2009 ALL MR (Cri) 870
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.C. CHAVAN, J.
Prafulla S/O. Uddhav Shende Vs. State Of Maharashtra
Cri. Appeal No.664 of 2002,Cri. Appeal No.665 of 2002,Cri. Appeal No.717 of 2002,Cri. Appeal No.86 of 2003,Cri. Appeal No.90 of 2003,Cri. Appeal No.93 of 2003,Cri. Appeal No.215 of 2003
18th November, 2008
Petitioner Counsel: Shri. R. M. DAGA
Respondent Counsel: Shri. S. S. DOIFODE
(A) Maharashtra Control of Organised Crimes Act (1999), S.3(1)(ii), r.w. Ss.3(4), 23 - Punishment for organised crime - Accused persons are allegedly gangsters involved in criminal activities like extortion etc. - No overt act or omission on their part which would amount to continuation of unlawful activity carried out by use of force for the purpose of pecuniary gain, with which they are charged - Only overt acts attributed to them is possession of arms at their houses, when they were in custody, and after offences were registered under - For said offences, Special Court has acquitted them - Neither approval for recording information, nor sanction for filing charge-sheet under Section 23 of the Act were accorded after applying mind to the requirements of law - Conviction of accused persons based upon only filing of charge-sheets in past - Is not proper. (Paras 57, 58)
(B) Maharashtra Control of Organised Crimes Act (1999), S.2(d) - Continuing unlawful activity - Provisions of S.2(d) is constitutionally valid - Apart from previous charge-sheets there has to be a continuation of an activity to which Act is applied. (Para 42)
(C) Maharashtra Control of Organised Crimes Act (1999), S.3 - Organised crime - Mere proof of filing charge-sheets in the past is not enough - It is only one of the requisites for constituting offence of organised crime.
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 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
Mere proof of filing charge-sheets in the past is not enough. It is only one of the requisites for constituting offence of organised crime. If only the past charge-sheets were to be enough to constitute offence of organised crime, it could have offended the requirement of Article 20(1) of the Constitution and possibly Article 20(2) as well. Section 21 of MCOCA which prescribes modified applications of the Code to offences under MCOCA does not make provisions of Section 300, Cr.P.C. inapplicable. Therefore, since the previous criminal history of the applicants denotes that they had been or are being separately charged/tried for those offence before competent courts, there is no question of such offences constituting offence of organised crime. [Para 29,43,44]
(D) Maharashtra Control of Organised Crimes Act (1999), Ss.3, 2(d) - Organised crime - Appellants accused persons are not shown to have indulged in any crime which can be said to be continuation of past criminal activity - Provisions of Section 3(1) of the MCOCA are not attracted. (Para 48)
(E) Maharashtra Control of Organised Crimes Act (1999), S.3 - Offence of organised crime - Proof - Some of the offences in the previous charge-sheets in respect of some accused persons showing that they have indulged in offences of robbery etc. from which pecuniary benefits may flow - But the continuation of the activities, with which accused persons charged is mere possession of weapons punishable under Section 4/25 of the Arms Act and not an activity from which pecuniary benefits may flow - Therefore, it cannot be said that any of accused persons have committed offence of organised crime.
Mere participation in continuing unlawful activity is not enough. Such activity should be by use of threat of violence, intimidation, coercion or other unlawful means, with the objective of gaining pecuniary benefits. In the present case, some of the offences in the previous charge-sheets in respect of some accused persons showing that they have indulged in offences of robbery etc. from which pecuniary benefits may flow. But the continuation of the activities, with which accused persons charged is mere possession of weapons punishable under Section 4/25 of the Arms Act and not an activity from which pecuniary benefits may flow. Therefore, it cannot be said that any of accused persons have committed offence of organised crime. [Para 49,50]
(F) Maharashtra Control of Organised Crimes Act (1999), S.3(4) - Offence of being member of Organised Crime syndicate - Indulgence in activity of organised crime is sine qua non for holding a person to be a member of organised crime syndicate.
Indulgence in activity of organised crime is sine qua non for holding a person to be a member of organised crime syndicate. Organised crime has to be continuing unlawful activity and, therefore, unless there is an act or omission indicating continuation of the unlawful activity there would be no question of commission of organised crime, and a fortiori, would rule out membership by such persons of organised crime syndicate. [Para 51]
Cases Cited:
Vijay Kisan Mate Vs. State of Maharashtra, 2007 ALL MR (Cri) 3471 [Para 21]
Amarsingh Kisansingh Thakur Vs. State of Maharashtra, 2006 ALL MR (Cri) 407 [Para 24,43]
Shabbir Mohd. Vs. State, 2006 ALL MR (Cri) 2751 [Para 29]
Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra, 2004 ALL MR (Cri) 2899 [Para 30]
Ranjitsingh Brahmajeetsingh Sharma Vs. State of Maharashtra, 2005 ALL MR (Cri) 1538 (S.C.) [Para 31]
Sidharth Ramesh Janmejay Vs. State of Maharashtra, 2005 ALL MR (Cri) 460 [Para 33]
Bhaya @ Raju S. Rajput Vs. State of Maharashtra, 2006 ALL MR (Cri) 1979 [Para 35]
Gulab Vs. State of Maharashtra, 2007(2) Mh.L.J. (Cri.) 538 [Para 36]
Mohd. Iqbal Vs. State, 2007(1) Mh.L.J. (Cri.) 385 [Para 37]
Jaisingh Ashrfilal Yadav Vs. State of Maharashtra, 2003 ALL MR (Cri) 1506 [Para 38,43]
Bharat Shantilal Shah Vs. State of Maharashtra, 2003 ALL MR (Cri) 1061 [Para 40,43]
Appa @ Prakash Haribhau Londhe Vs. State of Maharashtra, 2006 ALL MR (Cri) 2804 [Para 45]
Dilip Singh Vs. State of Punjab, 1997(3) Current Criminal Journal 223 [Para 47]
Sherbahadur Akram Khan Vs. State of Maharashtra, 2006 ALL MR (Cri) 2895=2007(1) Bom.C.R. (Cri.) 26 [Para 49]
Kalpanath Rai Vs. State, III(1998) CCR 37 (SC) [Para 52]
Lalit Somdatta Nagpal Vs. K. K. Pathak, 2005 ALL MR (Cri) 2164 [Para 55]
I(2007) CCR 435 [Para 55]
Altaf Ismail Sheikh Vs. State of Maharashtra, 2005 ALL MR (Cri) 2403 [Para 56]
JUDGMENT
JUDGMENT:- This bunch of appeals arising out of judgments 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 Nos.1 and 2 of 2001 are being disposed of by this common judgment since they raise common questions.
2. The accused persons, who were tried in Special Criminal Case No.1/2001, are allegedly gangsters led by one Shiva (Accused No.1 therein) and those in Special Criminal Case No.2/2001, allegedly belong to rival gang led by Mehmood Khan Pathan (Accused No.1 in Special Criminal Case No.2/2001). It is alleged that initially all of them formed one gang, which later split into two gangs. They used to clash over right to extort. Both these gangs were allegedly involved in criminal activities like extortion etc. in industrial town of Khaparkheda on the outskirts of Nagpur City.
3. The gang leaders, i.e. Shiva @ Shivaji Ramaji Sonwane (Accused No.1 in Spl. Criminal Case No.1/2001, hereinafter referred to as Accused No.1/I to avoid confusion) and Mehmood Khan Pathan (Accused No.1 in Special Criminal Case No.2/2001, hereinafter referred to as Accused No.1/II) were convicted for the offence punishable under Section 3(1)(ii) of the MCOCA and sentenced to suffer R.I. for 12 years and fine of Rs.Five Lacs in default S.I. For three years. They were also convicted for offence punishable under Section 3(4) of the MCOCA and sentenced to R.I. for 8 years and fine of Rs.Five Lacs in default to suffer S.I. for three years. Both were acquitted for offence under Section 4, punishable under Section 25 of the Arms Act.
4. Other accused in Special Criminal Case No.1/2001 (belonging to Shiva Gang), except Accused No.6 Nana, who was absconding, were convicted for the offence punishable under Section 3(1)(ii) and Section 3(4) of MCOCA and sentenced to suffer R.I. for seven years with fine of Rs.Five Lacs in default to suffer S.I. for three years each on each of the two counts. Accused No.3/1 Babu has not filed an appeal. Accused No.6 Nana is reportedly acquitted on 01.08.2007 after he was arrested and put to trial.
