State Govt Of Nct Of Delhi vs Khalil Ahmed on 23 April 2012 — Volkswagen Gol G4

20 Мар 2015 | Author: | Комментарии к записи State Govt Of Nct Of Delhi vs Khalil Ahmed on 23 April 2012 — Volkswagen Gol G4 отключены
Volkswagen Gol G4

State Govt Of Nct Of Delhi vs Ahmed on 23 April, 2012

Suresh Kait

* IN THE HIGH OF DELHI AT NEW DELHI

+ CRL.Rev.P.No.42/2012

% Judgment reserved on :01st 2012 Judgment delivered on: April,2012

STATE GOVT OF NCT OF Petitioner Through. Mr.Dayanu ASC with

Mr.Nikhil A Menon,

versus

KHALIL AHMED. Through. Mr.Rakesh Khanna, Advocate

with Mr.Rahul Mr.C. P. Tyagi

Mr.V.V.P.Singh,

CORAM:

HON’BLE MR. JUSTICE KAIT

SURESH KAIT, J.

1. instant petition, the State petitioner has sought to quash the order dated 16.11.2011 by learned Additional Sessions (Central) Delhi whereby Trial Judge found no evidence to make out prima case against respondent Ahmed for the offence punishable Section 3(2), 3(4) and 4 of the Maharashtra Control of Organised Act (hereinafter referred to as the MCOCA). learned Trial Judge the respondent for the offences alleged

2. It is pertinent to mention here the charge-sheet was filed against the for the offences punishable under 384/387/506/467/

Crl.Rev.P.42/2012 Page 1 of 57 Indian Penal Code, and Section 3(2), 3(4) and 4 of MCOCA. However, finding facie offences punishable Section 386/387/506-II and Section Indian Penal Code, which are triable by the Court of Magistrate, the matter has been back, accordingly.

3. The facts in of the case are that complainant Sh.Qmar Ahmad has been a trading company in the name of M/s Traders at Khari Baoli, On 16.02.2009, when he was present at his along with his business namely Sanjeev Bhist, two came at his shop at about PM. One of them handed over his phone to him and forced to talk Khalil Ahmed/respondent. a notorious of the area. It was alleged that had threatened him demanded ` 10.00 Also threatened in case of he should be ready to face the and in that eventuality he would him and his family. Respondent asked him to Darya Ganj immediately. expressed his inability to reach immediately, he asked him to come to Tis on the next day at about 11:00 AM. One of the picked up the visiting card from his shop. It was further that while leaving the both the persons threatened the that in case extortion was not paid, complainant would to face the consequences. It was further that he was so terrified that he did not the matter to the police.

4. On 17.02.2009, the complainant along with were getting the complaint at Karkardooma Court, complainant had a call on his mobile phone no. 931063391 from a mobile

Page 2 of 57 phone bearing respondent was caller and he rebuked him for not at Tis Hazari and again terrorized Complainant disconnected the phone. complainant had received 2-3 more from the said number yet did not attend the same. It was stated at about 11:50 AM, complainant had received a call from the number, but this time it was by Sanjeev posing himself as of complainant and when Sanjeev that „sahib (complainant) had inside the court‟ respondent and threatened him. Complainant to receive numerous calls the above number and another i.e. 9871144610, but he did not attend the At about 02:00PM, respondent 8-10 persons visited his and intimidated his servant Imran, who the same to the complainant on phone.

5. On the of complainant, an FIR for the offences punishable Sections 384/506 Indian Code, 1860 was got registered. lodging of the FIR, it was alleged the complainant reached his shop in the The respondent came there and the complaint that he would to face the music of lodging the FIR him. On 26.02.2009, respondent was from near India Centre, Lodhi Road, New when he along with his came there on a bike. his associate had managed to escape, yet succeeded in apprehending the respondent.

6. the respondent, two mobile phones Nos.9210459185 and 9871144610 were It was alleged that said were used in threatening the One Lancer car bearing registration

Crl.Rev.P.42/2012 Page 3 of 57 3C-S-1209 was recovered at the instance of respondent. It was that original papers of properties and other incriminating were recovered from the car. During the search of of respondent located at F-2 Andrew New Delhi, 12 cheque books, one book and photostate papers of properties were recovered.

