Criminal Appeal No.25 of 2014

16th July, 2014

Petitioner Counsel: Mr. S.V. KOTWAL with Mr. AVINASH D. KAMKHEDKAR, Mr. J. SHEKHAR with Mr. H.H. GURSAHANI i/b J. SHEKHAR & CO.
Respondent Counsel: Mrs. S.D. SHINDE, Mr. H.J. DEDHIA

Cases Cited:
State of Maharashtra Vs. Rahul Ramchandra Taru, 2011 ALL MR (Cri) 2100=(2011) 6 AIR Bom R 177 [Para 4,18,25,26,28,29,30,32]
Union of India Vs. Prafulla Kumar Samal, AIR 1979 SC 366 [Para 10]
Govind Sakharam Ubhe Vs. State of Maharashtra, 2009 ALL MR (Cri) 1903 [Para 11,26,29,31,33]
Dilawar Balu Kurane Vs. State of Maharashtra, 2002 ALL MR (Cri) 753 (S.C.)=(2002) 2 SCC 135 [Para 11]
State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2010 [Para 11]
State of Maharashtra Vs. Priya Sharan Maharaj, 1997 ALL MR (Cri) 990 (S.C.)=(1997) 4 SCC 393 [Para 11]
Union of India Vs. Prafulla Kumar Samal, AIR 1979 SC 766 [Para 11]
Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Anil Bhunja, AIR 1980 SC 52 [Para 11]
Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bijja, AIR 1990 SC 1962 [Para 11]
State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659 [Para 11,12]
State of Bihar Vs. P.P. Sharma, (1992) Supp (1) SCC 222 [Para 16]
Anil Nanduskar Vs. State of Maharashtra, 2008 (12) LJSOFT 156 [Para 16,17]
Sherbahadur Akram Khan Vs. State of Maharashtra, 2007 ALL MR (Cri) 1=(2007) (1) Bom. C.R. (Cri) 26 [Para 16,26]
Anil U. Gote Vs. The State of Maharashtra, Cri.Appl./3978/2004, Dt.3.11.2004 [Para 19]
Asif Khan Bashir Khan Vs. The State of Maharashtra, Cri.App./749/2007, Dt.16.10.2007 [Para 23,26,29,31]
Arun Kumar Aggarwal Vs. State of Madhya Pradesh & Ors., 2011 ALL SCR 2135=AIR 2011 SC 3056 [Para 24,30]
Prafulla s/o Uddhav Shende Vs. State of Maharashtra, 2009 ALL MR (Cri) 870 [Para 26]
Bharat Shantilal Shah & Ors. Vs. State of Maharashtra, 2003 ALL MR (Cri) 1061=2003 Bom C.R.(Cri) 947 [Para 26,29,31]
State of Maharashtra Vs. Bharat Shantilal Shah & Ors., (2008) 13 SCC 5 [Para 26,29]
Appa alias Prakash Haribhau Londhe Vs. State of Maharashtra & Anr., 2006 ALL MR (Cri) 2804=2007 CRI L.J. 165 [Para 26,29,31]
Jaisingh Asharfilal Yadav & Ors. Vs. State of Maharashtra & Anr., 2003 ALL MR (Cri) 1506 [Para 26]
State of Maharashtra & Ors. Vs. Lalit Somdatta Nagpal & Anr., 2007 ALL SCR 1078=(2007) 4 SCC 171 [Para 40,41]

JUDGMENT

A. S. GADKARI, J. :- The present Appeals have been filed by the Appellants, who are as per the final report submitted by the police before the Special Court under the MCOC Act, Pune, accused Nos.3 and 9 respectively. These Appeals have been preferred by the Appellants under Section 12 of the Maharashtra Control of Organised Crime Act 1999 ('MCOC Act' for brevity) challenging the order dated 10th February 2013 passed below Exhibit 192 and the order dated 18th February 2013 passed below Exhibit 204 respectively in MCOC Special Case No.3 of 2010 thereby rejecting the applications preferred by the Appellants under Section 227 of the Criminal Procedure Code, for their discharge from the case. The Appellants have questioned the correctness of the said orders dated 10th February 2013 and 18th February 2013 passed below Exhibits 192 and 204 respectively.

2. Both these Appeals are decided by this common judgment as they are arising out of the same crime number, have similar set of witnesses /facts and also involve common questions of law. For the sake of brevity in the matter, the compilation of documents which has been preferred by original accused No.9 - Umesh Kirve along with the final report filed in Criminal Appeal 1115 of 2013 has been referred to hereinafter with reference to the page numbers thereto.

3. The Appellant - Sachin Ghaiwal in Criminal Appeal No.25 of 2014 has challenged the application of the provisions of the MCOC Act qua him to C.R. No.82 of 2010 whereas the Appellant - Umesh Kirve in Criminal Appeal No.1115 of 2013 has sought for complete discharge from the crime or in the alternate discharge from the provisions of the MCOC Act.

4. The Appellants have challenged the impugned orders apart from various miscellaneous grounds which are taken in the respective Appeal memos, mainly on the following five grounds which can be sieved from the arguments of the learned counsel and those are :

i) There is no sufficient material on record for framing a charge against them and particularly under the provisions of the MCOC Act;

ii) There is total non-application of mind by the competent authorities while granting prior approval under Section 23(1)(a) and sanction under Section 23(2) of the MCOC Act;

iii) That the Appellants have been wrongly roped in C.R. No.82 of 2010 as 'members' of the organized crime syndicate of Nilesh Ghaiwal while invoking the provisions of the MCOC Act. In other words, the Appellants contend that, there is no material on record to suggest that the Appellants are the 'members' of the organized crime syndicate of Nilesh Ghaiwal as there is no "continuing unlawful activity" as contemplated under Section 2(d) of the MCOC Act for them with the said crime syndicate. In support of their contention the Appellants have placed their reliance upon the judgment of the Division Bench of this Court in the case of State of Maharashtra vs. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177 : [2011 ALL MR (Cri) 2100];

iv) Mere submitting antecedents by the police of the persons is not sufficient to invoke the provisions of the MCOC Act and there must be a common thread amongst all the persons, to say that the crime must have been committed on behalf of the crime syndicate;

v) The term 'Member' as mentioned in Section 2(d) has not been defined anywhere in the MCOC Act, so also the term 'Gang' referred to in Section 55 of the Bombay Police Act 1951 and therefore the Appellants are otherwise also not qualified to be held as 'member' of the 'gang' of the organized crime syndicate for want of any role in the alleged crime.

