STATE OF MAHARASHTRA vs. SHIVA @SHIVAJI RAMAJI SONAWANE .

Full Judgment Text

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOs.458-460 OF 2009 State of Maharashtra …Appellant Versus Shiva @ Shivaji Ramaji Sonawane & Ors. etc. …Respondents WITH CRIMINAL APPEAL NOs.461-464 OF 2009 State of Maharashtra etc. …Appellants Versus Mehmood Khan Yakub Khan Pathan etc. etc. …Respondents JUDGMENT J U D G M E N T

T.S. THAKUR, J.

1.		High Court of Bombay has, by a common order dated 18	th

November, 2008, impugned in these appeals, set aside orders 1 Page 1 passed by the Special Court under Maharashtra Control of Organised Crime Act, 1999 and acquitted the respondents of the charges framed against them. The High Court has relying upon

several earlier pronouncements on the subject, held that mere

proof of filing of charge sheets in the past was not enough to hold

the persons accused in such charge sheets to be guilty of the

offences of committing organised crime punishable under Section 3

of MCOCA for such charge sheets satisfy but one of the

requirements under the said Act. What is according to the High
Court equally important is to prove	that the accused were guilty of

committing the offence of organi	sed crime by reason of their

continuing unlawful activities. The High Court further held that any

such unlawful activity should be by use of threat of violence, JUDGMENT intimidation, coercion or other unlawful means with the objective of “gaining pecuniary or other advantages”, and that the provisions of MCOCA can be invoked only by strictly complying with the provisions of Section 23 of the Act. The competent authority was, declared the High Court, duty bound to apply its mind to the attendant facts while permitting registration of an FIR under 2 Page 2 MCOCA or granting sanction for prosecution. The High Court held that the competent authority, in the case at hand, had not applied its mind properly which rendered the registration of the cases and

the filing of the charge sheets against the respondents legally

unsustainable. The High Court further held that the respondents

were, in the facts of the cases before it, not shown to have

committed any offence for pecuniary, economic or similar other

advantage which was one of the requirements to be satisfied

before they could be held guilty of an organised crime. The orders
of conviction recorded by the Sp	ecial Court, and the sentences

awarded to the respondents were o

2.		We have heard learned counsel for the parties at considerable

JUDGMENT length. We have also been taken through the record including the judgments of the trial court and that passed by the High Court. The factual matrix in which the respondents were prosecuted and found guilty for offences punishable under MCOCA, have been set out at great length by the Trial Court and even by the High Court. Recapitulation of the same all over again would, therefore, serve 3 Page 3 no useful purpose. All that need be mentioned is that the respondent Shiva @ Shivaji Sonwane, accused in Special Criminal Case No.1 of 2001 and Mehmood Khan Pathan, accused in Special

Case No.2 of 2001 started off as partners in crimes which they

committed with the help of other gangsters in the industrial town

of Khaparkheda situate on the outskirts of the city of Nagpur. The

gang, in due course, appears to have split into two, one each led
by Shivaji Ramaji Sonwane and Mehmood Khan Pathan.
3. The prosecution case is that	the two gangs have over ten

years prior to the enactment	of MCOCA been involved in

commission of several crimes which constitutes “continuing

unlawful activity” within the meaning of Section 2(d) of MCOCA. JUDGMENT This, according to the prosecution, was evident from the fact that a very large number of charge sheets had been filed against them in which the competent jurisdictional Courts had taken cognizance. To be precise, as many as 42 charge-sheets had been filed against the gang led by Shiva Sonwane, whereas 30 similar charge-sheets were presented against the rival gang led by Mehmood Khan 4 Page 4 Pathan. What led to the invocation of MCOCA in Criminal Case No.1 of 2002 against the gang led by Shiva Sonwane is an incident that

took place on 16	th	March, 2001 at about 9.15 a.m. when Shiva

Sonwane is alleged to have gone to the shop of one Rameshwar

Bawankar in which one Sunil Bante PW-8/I was working as an

employee. Respondent-Shiva and his companion gangsters are

alleged to have beaten up Sunil Bante and set the shop on fire

resulting in a loss of 1.5 lacs to the owner. Crime No.37 of 2001 for

several offences punishable under the Indian Penal Code and the
Arms Act was registered with the		police station Khaparkheda, in
connection with the incident.
4.	So also MCOCA was invoked against respondents Mehmood