7. interrogation respondent had confessed his of extortion of ` 10.00 Lacs complainant but respondent did not reveal the of his associates who visited the shop of and threatened him. It is further that respondent was a notorious of the area and was found involved in 34 of extortion, dacoity, kidnapping, intimidation, murder, attempt to etc. He was allegedly running an crime syndicate with the of his associates to terrorize the businessmen and of walled city area and to extort money from

8. Considering the above revelation, on after taking the prior of Joint Commissioner of Police, Cell, Delhi, provisions of were invoked against the During investigation, it was surfaced respondent had many bank debit and credit cards of banks and he had acquired number of in his name in a few years, despite the that he had no source of regular During scrutiny of said of 19 properties — which recovered from his house out of those, six properties were disputed. It was alleged that had tried to terrorize one party at the of another one with some sometimes directly and sometimes the scene. Papers of six disputed had been placed on

Crl.Rev.P.42/2012 4 of 57 record of learned Trial whereas the documents pertaining to 13 properties have not been Original documents of some were also recovered the house of respondent.

9. It is further that respondent had got transferred bearing No.503/22 Zakir Okhla, New Delhi by preparing documents as the stamp of vendor of paper and stamp of notary on the documents were found The owner of property Rehena was untraced. Accordingly, Sections Indian Penal Code, were added in the challan. It was that property bearing Khasra No.159 village New Delhi was sold by one Riazuddin to and documents of said transaction got prepared by respondent and the stamp of on the said documents was found It was alleged that part of the property was forcibly occupied by and from which respondent is his office of tour and travels in the of „M/s.Creative International‟. It was alleged Asfaq had not received the document respondent despite making the for the property. It was also alleged in one case, Asfaq was forced to a receipt of ` 12.50 lac in the name of despite the fact that no was made to Asfaq.

10. Further against the respondent are that he had an industrial plot bearing Handloom Complex Industrial Loni, Ghaziabad, UP from „UP Corporation and made a payment of ` Lacs „UP Financial Corporation‟ various cheques and demand during the period 2000 to He had purchased the said

Crl.Rev.P.42/2012 5 of 57 lancer car for the sum of ` 5.00 lac from one He had also procured a three house bearing No.503/22 Nagar, Okhla, New Delhi.

11. it is alleged that the present value of above properties and car is ` 1.00Crore, which is beyond the source of income of respondent. it was alleged that respondent had the above properties by extortion and fraudulent means by running an crime syndicate, accordingly 4 of MCOCA was added in the challan.

12. investigation, it is further revealed four bank accounts of the existed; out of which two bank of his wife Reshma Khalil and one account in the name of her daughter Ms. Ananta Khalil, were and scrutiny of transactions revealed substantial amount have involved which is beyond the source of respondent.

13. Further it is that he had procured mobile bearing No.9210459185 by using the ID of Chader Chawla; whereas, connection bearing No.9871144610 was in the name of Razia Rajesh, in law of respondent. It was further alleged on scrutiny of calls detail of the phones, revealed that of respondent on 17.02.2009 was found in the of Khari Baoli, Delhi. It is alleged that respondent was involved in more than 34 and details of cases wherein had been taken during the 10 years have been before learned Trial

Crl.Rev.P.42/2012 Page 6 of 57

14. Further it is that the remaining associates of could not be identified due to his non-co in the investigation.

15. Since the allegations respondent is that he alongwith his has been running an organized syndicate in Delhi with an to get pecuniary gain by committing crimes by threat, extortion, attempt to murder, kidnapping etc; therefore, after sanction under Section 23 of accordingly challan was filed for the punishable under Sections 3(4) and Sec.4 of MCOCA and sections 384/386/506/467/468/471 Indian Code, 1860.

16. Thereafter, challan also filed on the that market value of bearing No.S-18, Handloom Industrial Estate, Loni, was found ` 60,90,000/-; whereas the value of property bearing Zakir Nargar, Okhla, New was found `8,14,650/-. The respondent had many items worth of by using his different five cards during the period to 2009. It was also alleged respondent had filed his Income Tax under two different PAN which is not Beside that investigating also filed the FSL result on the

17. Learned Trial Judge in the order has observed that to out a prima facie case respondent under MCOCA, of all, the prosecution has to establish respondent was either a member of the crime syndicate or gang or was on behalf of such syndicate or

Crl.Rev.P.42/2012 Page 7 of 57

18. Learned Judge has referred the „Statement of Section 2(e), 2(d) and of MCOCA and recorded that in the it is alleged that the respondent was a organized crime syndicate the help of his associates, yet the investigating failed to describe the alleged Even the investigating agency to identify or nab the associates of respondent on the that he did not cooperate during

19. Here, learned Trial recorded that right to silent is the fundamental right of the thus the reason furnished by the agency for not ascertaining the identity of his associates is not justifiable.