5. The other accused persons in Special Criminal Case No.2/2001 (belonging to Mehmood Khan Pathan's gang), except accused No.5 Laxman, who was absconding, were likewise convicted for the offences punishable under Section 3(1)(ii) and 3(4) of MCOCA and sentenced to suffer S.I. for six years with fine of Rs.Five Lacs in default to suffer S.I. for three years each on each of the two counts.
5-A. Though offences were separately registered against the members of the two gangs and they were separately charge-sheeted and tried, interestingly, there is a striking similarity in the facts leading to the two prosecutions.
6. It was alleged that the members of the two gangs have been involved in crime which comes within the sweep of "continuing unlawful activity" as defined in Clause (d) of Section 2 of MCOCA, as could be seen from the fact that several (not just more than one) charge-sheets had been filed against them in ten years preceding the present prosecutions, whereof Courts had taken cognizance. Activities of members of the gang of Shiva (accused in Special Criminal Case No.1/2001), which were relied on by the prosecution, and referred to by the learned Judge, Special Court, in the charge framed are as under :
CHART SHOWING INVOLVEMENT OF ACCUSED IN SPECIAL CRI. CASE NO.1/2001. | ||||||||
| Sr. No. | Name of Police Station/ Crime No. | Section | Cri. Case No. | Date of incident | Which accused was involved | Evidence tendered | Result | Remarks |
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 |
| 1. | Khaparkheda 12/88 | 392, 34, IPC | 87/ 88 | Pre 06.04.88 | Accused No.1 | Not known | Registered before 24 02-99 i.e. before commencement of the Act. | |
| 2. | Khaparkheda 38/88 | 341, 323, IPC | 88/88 | Pre 06.04.88 | Accused No.1 | -"- | -do- | |
| 3. | Khaparkheda 135/88 | 379, IPC | 2129/88 | Pre- 22.11.88 | Accused No.1 | -"- | -do- | |
| 4. | Khaparkheda 94/89 | 329, 34, IPC | 271/ 89 | Pre- 28.07.89 | A-1 | -"- | -do- | |
| 5. | Khaparkheda 36/90 | 122, BP Act | 912/ 90 | Pre- 02.04.90 | A-1 | Convi- cted | -do- | |
| 6. | Parsheoni 61/90 | 302, 201, 34, IPC | 461/90 | Pre- 24.10.90 | A-5 | -do- | -do- | |
| 7. | Khaparkheda 82/91 | 395, IPC | 229/ 91 | Pre- 29.06.91 | A-1 | Acqui- tted | -do- | |
| 8. | Khaparkheda 73/92 | 324,325, IPC | 303/91 | Pre- 05.08.92 | A-1 | Not known | -do- | |
| 9. | Khaparkheda 80/92 | 324, 34, IPC | 209/ 92 | Pre- 29.06.92 | A-1 | Pending | -do- | |
| 10. | Khaparkheda 91/92 | 302, 34, IPC | 324/92 | Pre- 20.08.92 | A-1 | P.W.5 Arun, P.W.6 Anand | Acqui- tted | -do- |
| 11. | Khaparkheda 86/93 | 324, 34, IPC | 332/93 | Pre- 30.8.93 | A-2 | Not known | -do- | |
| 12. | Parsheoni 21/95 | 147,148, 302, IPC | 202/95 | Pre- 10.07.95 | A-1 | -do- | -do- | |
| 13. | Khaparkheda 124/95 | 353,332, 307,324, IPC & 4 /25 Arms | 416/ 95 | Pre- 25.09.95 | A-1 | PW-9 API Namdeo | Not known | -do- |
| 14. | Khaparkheda 135/95 | 447,506, 34, IPC | 1337/95 | Pre- 17.07.95 | A-1 | -do- | -do- | |
| 15. | Khaparkheda 16/96 | 4/25 Arms Act | 53/ 96 | Pre- 07.02.96 | A-1 | -do- | -do- | |
| 16. | Khaparkheda 17/96 | 294,506, 34, IPC | 243/96 | Pre- 13.02.96 | A-1 | -do- | -do- | |
| 17. | Khaparkheda 60/96 | 294, 506, 34, IPC | 1753/96 | Pre- 21.08.96 | A-1 | -do- | -do- | |
| 18. | Parsheoni 112/96 | 452, 324 34, IPC | 390/ 96 | Pre- 2.12.96 | A-1, A-4 A-5 | -do- | -do- | |
| 19. | Parsheoni 145/96 | 395, IPC | 97/97 | Pre- 04.03.97 | A-1 | -do- | -do- | |
| 20. | Parsheoni 146/96 | 392, 34, IPC | 284/97 | Pre- 24.02.97 | A-1 | -do- | -do- | |
| 21. | Khaparkheda 177/96 | 397, 34, IPC | 53/96 | Pre- 20.02.97 | A-1 | -do- | -do- | |
| 22. | Parsheoni 4/97 | 395, IPC | 160/97 | Pre- 30.04.97 | A-1 A-4 A-5 | -do- | -do- | |
| 23. | Khaparkheda 55/97 | 122 B.P. Act | 1419/97 | Pre- 31.02.97 | A-7 | Convi- cted | -do- | |
| 24. | Khaparkheda 123/97 | 379, 427, IPC | 296/97 | Pre- 23.06.97 | A-7 | Not known | -do- | |
| 25. | Khaparkheda 124/97 | 379, 34, IPC | 329/97 | Pre- 31.07.97 | A-7 | Not known | -do- | |
| 26. | Khaparkheda 145/97 | 461, 380, IPC | 295/97 | Pre- 23.07.97 | A-7 | Not known | -do- | |
| 27. | Saoner 203/97 | 392, 34, IPC | 585/97 | Pre- 30.12.97 | A-1 | -do- | -do- | |
| 28. | Khaparkheda 8/98 | 392, 34, IPC | 118/98 | Pre- 27.03.98 | A-7 | Not known | -do- | |
| 29. | Khaparkheda 21/98 | 457, 380, IPC | 110/98 | Pre- 24.03.98 | A-7 | Not known | -do- | |
| 30. | Parsheoni 63/98 | 326, 34, IPC 4/25 Arms | 219/98 | Pre- 31.10.98 | A-5 | -do- | -do- | |
| 31. | Parsheoni 75/98 | 392,506, IPC | 297/98 | Pre- 31.10.98 | A-5 | -do- | -do- | |
| 32. | Khaparkheda 12/99 | 294, 506, 34, IPC | 528/99 | -- 12.02.99 | A-1 | -do- | -do- | |
| 33. | Khaparkheda 13/99 | 27 NDPS Act | 11/99 | Pre- 24.03.99 | A-1 | -do- | ||
| 34. | Khaparkheda 41/99 | 394,506, 34, IPC | 84/99 | -- 15.02.99 | A-1 | -do- | ||
| 35. | Khaparkheda 44/99 | 392, 34, IPC | 98/99 | -- 16.02.99 | A-1 | -do- | ||
| 36. | Khaparkheda 45/99 | 399, IPC & 4/25 Arms | 97/99 | -- 17.02.99 | A-1 | -do- | ||
| 37. | Khaparkheda 78/2000 | 387,294, 506, 34, IPC | 1477/00 | -- 13.06.00 | A-1 A-4 A-5 | PW 1 Gangadhar | -do- | |
| 38. | Khaparkheda 186/00 | 451,294, 506,427, IPC | 2481/00 | Pre- 29.12.00 | A-7 | Not known | ||
| 39. | Khaparkheda 3042/00 | 294, 506, IPC | 1891/00 | Pre- 29.09.00 | A-7 | Not known | ||
| 40. | Khaparkheda 25/01 | 324, 34, IPC | 108/01 | Pre- 23.03.01 | A-2 | -do- | ||
| 41. | Khaparkheda 37/01 | 147,148, 149,324, 452,436, 427,IPC & 4/25 Arms | 16.03.01 | A-1, A-2, A-3, A-6, A-7 | P.W.8 Sunil | Acquitt- ed on 18.1.08 | ||
| 42. | Khaparkheda 41/2001 | 392, IPC | 183/01 | Pre- 20.4.01 | A-1 | P.W.3 Shambhu | Acquitt- ed | |
7. Activities of members of the rival gang of Mehmood Khan which were relied on by the prosecution and referred by the learned Judge in the charge framed are as under :
CHART SHOWING INVOLVEMENT OF ACCUSED IN SPECIAL CRI.CASE NO.2/2001. | ||||||||
| Sr. No. | Name of Police Station/ Crime No. | Section | Cri. Case No. | Date of incident | Which accused was involved | Evidence tendered | Result | Remarks |
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 |
| 1. | Khaparkheda 8/93 | 324, IPC | 34/93 | -- 10.01.93 | A-1 | Kamlesh Yadav | Acqui- tted | Registered before 24.02.99 i.e. before commence ment of the Act. |