5. The facts which can be enumerated from the record be stated as follows :

i) The record discloses that on 9th May 2010 witness Atul @ Pappu Laxman Kudale lodged the First Information Report with Dattawadi Police Station, Pune under Sections 143, 147, 148, 149, 307, 302 read with 120(b) of the Indian Penal Code and under Sections 3, 4 and 25 of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act which came to be registered as C.R. No.82 of 2010. In the said statement dated 9th May 2010 the witness Atul @ Pappu Laxman Kudale has stated that he along with his brother Sachin Kudale, Balaji Kadam, Santosh and one Nanya had been to Dattawadi Police Station for the release of their friend Aakash Shinde on 8th May 2010. That in the midnight the police released said Aakash after giving admonition to him. That the complainant Atul @ Pappu, his brother Sachin and their friends were returning to their house at about 12.30 to 1 a.m.. The complainant was travelling in a van whereas his brother Sachin and other witnesses were travelling on motorcycles. On the way back to their home, the complainant heard sound of firing and he realized that a bullet has passed through brushing his right shoulder. Due to darkness the complainant could not see immediately the assailants properly. The complainant asked his driver to drive the van towards Dattawadi Police Station and after reaching to Dattawadi Police Station, the complainant rushed inside the said police station. At that time, the complainant saw that Nilesh Ghaiwal and his associates were on 4 to 5 motorcycles. That accused No.1 - Nilesh fired a bullet at the complainant. However, the complainant dodge the same. Thereafter accused Santosh Gawde hurled a chopper at the complainant. But the complainant was successful in escaping from it. Subsequently the complainant came to know that in the incident of said firing, his brother Sachin has been injured and was taken to the hospital. Sachin succumbed to the injuries and was declared dead at the hospital.

ii) The record further discloses that crime No.82 of 2010 at Dattawadi Police Station was registered by Mr. D.B. Patil, Police Inspector (Crime) then attached to Dattawadi Police Station and the investigation of the said case was undertaken by Mr. Chowgule, Senior Police Inspector. It further appears from the record that under the orders of the superior officers, the investigation of the said crime was entrusted to Mr. S.D.Kekane, Police Inspector, Crime Branch, Unit II, Pune City on the same day. The record discloses that during the course of investigation of C.R. No.82 of 2010, originally registered at Dattawadi Police Station, Pune, the investigating officer Mr. S.D. Kekane recorded statements of various witnesses. During the course of the said investigation, it is revealed to the said investigating officer that the organized crime syndicate headed by Nilesh Ghaiwal and his associates are involved in the commission of the said crime i.e. C.R. No.82 of 2010. Police Inspector S.D.Kekane thereafter submitted a proposal dated 16th July 2010 to the Additional Commissioner of Police (Crime) Pune City for invoking the provisions of the MCOC Act. The said proposal is at page No.251 of the compilation. In the said proposal, the Investigating Officer has specifically mentioned that the crime has been committed by the organized crime syndicate headed by Nilesh Ghaiwal and therefore he requested for invoking the provisions of the MCOC Act to the said C.R. No.82 of 2010.

iii) The Deputy Inspector General of Police and Additional Commissioner of Police (Crime) Pune City by its order dated 3rd August 2010 granted prior approval as contemplated under Section 23(1)(a) of the MCOC Act to invoke the provisions of the MCOC Act to the existing crime i.e. to C.R. No.82 of 2010 originally registered at Dattawadi Police Station. The said prior approval is at page 304 of the compilation. That by an order dated 3rd August 2010 itself, the said competent authority appointed Assistant Commissioner of Police, Crime Branch, Unit-I, Pune City as the investigating officer for the investigation of the said crime. The said order dated 3rd August 2010 thereby appointing the Assistant Commissioner of Police, Crime Branch, Unit-I, Pune for investigating the offence after invoking the provisions of the MCOC Act is at page No.307 of the compilation.

iv) After completion of the investigation, the Assistant Commissioner of Police, Crime Branch, Unit I, Pune City submitted a report dated 15th October 2010 to the Additional Director General and Commissioner of Police, Pune City for granting sanction under Section 23(2) of the MCOC Act. The competent authority i.e. the Additional Director General and Commissioner of Police, Pune City on 22nd October 2010 accorded sanction as contemplated under Section 23(2) of the MCOC Act to prosecute the accused persons mentioned in the said sanction under Sections 3(1)(i)(ii), 3(2), 3(4) of the MCOC Act for taking cognizance by the Special Court constituted for trying the said offences as contemplated under sub section (1) of Section 5 of MCOC Act.

v) It further appears from the record that on 26th October 2010 the investigating agency submitted its final report in the Special Court constituted under the provisions of the MCOC Act Pune and the same has been culminated in MCOC Special Case No.3 of 2010. The Appellants thereafter preferred applications below Exhibit 192 and 204 respectively thereby seeking their discharge under Section 227 of the Criminal Procedure Code from MCOC Special Case No.3 of 2010. As stated herein above, the Trial Court by its orders dated 10th February 2013 and 18th February 2013 passed below Exhibits 192 and 204 respectively has rejected the said applications.

6. The Appellants have impugned the said orders dated 10th February 2013 and 18th February 2013 respectively in the present Appeals.

7. Heard Mr. S.V. Kotwal, learned counsel appearing for accused No.3 - Sachin Ghaiwal in Criminal Appeal 25 of 2014 and Mr. J. Shekhar, learned counsel appearing for accused No.9 - Umesh Kirve in Criminal Appeal 1115 of 2013 and the respective Additional Public Prosecutors appearing in the present Criminal Appeals. Mr. J. Shekhar, learned counsel appearing in Criminal Appeal 1115 of 2013, apart from raising various grounds in the memo of appeal, tendered across the bar 'propositions' which he had formulated in support of his arguments. The said 'propositions' according to us is the replica conspectus, of the grounds which he has already taken in the Appeal memo.

8. We will now hereinafter deal with the contentions raised by the Appellants as stated in paragraph 4 herein above chronologically.

9. It is firstly contended by the Appellants that there is no material on record for framing a charge against them and particularly under the provisions of the MCOC Act. Before we proceed to deal with this contention raised by learned counsel appearing for the Appellants, it would be useful to refer to the judgments of the Hon'ble Supreme Court and our High Court in respect of the scope of the enquiry to be conducted by the Court under Section 227 of the Code of Criminal Procedure at the time of framing of charge.