20. Admitted of the prosecution is that respondent was involved in more than 34 cases. Even some respondent had been charge-sheeted with other persons. that no efforts were to find out whether his earlier were the persons to whom he had at the shop of complainant for the demand of of ` 10.00 lacs. Investigating could easily show the of earlier co- accused of respondent to the and other witnesses to ascertain as to his earlier companions were the who had threatened the complainant on behalf of But no such efforts were in this regard.

21. It is further that the investigating officer has the list of 34 cases showing the of respondent since 1985 to In the year 1996, respondent was for the offence punishable under

Page 8 of 57 Sections 392/397/34 Penal Code, 1860 in FIR No.30/96 registered at police Keshav Puram, Delhi and charge-sheeted for the offence punishable Sections 387/506/34 Indian Code, 1860 in case FIR PS Spl. Cell lodged at Cell. In case FIR no. 39/08, was charge-sheeted along with one Vaish @ Jugnu whereas in FIR No.30/96 said Amit @ Jugnu was not an accused. In all the 34 cases, respondent is alone charge-sheeted or if is any co-accused, then that was not charge-sheeted in subsequent cases. there is no common accused in than one case.

22. In these learned Trial Judge was of the that it cannot be said respondent was running any syndicate or or acting on behalf of any such or gang.

23. Similarly, there is no on record that persons who had the complainant on behalf of respondent the persons who ever associated the respondent in any criminal activity.

24. Trial Judge on the aspect of and sanction order passed by Joint Commission of Police, Cell, New Delhi observed the approval was granted on 19.03.2009 sanction order was passed on When the investigation was not concluded, was granted stating therein was running a crime syndicate for organised crime, who was planning to the lives and property of Shri Ahmed and his family with the of his associates/syndicate members. When was completed, sanction to prosecute the was accorded stating that

Crl.Rev.P.42/2012 Page 9 of 57 was engaged in acts of murder, attempt to criminal intimidation, extortion and etc and have been continuing in activities as a member of an organised syndicate.

25. Learned Trial has further recorded that order and sanction order are because as per approval, respondent was an organised crime syndicate, as per sanction order, he was merely a of the organised crime syndicate. It that after investigation, officer found that was not running an organised crime but he was merely a member of said There is nothing in charge-sheet to who was running the organised crime of which respondent is merely a

26. Therefore, learned Trial was of the opinion that investigating failed to collect sufficient to show prima facie respondent was either running an crime syndicate or was member of any syndicate.

27. On the contentions relating to whether the charge-sheet filed respondent, satisfied the conditions of 2(d) MCOCA or not? In to satisfy the condition of Section of the Act, prosecution has relied the list of 34 criminal cases, were filed against the during the period 1985 to These 34 cases includes one. Scrutiny of the cases that prosecution has not filed the of charge-sheet of 20 cases, thus 20 cases cannot be considered at the of considering the continuous unlawful of the respondent because in the absence of learned Trial Judge was to

Crl.Rev.P.42/2012 Page 10 of 57 ascertain as to the offence committed therein was to organised crime or not. Out of 16 cases, two cases (FIR and 96/2006) pertained to the offence under Section 25 of the Arms 1959. One case (FIR No. pertained to Section 20 of NDPS

28. Learned Trial Judge was of the that by no stretch of imagination, the allegedly committed under the FIRs can be considered as an offence either as a member of an organised syndicate or on behalf of such

29. I note, learned Trial has recorded that the contents of cases i.e. FIR Nos.34/1992, and 85/1986, on considering all the facts of three cases and involvement of therein, learned Trial was of the view that prosecution has to show prima facie above three cases committed by respondent as a member of crime syndicate or on behalf of syndicate. Thus, he was of the opinion said three cases do not the requirements of Section 2(d) of the

30. While dealing with the regarding to so called huge acquired by the respondent, according to the respondent had acquired three properties namely 503/22, Nagar, Okhla, New Delhi no.1), 113A-Village, Adhchhini, New (property no.2) and S-18, Complex, Industrial Estate, Ghaziabad (property no.3) and one property i.e lancer car (property The prosecution case is that had acquired the said

Crl.Rev.P.42/2012 11 of 57 properties by doing unlawful and occupied the properties being the of an organised crime syndicate.

