SHAMSUNDER RAMKISAN GANGWANI vs. STATE OF MAHARASHTRA,THR.A.C.P.CRIME BRANCH,NGP.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH, NAGPUR.
CRI. APPEAL NO.308 OF 2002
WITH
CRI.APPEAL NO.317 OF 2002
WITH
CRI.APPEAL NO.318 OF 2002
WITH
CRI. APPEAL NO.323 OF 2002
WITH
CRI.APPEAL NO.324 OF 2002
WITH
CRI.APPEAL NO.325 OF 2002
WITH
CRI.APPEAL NO.374 OF 2002.
CRI.APPEAL NO.308/2002 .
Madan S/o. Ramkisan Gangwani,
aged about 35 years, R/o. Itwari Bhaji Mandi,
Nagpur (Dead).
Shamsundar S/o. Ramkisan Gangwani.
.... APPELLANT .
// VERSUS //
The State of Maharashtra
through A.C.P. Crime Branch,
NAGPUR.
.... RESPONDENT .
---------------------------------------------------------------------------------------------
Shri R.M.Daga, Advocate for the Appellant.
Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------
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WITH
CRI.APPEAL NO.317/2002 .
Milind S/o. Wamanrao Kharwade,
aged about 26 years, Occu.: Business,
(Presently lodged in Central Prison,
Nagpur) R/o. Itwari Garud Khamb,
Police Station, Nagpur. (Now in Jail)
.... APPELLANT .
// VERSUS //
State of Maharashtra through
A.C.P. Crime Branch, Nagpur.
.... RESPONDENT .
---------------------------------------------------------------------------------------------
Shri J.M.Gandhi, Advocate for the Appellant.
Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------
WITH
CRI.APPEAL NO.318/2002 .
Bablya @ Hemant Narayan Mohite,
Aged 30 yrs., R/o. Rukmini Nagar,
Nagpur.
.... APPELLANT .
// VERSUS //
State of Maharashtra through
A.C.P., Crime Branch, Nagpur.
.... RESPONDENT .
---------------------------------------------------------------------------------------------
Shri Sachin Zoting, Advocate for the Appellant.
Mrs. Bharti Dangre Addl.P.P. &
Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------
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WITH
CRI.APPEAL NO.323/2002 .
Ashok S/o. Inderlal Botnis,
aged about 39 years, R/o. Mahal, Nagpur.
.... APPELLANT .
// VERSUS //
The State of Maharashtra
Through A.C.P. Crime Branch, Nagpur.
.... RESPONDENT .
----------------------------------------------------------------------------------------------------
Shri R.S.Renu, Advocate for the Appellant.
Mrs. Bharti Dangre & Shri S.S.Doifode, Addl.P.P. for Respondent/State.
----------------------------------------------------------------------------------------------------
WITH
CRI.APPEAL NO.324/2002 .
Santosh S/o. Shashikant Ambekar,
aged about 31 years, Occu.: Nil,
R/o. Itwari High School,
Nagpur.
.... APPELLANT .
// VERSUS //
The State of Maharashtra
Through A.C.P. Crime Branch,
Nagpur.
.... RESPONDENT .
WITH
CRI.APPEAL NO.325/2002 .
1. Shashikant S/o. Damodar Ambekar,
aged about 68 years, Occu.: Business,
2. Sushma W/o. Shashikant Ambekar,
aged 58 years, Occu.: Business.
3. Vandana W/o. Rajkumar Verma,
Aged 35 years, Occu.: Household.
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All R/o. Shanti Road, Itwari,
Nagpur.
4. Mahesh S/o. Mansingh Solanki,
Aged 35 years, R/o. Juna Sakkardara,
Nagpur.
5. Ashok S/o. Vishwanath Mathale,
Aged about 43 years, R/o. Mahal,
Nagpur.
.... APPELLANTS .
(Accused Nos.10 to 12, 5 & 6.)
// VERSUS //
The State of Maharashtra
Through A.C.P. Crime Branch,
Nagpur.
.... RESPONDENT .
---------------------------------------------------------------------------------------------
Shri R.K.Tiwari, Advocate for the Appellant.
Mrs. Bharti Dangre Addl.P.P. &
Shri S.S.Doifode, A.P.P. for Respondent/State.
---------------------------------------------------------------------------------------------
WITH
CRI.APPEAL NO.374/2002 .
Habib Abdul Rashid S/o. Abdul Rashid Rathod,
Aged : 25 years, R/o. Itwari Bhajimandi,
Post : Lakadganj, Nagpur.
.... APPELLANT .
// VERSUS //
The State of Maharashtra
through A.C.P. Crime Branch,
Nagpur.
.... RESPONDENT .
---------------------------------------------------------------------------------------------------
Shri A.M.Rizwy, Advocate for the Appellant.
Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State.
----------------------------------------------------------------------------------------------------
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CORAM: A.H. JOSHI &
R.C.CHAVAN, JJ.
Date of Reserving Judgment : 23.03.2009.
Date of Pronouncing Judgment: 26.03.2009.
JUDGMENT : ( Per : R.C.Chavan, J)
1. This bunch of appeals arise out of judgment dated
17.05.2002, by the learned Judge, Special Court under the Maharashtra
Control of Organised Crime Act, 1999 (hereinafter referred to as
“MCOCA” for the sake of brevity) in Special Criminal Case No.1 of 2000.
2. Facts, which led to prosecution and conviction of appellants
have been elaborated by the learned Judge, Special Court under MCOC
Act in her painstakingly written judgment. They may be briefly stated as
under :
In Itwari area, which is commercial hub of Nagpur having
large number of jewellers and goldsmiths, a gang led by appellant
Santosh Ambekar (in Criminal Appeal No.324 of 2002) was operating.
This gang indulged in extortion, forcing transfer of properties and other
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criminal acts whereby they amassed huge wealth. Appellant Santosh
was working with builder Anil Ninawe, who was originally a goldsmith.
Ninawe had engaged a commission agent by name Ashok Botnis
(appellant in Criminal Appeal No.323 of 2002) for deals in property.
Santosh and Ashok Botnis, who knew of Anil Ninawe's deals, started
recovering money meant for Anil Ninawe without latter's knowledge.
This led to clashes between Santosh and Anil.
3. On 9-4-1999 after 5.30 p.m., Anil had received a telephonic
warning to save himself. After about 8.05 p.m., 15-16 persons armed
with deadly weapons assaulted Anil Ninawe while he was about to
board his car for returning home. Anil's brother Subhash attempted to
ward off assailants by pelting stones but fled when assailants attacked
him. Anil was lying in a pool of blood. He was taken to Mayo Hospital
but was pronounced dead. An offence was registered against appellant
Santosh and others at Police Station Lakadganj, which has been
separately investigated into, and in which separate chargesheet was
filed.
In the said Sessions Case No.161 of 2000, appellants Santosh,
Babloo and Prakash were acquitted by Court of Sessions on 5-8-2005.
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4. PI Prakash Mahajan submitted a proposal on 20-8-1999 for
permission under Section 23(i)(a) of MCOC Act for registering
information against appellant Santosh under MCOC Act. On 26-9-1999,
necessary permission was granted by the Commissioner of Police,
Nagpur. ACP Kotwali Division was entrusted with investigation.