| 2. | Khaparkheda 86/93 | 324, 34 IPC | 332/93 | --- | A-1 | Acqui-tted | -do- | |
| 3. | Khaparkheda 28/94 | 135,122 of B.P. Act | 583/94 | --- | A-1 | Not known | -do- | |
| 4. | Parsheoni 21/95 | 147, 148, 302, IPC | 202/95 | --- | A-1 | Acqui- tted | -do- | |
| 5. | Khaparkheda 75/96 | 294, 506, IPC | 1634/90 | --- | A-1 | Yogesh Dhanuskar | Acqui- tted | -do- |
| 6. | Khaparkheda 77/96 | 4/25, Arms Act | 369/96 | -- 02.08.96 | A-1 | PSI Mahajan | -do- | -do- |
| 7. | Khaparkheda 105/96 | 294, 506 r/w 34, IPC | 2236/96 | -- 07.10.96 | A-1 | Janardan Kapale | -do- | -do- |
| 8. | Khaparkheda 196/96 | 452,506, 34, IPC | 622/96 | -- 13.12.96 | A-1 | Rani Kokate | -do- | -do- |
| 9. | Khaparkheda 32/97 | 4, 25 Arms Act | 128/97 | -- 02.04.97 | A-4 | H.C. Manohar | Not known | |
| 10. | Khaparkheda 91/97 | 449, 427, 294, 506, 34, IPC | 176/97 | -- 17.04.97 | A-1, A-4 | Dharma Dongre | Acqui- tted | -do- |
| 11. | Khaparkheda 92/97 | 392, r/w 34, IPC | 178/97 | -- 17.04.97 | A-1, A-4 | Shamraj Bante | -do- | -do- |
| 12. | Khaparkheda 135/97 | 365, 302, 201, 34, IPC | 428/97 | -- 30.06.97 | A-4 | Shalik Meshram | Not known | |
| 13. | Khaparkheda 193/97 | 326, 34, IPC | 434/97 | -- 17.09.97 | A-1 | Raju Chaudhari | Acqui- tted | -do- |
| 14. | Khaparkheda 3/98 | 294,506, IPC | 170/98 | -- 09.01.98 | A-1 | Krishna | -do- | -do- |
| 15. | Khaparkheda 4/98 | 294, 506 & 4/25 Arms Act | 172/98 | -- 09.01.98 | A-1 | Shivcha- ran | -do- | -do- |
| 16. | Khaparkheda 05/98 | 294, 506, IPC | 171/98 | -- 11.01.98 | A-1 | Baburao Patil | -do- | -do- |
| 17. | Khaparkheda 21/98 | 294, 506, 34, IPC | 849/99 | --- | A-4 | |||
| 18. | Khaparkheda 28/98 | 324, 34, IPC | 99/98 | -- 17.02.98 | A-1 | Suresh Makode | -do- | -do- |
| 19. | Khaparkheda 29/98 | 294, 506, IPC | 362/96 | -- 08.03.98 | A-1 | Suresh Makode | -do- | -do- |
| 20. | Khaparkheda 30/98 | 4/25, Arms Act | 363/98 | --- 08.03.98 | A-1 | Manohar Gandhare | -do- | -do- |
| 21. | Khaparkheda 220/98 | 393, 427, 34, IPC | 510/98 | -- 14.11.98 | A-1, A-4 | Krishna Ramaji | -do- | -do- |
| 22. | Khaparkheda 250/98 | 324, 34, IPC | 576/98 | -- 08.12.98 | A-1, A-4 | Jageshwar Bhivgade | -do- | -do- |
| 23. | Khaparkheda 21/99 (30/99) | 294, 506, 34, IPC | 849/99 | -- 19.03.99 | A-1 | Krishna Namlewar | Pending | -do- |
| 24. | Khaparkheda 22/99 (30/99) | 147, 148, 302, IPC | 848/99 | -- 26.03.99 | A-1 + A-4 | Krishna Namlewar | Pending | -do- |
| 25. | Khaparkheda 41/99 | 384, 506, 34, IPC | 84/99 | -- 15.02.99 | A-1 + A-4 | Pappu Vishwa- karma | Acqui- tted | -do- |
| 26. | Khaparkheda 44/99 | 393, 34, IPC | 98/99 | -- 16.02.99 | A-1, A-4 | Uday Narayan | -do- | -do- |
| 27. | Khaparkheda 45/99 | 399, IPC 4/25, Arms | 94/99 (97/99) | --- | A-1, A-4 | -do- | -do- | |
| 28. | Khaparkheda 108/99 | 448, 324, 427, 34, IPC | 223/99 | -- 30.05.99 | A-2 A-3 | Yashwant Barapatre | Convi- cted | |
| 29. | Khaparkheda 187/2000 | 393, IPC | 39/2000 | ---- | ||||
| 30. | Khaparkheda 38/2001 | 326, 34, 4/25, Arms Act | 236/01(?) 237/01 | 16.03.01 | A-1, 2, 3 & 5 | Shiva Sonwane | Acqui- tted | ---- |
8. Filing of charge-sheets, referred to in the chart, has been proved by producing before the Court, copies of charge-sheets and examining some witnesses in relation to some of the incidents indicated therein. To avoid confusion appellants in these several appeals would be referred to by their numbers in the trial Court. Accused in Special Criminal Case No.1/2001 would be referred to as Accused No.1/I, Accused No.2/I etc. whereas those in Special Case No.2/2001 would be referred to as Accused No.1/II, Accused No.2/II etc. Witness numbers too would be suffixed by I or II to signify whether they are from Special Criminal Case No.1/2001 or 2/2001 Exhibit numbers too are suffixed by I or II depending on whether they are from Special Criminal Case No.1/2001 or 2/2001.
9. On 16th March, 2001 at about 9.15 p.m. Accused No.1/I Shiva went to liquor shop of one Rameshwar Bawankar where Sunil Bante P.W.8/I was employed, Shiva and others abused and beat up Sunil Bante, burnt his hair and set the shop on fire. 200 boxes of liquor were set ablaze causing loss of Rs.1.5 lacs. On his report Crime No.37/2001 was registered with Police Station, Khaparkheda which is at Sr. No.41 in the chart.
10. P.W.13/I, P.I. Abdul Razzak Investigating Officer to whom investigation of Crime No.37/2001 was assigned on 18th March, 2001, found that Shiva has formed an organised crime syndicate and was the leader of the gang. He, therefore, prepared a proposal for applying provisions of MCOCA to Crime No. 37/2001 of Police Station, Khaparkheda, whereby he requested that he should be allowed to record information and register crime for the offence punishable under Section 3(1)(ii) and 3(4) of the MCOCA. His proposal at Exh.106/I was forwarded to the Special Inspector General of Police Shri. Prabir Kumar Chakraborty who was examined as P.W. 15/1. The then Special Inspector General of Police Shri. Chakraborty discussed the proposal with the Superintendent of Police and the Investigating Officer and then accorded approval, which is evidenced by Exhs.108/I to 110/I. This led to registration of Crime No.3007/2001 under MCOCA vide F.I.R. at Exh.111/I. The elaborate proposal at Exh.106/I specifically requested Special Inspector General Police to grant permission to add Section 3(i)(ii) read with Section 3(4) of MCOCA to Crime No.37/2001 under Sections 147, 148, 149, 326, 324, 452, 436, 427 of the Indian Penal Code and Section 4 read with 25 of the Arms Act, registered at Police Station, Khaparkheda. This proposal also mentions names of Shiva, Sandeep Mankar, Nana @ Dnyaneshwar Khandekar as the gangsters. The approval accorded under Section 23(1) of the MCOCA shows that it was accorded in respect of accused Shiva, Sonwane, Nana @ Dnyaneshwar Khandekar, Sandeep Mankar, Prafulla Uddhav Shende and Rajan Krishna Pali. F.I.R. at Exh.110/I refers to Crime No.37/2001 and gives details of the said crime. It then enumerates various crimes committed by the accused (which have been included in the chart). The printed F.I.R. Form at Exh.111/I mentions in the column of occurrence of the offence that offence occurred upto 21.03.2001. This F.I.R. was registered on 21st March, 2001. Thus, it is clear that it is not in respect of any specific crime.