31. I learned Trial Judge the links of the properties and the investigation and came to the conclusion that is no evidence on record whatsoever value of the said property in the 2000 was more than ` or respondent had forced the vendor to the property against her wishes at throw away prices. there is no allegation against the that respondent had acquired the property by committing an offence as a of an organised crime syndicate or on of such syndicate. The mere is that he acquired the property by unlawful activities/offences, which is not

32. Qua property No.2, learned Judge opined that is no allegation that Riazuddin had not the payment of said transaction qua the property. There are no allegations there was any dispute between the and vendee. Secondly, the documents of by the police reveals that Riazuddin had sold the property to in the sum of ` 2,75,000/- on 05.01.2008, on payment so by Riazuddin. Since the property was by Riazuddin to Ashfaq, there was no for Ashfaq to make payment to the Moreover, there is no allegation Riazuddin had not received the payment of transaction. Moreso, it is clear if the had occupied a portion of said forcibly then why no action against respondent.

33. Therefore, Trial Judge was of the opinion neither there is

Crl.Rev.P.42/2012 12 of 57 allegation nor it can be culled out by any stretch of that the said act could within the purview of an organised

34. Qua property No.3, learned Judge opined that if the of the plot is appreciated during to 2009, then what is the of respondent. It appeared to learned Judge that appreciated has been mentioned in the charge-sheet to the court, otherwise there was no to mention the estimated present value of the plot when the value of the plot is undisputed.

35. Qua No.4, i.e. lancer learned Trial Judge has that when the value of the car is even just after being labelled as „second car‟. This shows the investigation has not been conducted and impartially.

36. Learned Trial has recorded that to invoke the 4 of the MCOCA, the prosecution has to show facie that respondent was the above properties either the member of an organised crime or on behalf of any member of such Thus, learned Trial was of the opinion that prosecution has to make out a prima- facie for the offence punishable under 4 of the MCOCA.

37. Learned Trial has also in the impugned order on maintaining four bank out of them two accounts were by his wife while, his daughter was one bank account. By totalling the and credit balance, investigating has mentioned the amount in the charge-sheet, is not the proper method to analysis an of a person.

Crl.Rev.P.42/2012 Page 13 of 57

38. Trial Judge has further in the impugned order that the course of arguments, neither Public Prosecutor nor investigating able to point out any entry or period which appeared The analysis of all the bank accounts by the prosecution on record reveals respondent had deposited minimum ` 400 and ` 60,000/- in the accounts. It is admitted of the prosecution that respondent was a Tours and Travels business, in type of business maximum take place in cash. In the of any contrary evidence, learned Judge finds no reason to the contention of learned defence that the credit entry in the accounts pertain to the sale of the said business. Moreover, it quite absurd that a of criminal mind would the booty in the bank account. If version is believed, it means all credit entries such as ` ` 1000/- ` 2000/-, ` 2500/- and so on part of booty amount. learned Trial Judge was of the that it would amount to inference.

39. On the basis of above, Trial Judge opined prosecution failed to make out a facie case against the for the offence punishable under 3(2), 3(4) and Section 4 of the Thus, discharged respondent the above charges.

40. Being the State has filed instant wherein it is stated that Trial Judge has discharged the from the Sections of MCOCA on the that there is no evidence to that respondent was a member of crime syndicate allegedly run by him. Learned Trial pointed out that prosecution to identify the

Crl.Rev.P.42/2012 Page 14 of 57 of alleged organized crime who were suspectedly involved in the case.

41. Further, learned Judge observed that:- order and Sanction order are because as per approval respondent Ahmed was running an organised syndicate whereas as per sanction he was merely a member of the organised syndicate. It means that investigation, investigating officer that respondent was not running an crime syndicate but he was merely a of said syndicate. There is in charge-sheet to show who was running the crime syndicate, of which Khalil Ahmed is merely a

42. Learned Trial Judge that prosecution could not that alleged offences by respondent were committed as a of organized crime syndicate an objective to pecuniary gains or economic advantage. That prosecution had given the list of 34 cases of respondent, certified of 14 charge-sheets and cognizance taken by the details of associates/ members of crime syndicate arrested respondent in 10 criminal cases but could not establish that offences were committed member of organized crime or on behalf of such syndicate.

43. counsel for the petitioner further that learned Trial observed that prosecution not prove that three one lancer car, money in various bank accounts by respondent and his family members and used in purchase of various

Crl.Rev.P.42/2012 Page 15 of 57 through debit/credit cards have earned through crime

44. Mr.Dayanu Krishanan, learned Standing Counsel submitted learned Trial Judge did not the evidence collected by the prosecuting and ignored contentions submitted were fully supported by the evidence. Rather, learned Judge chose to appreciate the of defence counsel despite the that he did not produce any documentary or evidence in support of his claim.