Accordingly, PI Mahajan registered Crime No.299 of 1999 for offences
punishable under Sections 3 and 4 of MCOC Act and Sections 386, 387,
120-B and 109 of the Penal Code on 26-9-1999 and made over
investigation to ACP Shri Siram.
5. Appellant Santosh was absconding. A search was launched
and a proclamation too was issued. Since Santosh failed to appear, his
properties were attached. Permission to tap telephone connections of
relatives of Santosh was obtained and on the basis of information
received from the intercepts, appellant Santosh was arrested at Mumbai
Airport on 23-7-2000. The intercepts also provided clues about
involvement of other accused.
6. Upon transfer of ACP Siram, investigation was entrusted to
ACP Solanki and after him to ACP Rude. In course of investigation,
other gang members were arrested, interrogated and at their instance
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properties were seized. Inventories of properties amassed were also
drawn up. Criminal record of gang members was collected and on
finding that there was enough evidence of involvement of the accused
persons in offences punishable under Sections 3 and 4 of MCOC Act
along with other offences, permission was sought under Section 23(2) of
MCOC Act to file chargesheet. Upon receipt of such permission,
chargesheet was filed in the Special Court against the following accused
persons (hereinafter referred to by their numbers in Trial Court).:
Sr. Name of Accused Appeal No. Remarks
No.
Son of Accused Nos. 1
& 11, brother of
Accused No.12.
Santosh Shashikant Ambekar 324/2002
1
2 Bablu @ Hemant Narayan Mohite 318/2002 -
3 Prakash Namdeo Dhande No Appeal No appeal
Habib Abdul Rashid S/o. Abdul 374/2002 -
4 Rashid Rathod
5 Mahesh Mansingh Solanki 325/2002 -
6 Ashok Vishwanath Matole 325/2002 -
7 Milind Wamanrao Kharwade 317/2002 -
8 Ashok Inderlal Botnis 323/2002 -
Died after conviction.
Appeal allowed to be
prosecuted by brother
Shamsunder S/o.
Ramkisan Gangwani.
9 Madan Ramkisan Gangwani 308/2002
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Sr. Name of Accused Appeal No. Remarks
No.
Father of Accused
No.1, Husband of
Accused No.11.
Shashikant Damodar Ambekar 325/2002
10
Mother of Accused
No.1, wife of Accused
No.10.
Sushma Shashikant Ambekar 325/2002
11
325/2002 Sister of Accused
No.1, Daughter of
Accused Nos. 10 & 11.
Vandana Rajkumar Verma
12
Dhananjay @ Dhannu Haribhai - Acquitted by Trial
13 Dusane. Court.
7. After hearing the prosecution and the accused, the learned
Judge, Special Court under MCOC Act charged the accused persons for
offences punishable under Sections 3(1)(i)(ii), 3(2), 3(3), 3(4), 3(5)
and 4 of MCOC Act and Sections 384, 386, 387 and 120-B of the Penal
Code.
8. The accused pleaded not guilty and, therefore, they were put
on trial. The prosecution examined in all 81 witnesses. After
considering their evidence in the light of defence of denial, the learned
Judge, Special Court convicted the appellants of various offences and
sentenced them as indicated below :
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Accused Sentence
Nos.
Sr. Convicted for
No. offence
punishable
under Sections
A 3(1)(i) MCOCA
read with 120 B
IPC.
1 to 3 Convicted and sentenced to imprisonment
for life and fine of Rs.One Lac each or in
default imprisonment for 3 years.
B 3(1)(ii) MCOCA
read with 120 B
IPC.
1 to 7 Rigorous Imprisonment for ten years and
fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
3(1)(ii) MCOCA
read with 120 B
IPC.
10 & 11 Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
C 3(2) MCOCA
read with 120 B
IPC.
1 to 9 Rigorous Imprisonment for ten years and
fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
3(2) MCOCA
read with 120 B
IPC.
10 to 12 Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
D 3(4) MCOCA
read with 120 B
IPC.
1 to 9 Rigorous Imprisonment for ten years and
fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
3(4) MCOCA
read with 120 B
IPC.
10 to 12 Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
E 3(5) MCOCA
read with 120 B
IPC.
1, 4 & 7 Rigorous Imprisonment for ten years and
fine of Rs.Two Lacs each or in default
imprisonment for 2 years.
3(5) MCOCA
read with 120 B
IPC.
8 & 9 Rigorous Imprisonment for ten years and
fine of Rs.Two Lacs each or in default
imprisonment for 3 years.
3(5) MCOCA
read with 120 B
IPC.
10 & 11 Rigorous Imprisonment for seven years
and fine of Rs.Two Lacs each or in default
imprisonment for 2 years.
F 4 MCOCA read 1, 8 & 9 Rigorous Imprisonment for ten years and
with 120 B IPC. fine of Rs.One Lac each or in default
imprisonment for 2 years.
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Accused Sentence
Nos.
Sr. Convicted for
No. offence
punishable
under Sections
4 MCOCA read 4, 10 & Rigorous Imprisonment for seven years
with 120 B IPC. 11 and fine of Rs.One Lac each or in default
imprisonment for 2 years.
G 3(i)(ii) MCOCA,
384 IPC read
with 120 B IPC. 1
Rigorous Imprisonment for ten years and
fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
3(i)(ii) MCOCA,
384 IPC read
with 120 B IPC.
2 to 9 Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 2 years.
3(i)(ii) MCOCA,
384 IPC read
with 120 B IPC.
10 & 11 Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
1, 2, 10 Rigorous Imprisonment for seven years
& 11 and fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
H 3(i)(ii) MCOCA,
384, 387 IPC
read with 120 B
IPC.
Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 2 years.
3(i)(ii) MCOCA,
384, 387 IPC
read with 120 B
IPC. 3 to 8
Rigorous Imprisonment for seven years
and fine of Rs.Five Lacs each or in default
imprisonment for 3 years.
3(i)(ii) MCOCA,
384, 387 IPC
read with 120 B
IPC. 10 to 12
9. She acquitted accused No.13 of all the offences for which he
was charged. All the accused were acquitted of offence punishable
under Section 386 read with Section 120-B of the Penal Code. Accused
Nos.1 to 9 were acquitted of offence punishable under Section 3(3) of
MCOC Act read with Section 120-B of the Penal Code. Accused Nos.2, 3,
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5, 6 and 12 were acquitted of offences punishable under Section 3(5)
and 4 of MCOC Act. Accused Nos.5, 6 and 8 to 12 were acquitted of
offences punishable under Section 3(1)(i) of MCOC Act read with
Section 120-B of the Penal Code. Accused No.12 was acquitted of
offences punishable under Section 3(1)(ii) of MCOC Act read with
Section 120-B and Sections 384 and 386 read with Section 120-B of the
Penal Code.
10. Aggrieved by their convictions, appellants have preferred
these appeals. We have heard the learned counsel for appellants as also
the learned Additional Public Prosecutor for State and with their help
have gone through the record.
