accused
and discharge the accused at that
stage because the scales are even.
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That can be done only at the conclusion
of trial. If there is a strong suspicion
which leads the court to think that
there is a ground for presuming that
the accused has committed an offence,
then the court will proceed to frame the
charge. But if two views are possible
and the court is satisfied that the
evidence gives rise to some suspicion
but not grave suspicion against the
accused, the court will be within its
right to discharge the accused.
Suspicion has to be strong and grave
suspicion leading the court to presume
that the accused has committed an
offence. While basic infirmities and
broad probabilities can be considered,
the court cannot make a roving enquiry
into the pros and cons of the matter
and weigh the evidence as if it is
conducting a trial. Probative value of
the material cannot be gone into at
that stage.”
11. Mr. Chitnis has relied on Yogesh to which reference
is not made in Govind Ubhe. Yogesh lays down the
same principles. In that case, the Supreme Court has
observed that if two views are equally possible and the
judge is satisfied that the evidence produced before him
gives rise to suspicion only as distinguished from grave
suspicion, he will be fully within his right to discharge the
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accused. There can be no two opinions on this statement
of law. In fact, in the paragraph which we have quoted
hereinabove from Govind Ubhe, this court has
reproduced the same principle. Keeping the above
parameters that determine the courts’ power qua prayer
for discharge, we will deal with this case.
12. Mr. Chitnis strenuously urged that since the facts
involved in the co-accused’s case are identical and similar
arguments were advanced in both the matters, judicial
propriety demanded learned Special Judge to follow the
view taken in the similar matter by his predecessor and
discharge the appellant. Ordinarily if the role of the
accused is identical and all the facts are similar, a court
would follow the view taken by a coordinate court.
However, before us the entire matter is at large. We will
have to consider the case of the present appellant
independently. The view taken by a coordinate trial court
is not binding on us. We must also bear in mind that the
present appellant heads the gang. The gang is named
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after him. We would, therefore, consider his case
independently. We must however note our dissatisfaction
about the conduct of the investigating agency. It is not
understood how if it was desirous of challenging the order
discharging the co-accused Taru, it slept over the matter
for such a long time. The Director General of Police, State
of Maharashtra needs to look into this matter.
13. In the context of rival submissions, we need to
examine whether the role of each accused must be stated
in the proposal and the sanction. Similarly, what needs to
be examined is whether objective of gaining pecuniary
advantage is the core of Section 2(1)(e) and the words
“other advantage” found therein are to be construed
“ejusdem generis” with the earlier terms in the light of
Sherbahadur Khan.
14. Section 2(1)(e) of the MCOCA must be kept in the
forefront as the arguments revolve around it. It reads as
under :
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“2. Definitions. (1) In this Act,
unless the context otherwise requires, –
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) "organized 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 such
syndicate, 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 undue economic or other
advantage for himself or any other
person or promoting insurgency;
15. At the outset, we must state that we are unable to
accept the argument that the approval order or the
sanction order must specifically state the charges and the
role of each accused. Neither the approval order nor the
sanction order is expected to be like a treatise. It cannot
be equated with a charge-sheet. Undoubtedly, it is
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necessary for the investigating authority to place
adequate material before the authority which grants
approval and sanction and the approval order and the
sanction order being not a mechanical exercise must
disclose application of mind. But, they are not expected
to be verbose. It is wrong to hold that prolixity is
indicative of application of mind. We have carefully read
the approval order. It refers to the proposal and relevant
papers submitted by the Kothrud Police Station. It states
the names of the accused, who are members of the
organized crime syndicate. It states that after perusal of
the material it appears that the accused are indulging in
continuing unlawful activities for gaining pecuniary undue
economic and other advantages and, therefore, it is
necessary to initiate action under the provisions of the
MCOCA and, therefore, the approval is being given for
that purpose. The approval order, in our opinion, is issued
after proper application of mind.
16. It is pertinent to note that the sanction order begins
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by saying that the Assistant Commissioner of Police,
Crime-I has submitted official note sheets dated
20/3/2007 and 28/3/2007 along with papers of
investigation of C.R.No.562 of 2006 and proposal for
sanction under Section 23(2) of the MCOCA. It states the
names of the accused. It refers to the evidence collected
during investigation and states that it reveals that the
accused are members of the organized crime syndicate. It
states that the investigation has revealed that the
appellant and his associates run an organized crime
syndicate with a view to gaining pecuniary benefits and
other advantages for themselves by use of violence,
intimidation and other coercive means. It states that the
evidence clearly establishes that the appellant and his
associates in furtherance of the activities of their
organized crime syndicate have committed offence in
question by using firearms voluntarily to establish their
supremacy over their rival gang.
17. We are, therefore, of the opinion that the sanction
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order has been issued after perusing the proposal as well
as two official note sheets. It is not as if the sanction order
has been issued on the basis of a cryptic note placed
before the sanctioning authority. The averments made in
the sanction order indicate that it is issued after
application of mind.
18. We shall now turn to the submission based on
Anirudhsinhji Karansinhji Jadeja that the javak letter
referred to in the approval order should be supplied to the
appellant.
19. In our opinion, Anirudhsinhji Karansinhji Jadeja is
not applicable to the facts of the present case. No doubt,
Section 20-A(1) of TADA is similar to Section 23(1) of the
MCOCA. But, in Anirudhsinhji Karansinhji Jadeja, the
appellant had urged that prior approval as required under
Section 20-A(1) was not taken. After considering the
facts, the Supreme Court came to the conclusion that the
DSP did not exercise the jurisdiction vested in him under
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Section 20-A(1) and referred the matter to the Additional
Chief Secretary requesting for permission to invoke the
provisions of Sections 3 and 5 of the TADA. The Supreme
Court observed that by sending a report, the DSP did not
exercise his power vested in him in law. It must be
remembered that there is no such allegation in this case.