10. A reliance in that behalf can be placed on the judgment of the Hon'ble Supreme Court in the case of Union of India v. Prafulla Kumar Samal, reported in AIR 1979 SC 366. It is necessary and useful to refer to paragraph 10 of the said judgment which reads as under :

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

11. A Division Bench of this Court in the case of Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 after taking into consideration the legal propositions laid down by the Hon'ble Supreme Court in the case of Dilawar Balu Kurane v. State of Maharashtra - (2002) 2 SCC 135 : [2002 ALL MR (Cri) 753 (S.C.)], State of Bihar v. Ramesh Singh - AIR 1977 SC 2010, State of Maharashtra v. Priya Sharan Maharaj - (1997) 4 SCC 393 : [1997 ALL MR (Cri) 990 (S.C.)], Union of India v. Prafulla Kumar Samal - AIR 1979 SC 766, Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Bhunja - AIR 1980 SC 52, Niranjan Singh Karam Singh Punjabi v. Jitendra Bijja - AIR 1990 SC 1962 and State of Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659, has culled out the principles as mentioned in paragraph 25 of the said judgment, in the case of Govind Ubhe (supra) which enumerate the settled position of law with reference to Section 227 of the Criminal Procedure Code as under :

"25. The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage."

12. A further reliance can also usefully be placed on the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659 wherein the Supreme Court has held that if there is a ground for presuming that the accused has committed the offence, it can be said that a prima facie case has been made out against the accused. It has been further held that even if the Court finds that the accused might have committed the offence, it can frame the charges. The Supreme Court in the said case i.e. Som Nath Thapa (supra) has clarified that at the stage of framing of charge, probative value of the materials on record cannot be gone into.

13. In this background we now propose to deal with the aforesaid first contention of the Appellants raised in paragraph 4 herein above on the basis of the material which has been produced on record and relied upon by the prosecution against the Appellants.

(i) Both the learned counsel appearing for the Appellants submitted before us that the complaint i.e. the First Information Report dated 9th May 2010 lodged by the complainant, Atul @ Pappu Laxman Kudale does not refer to or mention the names of the Appellants and in the subsequent statements dated 9th May 2010 and 19th September 2010, their names have surfaced with related roles attributed to them. It was further submitted that the second supplementary statement dated 19th September 2010 came to be recorded after the invocation of the provisions of the MCOC Act and in that background it was contended that adding the names of the Appellants subsequently by the complainant and the other witnesses is an afterthought. In this background, we have minutely perused the First Information Report given by the complainant Atul @ Pappu Kudale. We find that prima facie there is substance in the submission of learned counsel appearing for the Appellants to the extent that, it is true that the names of the Appellants do not figure in the First Information Report. The First Information Report is dated 9th May 2010. However, it is pertinent to note that in the supplementary statement dated 9th May 2010 itself the names of both the Appellants have been given as the persons who were present at the scene of offence when the incident dated 9th May 2010 took place. It has been stated by the complainant in his supplementary statement dated 9th May 2010 itself that the Appellants were on motorcycles and were assisting the main accused viz. Nilesh Ghaiwal at the time of incident. In the second supplementary statement dated 19th September 2010 the complainant has reiterated what he has stated in his statement dated 9th May 2010 and has further specifically mentioned the names of the Appellants and has further stated that the Appellants were holding deadly weapons in their hands and were chasing the complainant and the deceased and the persons accompanying the complainant on the date of the incident. As far as the Appellant in Criminal Appeal No.25 of 2014 - Sachin Ghaiwal is concerned, witness Sagar Dimble whose statement is at page No.71 of the compilation has specifically stated about the presence of the Appellant Sachin Ghaiwal at the scene of offence and the specific role of assisting the principal accused Nilesh Ghaiwal at the time of commission of offence has been attributed to the Appellant Sachin Ghaiwal. The witness Waghu Tukaram Halande whose supplementary statement dated 19th September 2010, is at page No.431, has also specifically stated that Sachin Ghaiwal - Appellant in Criminal No.25 of 2014 and Umesh Kirve - Appellant in Criminal Appeal No.1115 of 2013 were present at the scene of offence along with the principal accused Nilesh Ghaiwal and other associates on the said fateful day, at the time of incident. Witness at page No.81 of the compilation viz. Ritesh @ Rinkya Gundgal in his statement dated 9th May 2010 has stated that the Appellant - Sachin was present at the scene of offence and was waiting along with the associates of principal accused Nilesh Ghaiwal. This witness has also further stated about the incident in question which took place immediately thereafter. The witness at page No.85 of the compilation viz. Kedar Suresh Bandal in his statement has also stated about the presence of the Appellant Sachin Ghaiwal and the other associates of principal accused Nilesh Ghaiwal at the time of commission of the present crime. Likewise witness whose statement is at page No.77 of the compilation viz. Umesh Mhaske has also stated about the presence of the Appellant Sachin Ghaiwal along with the principal accused Nilesh Ghaiwal at the time of commission of the said offence on the said spot and the incident of firing which took place at the relevant time.

(ii) The witness at page No.346 viz. Vijay Aaware in his statement recorded on 18th August 2010 i.e. after invoking the provisions of the MCOC Act to the present crime has stated that the Appellant Sachin Ghaiwal was working for and on behalf of the principal accused Nilesh Ghaiwal and the Appellant along with Nilesh Ghaiwal threatened the said witness for closure of his cable business.

(iii) Thus the witnesses whose statements are recorded at page Nos.64 and 429 viz. Atul @ Pappu Kudale, page No.71 - Sagar Dimble, page No.77 - Umesh Mhaske, page No.81 - Ritesh @ Rinkya Gundgal, page No.85 Kedar Bandal, page No.346 - Vijay Aaware and page No.431 - Waghu Halande have given specific name of the Appellant - Sachin Ghaiwal and the role played by him in the commission of the present offence. Likewise two witnesses viz. the complainant Atul @ Pappu Kudale in his statements dated 9th May 2010 which is at page No.64 and dated 19th September 2010 which is at page No.429 and the witness Waghu Halande whose statement is at page No.431 have given the specific name of the Appellant - Umesh Kirve, his presence at the spot and his assistance to Nilesh Ghaiwal in the commission of the aforesaid crime.