11. Other case (i.e. Cri.Case No.2/2001) too proceeded on similar lines. Shiva Sonwane had complained that one Shambhu Mandal had given a gold chain to Shiva about 5-6 months prior to 16.03.2001. On 16.03.2001 in order to demand that gold chain back Mehmood Khan Pathan, Sanjay Girhe and Samad Pathan came to the house of Shiva Sonwane and demanded the chain back, set Shiva's hut on fire and beat up Shiva's father. This led to registration of Crime No.38/2001 at Police Station, Khaparkheda. The co-incidence is thus, marked that against both the gangs crimes were registered on account of the incidents which took place on the same day i.e. on 16th March, 2001.
12. P.I. Abdul Razzak, who was assigned investigation of this crime also was examined as P.W. 19/II in Special Cri.Case No.2/2001. He stated that he collected crime record of Mehmood Khan Pathan and others and realised that there was a gang of Mehmood Khan Pathan committing crime in a organised manner. He, therefore, prepared a proposal for applying MCOCA to those accused persons in crime No.38/2001. This proposal at Exh.116/II was forwarded to the Special Inspector General of Police Shri. Chakraborty, who called both Superintendent of Police and P.I. Abdul Razzak for discussion and on 21st March, 2001 approved the proposal. Letters in this behalf are at Exh.118/II and 119/II. P.I. Abdul Razzak then claims to have filed F.I.R. which is at Exh.120/II and 121/II.
13. It may be useful to record that in the proposal at Exh.116/II permission was sought to add Section 3(1)(ii) read with Section 3(4) of MCOCA in Crime No.38/2001 under Sections 326 read with Section 34 of the Indian Penal Code and 4/25 of the Arms Act, registered at Police Station, Khaparkheda against Mehmood Khan, Samad Khan Pathan, Bhurya and Laxman. The approval conveyed refers to these four persons. The complaint at Exh.120/II recounts the facts of Crime No.38/2001 and the previous criminal cases against the accused in Special Criminal Case No.2/2001. The printed F.I.R. mentions in the column of occurrence of offence that the offence occurred in 1996 to 2001. Thus, this Crime No.3008/2001 too is not in respect of any specific incident.
14. Even handed treatment to both the gangs continued even after investigation of Crime No.3007/2001 and 3008/2001 was entrusted to Deputy Superintendent of Police Shri Dashrath Kumbhare, who was examined as P.W.16 in Criminal Case No.1/2001 and P.W.20 in Criminal Case No.2/2001. He stated that the investigation of both these cases was made over to him on 21st March, 2001. At that time accused Shiva was already in jail and therefore, he applied for getting production warrant of Shiva and secured custody of Shiva on 28th March, 2001. The house of Shiva was searched on 10th April, 2001 and a sword was seized from the house of Shiva. On 8th May, 2001 Mehmood Khan Pathan was arrested. On 13th May, 2001 house of Mehmood Khan was searched and a sword and a 'Hattimar' knife were found, which were seized in presence of panchas. Seizures of these weapons from the house of Shiva and Mehmood Khan Pathan were not under Section 27 of the Evidence Act. They were a result of plain searches carried out in course of the investigation.
15. In both the crimes Dy. Superintendent of Police Shri. Kumbhare recorded statements of witnesses, collected copies of charge-sheets and other documents, arrested offenders, subject them to medical examination and then filed charge-sheets for the offence punishable under Section 3(1)(ii) of the MCOCA and Section 4/25 of the Arms Act.
16. Accused in both the cases were charge-sheeted for the offence punishable under Section 3(1)(ii) of the MCOCA referring to the previous offence committed by them, mentioned in two charts above. In addition, the gang leaders, Shiva Sonwane (in Cri. Case No.1/2001) and Mehmood Khan Pathan (in Cri.Case No.2/2001), were charged for the offence under Section 4 read with Section 25 of the Arms Act for possession of sword/knife on 10.04.2001 and 13.05.2001 respectively. As already mentioned, the gang leaders have been acquitted of this charge of possession of weapons, and rightly so, since they could not have possessed weapons when they were already in the custody of the Investigating Officer.
17. It may also be useful to mention here that Crime No.37/2001 for which Shiva and others were hauled up and tried has ended in their acquitted on 18.01.2008 and Crime No.38/2001 for which Mehmood Khan Pathan were hauled up ended in their acquittal on 28.02.2006. It may be recalled that these are the crimes during whose investigation, P.I. Abdul Razzak found it necessary to seek approval for application of MCOCA.
18. It may thus, be seen that the appellants in the several appeals have been convicted for the offence punishable under Section 3(1)(ii) and 3(4) of the MCOCA, not for their participation in any specific crime, registered vide F.I.R. No.3007/2001 and 3008/2001, but for the past criminal history. There is no dispute about the facts narrated thus far.
19. Several witnesses were examined in these two cases. Gists of their evidence is as under:
GIST OF EVIDENCE IN SPECIAL CRI.CASE NO.1/2001.
i) P.W. Gangadhar, a contractor, states about demand of Rs.5,000/- by Accused No.1/I Shiva as protection money on 06.06.2000 in respect of which Criminal Case No.78/2000 is registered, charge-sheet arising out of which is at Exh.53/I.
ii) P.W.2 Bhimrao, construction manager with a company states about demand of Rs.50,000/- by Shiva and others and stoppage of work. He proved his report at Exh.58/I. But his cross-examination virtually wipes out his evidence.
iii) P.W.3 Shambhu Mandal, states about Shiva's snatching in March, 2001, Mehmood Khan Pathan's chain which was pawned with him. Police had registered Criminal Case No.41/2001. According to learned counsel for accused, the accused have been acquitted in this case on 19.07.2007 by J.M.F.C., Saoner.
iv) P.W.4 Krushna Ramayya was incharge Sarpanch, runs a hotel and a wine bar and is also a press reporter. He claimed that in January, 2001, Shiva and others tried to avoid paying after feasting at his hotel. He admitted that accused Shiva was himself a Gram Panchayat member but denied having given false evidence on that count. He was examined as P.W.6 in Special Criminal Case No.2/2001.
v) P.W.5 Arun Rangari's brother Vinayak was allegedly murdered by Shiva Sonwane and associates on 27.03.1995 in respect of which Cri. Case No.21/1995 was registered, but which ended in acquittal of Shiva. He admitted having been an accused in murder of one Shivlal, but claimed to have been acquitted.
vi) P.W.6 Anandrao's maternal cousin Vinayak was murdered (as stated by P.W.5). He stated having been threatened by Shiva, but did not report the matter to police.
vii) P.W.7 Ramakant stated about Shiva and associates indulging in demanding money when he was serving at liquor shop of Dhote and claims to have given a report in June, 1996, about which his evidence was not recorded in any court till then.
viii) P.W.8 Sunil Bante serving in liquor shop of Bawankar states of incident of arson dated 16.03.2001 which led to registering Crime No.37/2001 (during investigation where of P.I. Abdul Razzak sought approval for applying MCOCA). In this case accused are reportedly acquitted on 18.01.2008.
ix) P.W.9 API Namdeo Ingole stated about an incident in 1995 when accused Shiva brandished swords at police party which had gone to apprehend him. This led to filing Criminal Case No.412/1995.
x) P.W.10 Virendra, a rickshaw puller stated that after 01.08.2000 Shiva and his associates sought to pressurise him to vacate his rented house, about which his wife gave a report, but was not aware if this led to filing of any criminal case. He was also examined as P.W.13 in Spl. Cri. Case No.2/2001.
xi) P.W.11 did not depose anything.
xii) P.W.12 Sunilkumar was panch at seizure of sword and stick from house of accused Shiva on 10.04.2001 vide panchanama Exh.98/I.
xiii) P.W.13 P.I. Abdul Razak's role in investigating Criminal Case No.37/2001 and preparing proposal for applying MCOCA and recording F.I.R. has already been discussed.
xiv) P.W.14 Director General of Police Shri. Puri accorded sanction for prosecution under Section 23 of MCOCA on 10.07.2001. He admitted that in the proposal for sanction there was no reference to accused No.7 Praful Shende.
xv) P.W.15 then Special Inspector General of Police Shri. Prabir Kumar proved approval to apply MCOCA on proposal of P.I. Abdul Razzak.
xvi) P.W.16 Deputy Superintendent of Police Shri Kumbhare carried out investigation, i.e. collected past history and filed charge-sheet after securing sanction. He admitted that initially there was only one gang, which split into two gangs led by Shiva and Mehmood about 2-3 years before he deposed.