11. As far as offences punishable under Sections 3(1)(i) and
3(1)(ii) of MCOCA, the learned counsel for appellants contended that
the learned trial judge had held those offences as proved by ignoring the
ingredients of organised crime. According to them :
(i) Evidence in respect of previous charge sheets filed
before MCOCA came into force would, at worst,
provide background, but would not help in holding
appellants guilty of an offence which was not on
statute book when those offences were registered;
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(ii) Previous charge sheets unrelated to offences for
pecuniary or other gain were not relevant;
(iii) Previous charge sheets unrelated to offences committed
by use of force were likewise not relevant;
(iv) oral evidence of witnesses in relation to incidents
covered by charge sheets already filed and trials
separately held was irrelevant and inadmissible;
(v) oral evidence in respect of incidents which were not
referred to in the FIR under MCOCA was irrelevant and
inadmissible ;
(vi) Evidence in respect of previous charge sheets may at
worst prove involvement in continuing unlawful
activity, but not organised crime;
Therefore, they contended that there was really no evidence
to prove complicity of appellants. The learned Additional Public
Prosecutor contested this submission and contended that there was
enough evidence to prove the charges.
12. Before going to evaluation of evidence in light of above
points, it may be useful to mention that out of 81 witnesses, confidential
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witness Nos. 1 to 8 who were examined as P.W. 1 to 7 and 10 have
refused to support the prosecution leading to failure to prove the charge
“Sixthly”. They are all businessmen in Sarafa Area of Itwari Nagpur.
Likewise, P.W. 12 Sanjay Khule has also refused to support the
prosecution leading to failure to prove the charge “Ninethly”. P.W. 45
Rajesh Gadekar who was supposed to be panch witness at Exh.366
turned hostile. P.W. 50 Arvind Jaiswal who was supposed to state that
appellant Santosh Ambekar took away TV set and VCR, turned hostile
and refused to support the prosecution. P.W. 54 Mohd. Sabir Mohd.
Issar who was supposed to be panch at seizure vide Exh.527, turned
hostile. Significance of evidence of P.W. No.35 Rahat Irshad is not at all
clear. He only states that Habib Rathod took a room on rent, paid rent
to him and nothing is due from Habib Rathod. Though, even evidence
of hostile witnesses can be considered, the evidence of these witnesses is
unhelpful to support cases of prosecution as well as defence.
13. P.W. 13 Girish Ingale has tendered evidence about his
daughter's kidnapping about 9 to 10 years ago by Santosh Ambekar and
others in respect of which offence a trial had taken place in the Court of
Sessions at Khamgaon bearing Criminal Case No.17/1992 in which
appellant Santosh Ambekar was convicted. There is no dispute about
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this. This was long before MCOCA was enacted. Though technically
this could be taken as an instance where chargesheet in respect of an
offence punishable with imprisonment for more than 3 years was filed
and congnizance taken within the preceding ten years it seems to be an
isolated incident unconnected with any crime syndicate.
14. In order to prove charge “firstly” i.e. offences punishable
under Sections 3(1)(i) & 3(1)(ii) of MCOCA read with Section 120B of
IPC, among others, the prosecution examined P.W. 56 P.S.I. Govind
Tamhankar who stated that, as directed by ACP Rude, he collected
certified copies of 15 chargehseets Exh.572 to 585 from various courts
and Record Section of District Court, Nagpur and handed them over to
ACP Rude. P.W. 65 P.I. Hirachand Umbarkar stated that ACP Rude had
asked him to furnish information about MPDA proceedings against the
accused Santosh vide letter at Exh.649. Similar request was made about
accused Bablu Mohite and Mahesh Solanki. He stated that he furnished
necessary documents vide letter Exh.650 and the documents are at
Exh.651 to 665. Though documents in respect of other crimes referred
to in the charge could not be located, from the charge, as well as copies
of chargsheets filed on record, chargesheeting of the appellants is
indicated in the following offences :
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CHART SHOWING INVOLVEMENT OF ACCUSED
IN SPECIAL CRI.CASE NO.1/2000.
Sr.
Section Cri.
Case
No.
Date of Which
incident accused
was
involved
Result Remarks
Name of
Police
Station/
Crime No.
No.
1 2 3 4 5 6 8 9
Kotwali
395, 324, 266/88 A-2
323 IPC
1
170/88
Kotwali
406, 420, 32
58/90
A-1 Acquitted
2
126/89
IPC
08/04/89
Kotwali
343, 427, 34
69/90 A-2
3
60(667)/90
IPC
Kotwali
294, 506 IPC 329/90 A-2
4
166/90
Kotwali
294, 506-B
160/91 A-2
5
271/90
IPC
Nandura,
6
363, 376
17/92
A-1 Acquitted
Distt.
IPC, r/w
Buldana
4/25 Arms
Act .
153/91
06/04/88
Lakadganj
147, 148, 108/92
149, 323 IPC
A-1, A-4 Not Known PW 17
Ravindra
Paraspure
697/91
7
08/12/91
Dhantoli
342, 395, 357/91 20-7-91 A-2
114 IPC
8
235/91
Kotwali
134, 148,
149, 143,
506 IPC & 4
Explosive Act
277/91 20-7-91 A-2, A-5 Not Known
343/91
9
Sakkardara
135 B.P. Act. A-2
10
266/91
Dhantoli
395, 342
A-2
11
235/91
IPC
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Sr.
Name of
Police
Station/
Crime No.
Section Cri.
Case
No.
Date of Which
incident accused
was
involved
Result Remarks
No.
Mouda
147,148,149, 267/92 A-2, A-5 Acquitted
302,324 IPC
12
181/91
Ramtek
364, 365, A-2, A-5
368 r/w 34
13
203/91
Lakadganj
294, 506-B 210/93 14-9-92 A-1 Not Known
IPC
14
750/92
Lakadganj
147, 148, 148/05
149, 307 IPC
A-1, A-4, Pending PW 22
A-7 Jayant
Wankar
277/94
15
09/05/94
Lakadganj
332, 354 r/w 196/94 21-2-94 A-1 Not Known
34 IPC
16
130/94
Kotwali
324 IPC 308/94 A-2
17
163/94
Sakkardara
324, 326, 34 A-2
Arms IPC
18
418/95
Imamwada 185 M.V. Act 180/95 A-5 Acquitted
19 (99)
Sakkardara
392, 435 34 113/96 - A-5 Acquitted
IPC 15.01.96
20
35/96
19.4.99
Kotwali
324, 34 IPC 304/96 A-2
21
226/96
Kotwali
392, 34 IPC 45/97 26.11.96 A-2, A-5
22
471/96
Sakkardara
324,34 IPC 248/96 A-5 Pending
23
360/96
Sakkardara
394, 448,
427 r/w 34
IPC
267/97
A-3 A-5 Acquitted
25-2-99
197/97
24
06/04/97
Kotwali
452, 448, 137/98 A-2
294, 506 IPC
25
336/97
Sakkardara
4/25 Arms A-2
Act
26
28/97
Sakkardara
265, 342, A-2
136, 506 IPC
27
416/97
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Sr.
Name of
Police
Station/
Crime No.
Section Cri.
Case
No.
Date of Which
incident accused
was
involved
Result Remarks
No.
Tahsil
392, 34 IPC A-2
28
226/1997
Kotwali
135 B.P. Act 50/97 A-5
29
24/97
Imamwada
142 B.P. Act 179/97 A-5
30
7/97
Lakadganj
392, 506-II, 109/00 23-9-98 A-1 Pending
34 IPC
31
387/99
Lakadganj
302, 34 IPC,
4/25 Arms
Act, 135 B.P.
Act
377/99
A-1, A-2, Acquitted PW 18
A-3 on 5-8-05 Subhash
Ninawe
116/99
32
09/04/99
Tahsil
399 IPC,
4/25 Arms
Act, 135 B.P.