14. From the aforesaid material which is in the form of the statements of various witnesses on record, prima facie, it is very clear that the Appellants in the commission of the present crime have played an active role i.e. to say they were present on the spot and assisted the principal accused Nilesh Ghaiwal in commission of the crime which has resulted into the death of Sachin Kudale. Thus, in our considered opinion, there is a strong prima facie case against the Appellants to frame a charge as contemplated under Section 228 of the Code of Criminal Procedure, under Sections 143, 147, 148, 149, 302 read with 120-B of the Indian Penal Code and under Sections 3, 4 and 25 of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act and under Sections 3(1)(i)(ii), 3(2) and 3(4) of the MCOC Act 1999.

15. It is worth here to note that the Appellants have also been charged with Section 3(2) of the MCOC Act wherein a punishment has been prescribed for a term which shall not be less than five years, but which may extend to imprisonment for life and also for fine if a person abets or knowingly facilitates the commission of an organized crime apart from other related aspects of the said case. Section 2(1)(a)(iii) has defined the word 'abate' as, the rendering of any assistance whether financial or otherwise to the organized crime syndicate, would amount to abating the crime. Therefore, the meaning of the term 'abatement' as mentioned in the Indian Penal Code under Section 107 has been further expanded by the definition of Section 2(1)(a) of the MCOC Act and therefore the presence of the Appellants at the scene of offence and that, they were assisting in the commission of crime, undoubtedly falls, within the purview of the definition of Section 2(1)(a)(iii) read with Section 3(2) of the MCOC Act.

16. The second contention as has been raised in paragraph 4 above is that, there is total non-application of mind by the competent authorities while granting prior approval under Section 23(1)(a) and sanction under Section 23(2) of the MCOC Act. It was further contended that the sanction in view of the facts of the present case ought not to have been granted at all and that the application of the provisions of the MCOC Act to the present case is not justifiable. Mr. J. Shekhar, learned counsel appearing for the Appellant Umesh, in support of his contention has relied upon the authority, in the case of State of Bihar Vs. P.P. Sharma reported in (1992) Supp (1) SCC 222. At this stage, a useful reference can be made to a judgment of the Division Bench of this Court in the case of Anil Nanduskar Vs. State of Maharashtra reported in 2008 (12) LJSOFT 156. The Division Bench of this Court in the case of Anil Nanduskar (supra) , after taking into consideration the law laid down by the Hon'ble Supreme Court in case of State of Bihar Vs. P.P. Sharma reported in (1992) Supp (1) SCC 222 and after considering the judgment of the Division Bench of this Court in case of Sherbahadur Akram Khan Vs. State of Maharashtra reported in (2007) (1) Bom. C.R. (Cri) 26 : [2007 ALL MR (Cri) 1], in its paragraph Nos.13 and 24, has observed as under :

"13. The settled law by a catena of decisions of the Apex Court is to the effect that it is desirable that every order whether the approval or sanction it should speak for itself, i.e. ex-facie it should disclose consideration of the materials placed before it and application of mind thereto. However, failure to reproduce or refer those recitals in the resolution or order itself would not render the order of approval or sanction to be invalid unless the prosecution fails to establish by leading evidence that all the materials necessary for the grant of approval or sanction were placed before the concerned authority for due application of mind by such authority before the grant of approval and or sanction. It apparently discloses that question of validity of approval or sanction cannot be decided unless the prosecution is afforded opportunity to lead evidence in that regard. Undoubtedly, an accused desiring to raise objection regarding the defects in such approval or sanction, or grant, he can raise such objection; however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to inherent lack of jurisdiction to the concerned authority to grant sanction or approval and such issue can be decided on undisputed facts. The law being well settled to the effect that the prosecution in a case where sanction or the approval order does not ex-facie show consideration of all the materials and/or application of mind, is entitled to establish the same by leading necessary evidence regarding production of materials before the concerned authority, the question of discharge of accused merely on the basis of such objection being raised cannot arise. The decision on the point of defect, if any, in the order of approval or sanction will have to be at the conclusion of the trial."

"24. The contention that the order of approval or order of sanction should disclose consideration of material qua each of the accused sought to be prosecuted is devoid of substance. That is not the import of section 23 of MCOC Act. Section 23(1)(a) as well as section 23(2) with reference to approval and sanction speaks of commission of offence and cognizance of the offence. In fact the law on this aspect is also well settled and reiterated by the Apex Court in Dilawar Singh's case (supra) itself. It was held therein that, court takes cognizance of offence and not of an offender when a Magistrate takes cognizance of an offence, under Section 190 Cr.P.C. Undoubtedly, it was also held that it was necessary for the Sanctioning Authority to take note of the persons against whom the sanction is sought to be granted. However, those were the requirement under Section 19 of the Prevention of Corruption Act. The said section specifically requires sanction with reference to a particular person. That is not the case under section 23 either in relation to the approval or in relation to the sanction. As already seen above section 23(1)(a) of MCOC Act speaks of approval for recording of information about commission of offence of organized crime under MCOC Act, whereas sanction is for initiating proceeding for the offence under MCOC Act. The sanction order or the approval order on the face of it need not speak of the individual role of each of the accused. Being so, contention that the order of approval or sanction should reveal consideration of the overt acts or otherwise of each of the accused while granting approval or sanction is totally devoid of substance. Of course, the involvement in organized crime of each of the persons sought to be prosecuted should necessarily be considered by the concerned authority before the grant of approval or sanction, but need not be specifically stated in the order and the consideration thereof can be established in the course of trial."

17. With the help of learned counsel appearing for the Appellants and the learned APP, we have perused the prior approval granted by the competent authority under Section 23(1)(a) of the MCOC Act dated 3rd August 2010, which is at page No.304 and also the order according sanction under Section 23(2) of the MCOC Act dated 22nd October 2010 which is at page No.542 of the compilation. After perusing the aforesaid two documents, i.e. the prior approval dated 3rd August 2010 and the sanction dated 22nd October 2010, we are of the opinion that the competent authority has recorded its subjective satisfaction while granting prior approval and according sanction in the present case. Therefore we hereby while adhering to the ratio laid down in the case of Anil Nanduskar (supra) hold that the prosecution has to be afforded an opportunity to lead evidence with regard to the subjective satisfaction recorded by the competent authority by leading evidence at the time of trial. Undoubtedly, an accused desiring to raise objection regarding the defects in such grant of approval or sanction, the accused can raise such objection, however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to an inherent lack of jurisdiction of the concerned authority to grant approval or sanction and such an issue can be decided only on the undisputed facts on record. As has been observed by us earlier, after perusing the material on record and after carefully reading the prior approval dated 3rd August 2010 and the sanction dated 22nd October 2010, we are satisfied that the concerned authorities have recorded their subjective satisfaction correctly while initially granting prior approval and subsequently according sanction as contemplated under Section 23 of the MCOC Act in the present case and therefore the contention of the Appellants raised in ground (ii) in paragraph 4 above deserves to be rejected on that count.