GIST OF EVIDENCE IN SPL.CRI.CASE NO.2/2001.
i) P.W. Bhagwan Lasankar : Hostile witness on incident in respect of one Suresh Makode.
ii) P.W.2 Shyam Gajbhiye : Hostile panch witness.
iii) P.W.3 Vijay Mahure states about Mehmood's gang compelling butchers to provide free meat/fish. He also stated about assault on Suresh Madode. (None of these events is a part of charge).
iv) P.W.4 Raju Kapse : Hostile witness about incident in shop of one Anna Mohod.
v) P.W.5 (confidential witness) states about threats given by Mehmood Khan when he was serving in Paliwal's liquor shop. Apart from several omissions, this incident was not subject matter of the trial.
vi) P.W.6 Krishna Ramayya (also examined as P.W. 4 in Spl. Cri. Case No.1/2001). He stated about incident dated 08.01.1988 in shop of Paliwal (Cri. Case No.170/1994), incident dated 14.11.1998 (Cri. Case No.510/1999), incident dated 19.03.1999 (Cri. Case No.849/1999), incident dated 25.03.1999, (Cri. Case No.848/1999). He also stated generally about the criminal activities of the two gangs. Apart from several omissions which surfaced in cross, he also stated that he had no faith in police.
vii) P.W.7 Lalit Shrivastav, stated about demand of Rs.1,000/- by Mehmood Khan in July, 2000. He admitted that he was facing charge of offence punishable under Section 392, Cr.P.C.
iii) P.W.8 Suresh Makode stated about assault by Mehmood Khan by knife in February, 1998, as also threats in March, 1998. He stated about demand of free meat by gangsters.
ix) P.W.9 Pappu Vishwakarma was serving in liquor shop of one Anna Mohod and stated about demand of Rs.1,000/- in February, 1999, by gangsters including Shiva.
x) P.W.10 Yashwant's sister Ranjana married accused No.2/II Hamid, against the family's will. He states of incident of arson in his father's shop in May, 1999, registered as Cri. Case No.108/1999.
xi) P.W.11 confidential witness X3, states that he was serving in Nitin Wine Shop owned by one Balwantrao Mate. He stated about incident of demanding liquor free by accused Sanjay Girhe.
xii) P.W.12 Shamrao Bankar who was serving in liquor shop of Paliwal states about incident of demanding free liquor and money in April, 1997. (P.W.6 Krishna was allegedly manager of the shop but was not present at the time of incident.)
xiii) P.W.13 Virendra Somkuwar (also examined as P.W.10 in Special Cri. Case No.1/2001) states about threats to vacate his rented premises by gangsters in both gangs.
xiv) P.W.14 Prakash is hostile panch on seizure of weapons from house of Mehmood Khan on 13.05.2001.
xv) P.W.15 Keshav Sarode is supporting panch on the same panchanama.
xvi) P.W.16 H.C. Ranjitsingh states about finding Mehmoodkhan in a suspicious state at 3.30 a.m. on 18.03.1994 (constituting offence punishable under Section 122 of the Bombay Police Act).
xvii) P.W.17 H.C. Manohar states about apprehending Mehmood with a spear on 26.06.1997, arresting him on 02.08.1996 on a complaint of Dr. Yogesh Dhanuskar for offence punishable under Section 294 and 506 of I.P.C., recording statement of one Raju Chaudhari on 16.09.1997, that said Raju was assaulted by Mehmoodkhan, investigating into complaint of P.W. 8 Suresh Makode about assault on 08.03.1998, apprehending Mehmood Khan on 08.03.1998 with a sword stick, and investigating into complaint of P.W.6 Krishna about incident dated 18.03.1999.
xviii) P.W.18 P.I. Jot states about investigating into complaint of P.W.6 Krishna about incident dated 14.11.1998, complaint of P.W.9 Pappu about incident dated 15.02.1999, complaint of Uday Suryawanshi about incident dated 16.02.199, apprehending Mehmood and others on 17.02.1999, as also of criminal activities of these persons.
xix) P.W.19 P.I. Abdul Razzak's role is already discussed.
xx) P.W.20 Deputy Superintendent of Police Shri. Kumbhare conducted investigation. His role is already discussed.
xxi) P.W.21 Director General Shri. Puri accorded sanction under Section 23 for launching prosecution.
xxii) P.W.22 the then Special Inspector General of Police Shri. Chakraborty granted approval for recording information under MCOCA.
20. Investigating Officer Deputy Superintendent of Police Shri. Kumbhare as P.W.16 in Criminal Case No.1/2001 and P.W.20 in Criminal Case No.2/2001 stated that he was not the Investigating Officer in respect of Crime Nos.37 and 38 of 2001. Rightly, therefore, the witnesses in the said cases were not cited as witnesses in the present two cases, since their evidence could not have been considered in the present case, as the present case is not one at which those incidents are being inquired into. Tendering evidence of witnesses in respect of the incidents which are not subject matter of the present trial would not only be meaningless, but also be improper, since such evidence, when tendered would attract the comments of the Judge trying the present case, which may be exactly opposite of the observations or conclusions that may be drawn by the Judge before whom trial in respect of such incidents are being conducted.
21. In Vijay Kisan Mate Vs. State of Maharashtra, reported at 2007 ALL MR (Cri) 3471, the Court 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 charge-sheet 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 eye-witness 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.
22. In view of this, the gist of evidence mentioned above in relation to previous criminal activities of the appellants may not be helpful in clinching the issue. The only witnesses relevant would be P.W. 12/I Sunil Kumar, in whose presence the sword was seized from the house of accused Shiva, and Panch Witness by P.W.16/I Dy. Superintendent of Police Shri. Kumbhare. Prakash Hemraj Dongre, P.W. 14/II, in whose presence weapons were seized from the house of Mehmood Khan Pathan, however, turned hostile. Other witnesses P.W. 15/II Keshav Anandrao Sarode supported the prosecution in respect of seizure of these weapons by P.W.20/II Dy. Superintendent of Police Shri. Kumbhare vide Exh.96/II. However, even this evidence is meaningless in view of the fact that the appellants have been acquitted of the offence of possession of arms.
23. The learned counsel for the appellant, therefore, wondered as to whether mere proof of filing of charge-sheets in the past would justify appellant's conviction for the offence punishable under Section 3(1)(ii) of the MCOCA. They submitted that such a course is not at all contemplated by the provisions of the Act.
24. The learned A.P.P., on the other hand, relying on the judgment of a learned single Judge of this Court in Amarsingh Kisansingh Thakur Vs. State of Maharashtra, reported at 2006 ALL MR (Cri) 407, submitted that the moment charge-sheets are proved to have been filed offence under Section 3(1)(ii) of MCOCA is established. The learned single Judge had observed in para 18 as under, after listing in para 17 certified copies of reports by the police:
"18. It can be seen that in all these offences either of the accused persons jointly with one amongst the three and some amongst the outside offender are subject matter of charge-sheet and further process of taking cognizance thereon has occurred. The evidence so brought before the Court adequately proves the charge framed against the accused under Section 3(i) and 3(4) of M.C.O.C. Act of being a member of organized criminal syndicate and remaining thereof as a device of livelihood."