Act
285/01 18-9-09 A-1, A-3, Acquitted
A-5, A-6. on 5-3-05
290/99
33
Kotwali
307, 34 IPC 117/00 18-10-99
34
375/99
Tahsil
294, 506, 79/99 24.04.99 A-4 PW 11
323 IPC Rajesh
Saxena
3054/99
35
Deolapar
302, 201 r/w A-1, A-2, Discharged
34 A-4 under
Section
169 of
Cr.P.C.
Cognizance
not taken
15/00
36

15. This chart will show that :
(i) Accused Nos. 8 to 12 are not involved in any criminal
activity prior to the recording of information in respect
of present crime of MCOCA. Accused No.7 was
involved only in crime at Sr.No.15 in the chart i.e.
Crime No.277/1994 of Police Station, Lakadganj.
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(ii) Crimes at Sr.Nos. 1 to 31 were committed prior to date
when MCOCA came into force.
(iii) Out of the remaining crimes, in crime at Sr.Nos. 32 &
33, the accused have been acquitted after the judgment
under challenge was delivered.
(iv) In crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23,
25, 26, 29, 30, 32, 34, 35, 36 appellants are not
arraigned for gaining or attempting to gain any
pecuniary benefits, or undue economic / other
advantage, or for promoting insurgency.
(v) only crime allegedly committed after MCOCA came
into force with the object of gaining pecuniary/ other
advantage by use of force is crime of Sr.No.33, being
Crime No.290/99 at P.S. Tahsil for offence of preparing
to commit a dacoity, punishable under Section 399 of
the Indian Penal Code and Section 4/25 of the Arms
Act for which accused were acquitted on 05.03.2005 in
Criminal Case No.285/2001.
16. The learned counsel for the appellants relied on a judgment
of the Supreme Court in S.K. Sinha, Chief Enforcement Officer v. Videocon
International Ltd. and others , reported at (2008) 2 SCC 492, on the
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!#"
question as to what amounts to taking cognizance of offences under
FERA 1972 within two years of coming into force of FEMA on 1-6-2000.
The Chief Metropolitan Magistrate had by his order dated 24-5-2002
(i.e. within two years from 1-6-2000) taken cognizance. Summons
which was made returnable on 7-2-2003 was actually issued
on 3-2-2003.
17. The Court took a review of several judgments on the point.
In paras 36 and 37, the Court distinguished between issuing process
and taking cognizance and held that issuing process was a sequel to
taking cognizance. It is not clear as to how this judgment would help
appellants. In respect of past chargesheets, except Sr.No.36, Crime
No.15/2000 of Police Station, Deolapar, it is not shown that cognizance
was not taken or processes were not issued. On the other hand, some of
those cases seem to have culminated in acquittals or convictions. Crime
No.15 of 2000 of Police Station Deolapar, would, however, have to be
excluded.
18. Coming next to the question of relevance of evidence about
charge sheets filed before MCOCA was enacted it may be seen from
judgment in Appa @ Prakash Haribhau Londhe v. State of Maharashtra
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$&%
and Anr. , reported at 2006 ALL MR (Cri.) 2804 , that their significance
is limited. The Court observed as under in paragraph 10 of the
judgment :
“ 10. For the purpose of organised crime there has to be a
continuing unlawful activity and there cannot be
continuing unlawful activity unless at least two charge-
sheets are to be found to have been lodged in relation to
the offence punishable with three years imprisonment
during the period of ten years. If no illegal activities as
contemplated by MCOC Act are committed after 1999,
then the past activities prior to 1999 may not be of any
help for registering any FIR only on the basis of those past
activities as has been observed by the Division Bench
(R.M.S. Khandeparkar and P.V. Kakade, JJ.) of this court
in Writ Petition No.689 of 2005 and other petitions, but
if two or more illegal activities are committed after 1999,
then the past activities can be taken into consideration in
order to show the continuity. We are therefore not in
agreement with the submissions made by Mr. Pradhan
that on the date of registration of FIR against the
petitioners they had not committed any act, as
contemplated. ”
There can be no quarrel with these findings.
19. On the question of significance of “pecuniary gain”, the
learned counsel relied on the judgment in Sherbahadur Akram Khan &
ors. Vs. State of Maharashtra , reported at 2007(1) Bom.C.R.(Cri.) 26 =
2006 ALL MR 2895. A Division Bench of this Court was considering the
appeals filed by the accused challenging orders rejecting their
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applications for discharge for the offence punishable under MCOC Act.
The Court considered statement of objects and reasons, definition and
other provisions of the Act and observed as under :
“ 10. ..... An activity would be termed as a continuing
unlawful activity if more than one charge-sheet has been
filed before the competent Court against the members of
the gang either individually or jointly within the
preceding ten years. However, it must be established
that such an offence or 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. Such unlawful activity could include the use
of violence or threat of violence or intimidation or
coercion.
11. Taking into consideration the details of the
various charge-sheets which have been filed by the
prosecution and admitted by the learned A.P.P., it is
obvious that some of the accused have been charged for
offences which can, by no stretch of imagination, be
considered to give the accused any pecuniary or undue
economic or other advantage, either for the accused
himself or for any other person. Offences punishable
under sections 323, 324, 325 and 326 read with 34 are
not such as would provide any pecuniary benefit or
undue economic gain to the accused. Some of these
offences have resulted from a quarrel at a public water
tap. Fist blows have been allegedly used by the accused
in most of the cases whereas in one or two instances the
accused has allegedly used a chopper or an iron rod to
assault the victim. ...
12. Apart from this, as aforesaid, the unlawful
activity is not relatable to any pecuniary advantage or
economic gain for the accused. The words in section
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(*)
2(e) “with the objective of gaining pecuniary benefits or
gaining undue economic or other advantage” will have
to be given some effective meaning. 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”. A quarrel at a water tap which resulted in
violence cannot be an offence which falls within this
definition. Assaults on some persons also cannot be
considered as offences which have been undertaken for
pecuniary gain or undue economic advantage...... ”
20. In view of this, it cannot be disputed that unless the crime
was aimed at pecuniary or other like advantage, it would be of no avail
for proving offence of oganised crime.
21. The learned Additional Public Prosecutor referred to the long
title of the Act, which reads as under :
“ An Act to make Special Provisions for
Prevention and Control of Organized Crime and for
coping with, Criminal Activity by Organized Crime
Syndicate or Gang, and for matters connected therewith
or incidental thereto. ”
She also took us through painstakingly collected resources
from the internet on the definition of organised crime in various
jurisdictions abroad. She submitted that these resources would
highlight the concern of civilized society world over to combat organised
crime. In this light, she argued that various terms in MCOC Act would
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+#,
need a broader interpretation which would advance the object of the Act
as indicated in the long title. She submitted that this unusual law had to
be enacted to overcome the threat from organised crime to the very
existence of civilized society. In view of this, according to her, the
definition of organised crime, contained in Section 2(e) of the Act ought
to be considered only as an internal or intrinsic aid to interpretation and
not as limiting or restricting the meaning of organised crime.