18. The third contention, as has been raised in paragraph No.4 above by the learned counsel for the Appellants, is that they have been wrongly roped in C.R. No.82 of 2010 as members of the organized crime syndicate of Nilesh Ghaiwal while invoking the provisions of the MCOC Act. In other words, the Appellants have contended that there is no material on record to suggest that the Appellants are members of the organized crime syndicate of Nilesh Ghaiwal as there is no 'continuing unlawful activity' as contemplated under Section 2(d) of the MCOC Act connecting them with the said crime syndicate and in support of their contentions the Appellants have placed reliance upon the judgment of the Division Bench of this Court in the case of State of Maharashtra v. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177 : [2011 ALL MR (Cri) 2100], to which one of us (Shri. P.V. Hardas, J.) was a member. The Division Bench in the case of Rahul Ramchandra Taru, [2011 ALL MR (Cri) 2100] (supra) while construing the term 'continuing unlawful activity' has observed in its paragraphs 8, 10 and 15 thus :

"8. Under section 2(d) of MCOCA, "continuing unlawful activity" means an activity prohibited by law for the time being in force which is a cognizable offence punishable with imprisonment for three years or more, undertaken either singly or jointly, as a member of the organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheets have been filed. It is, therefore, clear that one or more chargesheets, containing allegations that the alleged offence was committed either singly or jointly as a member of the organized crime syndicate or on behalf of such syndicate, is sine qua non for invoking stringent provisions of MCOCA. This follows that mere filing of more than one chargesheets within the preceding period of ten years, alleging commission of congnizable offence punishable with imprisonment of three years or more, is not enough."

"10. In order to bring an alleged act within the ambit of the MCOCA, the aforementioned requirements are mandatory. The word "in respect of which" occurring in the definition clause of "continuing unlawful activity" connotes that it is not a normal chargesheet, alleging commission of congnizable offence punishable with imprisonment of 3 years or more. The chargesheet sans allegations that the alleged act is undertaken either singly or jointly by the accused who is a member of an organized crimes syndicate or is undertaken on behalf of such syndicate, would not fall within the ambit of the expression "continuing unlawful activity", occurring in MCOCA."

"15. We propose to clarify that to address the question which is posed in this appeal, interpretation of expressions "or other advantage" and "or other unlawful means", occurring under section 2(1)(e) of MCOCA, is not strictly necessary. Even if, both the terms are given wider meaning, the prosecution is not absolved of its duty to prove that within the preceding period of 10 years more than one chargesheets, alleging commission of cognizable offence punishable with imprisonment of three years or more, have been filed and further to prove that in such chargesheets, it has been alleged that the accused either singly or jointly and as a member of organized crime syndicate or on behalf of such syndicate committed the unlawful activity. This follows that merely alleging that more than one chargesheets in respect of cognizable offence punishable with imprisonment of three years or more have been filed, is not sufficient. This does not satisfy requirements of law. This is what precisely held by the Supreme Court in the case of Ranjeetsingh Brahmajeetsing Sharma (supra). The unlawful activity alleged in the previous chargesheets should have nexus with the commission of the crime which MCOCA seeks to prevent or control. An offence falling within the definition of organized crime and committed by organized crime syndicate is the offence contemplated by the Statement of Objects and Reasons under the MCOCA."

19. It is the settled position of law that the singular unlawful activity would attract the provisions of ordinary law and if it is the continuing one, and to wit, third offence of specified type which fulfills the requirement of the provisions of the MCOC Act, it becomes organized crime to be registered as an offence under the MCOC Act. In such situation there are two options available to the prosecution/Investigating Agency, that is, either they can separately record the information about the commission of an offence of organized crime after successive unlawful activity of the specified type have been committed, for and on behalf of the organized syndicate, which has been done in the present case, or invoke the provisions of the said enactment to the unlawful activity already reported which is the successive in point of time that is to say the provisions of the MCOC Act can be invoked or applied to an existing CR/FIR. Reliance is placed on an unreported judgment of the learned Single Judge of this Court in Criminal Application No.3978 of 2004 in case of Anil U. Gote Vs. The State of Maharashtra dated 3rd November 2004 which indubitably lays down the correct position of law pertaining to the invocation/applicability of the provisions of the MCOC Act. In the case in hand the provisions of the MCOC Act have been applied to an existing crime i.e. to C.R. No.82 of 2010 and according to us the said provisions have rightly been applied in view of the facts of the present case.

20. It is the settled position of law by a catena of judgments that, a statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according to the intent of them, that make it and the duty of judicature is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature, in other words the 'legal meaning' or 'true meaning' of the statutory provision. The statute must be read as a whole in its context. It is now firmly established that the intention of the Legislature must be found by reading the statute as a whole.

21. The statute to be construed to make it effective and workable and the Courts strongly lean against a construction which reduces a statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative. The Courts should therefore reject that construction which will defeat the plain intention of the Legislature even though there may be some inaccuracy or inexactness in the language used in a provision.

22. Every provision and word must be looked at generally and in the context in which it is used. Elementary principle of interpreting any word while considering a statute is to gather the intention of the legislature. The Court can make a purposeful interpretation so as to effectuate the intention of the legislature and not a purposeless one in order to defeat the intention of the legislature wholly or in part.

23. The Division Bench of this Court in Criminal Appeal No.749 of 2007, in the case of Asif Khan Bashir Khan v. The State of Maharashtra in its judgment dated 16th October 2007, in paragraph No.6 has held thus :

"It is well-settled law that the observations in a judgment cannot be read de hors the point which is sought to be raised and the facts in which such point is raised. The observations cannot by themselves form the ratio of the decision. The ratio of the decision is to be drawn after considering the facts of the case, the point which is sought to be raised in the matter, the arguments which are canvassed in support of the rival contentions in relation to such point, the discussion made by the Court with reference to such point canvassed by the counsel for the parties and the ultimate decision arrived thereupon. On taking into consideration all these aspects, the ratio of the decision has to be gathered. Any sentence in a judgment cannot be read as a statutory provision and the law in that regard is well-settled by a catena of decisions of the Apex Court."