In paragraph 21 the Court held as under:
"21. This Court, therefore, holds that finding of trial Court holding the accused guilty was like an infalliable conclusion based on an arithmetic equation about which trial Court was rendered optionless. Conviction is based on objective evidence. No subjective element is at all involved. The conviction under appeal, therefore, cannot be faulted as erroneous or an unavailable conclusion. The appeal, therefore, reveals to have no merit."
Therefore, according to the learned A.P.P. the conviction recorded by the learned Judge of the Special Court is unassailable.
25. The learned counsel for the appellant submits that the judgment rendered by the learned single Judge cannot be held to lay down the proposition that the moment more than one charge-sheets are filed in which cognizance is taken, a conviction under MCOC Act must follow. They submitted that if such a conclusion was to be drawn even if the concerned persons are acquitted of the charges levelled against them in such charge-sheets, they would still be liable for conviction under MCOCA and be subject to a long term of imprisonment. They submitted that a person can be convicted for the offence of the organised crime only if he is indulging in continuing unlawful activity. His having indulged in unlawful activity in past, in itself, is not sufficient to hold him guilty of a offence of organised crime and that it cannot be the matter of arithmetical equation.
26. In order to deal with this contention it may be useful to refer to the statement of objects and reasons for which the act was enacted, the definitions in Section 2, and the punishments provided in Section 3.
"STATEMENT AND OBJECT
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 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 work 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. Section 2 of the Act defines various terms and phrases for the purpose of this enactment. The definitions in clauses 2(d), (e) and (f) of the MCOC Act are relevant for the present purpose, they may be usefully 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;
(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;.
Section 3 which provides for punishment, reads as under:
"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 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.
28. What is punishable under Section 3 is (1) 'organised crime', (2) attempt to commit organised crime, abetting or facilitating commission of organised crime, (3) harbouring or concealing a member of organised crime syndicate, (4) being a member of organised crime syndicate, or (5) holding property derived or obtained from organised crime. In these appeals we are concerned only with clauses (1) and (4) of Section 3.
29. Since the definitions, though intertwined in a cyclic order, are clear and unambiguous, it would follow that each ingredient in the definitions, or the alternative thereof provided by the 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 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.
And, as held in Shabbir Mohd. Vs. State reported at 2006 ALL MR (Cri) 2751, on which Advocate Tiwari, the learned counsel for Mehmood Khan and others relied, every ingredient of the offence has to be established by the prosecution and as the discussion to follow would unfold, past criminal activities are only one of the requisites for constituting offence under section 3 of MCOCA.
30. Such is the conclusion drawn in Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra & Anr., reported at 2004 ALL MR (Cri) 2899, where a learned single Judge was considering various provisions of MCOC Act in the context of an application for bail which he rejected. Considering the definitions in Section 2(1)(d), (e) and (f) the Court has observed in paragraph 22 as under:
"22. ..... It is clear that all the definitions are intertwined in a cyclic order. Section 2(1)(f) defines "organised crime syndicate" which means the accused belonged to a group of two or more persons acting singly or collectively as a syndicate or gang indulge in activities of "organised crime" as defined in 2(1)(e). Section 2(1)(e) defines "organised crime". I would deal with this provision at little later stage. Section 2(1)(d) defines continuing unlawful activity. An activity which is prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, and that the said activity is undertaken by the accused 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 the competent Court within the preceding period of ten years and the Court has taken cognizance of such offence. Wordings of these provisions are clear and unambiguous and needless to state that the statute, being an edict of legislature, must be given its plain meaning."
Other part of the discussion in the said judgment may not be relevant for the present purpose.
31. The matter went further to the Hon'ble Supreme Court and while allowing application for bail, by judgment in Ranjitsingh Brahmajeetsingh Sharma Vs. State of Maharashtra, which is reported at 2005 ALL MR (Cri) 1538 (S.C.), the Hon'ble Supreme Court considered the various provisions of MCOCA in paragraphs 24 to 33. The observations in paragraph 32 may be usefully reproduced as under:
"32. The Statement of Objects and Reasons clearly states 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 State of Objects and Reasons."
32. Advocate Shri. Tiwari, learned counsel for the appellants in Appeals arising from Special Cri. Case No.2/2001 (i.e. Mehmood Khan & others) submitted that this observation would at once make it clear that indulgence in crimes in the past is relevant only to show continuation of criminal activity, but for holding a person guilty of offence punishable under Section 3 of the MCOCA, there has to be an offence falling within the definition of organised crime, committed by an organised crime syndicate and is one contemplated by statement of objects and reasons. He submitted, (as also the learned counsel for appellants, in other appeals) that in these prosecutions there is no such offence which appellants can be held to have committed. Decisions on which even the learned A.P.P. has placed reliance would fortify the conclusion that there has to be a concrete continuing unlawful activity amounting to an organised crime for attracting provisions of MCOCA,
33. In Sidharth Ramesh Janmejay Vs. State of Maharashtra, reported at 2005 ALL MR (Cri) 460, on which the learned A.P.P. relied, a learned single Judge was considering the question of grant of bail to a person arrested in MCOC Act. In that case on 09.11.2003 the accused was found to be driving a car carrying several boxes of medicine as also two number plates, about which he could give no satisfactory explanation. Crime No.184/2003 was registered. The Court observed in paragraph 1 itself that:
"The affidavit filed before this Court reveals that in all eight offences have been registered in which the applicant and the other accused are implicated, besides the present offence. ..... In view of the materials collected during the investigation, the investigating agency sought sanction of the Additional Commissioner of Police to invoke provisions of MCOCA against the applicant and the other accused involved in the present crime."
34. In the background of these facts the learned single Judge rejected bail application. It may be seen that MCOCA was applied to a continuing unlawful activity, i.e. a crime dated 09.11.2003 and was not based on past charge-sheets alone.
35. In Bhaya @ Raju S. Rajput Vs. State of Maharashtra, reported at 2006 ALL MR (Cri) 1979, decided by me, the question was whether the appellant was rightly convicted for the offence punishable under Section 3(1)(ii) or Section 3(4) of the MCOC Act. In that case apart from existence of earlier charge-sheets, MCOC Act was applied to an incident dated 28.06.2001 punishable under Section 384 of the Penal Code. The other evidence tendered in the case pertained to the earlier charge-sheets filed. In paragraph 27 of the judgment it was observed that the evidence showed that as a part of continuing unlawful activities, on 28.06.2001 the appellant had gone to the shop of Ashok Moundekar and threatened him and made a demand of Rs.One Thousand. Thus, besides past charge-sheets, there was an activity which indicated continuity.
36. In Gulab Vs. State of Maharashtra, reported at 2007(2) Mh.L.J. (Cri.) 538, on which Advocate Tiwari relied, a learned Single Judge was considering appeal by convicts under MCOCA. It is not that only past criminal activities from July, 1998 were pressed for bringing home charge of offences punishable under Section 3 of MCOCA. There was an actual offence committed on 02.07.1999, when appellants were found in possession of counterfeit currency. Considering the provisions of the Act the Court held in paragraph 9 that to make criminal activities continuing unlawful activities, the quintessence is that the last criminal activity indulged by the accused must be a cognizable offence punishable with imprisonment of 3 years or more.
37. It is not necessary to discuss judgment in Mohd. Iqbal Vs. State, reported at 2007(1) Mh.L.J. (Cri.) 385 where too there was an actual incident dated 19.03.1999.