22. As rightly countered by her learned adversaries, clinches and
platitudes have no place while judging conduct of a person which is
alleged to be a serious crime attracting heavy punishment. They
submitted that merely because long title of the Act also mentions that
the Act was passed to prevent and control organised crime, it would not
be open to first presume that a person is involved in organised crime
because police say so and then deprive him of his liberty. They
submitted that the manner in which the provisions of this stringent law
has to be interpreted is no longer res integra and the Apex Court in Lalit
Somdatta Nagpal v. K.K. Pathak , reported at 2005 ALL MR (Cri) 2164 =
(2007) 4 SCC 171 , has categorically held that the provisions need to be
constructed strictly. Thus read, in view of judgment Sherbahadur Akram
Khan , crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23, 25, 26, 29,
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30, 32, 34, 35 and 36 would be unhelpful in establishing offence of
organised crime. As already pointed out in view of judgment in Appa
Londhe, crimes at Sr.Nos. 1 to 31, having been committed prior to
coming into force of MCOCA can only provide a background and cannot
in themselves constitute organised crime; leaving only crime at Sr.No.33
in the chart as relevant for the present purpose. Even so, independently
of this, we would be examining contentions advanced by the State in
respect of the crime chart.
23. In Raipur Development Authority Vs. Anupam Sahkari Sanstha ,
reported at (2000) 4 SCC 357 on which the learned Additional Public
Prosecutor relied, the Supreme Court was interpreting the provisions of
the M.P. Town and Country Development Act, 1973. It considered the
mischief rule in Heydon 's case and observed in para 16 as under :
“16. Whenever there are two possible
interpretations, the one which subserves to the
intent of the legislature is to be accepted. The
object of the aforesaid Act is for planned
development and thus the interpretation, which
upholds any such scheme should be followed.
Heydon's principle is now well recognised in
interpreting any enactment. It lays down that
courts must see (a) what was the law before
making of the Act; (b) what was the mischief or
defect for which the law did not provide; (c) what
is the remedy that the Act has provided; (d) what is
the reason of the remedy. It states that courts must
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0&1
adopt that construction which suppresses the
mischief and advances the remedy. This has been
approved by this Court in a number of decisions.
One of them is K.P. Varghese v. ITO.”
24. In Indian Handicrafts Emporium and others v. Union of India
and others , reported at (2003) 7 SCC 589 , the Court was considering
interpretation of the provisions under the Wild Life (Protection) Act,
1972 and in that context, observed in paras 98, 99 and 105 as under :
“98. It is now well settled that for the
purpose of interpretation of a statute the entire
statute is to be read in its entirety. The purport
and object of the Act must be given its full effect.
99. Furthermore, in a case of this nature,
principles of purposive construction must come into
play.
105. The words which are used in declaring
the meaning of other words may also need
interpretation and the legislature may use a word
in the same statute in several different senses. In
that view of the matter, it would not be correct to
contend that the expression as defined in the
interpretation clause would necessarily carry the
same meaning throughout the statute.”
25. In State of Maharashtra v. Marwanjee F. Desai and others ,
reported at (2002) 2 SCC 318 , in the context of interpretation of the
provisions of the Bombay Government Premises (Eviction) Act, 1955, in
para 11, the Court held as under:
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23
“11. ... The statute shall have to be
considered in its entirety and picking up of one
word from one particular provision and thereby
analysing it in a manner contrary to the statement
of objects and reasons is neither permissible nor
warranted. ... Statement of objects and reasons is
undoubtedly an aid to construction but that by
itself cannot be termed to be and by itself cannot be
interpreted. It is a useful guide but the
interpretations and the intent shall have to be
gathered from the entirety of the statute and when
the language of the sections providing an appeal to
a forum is clear and categorical no external aid is
permissible in interpretation of the same.”
26. The learned APP rightly submitted that it would be necessary
to interpret the provisions concerned after reading the statute as a whole
in a manner which would fulfill the purpose for which the statute is
enacted. The Statement of Objects and Reasons for which Maharashtra
Control of Organised Crime Act is enacted reads as under :
Organised crime has for quite some years now come
up as a very serious threat to our society. It knows
no national boundaries and is fueled by illegal
wealth generated by contract killings, extortion,
smuggling in contrabands, illegal trade in
narcotics, kidnappings for ransom, collection of
protection money and money laundering, etc. the
illegal wealth and black money generated by the
organised crime is very huge and has serious
adverse effect on our economy. It is seen that the
organised criminal syndicates make a common
cause with terrorist gangs and foster narco
terrorism which extend beyond the national
boundaries. There is a reason to believe that
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4&5
organised criminal gangs are operating in the State
and thus, there is immediate need to curb their
activities.
It is also noticed that the organized
criminals make 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 is an indispensable aid to law
enforcement and the administration of justice.
2. The existing legal frame i.e. the penal
and procedural laws and the adjudicatory system
are found to be rather inadequate to curb or
control the menace of organised crime.
Government has, therefore, decided to enact a
special law with stringent and deterrent provisions
including in certain circumstances power to
intercept wire, electronic or oral communication to
control the menace of the organised crime.”
27. The Act then defines various terms used in Section 2 of the
Act. The definitions of “continuing unlawful activity”, “organised crime”
and “organised crime syndicate” contained in Section 2(d), (e) and (f),
which are relevant may be reproduced 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, under-taken
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
charge-sheets have been filed before a competent
Court within the preceding period of ten years and
that Court has taken cognizance of such offence;
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(e) : “organised crime” means any continuing
unlawful activity by an individual, singly or
jointly, either as a member of an organised 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;
(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).
28. Other clauses define terms 'abet', 'Code', 'Competent
Authority' and 'Special Court'.
29. Section 3 of the Act provides for punishment for “organised
crime” in the following words :
“ 3. Punishment for organised crime –
(1)Whoever commits an offence of organised crime shall
(i) if such offence has resulted in the death of any
person, be punishable with death or
imprisonment for life and shall also be liable to
a fine, subject to a minimum fine of rupees one
lac;
(ii) in any other case, be punishable with
imprisonment for a term which shall not be less
than five years but which may extend to
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8:9
imprisonment for life and shall also be liable to
a fine, subject to a minimum fine of rupees five
lacs.
(2) Whoever conspires or attempts to commit or
advocates, abets or knowingly facilitates the commission
of an organised crime or any act preparatory to
organised crime, shall be punishable with imprisonment
for a term which shall be not less than five years but
which may extend to imprisonment for life and shall
also be liable to a fine, subject to a minimum fine of
rupees five lacs.
(3) Whoever harbours or conceals or attempts to
harbour or conceal, any member of an organised crime
syndicate shall be punishable with imprisonment for a
term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be
liable to a fine, subject to a minimum fine of rupees five
lacs.
(4) Any person who is a member of an organised crime
syndicate shall be punishable with imprisonment for a
term which shall not be less than five years but which
may extend to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees five
lacs.
(5) Whoever holds any property derived or obtained
from commission of an organised crime or which has
been acquired through the organised crime syndicate
funds shall be punishable with a term which shall not be
less than three years but which may extend to
imprisonment for life and shall also be liable to fine,
subject to a minimum fine of rupees two lacs.”
(Emphasis supplied)
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30. Section 4 prescribes punishment for possessing
unaccountable wealth. Sections 5 to 12 provide for constitution of
Special Courts, their jurisdiction and powers, public prosecutor,
procedure, appeals, etc.
31. Section 13 provides for appointing a competent authority for
authorizing interception, etc. under Section 14. Section 15 prescribes
that such authorisation shall be reviewed by a Committee constituted
under clause (2). Section 16 enacts safeguards to prevent abuse by
prescribing punishment for such abuse. Section 17 contains special
rules of evidence. Section 18 makes certain confessions admissible.