The Supreme Court then went on to examine the sanction
in that case and came to the conclusion that the sanction
was issued without application of mind on the following
grounds:
(a) Sanction was given merely on a fax
message of the DSP;
(b) The Government did not take steps to
satisfy itself whether what had been
stated by the DSP was borne out by the
record which apparently had not been
called for (emphasis supplied).
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(c) Sanction was given post haste on
18/3/1995 i.e. the very next day of the
fax message of DSP dated 17/3/1995.
(d) The DSP emphasized the political angle
and referred to statements of the
accused before arrest.
(e) The State Government gave the
sanction even without discussing the
matter with the investigating officer.
20. In this case, sanction is not granted merely on the
basis of the fax message. We have already noted that
sanctioning authority has stated that official note sheets
dated 20/3/2007 and 28/3/2007 along with papers of
investigation and proposal were sent to him and after
perusal of the same the sanction order was issued. It is
clearly stated that the evidence collected during the
investigation revealed that the accused are members of
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the organized crime syndicate. There is repeated
reference to the revelations made during the investigation
and facts disclosed from the evidence. Therefore, it
cannot be stated that the Additional DG relied merely on a
fax message. It is also pertinent to note that sanction is
not given on the next day. The approval is dated
30/12/2006 whereas note sheets are dated 20/3/2007 and
28/3/2007 and sanction is dated 30/3/2007. Therefore,
sanction is not granted post haste. The proposal does not
refer to any political angle.
21. So far as the contention that javak letter referred to
in the approval order be made available to the appellant
is concerned, it is not possible for us to accede to that
request. In Anirudhsinhji Karansinhji Jadeja the
Supreme Court quoted the fax message from the approval
order and not from the sanction. In any case, the
Supreme Court has not laid down any law that all
documents referred to in the sanction order or in the
approval order must be made available to the accused. It
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is in the peculiar facts of the case before it where the DSP
had abdicated his power to issue sanction order that the
Supreme Court went through the records and quoted the
fax message which was the only material on which
sanction was issued. Besides, it appears to us that there
was a political angle to that case and DSP had
emphasized that in the fax message. We prima facie do
not find any political angle to this case. We say prima
facie because it would always be open to the appellant to
prove to the contrary in the trial court if he so desires. At
any rate, no ratio can be deduced from the above
judgment that all documents referred to in the approval
order and the sanction order even though they may be
confidential must be made available to the accused.
22. Having gone through the javak letter, we may only
state that the said letter contains several facts which have
a bearing on the applicability of the MCOCA and it does
not rest on the accused statements.
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23. Reliance placed on Dilawer Singh v. Parvinder
Singh alias Iqbal Singh & Anr. (2005) 12 SCC 709 is
misplaced. That was a case where the accused was
charged under the Prevention of Corruption Act (for short,
“the PC Act”). The Supreme Court was considering
Sections 190 and 319 of the Code and Section 19 of the
PC Act, which provides for sanction. The Supreme Court
held that the PC Act is a Special Act and, hence, it will
have an overriding effect over the general provisions
contained in Section 190 or Section 319 of the Code.
Under Section 190 of the Code, a Magistrate can take
cognizance of offence after conditions stated therein are
fulfilled and under Section 319 of the Code a court has a
power to proceed against a person who appears to be
guilty of offence. This, a Special Judge under the PC Act
cannot do. The Supreme Court observed that the Special
Judge trying an offence under the PC Act cannot in
purported exercise of power under Section 319 of the
Code summon any person and try him if no sanction is
granted by the appropriate authority under the PC Act. It
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is in this context that the Supreme Court held that the
contention that the court takes cognizance of offence and
not an offender holds good when the Magistrate takes
cognizance under Section 190 of the Code. But, that will
not apply to prosecution under the PC Act. The Supreme
Court distinguished the cases under the PC Act and said
that for a prosecution under the PC Act, sanction is sine
qua non for taking cognizance of the offence qua that
person. In that case, the accused was being prosecuted
without sanction under the PC Act. The emphasis of the
Supreme Court was on these facts. Nowhere has the
Supreme Court laid down the law in Dilawar Singh that
in sanction the role of each accused must be stated. This
submission must, therefore, be rejected.
24. Before we go to the doctrine of ejusdem generis in
the context of Section 2(1)(e) of the MCOCA, it is
necessary to see the law on sanction. Fortunately for us,
the law is succinctly discussed by the Division Bench of
this court in Anil Nanduskar. It is, therefore, not
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necessary for us to look for the relevant judgments
elsewhere. We shall just refer to the relevant judgments
quoted by this court in Anil Nanduskar. In Gokulchand
Dwarkadas v. The King, AIR 1948 Privy Counsel 82,
the Privy Counsel has held that the sanction for
prosecution would be good if it was proved by evidence
that it had been granted after all the necessary facts had
been placed before the sanctioning authority though
those facts might not have been stated on the face of the
sanction itself. This view has been endorsed by the
Supreme Court in Feroz Din & Ors. v. State of West
Bengal, AIR 1960 SC 363.
25. In State of Rajasthan v. Tarachand Jain, 1974
(3) SCC 72, the Supreme Court observed that the burden
of proof that the requisite sanction had been obtained
rests upon the prosecution. The burden includes proof
that sanctioning authority had given the sanction in
reference to the facts on which the proposed prosecution
was to be based. These facts might appear on the face of
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the sanction or it might be proved by independent
evidence that sanction was accorded for prosecution after
those facts had been placed before the sanctioning
authority.
26. In Superintendent of Police (CBI) v. Deepak
Chowdhary & Ors. 1995 (6) SCC 225, the Supreme
Court held that
the grant of sanction is only an
administrative function, though it is true that the accused
may be saddled with the liability to be prosecuted in a
court of law. What is material at that time is that the
necessary facts collected during the investigation
constituting the offence have to be placed before the
sanctioning authority and it has to consider the material.
Prima facie, the authority is required to reach the
satisfaction that the relevant facts would constitute the
offence and then either grant or refuse to grant sanction.