24. At this juncture a useful reference can be made to the judgment of the Supreme Court reported in the case of Arun Kumar Aggarwal v. State of Madhya Pradesh and others reported in AIR 2011 SC 3056 : [2011 ALL SCR 2135] wherein, while dealing with the terms, 'observation' or 'obiter dictum' or 'ratio decidendi' the Apex Court in its paragraph Nos.23, 30 and 31 has held as under :

"23. The Wharton's Law Lexicon (14th Ed. 1993) defines term 'obiter dictum' as an opinion not necessary to a judgment; an observation as to the law made by a judge in the course of a case, but not necessary to its decision, and therefore of no binding effect; often called as obiter dictum, ; a remark by the way."

"30. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555 :

(AIR 207 SC 3180 : 2007 AIR SCW 5782), this Court has held:

"Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents."

"31. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment."

25. In the background of this afore stated settled position of law, let us now consider whether the observations made and the interpretation effected by the Division Bench of this Court in the case of State of Maharashtra vs. Rahul Ramchandra Taru, [2011 ALL MR (Cri) 2100] (supra) is having any binding effect on subsequent proceedings.

26. It is to be noted here that as stated herein above, in paragraph Nos.8, 10 and 15 of the judgment in the case of State of Maharashtra v. Rahul R. Taru, [2011 ALL MR (Cri) 2100] (supra) the Division Bench has dealt with the expression of 'continuing unlawful activity' and after relying on a judgment of the Learned Single Judge of this Court in the case of Prafulla s/o Uddhav Shende v. State of Maharashtra reported in 2009 ALL MR (Cri.) 870 has reached to the conclusion as stated in paragraph 15 of the said judgment as has been reproduced herein above. It is pertinent to note here that before the judgment in the case of State of Maharashtra vs. Rahul Ramchandra Taru, [2011 ALL MR (Cri) 2100] (supra) which was decided on 6th May 2011 by the Division Bench of this Court thereby dealing with the expression 'continuing unlawful activity' as has been used in Section 2(1) (d) of the MCOC Act, a catena of judgments passed by the different Division Benches of this Court and also of the Supreme Court were in the field and were prevailing at the relevant time, which had already upheld the constitutional validity of the said Section 2(1)(d) of the MCOC Act and had also interpreted the said Section in its entirety.

(i)The constitutional validity of Section 2(1)(d) of the MCOC Act was first challenged in the case of Bharat Shantilal Shah and others v. State of Maharashtra reported in 2003 Bom C.R.(Cri) 947 : [2003 ALL MR (Cri) 1061], wherein while interpreting the definition of the term 'continuing unlawful activity' and further upholding the constitutional validity of the said Section, has observed in the said judgment in its paragraph Nos.25, 27 and 28 as under :

"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 charge 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 recovered by the definition. According to him therefore a person is acquitted of ten charges cannot be treated as equal to a person who is 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 part 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 chargesheeted 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 treats 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 vive of class legislation."

"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."

"28. Section 2(1)(d) defines what the continuing unlawful activity is and the enactment is intended to prevent and control organized crime. Organized crime is something which is continued unlawful activity and that continuing unlawful activity is repeatedly indulging or facing charge of indulgence in crimes punishable with three years or more. The definition therefore thus defines with clarity what is meant by continuing unlawful activity for the purpose of achieving the object of the Act. There is therefore no vagueness nor any violation of Article 14 of the Constitution. We therefore hold the definition in Section 2(1)(d) as constitutionally valid. We reject the submission of the petitioners and it is liable to be struck down for any of the two grounds dealt with by us in the foregoing paragraphs."

Thus, it is absolutely clear that the constitutional validity of Section 2(1)(d) of the MCOC Act along with its proper interpretation was long back done by a Division Bench of this Court on 5th March 2003. In our opinion, the discussion pertaining to and the interpretation effected by the Division Bench in the case of Bharat Shantilal Shah, [2003 ALL MR (Cri) 1061] (supra) was self eloquent.

(ii)Being aggrieved by the striking down of Sections 13 to 16 of the MCOC Act by the Division Bench, as beyond the legislative competence of the state legislature in the case of Bharat Shantilal Shah, [2003 ALL MR (Cri) 1061] (supra), the State of Maharashtra preferred Special Leave Petitions in the Hon'ble Supreme Court. The Supreme Court while deciding the Criminal Appeals in the case of State of Maharashtra v. Bharat Shantilal Shah and others, on 1st September 2008 in its judgment reported in (2008) 13 SCC 5 in its paragraph No.30 has held as under :

"30. Even otherwise when the said definitions as existing in Sections 2 (1) (d), (e) and (f) of the MCOCA are read and understood with the object and purpose of the Act which is to make special provisions for prevention and control of organised crime it is clear that they are worded to subserve and achieve the said object and purpose of the Act. There is no vagueness as the definitions defined with clarity what it meant by continuing unlawful activity, organised crime and also organised crime syndicate. As the provisions treat all those covered by it in a like manner and does not suffer from the vice of class legislation they cannot be said to be violative of Article 14 of the Constitution."

Thus, it is very clear that the Supreme Court has held that there is no vagueness in the definitions as existing in Section 2(1)(d) which is defined with clarity and what is meant by continuing unlawful activity.

(iii) It is further to be noted that the ratio in the case of Bharat Shantilal Shah and others v. State of Maharashtra reported in 2003 Bom C.R.(Cri) 947 = 2003 ALL MR (Cri) 1061 was subsequently followed by a Division Bench of this Court in its judgment dated 24th July 2006 in the case of Appa alias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165 : [2006 ALL MR (Cri) 2804]. The Division Bench in the case of Appa alias Prakash Haribhau Londhe v. State of Maharashtra, [2006 ALL MR (Cri) 2804] (supra) in its paragraph 10 while interpreting and defining the expression 'continuing unlawful activity' as has appeared in Section 2(1)(d) of the MCOC Act has held thus :

"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. "

(iv) Another Division Bench of this Court in its judgment dated 16th October 2007 in the case of Asif Khan Bashir Khan v. The State of Maharashtra in Criminal Appeal No.749 of 2007, after taking into consideration the judgments in the case of Bharat Shantilal Shah v. State of Maharashtra, reported in 2003 ALL MR (Cri) 1061, Sherbahadur Akram Khan and others v. State of Maharashtra, reported in 2007 (1) Bom.C.R. (Cri.) 26 : [2007 ALL MR (Cri) 1], Jaisingh Asharfilal Yadav and others v. State of Maharashtra and another, reported in 2003 ALL MR (Cri.) 1506 and in the case of Appa alias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165 : [2006 ALL MR (Cri) 2804], in its entirety respectfully agreed with the observations of the Division Bench made in paragraph 10 in the case of Appa alias Prakash Haribhau Londhe, [2006 ALL MR (Cri) 2804] (supra). The Division Bench in the case of Asif Khan Bashir Khan (supra), while further explaining the scope and interpretation of Section 2(1)(d) of the MCOC Act in its paragraph 7 has held that :

"However, the chargesheet is essentially in relation to the offence committed in a matter. Merely because it relates to a particular person, once it is disclosed that such person is a member of the organised crime or organised crime syndicate and the offence is part of the continuing unlawful activity by either the organised crime or organised crime syndicate, it obviously would mean that the chargesheet refers to, as defined in Section 2(d), the offence committed as part of a continuing unlawful activity by organised crime or organised crime syndicate and the person being a member of such organised crime or organised crime syndicate, such chargesheet can definitely be taken into consideration for the purpose of application of MCOC Act against any such person."