Section 19 ensures protection of witnesses. Section 20 provides for
forfeiture and attachment of property. Section 21, modifies provisions
in the Code relating to grant of bail and custody for the purpose of
investigation of offences under MCOCA. Section 22 mandates that the
Court shall presume that the accused had committed such offence if
material is proved to have been seized from possession of accused and
there is a reason to believe that such material was used in commission
of such offence, etc. As to cognizance and investigation, Section 23
provides as under :
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>@?
“23. Cognizance of, and investigation into, an
offence.-- (1) Notwithstanding anything contained
in the Code,--
(a) no information about the commission of an
offence of organised crime under this Act, shall be
recorded by a police officer without the prior
approval of the police officer not below the rank of
the Deputy Inspector General of Police;
(b) no investigation of an offence under the
provisions of this Act shall be carried out by a
police officer below the rank of the Deputy
Superintendent of police.
(2) No Special Court shall take cognizance of
any offence under this Act without the previous
sanction of the police officer not below the rank of
Additional Director General of Police.”
32. Section 24 provides for punishment to public servant failing
to discharge their duties. Section 25 gives overriding effect to provisions
of the Act. Section 26 protects actions taken in good faith. Section 27
requires the State Government to place before the Legislature an annual
report about interception. Sections 28 and 29 give power to make rules
and Section 30 is repeal and savings clause.
33. After this survey of all the provisions of MCOCA, it may be
useful to have one more look at the relevant definitions in Section 2 of
the Act. The learned APP relied on the judgments in Ranjitsing
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AA
Brahmajeetsing Sharma v. State of Maharashtra and another , rendered
by a learned Single Judge of this Court and reported at 2004 ALL MR
(Cri) 2899 , and one reported at 2005 Cri.L.J. 2533 , rendered by the
Supreme Court in the context of grant of bail, where the definitions had
been considered.
34. In Ranjitsingh 's case the learned Single Judge observed that
the definitions, though intertwined in a cyclic order, are clear and
unambiguous. Even the Apex Court in Bharat Shah 's case ( 2008 AIR
SCW 6431) observed that the definitions were not vague and they
defined the terms with clarity. It would, therefore, follow that each
ingredient in the definitions, or the alternative thereof provided by the
definitions themselves, would have to be proved. Viewed thus, for
charging a person of organised crime or being a member of organised
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 cognizable 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
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syndicate or a gang, or on behalf of such syndicate.
(vi) (a) in respect of similar activities (in the past) more than
one charge sheets 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.
35. In Ranjitsingh t he Courts had considered what amounts to
other unlawful means in Section 2(1)(e) of MCOC Act. The learned
Single Judge of this Court had held in paras 28, 29 and 30 as under :
“28. It is thus clear that the general words
must ordinarily bear their natural and larger
meaning and need not be confined to ejusdem generis
to things previously enumerated unless the language
of the statute spells out an intention to that
effect. ...”
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DE
“29. The specific enumeration in section
2(1)(e) are “use of violence, threat of violence,
intimidation, coercion” and the general words “other
unlawful means”. There is no difficulty in
understanding what is meant by “violence”, “use of
violence” or “threat of violence”. But on the basis of
this enumeration, it is clear that they are contiguous
to the class to which they all belong. All these
enumerations are in relation to bringing about
pecuniary benefits or undue advantages by actual or
threatened pressures being applied to
individuals. ...”
“30. Having regard to the definitions of words
“coercion” in the Contract Act and “intimidation” in
IPC, when we take close look at the language of
section 2(1)(e), one finds that the general words viz.
“other unlawful means” were intended to receive
their wide meaning and were not to be construed in
a limited sense with the aid of ejusdem generis rule,
more particularly when we read those words in the
light of the Statement of Objects and Reasons of
MCOCA. ... It is thus clear that the expression “other
unlawful means” as occur in section 2(1)(e) of
MCOCA, which defines “organised crime” must be
given their natural wide meaning to cover each and
every kind of unlawful activity referred to in the
Statement of Objects and are not to be construed in a
limited sense with the aid of “ejusdem generis” rule
so as to defeat the object of the Act.”
36. While considering the same aspect, the Apex Court held that
the words “unlawful means” cannot be so widely construed as to include
“any unlawful means”. The Court observed in paras 31, 32 and 33 of the
judgment as under :
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F=G
“31. Interpretation clauses contained in
Sections 2(d), 2(e) and 2(f) are inter-related. An
'organised crime syndicate' refers to an 'organised
crime' which in turn refers to 'continuing unlawful
activity'. As at present advised, it may not be
necessary for us to consider as to whether the words
“or other lawful means” contained in Section 2(e)
should be read “ejusdem generis”/”noscitur-a-socils”
with the words (i) violence, (ii) threat of violence,
(iii) intimidation or (iv) coercion. We may,
however, notice that the word 'violence' has been
used only in Sections 146 and 153A of the Indian
Penal Code. The word 'intimidation' alone has not
been used therein but only Section 506 occurring in
Chapter XXII thereof refers to 'criminal intimidation'.
The word 'coercion' finds place only in the Contract
Act. If the words 'unlawful means' is to be widely
construed as including any or other unlawful means,
having regard to the provisions contained in Sections
400, 401 and 413 of the IPC relating to commission
of offences of cheating or criminal breach of trust,
the provisions of the said Act can be applied, which
prima facie, does not appear to have been intended
by the Parliament.”
“32. The Statement of Objects and Reasons
clearly state as to why the said Act had to be
enacted. Thus, it will be safe to presume that the
expression 'any unlawful means' must refer to any
such act which has a direct nexus with the
commission of a crime which MCOCA seeks to
prevent or control. In other words, an offence falling
within the definition of organised crime and
committed by an organised 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 relation to such offences more than one charge-
sheet may be filed. As we have indicated
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H#I
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.”
“33. Furthermore, mens rea is a necessary
ingredient for commission of a crime under MCOCA.
(Emphasis supplied)
Thus the Court had reversed the findings of the Bombay High
Court.
37. According to the learned Additional Public Prosecutor, the
observations of the Court in para 31 above, cannot be taken to mean
that ejusdem generis rule can be applied for interpreting the expression
“other unlawful means”. She pointed out that the Apex Court had
specifically observed that it was not necessary for the Court at that point
of time to decide whether the words “other unlawful means” should be
read ejusdem generis. We are afraid that this caveat in para 31 cannot
permit us to ignore observations that follow in paras 31 and 32. Even if
the Apex Court is taken to have not decided the question, the Court did
consider arguments advanced and did make observations which would,
in any case, bind this Court as dicta of the Apex Court.
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38. Therefore, as observed by the Apex Court, offences like
cheating or criminal breach of trust which have an element of passivity,
but not feeling of being rendered helpless, cannot come within the
sweep of activities covered in the expression “by used of violence ....
etc.” This helplessness on account of various factors enumerated in the
said clause is the crux of offence of organised crime. The learned
Additional Public Prosecutor submitted that the word “coercion” used in
the clause is not to be read as cognate of term “violence or threat of
violence” but as understood in the Law of Contract as cognate of
coercion, undue influence and fraud. Violence implies use of greater
degree of force as defined in Sections 349 and 350 of the Penal Code.