27. In Mohd. Iqbal Ahmed v. State of Andhra
Pradesh 1979 (4) SCC 172, it was held that it is
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incumbent upon the prosecution to prove that a valid
sanction has been granted by the sanctioning authority
after it was satisfied that a case for sanction has been
made out constituting the offence and this should be done
in two ways – either (i) by producing the original sanction
which itself contains the facts constituting the offence and
the grounds of satisfaction, or (ii) by adducing the
evidence aliunde to show that the facts were placed
before the sanctioning authority and the satisfaction
arrived at by it. In Government of NCT of Delhi &
Anr. v. Dr. R.C. Anand & Anr. 2004 (4) SCC 615, the
Supreme Court reiterated the same principle and held
that the order of sanction may ex-facie disclose that the
sanctioning authority had considered the evidence and
further material placed before it. This fact can be
established by extrinsic evidence by placing the relevant
files before the court to show that all relevant facts were
considered by the sanctioning authority.
28. In C.S. Krishnamurthy v. State of Karnataka
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2005 (4) SCC 81, the Supreme Court while reiterating its
earlier decision in R.S. Pandit v. State of Bihar 1963
Supp. (2) SCR 652, to the effect that “the facts should
be referred to on the face of the sanction and if they do
not so appear, the prosecution must prove them by
extraneous evidence, is clearly sound having regard to
the purpose of the requirements of a sanction..” held that
“the ratio in sanction order should speak for itself and in
case the facts do not so appear, it should be proved by
leading evidence that all the particulars were placed
before the sanctioning authority for due application of
mind. In case sanction speaks for itself then the
satisfaction of the sanctioning authority is apparent by
reading the order”.
29. After considering the above judgments in Anil
Nanduskar, the Division Bench noted its conclusions as
under:
“13. The settled law by a catena of
decisions of the Apex Court is to the
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effect that it is desirable that every
order whether the approval or sanction
it should speak for itself, i.e. ex-facie it
should disclose consideration of the
materials placed before it and
application of mind thereto. However,
failure to reproduce or refer those
recitals in the resolution or order itself
would not render the order of approval
or sanction to be invalid unless the
prosecution fails to establish by leading
evidence that all the materials
necessary for the grant of approval or
sanction were placed before the
concerned authority for due application
of mind by such authority before the
grant of approval and or sanction. It
apparently discloses that question of
validity of approval or sanction cannot
be decided unless the prosecution is
afforded opportunity to lead evidence in
that regard. Undoubtedly, an accused
desiring to raise objection regarding the
defects in such approval or sanction, or
grant, he can raise such objection;
however, for conclusive decision on the
said point the accused has to wait till
the trial is complete and on that ground
he cannot insist for discharge unless the
objection relates to inherent lack of
jurisdiction to the concerned authority
to grant sanction or approval and such
issue can be decided on undisputed
facts. The law being well settled to the
effect that the prosecution in a case
where sanction or the approval order
does not ex-facie show consideration of
all the materials and/or application of
mind, is entitled to establish the same
by leading necessary evidence
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regarding production of materials before
the concerned authority, the question of
discharge of accused merely on the
basis of such objection being raised
cannot arise. The decision on the point
of defect, if any, in the order of approval
or sanction will have to be at the
conclusion of the trial.”
30. We concur with the above view of this court, which is
based on the relevant judgments of the Supreme Court.
We are of the view that in this case, the proposal and the
sanction order ex-facie show that the sanctioning
authority has considered the relevant material. In our
opinion, there is application of mind. The said material
has been produced before us. After perusing the same,
we feel that the relevant material was considered by the
authorities. In any case, if the appellant raises an issue
that the relevant material was not before the concerned
authority and there was no application of mind, the
prosecution can always lead evidence to prove to the
contrary. It is the case of the prosecution that the
organized crime was committed for pecuniary gain.
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According to the appellant this case merely involves a
gang war. Gang war is not prompted by the object of
gaining pecuniary advantage. In our opinion on the basis
of the settled principles, the prosecution can always lead
evidence to show that the objective of the organized
crime in this case was pecuniary gain. On the ground that
the proposal and the sanction order allegedly do not
disclose this angle, the appellant cannot be discharged.
31. It was contended that Niranjan Singh Punjabi,
where the Supreme Court was dealing with a discharge
application in a TADA case, was considered by the trial
court while discharging the co-accused. But, it was not
referred to by the judge, who has passed the impugned
order. Admittedly, this judgment was not cited before the
judge, who has passed the impugned order. No fault,
therefore, could be found with him for not referring to it.
32. Coming to Niranjan Singh Punjabi, in our opinion,
it is not applicable to the present case. In that case on
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facts, the Supreme Court considered the statements and
came to the conclusion that the intention of the accused
was to eliminate the rival gang and gain supremacy in the
underworld so that they may be known as bullies of the
locality. The Supreme Court was of the opinion that terror
and fear in the minds of the people may be a mere fallout
of the violent acts of the accused, but that cannot be said
to be their intention. Their intention was to only eliminate
Raju and Keshav for gaining supremacy in the underworld.
It is against this background that the Supreme Court
observed that the material placed on record and the
documents relied on did not prima facie disclose
commission of the offence punishable under Section 3(1)
of the TADA.
33. It is pertinent to note that under Section 3(1) of the
TADA, terrorist act is defined as an act done with intent to
overawe the Government or to strike terror in the people
or to alienate any section of the people or to adversely
affect the harmony amongst different sections of the
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people by using bombs, etc. in such a manner as to inter
alia cause death or to cause loss to property or disruption
of any supplies essential to the life of community. In
Niranjan Singh Punjabi, the Supreme Court on facts
came to a conclusion that it was an individual dispute
between two gangs and there was no intention to create
terror. Section 2(1)(e) of the MCOCA is not in pari materia
with Section 3(1) of the TADA. The concept of `organized
crime syndicate’ and its attempt to gain pecuniary
benefits or other advantages is peculiar to the MCOCA.
Therefore, on facts, the present case and Niranjan Singh
Punjabi cannot be equated with each other.