JUDGMENT Khan Pathan, Sanjay Girhe and Samad Pathan on the basis and in connection with Crime Case No.38 of 2001 registered at police station Khaparkheda for offences punishable under the I.P.C. and the Arms Act. Interestingly, this crime (Criminal Case No.38 of 2001) was registered on a complaint made by Shiva Sonwane the

rival gangster in which the latter alleged that on 16	th	March, 2001

5 Page 5 the accused had barged into the complainant’s house, demanded a gold chain, beat up the complainant’s father and set the house on fire.


5.	The prosecution version is that PW-13/1, PI Abdul Razzak,

Investigating Officer in Crime No.37 of 2001, had on the basis of

his investigation come to the conclusion that Shiva had formed and

was heading an organised crime syndicate. He, therefore,

prepared a proposal for invocation of the provisions of MCOCA in
connection with Crime No.37/2001		and requested for permission to

record information and register a c		ase under Sections 3(1)(ii) and

3(4) of MCOCA. The proposal		was forwarded to the Special

Inspector General of Police examined at the trial as PW-15/1. The

JUDGMENT proposal was upon consideration, accepted and registration of information under MCOCA in terms of Section 23 of the Act permitted. The information relating to the commission of the offence under MCOCA was accordingly registered against Shiva

Sonwane and his gang on 21st M	arch, 2001 which eventually is

presented to this Court as Crime Case No.1 of 2001 under MCOCA. 6 Page 6

6.		In Crime Case No.2 of 2001 also under MCOCA a similar

version has been put forth by the prosecution. The proposal for invoking MCOCA was moved even in that case by PI Abdul Razzak

resulting in grant of approval for invocation and registration of

information under Section 3(i)(ii) read with Section 3(4) of MCOCA.

According to the prosecution, investigation into the cases was

entrusted to Deputy Superintendent of Police examined as PW-16

in Criminal Case No.1 of 2001 and PW-20 in Criminal Case No.2 of

2001. According to this witness, investigation in both the cases
was made over to him on 21st Marc			h, 2001 when Shiva was in jail.

The custody of accused Shiva was			secured by him in terms of a

production warrant on 28	th	March, 2001 and his house searched on

10	th	April, 2001 leading to the seizure of a sword. As regards

JUDGMENT<br>respondent Mehmood Khan Pathan, he was arrested on 8	th	May,

2001 and his house searched on	30th May, 2001 resulting in the

recovery of a sword and a ‘Hattimar’ knife which was seized. After completion of investigation in both the crimes, the Deputy Superintendent of police filed two separate and independent charge sheets one each against the two gangs for offences 7 Page 7 punishable under Section 3(i)(ii) of the MCOCA and Section 4 read with Section 25 of the Arms Act.

7.

No.37 of 2001 and 38 of 2001 the respondents were separately

tried and acquitted on 18			th	January, 2008 in the case of Shiva and

on 28	th	February, 2006 in the case of Mehmood Khan Pathan. In

the said charge sheets, the respondents were accused of

committing offences only under the IPC and the Arms Act. For the
offences punishable under MCO					CA separate and independent

charge sheets were filed against th					e accused persons in which they

were convicted by the Trial Court w					hich conviction was reversed by
the High Court as noticed earlier.