“Intimidation” referred to in the clause need not be criminal
intimidation as defined in Section 503 of the Penal Code. These
expressions have to be understood as indicating use of physical or
mental force to make the victim succumb to do something which will
result in pecuniary or other advantage to the accused or others at his
behest.
39. The learned counsel for appellants submitted that this would
also eliminate recourse to crime at Sr.No.33 in the chart, since it is an
offence of being caught while preparing to commit a dacoity, since an
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L:M
actual offence was not committed. They also point out that in respect of
this offence appellants concerned have been acquitted by the competent
Court on 05.08.2005.
40. The learned Additional Public Prosecutor rightly submitted
that conviction or acquittal are not relevant and for this purpose relied
on observations in judgments in Bharat Shah 's case [ 2003 ALL MR (Cri)
1061 (para 27) and 2008 AIR SCW 6431 ] on which even the learned
counsel for appellants had placed reliance.
41. Since conviction or acquittal in a case previously filed are
irrelevant, it would be unnecessary to look into evidence in respect of
such crimes tendered in the present trial. The learned counsel for
appellants has sought to assail admissibility of such evidence on the twin
grounds of double jeopardy and possibility of two courts coming to
contradictory findings in respect of same incident. It may be seen that
though constitutionality of MCOCA on the ground of retrospective
criminalisation and violations of articles 14 and 21 was challenged, the
question of double jeopardy was not judicially decided.
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42. The learned counsel for the appellants further submitted that
treating continuing unlawful activity as synonymous with organised
crime by convicting a person merely on the basis of cognizance taken in
more than one chargesheet would violate the mandate of Articles 21
and 14 as also Article 20(2) of the Constitution and for this purpose
cited the following authorities :
43. In S. Krishnan and others v. The State of Madras and another ,
reported at AIR 1951 SC 301 , the Court was considering the provisions
of Article 22 of the Constitution and Preventive Detention
(Amendment) Act, 1951. The learned counsel for the appellants have
referred to the observations of the minority judgment of Justice Vivian
Bose in para 43 of the judgment. Though contained in minority
judgment, there should be no dispute about the principle enunciated
therein, namely, that it is the duty of the Courts to ensure that the right
and the guarantee (in Article 22) are not rendered illusory and
meaningless and wherever there is a scope for difference of opinion on
a matter of interpretation, the interpretation, which favours the subject,
must always be used and the doubts, if any, must be resolved in favour
of the subject.
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44. In Smt. Maneka Gandhi v. Union of India and another ,
reported at AIR 1978 SC 597 , the celebrated decision on procedural
due process, the Court had considered inter-relationship between
Articles 14, 19 and 21 and observed that the law must be taken to be
well settled that Article 21 does not exclude Article 19 and that even if
there is a law prescribing a procedure for depriving a person of personal
liberty and there is consequently no infringement of the fundamental
right conferred by Article 21, such law in so far as it abridges or takes
away any fundamental right would have to meet the challenge of
articles 14 and 19. Referring to the judgment of the Supreme Court in
R.C. Cooper v. Union of India , reported at AIR 1970 SC 564 , the Court
reiterated the need to satisfy the requirements of other fundamental
rights such as Article 19 even if law of preventive detention passes the
test of Article 22.
45. In Bachan Singh v. State of Punjab , reported at AIR 1982 SC
1325 , which reported a minority view of Bhagwati, J., on which the
learned counsel for the appellants placed reliance, it was observed in
para 10, “ the rule of law permeates the entire fabric of the Constitution
and indeed forms one of its basic features. ... 'Law' in the context of rule of
law does not mean any law enacted by the legislative authority, howsoever
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arbitrary or despotic it may be. ... What is a necessary element of rule of
law is that the law must not be arbitrary or irrational and it must satisfy
the test of reason and the democratic form of polity seeks to ensure this
element by making the framers of the law accountable to the people ”. (The
majority view is to be found at AIR 1981 SC 898 ).
46. In Olga Tellis and others v. Bombay Municipal Corporation
and others , reported at AIR 1986 SC 180 , on which the learned counsel
for the appellants placed reliance, the Court was considering the right of
pavement dwellers and in this context held that the procedure
prescribed by any law for deprivation of right conferred by Article 21
must be fair, just and reasonable. In para 40, the Court held that the
substance of the law cannot be divorced from the procedure which it
prescribed, for, how reasonable the law is, depends upon how fair is the
procedure prescribed by it.
47. It is not necessary to dwelve at length on the submissions
made in relation to violation of Articles 21 and 14 of the Constitution.
These aspects were duly considered in Bharat Shah 's case by a Division
Bench of this Court which read the provisions in order to ensure that
they do not offence the constitutional guarantees by holding that
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continuing unlawful activity is relevant only to see the antecedents of
the person and not to convict. This part of the judgment of this Court is
left undisturbed by the Apex Court. Observations of another Division
Bench while considering challenge based on Article 20(1) of the
Constitution in Jaisingh Ashrfilal Yadav [2003 ALL MR (Cri) 1506] are
equally apposite.
48. In State of Tamil Nadu and others v. S. Nalini and others ,
reported at 1999 Cri.L.J. 3124 , on which the learned counsel for the
appellants placed reliance, the Court was considering the provisions of
TADA Act in the context of assassination of Rajiv Gandhi. The Court
considered the scope of protection provided by Article 20(2) of the
Constitution and Section 300 of the Code of Criminal Procedure. It may
be useful to reproduce the observations in paras 238 to 242 of the
judgment.
“238. The period of the aforesaid activities, as
involved in that case, covered between 1987 and end of
1991. Section 300(1) of the Code of Criminal Procedure
contains the ban against a second trial of the same offence
against the same person. Sub-section (1) reads thus :
“A person who has once been tried by a Court
of competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or
acquittal remains in force, not be liable to be tried again
for the same offence, nor on the same facts for any other
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offence for which a different charge from the one made
against him might have been made under sub-section (1)
of Section 221, or for which he might have been convicted
under sub-section (2), thereof.”
“239. The well-known maxim 'nemo debet bis vexari
pro eadem cause” (no person should be twice vexed for the
same offence) embodies the well established Common Law
rule that no one should be put to peril twice for the same
offence. The principle which is sought to be incorporated
into Section 300 of the procedure Code is that no man
should be vexed with more than one trial for offences
arising out of identical acts committed by him. When an
offence has already been the subject of judicial
adjudication, whether it ended in acquittal or conviction,
it is negation of criminal justice to allow repetition of the
adjudication in a separate trial on the same set of facts.”
“240. Though Article 20(2) of the Constitution of
India embodies a protection against second trial after a
conviction of the same offence, the ambit of the sub-article
is narrower than the protection afforded by Section 300
of the Procedure Code. It is held by this Court in Manipur
Administration v. Thokehom Bira Singh, (1965(2) Cri LJ
120) : AIR 1965 SC 87 that “if there is no punishment for
the offence as a result of the prosecution, Article 20(2)
has no application”. While the sub-article embodies the
principle of autrefois convict Section 300 of the Procedure
Code combines both autrefois convict and autrefois
acquit.”
“241. Section 300 has further widened the protective
wings by debarring a second trial against the same
accused on the same facts even for a different offence if a
different charge against him for such offence could have
been made under Section 221(1) of the Code, or he could
have been convicted for such other offence under Section
221(2) of the Code. In this context it is useful to extract
Section 221 of the Procedure Code.