34. We have carefully gone through the materials which
were placed before the authorities, which granted
approval and sanction in this case and we find that there
are several statements of witnesses which prima facie
indicate that the appellant and others were indulging in
organized crime for pecuniary gain. It is not necessary for
us to give details of those statements because that will
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come on record only in the trial. Undoubtedly, in a given
case, gang war may also be prompted by consideration of
economic supremacy and there is nothing wrong in taking
that view. There are cases where gangs try to eliminate
each other for economic supremacy. In this case, there is
enough material on record to prima facie hold that
economic gain was one of the objectives of the appellant
and the co-accused.
ig This case, therefore, cannot be
compared with Niranjan Singh Punjabi.
35. Bharat Gavhane also does not help the appellant.
In that case, in one CR offences were under Sections 143,
144 to 149 and 341 of the IPC read with Section 135 of the
Bombay Police Act and in another CR, the offences were
under Sections 323, 325, 452 and 395 of the IPC. In the
third case, offence was under Section 307 of the IPC. On
the facts, learned Single Judge of this court came to the
conclusion that emphasis was to attack and assault rival
gang members with weapons. Learned Single Judge
observed that mere reference to the provisions of IPC is
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not enough. There has to be prima facie objective to gain
advantages and benefits pecuniary or otherwise. In this
case, serious offences are alleged against the appellant
and the co-accused. The material does disclose that the
objective of the organized crime syndicate headed by the
appellant was to gain pecuniary benefits and other
advantages by use of violence, intimidation and other
coercive means.
Bharat Gavhane is, therefore, not
applicable to the present case. Judgment in Madan
Gangwani will also not be applicable to this case because
merely filing of two charge-sheets is not considered for
application of the MCOCA. The object of the organized
crime syndicate headed by the appellant is also to gain
pecuniary advantage.
36. It was urged that the words “other advantage”
appearing in Section 2(1)(e) must be read ejusdem
generis with the preceding objectives. Sherbahadur
Khan was relied upon by Mr. Chitnis. In that case, the
Division Bench of this court held that the words in Section
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2(1)(e) “with the objective of gaining pecuniary benefits
or gaining undue economic or other advantage” will have
to be given some effective meaning. The Division Bench
further observed that applying the principle of ejusdem
generis, the words “other advantage” would have to be
interpreted in the same manner as the previous terms
“pecuniary benefits” or “undue economic advantage”.
We must note that in Anil Nanduskar, this judgment was
considered by the Division Bench and the Division Bench
held that in Sherbahadur Khan, the consideration of
words “other advantages” was strictly with reference to
the facts of the case rather than interpreting the provision
under Sections 2(1)(e) of the MCOCA. The Division Bench
after referring to Union of India v. Dhanwanti Devi
1996(6) SCC 44, held that such a ruling cannot be said
to lay down a binding principle. It was observed that the
ratio of a decision is one which is pronounced after taking
into consideration the point which arises for consideration,
the arguments advanced with reference to such point and
analysis thereof and considered opinion expressed
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thereupon. The Division Bench observed that
Sherbahadur Khan cannot be held to be laying down a
law in relation to the words “other advantages” appearing
in Section 2(1)(e) of MCOCA.
37. We must mention that in Ranjitsingh Sharma, the
Supreme Court has kept this point open. Since it is
argued that the view taken by this court in Anil
Nanduskar is not correct and the view taken in
Sherbahadur Khan has been wrongly distinguished,
though we are of the opinion that in this case organized
crime is committed with the objective of pecuniary gain,
by way of abundant caution, we will examine
independently whether as stated by this court in
Sherbahadur Khan, the words “other advantage” will
have to be interpreted in the same manner as the
previous terms “pecuniary benefits” or “undue economic
advantage”.
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38. In this connection we must reproduce how The Law
Lexicon (Reprint Edition 1987) defines the word
“Other”.
“Other: Different from that which has
been specified; not the same; different.
“`Other’ always implies something
additional.” (per Erle, C.J., Ayrion v.
Abbott, 14 Q.B. 17); or something
differnet. Lord Tenterden in Sandimanv. Breach, 7 B. & C. 99 : said, – “Where a
statute, or other document, enumerates
several classes of persons or things, andimmediately following and classed with
such enumeration the clause embraces
“other” persons or things, -the word
“other” will generally be read as “othersuch like”, so that the persons or things
therein comprised may be read asejusdem generis with and not of a
quality superior to, or different from,
those specially enumerated. The
principle of this rule as regards statuteswas explained by Kenyon, C.J., in R. v.
Wallis (5 T.R. 379), wherein he said that
if the legislature had meant the general
words to be applied without restriction it“would have used only one compendious
word.” Yet, on the other hand, though
“it is very likely that in former days the
doctrine was applied strictly, there are
cases which show that the modern
tendency is to reject a restricted
construction”. (per Esher, M.R.
Anderson v. Anderson, 64 L.J.Q.B. 458;
(1895) 1 Q.B. 749.)
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The rule of ejusdem generis is by
no means a rule of universal application,
and its use is to carry out not to defeat,
the legislative intent. When it can be
seen that the particular word by which
the general word is followed was
inserted, not to give a coloring to the
general word, but for a distinct object,
then, to carry out the purpose of the
statute, the general word ought to
govern. It is a mistake to allow the rule
to pervert the construction. (Words and
Phrases.)
39. We have to see therefore whether the words
“gaining pecuniary benefits” or “gaining undue economic
advantage” are used for any distinct purpose. We must
also find out what is the legislative intent because the use
of doctrine of ejusdem generis is to carry out and not to
defeat the legislative intent. The Preamble and
Statements of Objects and Reasons of the MCOCA read as
follows :
Preamble:
“An Act to make special provisions for
prevention and control of, and for coping
with, criminal activity by organized
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crime syndicate or gang, and for
matters connected therewith or
incidental thereto.”