(v)The Division Bench of this Court in a judgment decided on 11th June 2009 in the case of Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL MR (Cri.) 1903, while interpreting the expression 'continuing unlawful activity' with reference to and about the requirement of one or more charge-sheets has in unequivocal terms in its paragraphs 39 and 44 has held thus :

"39. The submission on behalf of the appellant is that even though all the four accused namely, A, B, C and D may be members of the organized crime syndicate since against each of the accused not more than one charge-sheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provisions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndicate, in our opinion, Section 2(1) (d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge-sheet is qua the unlawful activities of the organized crime syndicate."

"44. Since in Asif Khan, the point which we are considering was squarely raised and answered, its ratio is attracted to the present case. In Deepak Bajaj v. State of Maharashtra & Anr., 2008 AIR SCW 7788, while considering the presidential value of a judgment, the Supreme Court took a resume of several decisions rendered by it. The Supreme Court referred to its judgment in Ambica Quarry Works v. State of Gujarat & Ors. (1987) 1 SCC 213, where it has observed that the ratio of any decision must be understood in the background of the facts of that case and a case is only an authority for what it actually decides and not what logically follows from it. In the light of this, we are of the opinion that the words 'more than one charge-sheet' contained in Section 2(1)(d) refer to unlawful activities of the organized crime syndicate. Requirement of more than one charge-sheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof."

It is thus clear that the Division Bench of this Court in the case of Govind Sakharam Ubhe (supra) has after taking into consideration all the judgments prevailing in the field at that time has laid down the ratio as stated in paragraph Nos. 39 and 44 of the said case.

27. The interpretation which the learned counsel for the Appellants wants us to accept with respect to Section 2(1)(d) of the MCOC Act pertaining to expression 'continuing unlawful activity', if accepted would create anamoly and would further lead to frustrate the basic intention of the legislature in enacting the statute. We therefore are afraid to accept such a narrow interpretation as it was canvassed before us by the learned counsel for the Appellants which undoubtedly would frustrate the basic intention of the legislature in enacting the said provision viz. Section 2(1)(d) of the MCOC Act. A restrictive interpretation which would have the effect of nullifying Section 2(1)(d) of the MCOC Act cannot be given at all.

28. It appears to us that in the case of State of Maharashtra v. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177 : [2011 ALL MR (Cri) 2100], a restrictive interpretation has been done of Section 2(1)(d) of the MCOC Act which, in our opinion, was emanating only with respect to the facts of the said case and such a restrictive consideration is not intended by the legislature while enacting the said provision.

29. It is thus clear and it also appears to us that at the time of hearing of the case i.e. State of Maharashtra vs. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177 : [2011 ALL MR (Cri) 2100], the earlier judgments, noted above, which were in the field, were not pointed out by the Advocates appearing for the parties to the concerned Division Bench and therefore the said Division Bench proceeded to interpret the said provision i.e. Section 2(1)(d) of the MCOC Act without taking into consideration the interpretation which was already effected and done by the earlier Division Benches of this Court. It is clear that while deciding the case i.e. State of Maharashtra vs. Rahul Ramchandra Taru, [2011 ALL MR (Cri) 2100] (supra), the said Division Bench has not taken into consideration the judgments in the case of Bharat Shantilal Shah v. State of Maharashtra, reported in 2003 ALL MR (Cri.) 1061, State of Maharashtra v. Bharat Shantilal Shah and others , reported in (2008) 13 SCC 5, Appa alias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165 : [2006 ALL MR (Cri) 2804], Asif Khan Bashir Khan v. The State of Maharashtra in Criminal Appeal No.749 of 2007 and in the case of Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903.

30. After having given our earnest consideration, we are of the firm opinion that the judgment in the case of State of Maharashtra vs. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177 : [2011 ALL MR (Cri) 2100], does not have binding effect as the said case can be termed as an 'obiter dictum' and certainly not a 'ratio decidendi' in view of the judgment of the Supreme Court in the case of Arun Kumar Aggarwal v. State of Madhya Pradesh and others reported in AIR 2011 SC 3056 : [2011 ALL SCR 2135].

31. We hereby further respectfully while agreeing with the propositions and interpretation made by the Division Bench of this Court in the cases of (i) Bharat Shantilal Shah v. State of Maharashtra, reported in 2003 ALL MR (Cri.) 1061 (ii) Appa alias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165 : [2006 ALL MR (Cri) 2804]; (iii) Asif Khan Bashir Khan v. The State of Maharashtra in Criminal Appeal No.749 of 2007 and Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL MR (Cri.) 1903 hold that the said four judgments have binding effect. And the ratio laid down by the Division Bench in the case of Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL MR (Cri.) 1903 is the correct position of law as far as the interpretation with reference to the expression 'continuing unlawful activity' as has been defined in Section 2(1)(d) of the MCOC Act.

32. A restrictive interpretation which would have the effect of nullifying Section 2(1)(d) of the MCOC Act cannot be given at all. Apparently, the matter in the case of State of Maharashtra vs. Rahul Ramchandra Taru reported in (2011) 6 AIR Bom R 177 : [2011 ALL MR (Cri) 2100], proceeds without taking into consideration the aforesaid three judgments which were in the field and by giving a restrictive interpretation of Section 2(1)(d) of the MCOC Act. It is further apparent that the consideration of the said expression "continuing unlawful activity" was strictly with reference to the facts of the said case rather than interpreting the provision under Section 2(1)(d) of the MCOC Act after taking into consideration the intention of the legislature and the other judgments which were in force at the relevant time. Such a ruling cannot be said to lay down a binding precedent.