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“221. Where it is doubtful what
offence has been committed.--
(1) If a single act or series of acts is of such
a nature that it is doubtful which of several offences the
facts which can be proved will constitute, the accused
may be charged with having committed all or any of
such offences, and any number of such charges may be
tried at once; or he may be charged in the alternative
with having committed some one of the said offences.
(2) If in such a case the accused is
charged with one offence, and it appears in evidence that
he committed a different offence for which he might have
been charged under the provisions of sub-section (1), he
may be convicted of the offence which he is shown to
have committed, although he was not charged with it.”
“242. As the contours of the prohibition are so
widely enlarged it cannot be contended that the second
trial can escape therefrom on the mere premise that some
more allegations were not made in the first trial. We
have absolutely no doubt that the offences which we have
indicated above were fully covered by the trial in CC 7 of
1992, and therefore the prosecution is debarred in this
case from proceeding against A-16 and A-17 for the
aforesaid offences. Consequently the conviction and
sentence passed by the Designated Court as per the
impugned judgment for offences under Sections 3(3),
3(4) and 5 of TADA and also Section 5 of the Explosive
Substances Act as well as Section 3(1) of the Arms Act on
A-16 and A-17 are hereby set aside.”
49. It may be seen from the observations in this judgment that
wider protection provided by Section 300 of the Code of Criminal
Procedure could be invoked by the accused to avoid such double
jeopardy. While MCOC Act provides for modified application of certain
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\]
provisions of the Code of Criminal Procedure, significantly it neither
modifies Section 300 nor makes it inapplicable to trials under MCOC
Act.
50. There is indeed a fresh thinking amongst jurists about
continued utility of protection against double jeopardy in the present
times particularly in the context of possibilities of discovery of
unimpeachable scientific evidence after the trial ended in acquittal. It is
felt that in such cases trial ought to be re-opened. Attempt of the State
in the present case to have accused punished is, however, not based on
discovery of any new evidence but merely on the foundation of the fact
that previously a trial was held. This would hardly justify departure
from the principle enunciated in Section 300 of the Code of Criminal
Procedure, which in any case, cannot be violated in the absence of any
express provision.
51. The learned counsel for appellants submitted that evidence
of P.Ws. 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant could not be
received in this case, since it pertained to an offence which was
separately tried. They relied on judgment in Vijay Kisan Mate Vs. State
of Maharashtra , reported at 2007 ALL MR (Cri.) 3471 , where the Court
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^*_
was considering an appeal under Section 12 of the MCOC Act against an
order rejecting the application by the accused to defer cross-
examination. This came in the context of an application by the
prosecution to amend the charge so as to exclude charge of murder of
one Swapnil Shirke in respect of which a separate chargesheet has been
filed. Thereafter, the prosecution resiled from its own stand and sought
to tender evidence of murder in case of MCOC Act. The learned single
Judge held that in the said case under MCOC Act the actual proof of
crime need not be offered unless that crime was also being tried
together. The learned single Judge, therefore, held as corollary that the
act of the Special Judge allowing the eyewitness of a murder case to be
examined in MCOC Act trial, without there being a joint trial of both the
offences, will have to be quashed and that the said witness shall not be
further examined in MCOC Act case, and that the case should be tried as
if the said witness was never examined at MCOC Act trial.
52. For proving the offence of organised crime, it has to be
proved among other things that accused indulged in continuing
unlawful activity. For proving involvement in continuing unlawful
activity, it is not necessary to prove the past crime, but only the fact that
a chargesheet has been filed in respect of that crime that the crime bears
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`a
punishment of three years or more and that the Court has taken
cognizance of the crime. Therefore, examining witnesses in proof of
past crime itself is unnecessary and also undesirable, because it is not
the requirement or ingredient of offence under MCOC Act. Therefore,
testimonies of PWs 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant
are irrelevant.
53. The learned Additional Public Prosecutor submitted that the
prosecution case does not rest only on past crimes of appellants. She
submitted that there is sufficient evidence unearthed during
investigation after information was recorded under MCOCA, about
appellants' involvement in incidents of organised crime after MCOCA
came into force in respect of which they have not been /are not being
separately tried. This evidence is about incidents deposed to by P.Ws. 8,
14, 15, 16, 19, 20, 33 and 42.
54. The learned counsel for the appellants submitted that
evidence in respect of incidents about which PWs 8, 14, 15, 16, 19, 20
and 42 depose cannot be received in this case for three reasons. First,
the information recorded under MCOC Act did not pertain to these
instances. Secondly, charges “Seventhly”, “Ninethly” and “Tenthly” in
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bc
respect of these instances are vague and lastly, that they cannot be tried
together at one trial in view of the provisions of Section 221 of the Code
of Criminal Procedure.
55. The learned counsel for the appellants submitted that
approval for recording information required under Section 23 of MCOC
Act is not an empty formality. In Altaf Ismail Sheikh Vs. State of
Maharashtra , reported at 2005 ALL MR (Cri.) 2403 a Division Bench of
this Court was considering the question of approval for recording a
crime under MCOC Act i.e. was considering the challenge to F.I.R. In
relation to Section 23 of the Act, the Court observed in paragraph 24 of
the judgment as under :
“ 24. The Section 23 of the MCOC Act which opens with
non-obstante clause and further clothed with negative
words clearly discloses the mandate of the legislature
that the cognizance of the offences under the MCOC Act
should not be in routine course, but only upon the facts
disclosing the applicability thereof and satisfaction of the
officer of the high rank, the minimum being of the rank
of Deputy Inspector General of Police, in that regard. In
fact, the officer of such high rank is required to decide
about the approval even for recording of FIR in relation
to any offence under the MCOC Act. This obviously
discloses that the approving authority has to apply its
mind about the applicability of the provisions of the
MCOC Act to the facts disclosed in a matter before
allowing the recording of FIR and for the purpose, he
must be, prima-facie, satisfied about the commission of
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dfe
offence of organized crime under the MCOC Act by the
person or persons against whom the FIR is to be
recorded. Obviously, for prima facie satisfaction
regarding the commission of the offence of organized
crime or of participation therein in whatever manner,
the approving authority must have some materials
before it disclosing the activities of the person or the
persons to be of the nature of offence under the MCOC
th
Act and having committed such activities on or after 24
February, 1999. In other words, the activities of a
person to be termed as the offence under the MCOC Act,
the same should inevitably disclose to have been
th
committed on or after 24 February, 1999. If the
activity of the person is relation to the period prior to
th
24 February, 1999, obviously, it cannot be said to be
an offence under MCOC Act, even though the activity
may be an offence under the provisions of some other
statute in force at the relevant time. For the same
reason, when the approval is granted for recording of
FIR and the FIR is recorded, then such FIR should
apparently disclose the activities constituting offence
under the MCOC Act having been committed on or after
th
24 February, 1999. When the FIR does not disclose on
the face of it that the offence was committed on or after
th
24 February, 1999, obviously, the concerned authority
must be able to establish the said fact, at least, by
referring to the records which were available and placed
before the concerned authority before granting approval
and before recording FIR. It should not be understood
that the power vested in the authority under Section
23(1) of the MCOC Act can be exercised either as
automation or as autocrat. The power should be
exercised on application of mind to the facts of the case
and with necessary prudence and circumspection. ”
56. The learned counsel, therefore, submitted that since
information is allowed to be recorded in respect of a specific offence,
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