Statements of Objects & Reasons :
“Organised crime has been for quite
some years now come up as a very
serious threat to our society. It knows
no national boundaries and is fuelled by
illegal wealth generated by contract
killing, extortion, smuggling in
contrabands, illegal trade in narcotics
kidnappings for ransom, collection of
protectionig money and money
laundering, etc. The illegal wealth and
black money generated by the
organized crime being very huge, it has
had serious adverse effect on our
economy. It was seen that the
organized criminal syndicates made a
common cause with terrorist gangs and
foster terrorism which extend beyond
the national boundaries. There was
reason to believe that organized
criminal gangs have been operating in
the State and, thus, there was
immediate need to curb their activities.
It was also noticed that the organized
criminals have been making extensive
use of wire and oral communications in
their criminal activities. The interception
of such communications to obtain
evidence of the commission of crimes or
to prevent their commission would be an
indispensable aid to law enforcement
and the administration of justice.
2. The existing legal frame work i.e.
the penal and procedural laws and the
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adjudicatory system were found to be
rather inadequate to curb or control the
menace of organized crime.
Government, therefore, decided to
enact a special law with stringent and
deterrent provisions including in certain
circumstances power to intercept wire,l
electronic or oral communication to
control the menace of the organized
crime.
It is the purpose of this Act to achieve
these objects.”
40. In this connection, we may usefully refer to the
judgment of the Supreme Court in Jagdish Chandra
Gupta v. Kajaria Traders (India) Ltd. AIR 1964 SC
1882. In that case, the Supreme Court was considering
whether the words “other proceeding” found in Section
69(3) of the Indian Partnership Act, 1932 have to be
interpreted ejusdem generis, that is to say, whether the
natural meaning of “other proceeding” should be cut
down in the light of the words that precede them, the
words which preceded the words “other proceeding”
being the words “a claim of set-off”. The Supreme Court
observed as under:
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“6. ……. When in a statute particular
classes are mentioned by name and
then are followed by general words, the
general words are sometimes construed
ejusdem generis, i.e., limited to the
same category or genus comprehended
by the particular words. But it is not
necessary that this rule must always
apply. The nature of the special words
and the general words must be
considered before the rule is applied.
In Allen v. Emerson, (1944) 1 KB 362
Asquith, J., gave interesting examples
of particular words followed by general
words where the principle of ejusdem
generis might or might not apply. We
think that the following illustration will
clear any difficulty. In the expression
“books, pamphlets, newspapers and
other documents” private letters may
not be held included if “other
documents” be interpreted ejusdem
generis with what goes before. But in a
provision which reads “newspapers or
other document likely to convey secrets
to the enemy”, the words “other
document” would include document of
any kind and would not take their
colour from `news papers’. It follows,
therefore, that interpretation ejusdem
generis or noscitur a sociis need not
always be made when words showing
particular classes are followed by
general words. Before the general
words can be so interpreted there must
be a genus constituted or a category
disclosed with reference to which the
general words can and are intended to
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be restricted.”
41. On the facts before it, the Supreme Court accepted
the contention that it was impossible to think of any
proceedings of the nature of a claim of set-off other than
a claim of set-off which could be raised in a suit such as is
described in sub-section (2) of Section 69 of the Indian
Partnership Act, 1932. The Supreme Court was of the view
that therefore, the words “other proceeding” cannot
belong to the same genus as a claim of set-off. The
Supreme Court, therefore, rejected as far-fetched the
argument that the words “other proceeding” must be read
as ejusdem generis” with a claim of set-off. In our opinion,
therefore, the court must find out (a) whether the
particular words constitute a genus (b) whether there is
intention to restrict the general word with reference to the
category constituted by the particular word and (c) what
is the nature of the particular word and the general word.
42. We may also refer to the judgment of the Supreme
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Court in Amar Chandra Chakraborty v. Collector of
Excise, Government of Tripura & Ors, AIR 1972 SC
1863. In that case, the Supreme Court was considering
whether the words “any cause other than” found in
Section 43 of the Bengal Excise Act, 1909 can be read
ejusdem generis with the causes specified in clause (a) to
(g) thereof. Section 42(1) stated the grounds on which
licence, permit or pass granted under the Bengal Excise
Act may be cancelled or suspended. Section 43 pertained
to power to withdraw licences and it inter alia stated that
whenever the authority who granted any licence under
this Act considers that the licence should be withdrawn for
any cause other than those specified in Section 42, it shall
remit a sum equal to the sum …..”. It was argued that
Section 43 of the Bengal Excise Act could be saved from
the challenge of arbitrariness if the expression “any cause
other than” found in Section 43(1) is construed ejusdem
generis with the clauses (a) to (g) of Section 42(1) of the
Bengal Excise Act. While rejecting this submission, the
Supreme Court observed as under :
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“The ejusdem generis rule strives to
reconcile the incompatibility between
specific and general words. This
doctrine applies when (i) the statute
contains an enumeration of specific
words: (ii) the subjects of the
enumeration constitute a class or
category. (iii) that class or category is
not exhausted by the enumeration; (iv)
the general term follows the
enumeration and (v) there is no
indication of a different legislative
intent. In the present case, it is not
easy to construe the various clauses of
Section 42 as constituting one category
or class. But that apart, the very
language of the two sections and the
objects intended respectively to be
achieved by them also negative any
intention of the legislature to attract the
rule of ejusdem generis.”
43. In McDowell & Co. on which Mr. Chitnis has placed
reliance, the Supreme Court quoted the above analysis of
the doctrine of ejusdem generis from Amar Chandra
Chakraborty.