8.		It was in the above backdrop that the High Court held that

once the respondents had been acquitted for the offence punishable under the IPC and Arms Act in Crimes No.37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the 8 Page 8 Arms Act in MCOCA Crimes No.1 and 2 of 2002 all that remained incriminating was the filing of charge sheets against the respondents in the past and taking of cognizance by the competent

court over a period of ten years prior to the enforcement of the

MCOCA. The filing of charge sheets or taking of the cognizance in

the same did not, declared the High Court, by itself constitute an

offence punishable under Section 3 of the MCOCA. That is because

the involvement of respondents in previous offences was just about

one requirement but by no means the only requirement which the
prosecution has to satisfy to secu	re a conviction under MCOCA.

What was equally, if not, more imp	ortant was the commission of an

offence by the respondents that would constitute “continuing

unlawful activity”. So long as that requirement failed, as was the JUDGMENT position in the instant case, there was no question of convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, suffer from any infirmity. The very fact that more than one charge sheets had been filed against the respondents alleging offences punishable with more than three years imprisonment is not enough. As rightly pointed out by the 9 Page 9 High Court commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge sheets and taking of

cognizance by the competent court in relation to the offence

alleged to have been committed by the respondents in the past is

but one of the requirements for invocation of Section 3 of the

MCOCA. Continuation of unlawful activities is the second and

equally important requirement that ought to be satisfied. It is only

if an organised crime is committed by the accused after the
promulgation of MCOCA that he	may, seen in the light of the

previous charge sheets and the cog	nizance taken by the competent

court, be said to have committed an offence under Section 3 of the

Act. JUDGMENT

9.		In the case at hand, the offences which the respondents are

alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes No.37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. 10 Page 10 Not only that the respondents were acquitted of the charge under the Arms Act even in Crimes Case No.1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that

the prosecution had failed to prove the second ingredient required

for completion of an offence under MCOCA. The High Court was,

therefore, right in holding that Section 3 of the MCOCA could not

be invoked only on the basis of the previous charge sheets for

Section 3 would come into play only if the respondents were

proved to have committed an offence for gain or any pecuniary
benefit or undue economic or	other advantage after the

promulgation of MCOCA. Such bein	g the case, the High Court was,

in our opinion, justified in allowing the appeal and setting aside the

order passed by the Trial Court. JUDGMENT

10.		In the light of what we have said above, it is not necessary for

us to go into the question whether the competent authority had duly and properly applied its mind while granting permission to the registration of the information under MCOCA or sanctioning the prosecution of the respondents under Section 3(2) of the Act. It is 11 Page 11 also unnecessary for us to examine whether the expression “any

other advantage” appearing in Section 2(e) can be read	ejusdem

generis	which aspect is left open to be decided in an appropriate



11.	These appeals accordingly fail and are	hereby dism	issed.
………………………………….…..…J.<br>(T.S. THAKUR)<br>………………………………….…..…J.<br>(R. BANUMATHI)<br>New Delhi;<br>24th July, 2015

JUDGMENT 12 Page 12 ITEM NO.1E-For Judgment COURT NO.2 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 458-460/2009

VER	SUS

SHIVA @SHIVAJI RAMAJI SONAWANE & ORS. Respondent(s) WITH Crl.A. No. 461-464/2009 Date : 24/07/2015 These appeals were called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Nishant Ramakantrao Katneshwarkar,Adv. Mr. Ravindra Keshavrao Adsure,Adv. For Respondent(s) Dr. J. P. Dhanda,Adv. Mr. N.A. Usmani, Adv. Mrs. Raj Rani Dhanda, Adv. Mr. Irshad Ahmad,Adv. Hon'ble Mr. Justice T.S. Thakur pronounced the judgment JUDGMENT of the Bench comprising His Lordship and Hon'ble Mrs. Justice R. Banumathi. The appeals are dismissed in terms of the Signed Reportable Judgment. (VINOD KR.JHA) (VEENA KHERA) COURT MASTER COURT MASTER (Signed Reportable judgment is placed on the file) 13 Page 13