38. In Jaisingh Ashrfilal Yadav & Ors. Vs. State of Maharashtra & Anr, reported at 2003 ALL MR (Cri) 1506, to which the learned A.P.P. drew my attention, a Division Bench of this Court was considering the constitutionality of the provisions of MCOC Act. The Court observed in paragraph 9 as under:
"9. The analysis of the definition of the organised crime, therefore, would reveal that continuing unlawful activity is one of its ingredients whereas in order to make an activity to be continuing unlawful one, it should disclose filing of minimum two charge-sheets in relation to the activity prohibited by law in force and of the nature specified in Section 2(d) during the period of preceding ten years. In other words, lodging of two charge-sheets in relation to the acts which are already declared under the law then in force as offences of the nature specified under Section 2(d) during the preceding period of ten years is one of the requisites for the offence of organised crime under the said Act." (Emphasis supplied)
39. The Court then considered the challenge based on Article 20(1) of the Constitution of India. In paragraph 19 the Court observed as under:
"19. There is lot of difference between the act or activity itself being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. The former situation has to satisfy the mandate of Article 20(1) of the Constitution, however, in case of latter situation, it stands on totally different footing. Undoubtedly, for the purpose of organised crime there has to be a continuing unlawful activity. 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. Undisputedly, the period of ten years may relate to the period prior to 24-2-1999 or thereafter. In other words, it provides that the activities which were offences under the law in force at the relevant time and in respect of which two charge-sheets have been filed and the Court has taken cognizance thereof, during the period of preceding ten years, then it will be considered as continuing unlawful activity on 24-2-1999 or thereafter. It nowhere by itself declares any activity to be an offence under the said Act prior to 24.02.1999. It also does not convert any activity done prior to 24.02.1999 to be an offence under the said Act. It merely considers two charge-sheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/ or for the purpose of an action under the said Act. This by itself cannot be said to be in any manner violative of the mandate of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur Singh's case as well as in Sajjan Singh's case."
40. In Bharat Shantilal Shah Vs. State of Maharashtra, reported at 2003 ALL MR (Cri) 1061 the challenge to the constitutional validity of MCOC Act, was considered by another Division Bench. Definition of continuing unlawful activity in Section 2(1)(d) was sought to be attacked by advancing the following arguments:
"19. Dealing with the next definitions in section 2(1)(d) of 'continuing unlawful activity' it was submitted that it suffers from violation of article 14 as it treats unequals as equals. It makes an activity continuing unlawful activity if more than one charges of cognizable offence punishable with imprisonment of three years or more are filed in competent court, it does not touch an activity as continuing unlawful activity if undertaken by a person who is known to be a criminal but more than one charge-sheets have not been filed against him. A person charged ten times of an offence though acquitted on every occasion may yet be roped in as a person engaged in continuing unlawful activity. Whereas a person who is convicted for an offence for three years punishment cannot be touched by this definition if he is not charged with more than two of such offences. The definition therefore treats as equal persons who are hopelessly unequal that is to say a person who is a known criminal but charge-sheeted and convicted not more than once and another who has been falsely charged with 10 fabricated charges and acquitted of all the 10 charges with a finding that the charges were fabricated yet merely because cognizance has been taken of that charge are treated as person engaged in continuous unlawful activity. The definition therefore arbitrary and liable to be struck down as violative of article 14. The arguments appear to be attractive at the first blush, but deeper scrutiny reveals the hollowness of the argument."
41. Dealing with the objections to this definition the Court observed in paragraph 25 of the judgment as under:
"25. Then we would consider the submission of Shri. Manohar that the definition of continuing unlawful activity violates the mandate of article 14 and is therefore liable to be struck down. According to the learned counsel unequals are being treated as equals. Persons charged only once are not brought within the purview of the Act but a person with several charges framed and cognizance taken by competent court who later on are acquitted are covered by the definition. According to him therefore a person is acquitted of ten charges cannot be treated as equal to a person who charged and convicted of only one offence. In our opinion, there is no violation of Article 14 by this definition. If we read the definition again, what has been defined as continuing unlawful activity is a member of organized crime syndicate in respect of which any activity prohibited by law and done repeatedly i.e. more than once for which charge-sheet has been filed in the court of competent jurisdiction in the past ten years. The purpose of definition is to define what continuing unlawful activity is and it is for the purposes of defining what is continued unlawful activity that those charges are to be taken into consideration. Mere taking into consideration of such charges cannot result in discrimination of the kind alleged by Shri Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge-sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge-sheeted in such cognizable offences in the past makes the unlawful activity, continuing unlawful activity. This section only defines what the activity is. It does not itself provide for any punishment for that activity. Had punishment been provided the submission that it threats while punishing unequals as equals may carry weightage. That being not the case in the challenge to section 2(1)(d) of the Act we see no vagueness or violation of Article 14 by the definition. We find that the provision treats all those covered by it in a like manner and does not suffer from the vice of class legislation." (emphasis supplied)
In paragraph 27 the Court then went on to observe as under:
"27. We also do not find substance in the challenge that the equality clause in the Constitution is violated because the definition ropes in anyone charged more than once, irrespective of whether the charge resulted in an acquittal or conviction. The circumstances that followed the charge are not material. The provision only defines what is continued unlawful activities and refers to whether a person has been charged over a period of ten years for the purpose of seeing whether the person is charged for the first time or has been charged often. The circumstance of conviction or acquittal that followed the charge are not material. The limited purpose is to see antecedents of the person. Not to convict." (emphasis supplied)
42. The Court then rejected the objections to the constitutional validity of the definition. It is thus clear that apart from previous charge-sheets there has to be a continuation, an activity to which MCOCA is applied.
43. This fortifies the conclusion that mere proof of filing charge-sheets in the past is not enough. It is only one of the requisites for constituting offence of organised crime. If only the past charge-sheets were to be enough to constitute offence of organised crime, it could have offended the requirement of Article 20(1) of the Constitution and possibly Article 20(2) as well, (and in any case Section 300, Cr.P.C.). Had these judgments of the Supreme Court and Division Benches of this Court been cited before the learned Single Judge deciding Amarsingh Vs. State (2006 ALL MR (Cri) 407) the learned Single Judge, without doubt, would not have held that the matter was simply one of an arithmetical equation. The said judgment cannot be reconciled with the judgments of division benches in Jaisingh Vs. State (2003 ALL MR (Cri) 1506 and Bharat Shah Vs. State, 2003, ALL MR (Cri) 1061, which I am bound to follow.
44. It is not necessary to go into the implications of the expression "prosecuted and punished" used in Article 20(2) of the Constitution Section 300, Cr.P.C. itself clearly bars a fresh trial for the same offence. Section 21 of MCOCA which prescribes modified applications of the Code to offences under MCOCA does not make provisions of Section 300 Cr.P.C. inapplicable. Therefore, since the previous criminal history of the applicants denotes that they had been or are being separately charged/tried for those offence before competent courts, there is no question of such offences constituting offence of organised crime.
45. In Appa @ Prakash Haribhau Londhe Vs. State of Maharashtra & Anr., reported at 2006 ALL MR (Cri) 2804, a Division Bench of this Court was considering the challenge to the applicability of MCOC Act. 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."
46. While offences committed prior to 24.02.1999 cannot amount to 'organised crime', since this offence was not on statute book then, even post 24.02.199 crimes could be tried as 'organised crime' only if information in respect of these crimes is permitted to be registered as organised crime and sanction is accorded for prosecution for such crime under Section 23 of MCOCA. Such are not the facts in the present cases. There is no substantive crime which is allowed to be registered under MCOCA. Offences in Crime Nos.37/01 and 38/01, for which approval was sought are not subject matter of these trials. When Crime Nos.3007/2001 and 3008/2001 were registered, upon receiving approval, there was no crime reported. Seizure of weapons is subsequent to registration of these crimes, for which the concerned accused persons have been acquitted. Consequently without there being a substantive offence indicating continuity, there would be no continuation of the unlawful activity and as a corollary no "continuing unlawful activity".
47. A look at provisions of the punishment, Section 3 of the MCOCA would fortify this conclusion. Clauses (i) and (ii) of Sub-section (1) would show that "if such offence has resulted in death of any person", the offence of organised crime would attract death sentence or life imprisonment with a fine of Rs.One Lakh. Now, if only old charge-sheets should be held as enough, a person acquitted of a murder charge in the past would be liable to be sent for a life term, in spite of acquittal, simply because a charge-sheet had been filed in the past. Had this been contemplated, the learned Judge, Special Court, would have charged Accused No.1/I Shiva of offence punishable under Section 3(1)(i) of MCOCA and not one punishable under Section 3(1)(ii) of the MCOCA, since Shiva had been charged once of murder (Sr. No.9 in the chart) and acquitted. Same would hold good about the other gangsters. Advocate Tiwari, the learned counsel for Mehmood and others relying on judgment of the Supreme Court in Dilip Singh Vs. State of Punjab, reported at 1997(3) Current Criminal Journal 223, that charge-sheets cannot be made the basis of guilt or innocence of an accused. Therefore, it is clear that the offences referred to in various charge-sheets are not "such offence(s)" and consequently an offence, punishable under Section 3 of the MCOCA has to be different from those for which such accused had been charge-sheeted in the past. Past criminal activity only aggravates the continued activity amounting to an offence and attracts provisions of MCOCA.