44. In R & B Falcon, on which Mr. Chitnis has placed
reliance, the Supreme Court again considered this
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doctrine. The question which was posed before the
Supreme Court was whether the expenditure incurred by
the employer to enable the employee to undertake a
journey from his place of residence to the place of work or
either reimbursement of the amount for journey or free
tickets therefore provided by him would come within the
purview of the term “by way of reimbursement or
otherwise” found in Section 115-WB(1)(a) of the Income-
tax Act, 1961 i.e. whether the said expenditure would be
fringe benefit. Section 115-WB of the Income-tax Act,
1961 provides for fringe benefits. Sub-section (1) thereof
takes within its sweep any consideration for employment,
inter alia, by way of privilege service, facility or amenity
directly or indirectly. It reads thus:
“115-WB. Fringe benefits. – (1) For the
purposes of this Chapter, `fringe
benefits’ means any consideration for
employment provided by way of –
(a) any privilege, service, facility
or amenity, directly or indirectly,
provided by an employer, whether by
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(b) any free or concessional ticket
provided by the employer for privatejourneys of his employees or their
family members; and”
Sub-section (2) thereof contains an expansive
meaning. The Supreme Court observed that it expanded
the meaning of “fringe benefit” stating as to when the
fringe benefit would be deemed to have been provided.
The Supreme Court observed that the expansive meaning
of the said term “benefits” by reason of a legal fiction
created also brings within its purview, benefits which
would be deemed to have been provided by the employer
to his employees during the previous year. Sub-section (3)
provides for an exemption. It makes clear that the
privilege, service, facility or amenity does not include
perquisites in respect of which tax is paid or payable by
the employee or any benefit or amenity in the nature of
free or subsidized transport or any such allowance
provided by the employer to his employees for journeys
by the employees from their residence to the place of
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work or such place of work to the place of residence. The
Supreme Court considered the definition of the word
“otherwise” as given in Advanced Law Lexicon and
Standard Dictionary. The Supreme Court then observed
that as under :
“26. As a general rule, “otherwise”
when following an enumeration, should
receive an ejusdem generisinterpretation [per Cleasby, B. Monck v.
Hilton (1877) 46 LJMC 163]. The words
“or otherwise”, in law, when used as a
general phrase following anenumeration of particulars, are
commonly interpreted in a restrictedsense, as referring to such other matters
as are kindred to the classes before
mentioned (Cent. Dict.).”
45. It is pertinent to note that while holding that the
matters enumerated in sub-section 2 of Section 115-WB
are not covered by sub-section (3) thereof and the
amenity in the nature of free or subsidized transport is
covered by sub-section (1), the Supreme Court took into
consideration, the well-settled principle that a statute
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should be given a purposive construction. Relevant
paragraph of the Supreme Court’s judgment may be
quoted.
“29. Parliament, in introducing the
concept of fringe benefits, was clear in
its mind insofar as on the one hand it
avoided imposition of double taxationi.e. tax both on the hands of the
employees and employers; on theother, it intended to bring succour to
the employers offering some privilege,
service, facility or amenity which wasotherwise thought to be necessary or
expedient. If any other construction is
put to sub-sections (1) and (3), the
purpose of grant of exemption shall bedefeated. If the latter part of sub-
section (3) cannot be given anymeaning, it will result in an anomaly or
absurdity. It is also now a well-settled
principle of law that the court shall
avoid such constructions which wouldrender a part of the statutory provision
otiose or meaningless. (See visitor, AMU
v. K.S. Misra; (2007) 8 SCC 593; CST v.
Shri Krishna Engg. Co. (2005) 2 SCC
692.”
46. Section 2(1)(e) needs to be considered against the
background of the above principle. We have already
quoted the Preamble and the statement of Objects and
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Reasons. The Preamble states that the MCOCA makes
provision for prevention and control of and for coping with
criminal activity of organized crime syndicate or gang and
for matters connected therewith. Therefore, it is the
criminal activities of the organized crime syndicate which
the MCOCA seeks to deal with. Statement of Objects and
Reasons states how organized crime has become a
serious threat to the society, how it knows no national
boundaries and how illegal money generated by the
organized crime syndicate affects the national economy.
It states that existing legal framework is found inadequate
to curb menace of organized crime and, hence, it is
decided by the Government to enact a special law. Each
provision of the MCOCA must be read against the
background of the Preamble and the Statements of
Objects and Reasons and must be given purposive
construction so as to fulfill the legislative intent. The
MCOCA seeks to cover a variety of cases and not merely
cases which involve economic gain or economic
advantage.
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47. As stated by the Supreme Court in the above cases,
no provision can be given a restrictive meaning to
frustrate the legislative intent. It is clarified by the
Supreme Court that rule of ejusdem generis is by no
means a rule of universal application and its use is to
carry out and not to defeat the legislative intent. Nature
of the particular word and general word has to be seen.
Whether the particular word constitutes genus or not
must also be seen and it must be seen whether the
intention of the legislature is to restrict the meaning of
the general word with reference to the particular word.
Section 2(1)(e) contains an enumeration of specific words.
They are `with objective of gaining pecuniary benefits, or
gaining undue economic advantage’. They constitute a
category. If we look at the legislative intent, the words
`other advantage’ will have to be given an expansive
meaning. They cannot be restricted to the category
constituted by the preceding terms. They cannot be
construed ejusdem generis with the preceding objectives
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because that will frustrate the legislative intent. It must
be borne in mind that the legislature does not use any
words as surplusage. Hence, the words `or other
advantage’ will have to be given a meaning which will be
in tune with the legislative intent.
48. In Bharat Gavhane, learned Single Judge
(Dharmadhikari, J.) has taken the same view on this point.
We agree with him. We must quote the relevant
paragraph.
“The settled principle is that the
Legislature does not use any word
without intending any meaning to it. In
other words, it is not mere surplusage.
Once the objective of gaining pecuniary
benefits is separated from gaining
undue economic or other advantage,
that means the Legislature desired a
wider meaning so as to bring within the
sweep of the definition of the word
“organized crime” all activities which
are continuing and unlawful in nature,
by individuals undertaken singly or
jointly either as member of an organized
crime syndicate or on behalf of such
syndicate and in the earlier part of the
definition after the words “violence,
threat of violence or intimidation or
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coercion, the Legislature did not exhaust
itself but went ahead and referred to
other unlawful means, then similar
meaning will have to be given to the
words which are in issue. Therefore, the
objective may be of gaining not just
pecuniary or undue economic benefits
and advantages but other advantages
as well, and, therefore, a restricted or
narrow interpretation and meaning
cannot be given as suggested by Shri
Chitnis.