33. The fourth contention raised in paragraph 4 above by the Appellants is that, mere submitting antecedents by the police of the person is not sufficient to invoke the provisions of the MCOC Act and there must be a common thread amongst all the persons to say that the crime must have been committed on behalf of the crime syndicate. The said submission has only to be recorded, to be rejected, at its threshold. The reason being twofold. Firstly, the said submission is made without taking into consideration the ratio laid down by the Division Bench of this Court in the case of Govind Sakharam Ubhe (supra) which clearly clarifies and settles the position of law as to the filing of the charge-sheets. The Division Bench has in unequivocal terms laid down the ratio that the requirement of more than one charge-sheet is qua the unlawful activities of the organised crime syndicate and not qua the individual member thereof. The second reason is that, construing the said Section 2(1)(d) of the MCOC Act in the manner as submitted by Mr. S.V. Kotwal, learned counsel for the Appellant in Criminal Appeal 25 of 2014, would indubitably not only frustrate but would also further lead to give nugatory effect to the intention of the legislature in enacting the said provision. We therefore refrain ourselves from accepting such a narrow and constricted interpretation of the said provision viz. Section 2(1)(d) of the MCOC Act.

34. The fifth contention raised in paragraph 4 above by Shri J. Shekhar, the learned counsel for the Appellant in Criminal Appeal 1115 of 2013 is that, the term 'Member' as mentioned in Section 2(d) has not been defined anywhere in the MCOC Act, so also the term 'Gang' referred to in Section 55 of the Bombay Police Act 1951 and therefore the Appellants are otherwise also not qualified to be held as 'member' of the 'gang' of the organized crime syndicate for want of any role in the alleged crime. It is true that the term 'member' has not been defined in the MCOC Act. However, a safe reliance can be placed on the the Black's Law Dictionary wherein the term "member' has been defined as under :

"member- 1. Parliamentary law. One of the individuals of whom an organization or a deliberative assembly consists, and who enjoys the full rights of participating in the organization - including the rights of making, debating, and voting on motions - except to the extent that the organization reserves those rights to certain classes of membership."

35. Mr. J. Shekhar, learned counsel for the Appellant in Criminal Appeal 1115 of 2013, has further contended that even the term 'gang' has not been defined in the Bombay Police Act and submitted that the expression 'gang' has appeared in Section 55 of the Bombay Police Act. He further contended that as the concept 'gang' referred to in the Bombay Police Act and the MCOC Act is also silent and therefore the Appellants are otherwise also cannot be held to be qualified to be a 'member' of 'gang' of the organised crime syndicate for want of any role in the alleged crime.

36. Again a safe reliance can be placed on the term "gang" as has been defined in the Black's Law Dictionary as under :

"gang - A group of persons who go about together or act in concert, esp. for antisocial or criminal purposes. Many gangs (esp. those made up of adolescents) have common identifying signs and symbols, such as hand signals and distinctive colors. - Also termed street gang."

37. We are conscious about the trite legal position that the Courts cannot legislate a statute or equally cannot legislate a provision into a statute. But the Courts can certainly interpret it with reference to and by taking into consideration the object of enacting particular provision or a statute as stated herein above in paragraph Nos. 20 to 22 of the present judgment.

38. Thus, according to us and in our humble opinion and after giving our earnest consideration, the expression 'member' as has been termed in Section 2(1)(d) of the MCOC Act can be interpreted and defined as, a person who participates in the crime either actively or passively or a person who facilitates the commission of the crime committed by the organized crime syndicate or on behalf of the organized crime syndicate, automatically becomes the member of the said crime syndicate which commits the offence or on whose behalf the offence in question is committed, as contemplated under Sec. 2(1)(d), 2(1)(e), Section 3 and other provisions of the MCOC Act.

39. The said intention of the legislature can further be gathered from the expression which is used in sub section (2) of Section 3 of the MCOC Act i.e. "any act preparatory to organised crime" has direct bearing with the expression 'member' which appears in Section 2(1)(d) of the MCOC Act and therefore taking into consideration the intention of the legislature, widest possible meaning has to be given to the expression 'member' as is appearing in Sections 2(1)(d), 2(1)(e), Section 3 and other provisions of the MCOC Act.

40. Mr. J. Shekhar, learned counsel for the Appellant in Criminal Appeal 1115 of 2013 has further urged before us that taking into consideration the observations made by the Supreme Court (in paragraphs 62 and 63) in the case of State of Maharashtra and others v. Lalit Somdatta Nagpal and another reported in (2007) 4 SCC 171 : [2007 ALL SCR 1078], the sanctioning authority ought not to have granted sanction for invoking the provisions of the MCOC Act in the present case. There cannot be any dispute about the observations made by the Supreme Court in paragraphs 62 and 63 of the said judgment. However, its applicability would be a factor which is different in each case. In other words, the facts and circumstances of each case and each prior approval order or sanction will have to be considered before applying the principle, that invocation of the MCOC Act was not justified if prerequisites are not attracted and satisfied. It is to be noted here that in the case before the Supreme Court i.e. in the case of Lalit Nagpal, [2007 ALL SCR 1078] (supra), the offences alleged / charged by the police were punishable under Sections 468, 420 and Sections 3, 7, 9 and 10 of the Essential Commodities Act 1955. The Supreme Court therefore arrived at a conclusion that the offences alleged could not be said to be covered by the provisions based on which the MCOC Act can be applied to the accused persons mentioned therein. The said provisions, therefore, have been held to be wrongly applied to the said accused therein.

41. In the present case in hand, necessary material enabling grant of prior approval for applying the provisions of the MCOC Act and subsequently according sanction is there on record and which we have referred to in the foregoing paragraphs. In the present case, the significant factor of distinction is that a person has been murdered and Section 302 along with other provisions of the Indian Penal Code are applied. Further it is to be noted that Section 3(1)(i) of the MCOC Act which postulates that an offence which has resulted into the death of any person has also been applied to the present crime and therefore, the reliance placed by the learned counsel for the Appellant in the case of Lalit Nagpal, [2007 ALL SCR 1078] (supra) for seeking discharge from the present crime is totally misplaced.

42. A cumulative effect of the aforesaid deliberation indubitabley leads us to hold that the present Appeals sans of any merits and are accordingly dismissed, thereby holding that the impugned orders dated 10th February 2013 and 18th February 2013 passed below Exhibits 192 and 204 respectively in MCOC Special Case No.3 of 2010 do not suffer from any legal infirmity and no interference is called for with the same by this Court.

Appeal dismissed.