48. In view of this, since the appellants are not shown to have indulged in any crime which can be said to be continuation of past criminal activity provisions of Section 3(1) of the MCOCA are not attracted. It cannot be said that the appellants have committed the offence of organised crime.
49. The learned counsel for the appellants also submitted that for holding a person guilty of the offence of organised crime mere participation in continuing unlawful activity is not enough. Such activity should be by use of threat of violence, intimidation, coercion or other unlawful means, with the objective of gaining pecuniary benefits. 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 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. A perusal of the aforesaid definitions indicates that an organised crime syndicate is a gang which indulges in organised crime. This gang may consist of two or more persons either acting singly or collectively. Such a gang should be found to indulge in continuing unlawful activity i.e. an activity which is prohibited by law and is a cognisable offence punishable with imprisonment for three years and more. 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 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......."
50. True, some of the offences in the previous charge-sheets in respect of some appellants may show that those appellants have indulged in offences of robbery etc. from which pecuniary benefits may flow. But the continuation of the activities, with which the appellants, rather only the ring leaders, have been charged is mere possession of weapons punishable under Section 4/25 of the Arms Act and not an activity from which pecuniary benefits may flow. Therefore, it cannot be said that any of the appellants had been shown to have committed offence of organised crime.
51. The learned counsel for the appellants next submitted that the offence of being members of organised crime syndicate also cannot be held to have been made out, since the organised crime syndicate has been defined in clause (b) of Section 2 of the MCOCA to be a group of two or more persons, who, acting either singly or collectively, as a syndicate or gang, indulged in the activities of organised crime. Thus, indulgence in activity of organised crime is sine qua non for holding a person to be a member of organised crime syndicate. As already observed, organised crime has to be continuing unlawful activity and, therefore, unless there is an act or omission indicating continuation of the unlawful activity there would be no question of commission of organised crime, and a fortiori, would rule out membership by such persons of organised crime syndicate.
52. The learned counsel for appellants Mehmood and others, Advocate Tiwari, relied on a judgment of the Supreme Court in Kalpanath Rai Vs. State, reported at III(1998) Current Criminal Reports 37 (SC) where the Supreme Court was considering similarly worded provision of Section 3(4) of Terrorists and Disruptive Activities (Prevention ) Act (equivalent to Section 3(4) of MCOCA), in light of meaning assigned to "Terrorist Act". In Section 3(1) of the TADA (equivalent to definition of organised crime in Section 2(e) read with punishment Section 3(1) of MCOCA). The Supreme Court held in paragraph 35 of the judgment as under:
"35. There are two postulates in Sub-section (5). First is that the accused should have been a member of "a terrorists gang" or "terrorists organisation" after 23.5.1993. Second is that the said gang or organisation should have involved in terrorist acts subsequent to 23.5.1993. Unless both postulates exist together Section 3(5) cannot be used against any person."
53. This would fortify the conclusion that if there is no organised crime, there could be no organised crime syndicate and consequently there would be no questions of holding a person guilty of being member of such a non-existent syndicate.
54. Apart from this, the learned counsel for the appellants pointed out that the approval and sanction granted under Section 23 of MCOCA was also defective. The proposal submitted by P.W.13 P.I. Abdul Razzak is at Exh.106/1 and 106/II. This is in fact in respect of Crime No.37/2001 and 38/2001. Charge-sheets in those cases had been independently sent. The learned A.P.P. submitted that acquittal of the appellants in those cases is of no avail. The learned Assistant Public Prosecutor submitted that MCOCA was sought to be applied to the activities of the applicants on noticing involvement of respective appellants in Crime Nos.37/2001 and 38/2001. However, it is not clear as to how if provisions of MCOCA were sought to be invoked by referring to Crime No.37/2001 or Crime No.38/2001, eventually Crime No.3007/2001 and 3008/2001 were registered against the appellants without there being any substantive offence. It may be recalled that swords/knife were recovered much later. And possession of these articles are the only substantive offences with which the gang leaders have been charged. Thus, MCOCA has not been actually applied to Crime Nos.37 and 38 of 2001, though approval to record information under MCOCA was sought during investigation of those crimes. Informations recorded under Crime Nos. 3007/2001 and 3008/2001 do not relate to any substantive offence committed in respect of which approval was received. Substantive offences which are eventually included in the charge-sheets (under the Arms Act) were committed much later. Yet a sanction for prosecution was accorded, leaving a big question mark about the process of application of mind by the concerned high police officers.
55. The learned counsel for the appellants relied on the judgment in Lalit Somdatta Nagpal Vs. K. K. Pathak, reported at 2005 ALL MR (Cri) 2164, where the Court was considering the challenge to approval granted under Section 21(3) of the MCOC Act to apply provisions of the said Act to Crime No.39/2004 against the petitioners therein. The Court held that the provisions of Section 23 of the MCOC Act are mandatory in nature and not an empty formality. The Court held after considering the fact of the case that MCOC Act was not applicable. The case was taken to the Supreme Court and in a judgment reported at I(2007) CCR (Current Criminal Reports) 435, the Apex Court did not disturb the findings of the High Court, though for entirely different reasons. However, the reasons given do not seem to disapprove the ratio that provisions of Section 23 of MCOCA are mandatory in nature and not an empty formality. In para 62 of the judgment, the Court held that having regard to the stringent provisions of MCOCA, its provisions 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.
56. 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 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 Act and having committed such activities on or after 24th 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 committed on or after 24th February, 1999. If the activity of the person is relation to the period prior to 24th 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 24th February, 1999. When the FIR does not disclose on the face of it that the offence was committed on or after 24th 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."
57. The contention of the learned A.P.P. that the provisions of MCOCA are applied to the members of the organised crime syndicate and then, whatever offences they committed attract the provisions of the Act, is not supported by any provision of law or judicial pronouncement. Section 23 of MCOCA refers to recording information about commission of offence of organised crime. It does not refer to getting approval for invoking provisions of MCOCA in respect of the activities of any individual. It is not the case that any of the appellants have been previously held guilty of offences punishable under Section 3 of the MCOCA, and therefore, already held to be members of the organised crime syndicate. Had it been so, it would have been possible to argue that their continuing unlawful activities would amount to organised crime, though even such argument would have to be tested with reference to other requirements of the offence contained in Sections 2(d), (e) and (f) of MCOCA. Such is not the present case. Therefore, the proposal for approval for recording information, recording information itself, conduct of investigation and filing of charge-sheet do not relate to any actually continuing unlawful activity. The learned counsel for the appellants, therefore, cannot be said to have made a wild allegation that neither approval for recording information, nor sanction for filing charge-sheet under Section 23 of the Act were accorded after applying mind to the requirements of law and the facts unfolded.
58. To sum up, in these cases, conviction of the appellants is based upon only filing of charge-sheets in the past. There is no overt act or omission, which would amount to continuation of unlawful activity carried out by use of force for the purpose of pecuniary gain, with which the appellants are charged. The only overt acts attributed to, and only to, the gang leaders, is possession of arms at their houses, when they were in custody, and after offences were registered under MCOCA. For these offences the learned Judge, Special Court has acquitted them. Crime Nos.37 and 38 of 2001 in which MCOCA was sought to be applied, ended up in filing charge-sheets without applying MCOCA and eventual acquittal of the accused therein. This leaves a big question mark or rather question marks, not only about application of mind while granting approval and sanction under Section 23, but also about mindlessness in pursuing the whole matter. Conviction of the appellants cannot therefore be sustained.
59. All the appeals are allowed.
Conviction of all the appellants for offences punishable under Sections 3(1)(ii) and 3(4) of MCOCA and the sentences imposed upon them are set aside. The appellants be set at liberty if not wanted in any other cases. Fine, if paid, be refunded.
Though accused No.3 Babu @ Rajan Krishnan Pali in Special Criminal Case No. 1/2001 has not preferred any appeal, since his case cannot be distinguished from that of present appellants, his conviction for offences punishable under Section 3(1)(ii) and 3(4) of the MCOCA and the sentence imposed upon him are also set aside. He too be set at liberty if not wanted in any other case.