49. We may also refer to yet another judgment of
learned Single Judge of this court in Sidharth Janmejay.
Learned Single Judge was dealing with the term “other
unlawful means” appearing in Section 2(1)(e) of the
MCOCA. It was argued that the words “other lawful
means” should be read ejusdem generis with the
expression “by use of violence or threat of violence or
intimidation or coercion”. Learned Single Judge rejected
this submission after referring to the Preamble and
Statement of Objects and Reasons of the MCOCA.
Learned Single Judge observed that the MCOCA is a
special law enacted to prevent and control the continuing
menace or organized crime, which is resorted to in
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different forms and, therefore, it is not possible to limit
the meaning of expression “or other unlawful means” as
suggested by the counsel for the accused. It was
observed that the said expression will have to be given
proper meaning so as to uphold the object and intent of
the legislation, which is essentially to prevent and control
the threat to the society caused by the illegal wealth
generated “by various unlawful means” by organized
syndicate or gang, who can be said to be indulging in
professional crime.
50. In that case, learned Single Judge quoted relevant
paragraph from Shankar alias Gauri Shankar & Ors.
v. State of T.N. 1994 (4) SCC 478, which states what is
organized crime. We may quote the same.
“In large urban areas this kind of
organized crime has taken deep roots. It
has become the way of life of these
organized criminal groups particularly
indulging in underground unlawful
activities. Eventually, the underground
economy has entered on the vitals of
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59malignant. The organized crime has
profit as its primary goal to be achieved
at any cost. The potential for criminal
violence in such crimes is inherentlypresent in an organized crime group.
The activities such crime groups indulge
in may vary numerously. Prostitution is
an activity bad in social sense aswitnessed and is prohibited legally. Yet
for many potential buyers the services
of prostitutes are goods in the strict
economic sense of the term goods. Thebuyers are willing to pay for these goods
in the market transaction. It is thesemonetary values, though illegal,
underlying that eventually lead to
growth of these organized crimes andfurther criminal specialization whose
only common aim is attainment of
wealth primarily of course and then if
possible power and influence by illegalmeans. It has thus become an
enterprise not infrequently aiming atpurchase of respectability. After all
money is money and that which is
illegally gained can seemingly be legally
spent to achieve social status. Thatkind of criminally acquired social status
is completely out of place and forlorn as
to come anywhere near the concept of
mitigating circumstances….”
51. Learned Single Judge also quoted relevant extract
from State of Maharashtra v. Bharat Chaganlal
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Raghani & Ors. 2002 Bom. CR (Cri. (S.C.) 45, where
the Supreme Court has again explained the term
“organized crime”. It reads thus:
“In Europe, the terms `organized crime’
and `professional crime’ are largely
interchangeable. As compared to
American standards, the Europeancriminal organizations are small-scale
and short-lived.
ig Such crimes are
defined as involving a system of
specifically defined relationships with
mutual obligations and privileges andassociation of a small group of criminals
for the execution of the intended crime.
The eruption of organized crime in India
is of recent origin and is at the initialstage. It is the need of the hour to
control such criminal activities whichtempt the persons involved to amass
huge profit. Such crimes have not only
a legal facet but have a social and
economic aspect which is required to befelt and dealt with by all concerned
including the judiciary, the executive,
the politicians, the social reformers, the
intelligentsia and the law enforcingagency.”
52. Keeping the above observations of the Supreme
Court and the Preamble and Statements of Objects and
Reasons, learned Single Judge refused to give restrictive
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meaning to the term `other unlawful means’ by reading it
ejusdem generis. By analogy and for the same reasons
and in the light of other judgments to which we have
made a reference, we are not inclined to read the words
`other advantage’ ejusdem generis with the preceding
terms. The view expressed by the Division Bench of this
court in Anil Nanduskar, commends itself to us on all
aspects. We also hold that Sherbahadur Khan will have
to be restricted to its own facts.
53. Mr. Chitnis also relied on Rambhai Gadhvi where
the Supreme Court was dealing with Section 20-A of the
TADA which is similar to Section 23(1) of the MCOCA. In
that case, it was held that there was no valid sanction. In
the facts before the Supreme Court, the sanction order
made reference only to the FIR and the letter sent by the
Superintendent of Police, seeking permission for sanction.
The Supreme Court reproduced the sanction in the
judgment. The sanction merely made reference to the
letters and stated nothing more. In the circumstances,
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the Supreme Court observed that the Superintendent of
Police did not send any material along with his letter. The
Supreme Court observed that the Director General of
Police also did not call for any record and, therefore, the
sanction cannot be said to have been given after
application of mind. We have already touched upon this
point. The approval and the sanction order in this case
are not brief.
They give necessary particulars and the
relevant record was before the concerned authorities for
its perusal before the approval and the sanction order was
passed. Therefore, the observations of the Supreme
Court in Rambhai Gadhvi are not applicable to this case.
54. We must mention that in Anil Nanduskar, where
Mr. Chitnis had appeared, reliance was placed on
Rambhai Gadhvi. The Division Bench referred to the
judgment in Prakash Kumar @ Bhutto v. State of
Gujarat, (2005) 2 SCC 409, and observed that in that
case the Supreme Court has held that Rambhai Gadhvi
is per incuriam because it did not notice two important
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judgments of the Supreme Court (Bilal Ahmed and
Gurpreet Singh). The Division Bench observed that the
advocates are expected to verify whether a judgment is
declared per incuriam or not and overruled judgments
should not be cited. The Division Bench further observed
that failure in that regard can be construed as an attempt
to mislead the court and can result in serious
consequences. The Division Bench further observed that
no remorse was expressed by senior advocate when this
was pointed out to him.
55. Mr. Chitnis submitted that these comments are
unwarranted because in Prakash Kumar, judgment in
Rambhai Gadhvi was declared per incuriam qua Section
12 and not qua Section 28-A on which he is placing
reliance. He submitted that in the circumstances, this
matter should be referred to a larger Bench. It is not
possible for us to refer the matter to a larger Bench. In
our opinion, proper remedy for Mr. Chitnis was to
challenge the judgment in Anil Nanduskar in the
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Supreme Court or make an application for review. We
must mention that in Criminal Appeal No.84 of 2008
similar prayer was made by Mr. Chitnis. The Division
Bench presided over by the then Chief Justice
Swanterkumar, C.J. (now a judge of the Supreme Court),
rejected this prayer after making following observations.
“6. Another incidental argument raised
by the learned Counsel appearing for the
Appellant is that certain observationshave been made by a Division Bench of
this Court in its order dated 23rd
November, 2007 passed in Criminal
Appeal No.536 of 2007 in the case ofAnil Sadashiv Nanduskar v. State
of Maharashtra. In paragraph 20 ofthat judgment, the Division Bench has
observed that the decision of the Apex
Court in the case of Rambhai
Nathabhai Gadhvi & Ors. v. Stateof Gujarat, (1997) 7 SCC 744 is no
more a good law as was specifically
declared to be per incurium by the Apex
Court in the case of Prakash KumarAlias Prakash Bhutto v. State of
Gujarat, (2005) 2 SCC 409. It has
been submitted that the position of law
has been incorrectly stated with certain
other observations by the Bench. We
think that judicial propriety demands
that an equal bench should not interfere
with the observations on facts and law
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65Court in Anil Sadashiv Nanduskar’s case
(supra) and it would be inappropriate to
go into the facts and find out whether
they are correct or incorrect. There is aremedy open to the aggrieved party to
take appropriate steps in relation to the
correction of the judgment either on fact
or law. It would not be proper that afterhaving heard this matter at some length,
we comment that the judgment referred
was not correct exposition of law and
refer the matter to a larger bench. Wehave nothing to do with that, in the facts
and circumstances of the case in handand leave that question open.”
56. Judicial propriety demands that we follow the same
view and leave the question open. We must also refer to
another argument advanced by Mr. Chitnis viz. that in the
FIR, five accused and three absconding accused are
named. However, in the sanction letter, more than eight
accused are named and, therefore, sanction is vitiated. In
Vinod G. Asrani v. State of Maharashtra (2007) 3
SCC 633 similar contention was rejected by the Supreme
Court. We may quote the relevant observations of the
Supreme Court .
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“The scheme of CrPC makes it clear that
once the information of the commission
of an offence is received under Section
154 thereof, the investigating
authorities take up the investigation and
file charge-sheet against whoever is
found during the investigation to be
involved in the commission of such
offence. There is no hard-and-fast rule
that the first information report must
always contain the names of all person
involved in the commission of an
offence. Very often the names of the
culprits are not even mentioned in the
FIR and they surface only at the stage of
the investigation. The scheme under
Section 23 of MCOCA is similar and
Section 23(1)(a) provides a safeguard
that no investigation into an offence
under MCOCA should be commenced
without the approval of the authorities
concerned. Once such approval is
obtained, an investigation is
commenced. Those who are
subsequently found to be involved in the
commission of the organized crime can
very well be proceeded against once
sanction is obtained against them under
Section 23(2) of the MCOCA.”
This argument must, therefore, be rejected.
57. Mr. Chitnis also relied upon State of Maharashtra
& Ors. v. Lalit Somdatta Nagpal & Anr., (2007) 4
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SCC 171. He drew our attention to paragraph 62 of the
said judgment where the Supreme Court has observed
that having regard to the stringent provisions of the
MCOCA, they will have to be very strictly interpreted and
the concerned authorities would have to be bound down
to the strict observance of the said provisions. The
Supreme Court further observed that it has to be seen
whether the investigation from its very inception has been
conducted strictly in accordance with the provisions of the
MCOCA. There can be no dispute about this proposition of
law and we are of the opinion that prima facie no fault
could be found with the approval or the sanction order to
persuade us to hold that the investigation is not proper
and discharge the appellant. In our opinion, judgment of
this court in Adnan Mulla has no relevance to the issues
involved in this case. Hence, it is not necessary to discuss
it.
58. It was argued by Mr. Chitnis that the belated affidavit
filed by the State does not refer to any material indicating
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that the object of the organized crime syndicate is to gain
pecuniary advantage. In fact it states that taking into
consideration the past history of all the accused persons,
the provisions of the MCOCA were applied to C.R. No.562
of 2006. Mr. Chitnis is justified in making a grievance that
the affidavit in reply was filed after the hearing of the
petition began. We have taken note of the fact that in
order dated 15/12/2009, the earlier Bench had directed
that this appeal should be finally heard at the admission
stage. The petition was filed on 14/9/2009 and the
affidavit in reply is tendered in the court after the hearing
began. It was sworn on 7/4/2010. We record our
displeasure about this approach of the State Government.
We hope that in future such lethargy is not shown by it.
We also wish that the affidavit was more dexterously
drafted. There is indeed no reply to the argument on
pecuniary gain or advantage. But, because of such brief
and delayed affidavit, the appellant cannot be discharged.
We have perused the material which was placed before
the sanctioning authority. We are prima facie satisfied
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that there is adequate material to justify application of the
MCOCA. We prima facie feel that there is strong and
grave suspicion which leads us to conclude that the
appellant is a leader of the organized crime syndicate and
he and his associates have committed the offences
alleged against them. We are not inclined to hold that on
the facts before us two views are possible, one which is in
favour of the appellant and the other which is against him.
We prima facie feel that the only view which is possible is
that application of the MCOCA is perfectly justified.
Therefore, the appellant cannot be discharged. In our
opinion, no interference is necessary with the impugned
order.
59. We wish to make it clear that any observations made
by us touching the merits of the case are prima facie
observations.
60. The appeal is dismissed.
[MRS. RANJANA DESAI, J.]
[MRS. V.K. TAHILRAMANI, J.]
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