45. As per of learned counsel for petition, Trial Judge did not consider the aspects of investigation in judicious

46. Learned Trial Court the contentions of defence counsel any supportive documents like income of respondent from the at Loni.

47. Learned Trial failed to appreciate the modus of respondent to change his associates and not to repeat them in subsequent to avoid invocation of MCOCA. Out of 34 the list of which has been cases of robbery, dacoity, theft NDPS etc are property which were evidently by respondent for pecuniary gain. offences of murder, attempt to kidnapping, hurt, assault, etc were committed to dominate the of crime to spread terror/fear in the to extort money or to settle of old rivalry / personal enmity Respondent has been continuously and committing crime at regular since the year 1985 as from the list of cases.

Page 16 of 57

48. Ld. Counsel submitted respondent was charge sheeted and was taken by the Courts in seven during the last ten years the requirement of MCOCA is only in than 01 case cognizance by the Court during the last ten

49. Before proceeding further, it is in place to mention that learned counsel for parties, upon even on same hence, first the submission of is being taken and thereafter, of both learned counsel be dealt with.

50. Mr.Rakesh learned Senior Advocate on behalf of respondent submitted learned Trial Judge has a correct order which not require any interference. The allegation as in the charge-sheet clearly shows of offence under Indian Code, 1860 and not MCOCA. The order, charge-sheet and approval are contrary to each other. The initially alleged that is a head of crime syndicate and at stage, respondent has been as member of the syndicate.

51. He further that the case as has been by prosecution before this is being argued for the first All the grounds and contentions raised by Additional Standing Counsel pleaded before learned Judge nor same are part of the sheet. Hence, in the revision no fresh grounds or contentions can be and instant petition is liable to be

52. After hearing both counsel for parties, before to the

Crl.Rev.P.42/2012 Page 17 of 57 merits of the reliance of both the parties can be as follows.

53. To support his contention, counsel for petitioner, relied Jagmohan @ Mohar Singh v. of Police Ors.(Delhi). 2007 (1) JCC 292 Division Bench of this on Section 2(d) of the MCOCA as under:-

14. The main thrust of the on behalf of Mohar Singh has that MCOCA has been applied. In most of the cases against Jag Mohan a verdict of was returned. If these cases are from consideration it will be to bring the case under Now as the definition of continuing unlawful goes under Section of MCOCA, the requirement is that the is undertaken as a member of an organized syndicate in respect of which than one charge- sheet has filed within the preceding of ten years. The definition does not out any distinction between charge-sheets end in acquittal and those which end in It is contended that since the was acquitted in all the cases punishable imprisonment for three years or if those cases are taken consideration the petitioner would be put to jeopardy which is not permissible Article 20 of the Constitution of India. At the time it is submitted that 2(d) having used the charge-sheets have been and court has taken cognizance would mean that charge-sheets are still pending. In words, the contention is that if the cases were to be taken consideration the language used have been charge-sheets had

Crl.Rev.P.42/2012 Page 18 of 57 been and court had taken cognizance of offences.

15. Learned Counsel for the is categorical that he is not challenging the of the Act. If Section 2(d) is not virus it has to be given the effect to in the sense in which it has been In our opinion, the language of the section be interpreted in this manner. It be said that simply the language used is charge-sheets been filed and court has cognizance the section has to be interpreted as referring to charge-sheets pending. The of the section clearly indicates all such offences in respect of charge-sheets have been and courts have taken have to be considered. When a is decided there is either or conviction. There is no dispute if the cases end in conviction they indicate that an accused had involved in the past 10 years in activity. However, if the interpretation of the counsel is accepted, even cases in which a conviction been secured, would to be excluded from consideration. is not at all the intent of the legislature. The purpose of the Act is to organized crime and hence if a is convicted and hence proved to be a his further criminal activity is comes under scrutiny by of this Act.

16. So far as the objection to into account the cases in an acquittal has taken place in of bar of Article 20 of the Constitution of India is one has to keep in mind that the

is not being asked to stand for

Crl.Rev.P.42/2012 Page 19 of 57 those Those cases are cited to say that he has been accused in the

17. In fact the very definition that before a case MCOCA is registered there be previous charge-sheets and cognizance thereon. In case, petitioners of Article 20 being applicable is entire definition of the offence be hit by Article 20 and, therefore, be struck down. Although, the counsel is categorical that he is not the constitutionality of the Act but he wants to protect his under Article 20. The Bombay Court dealt with the of virus of the Act in the light of the fundamental of the citizens and in that connection came to examine whether the of the previous prosecutions had any effect on the FIR or prosecution. The Bombay High came to the same conclusion the result of the previous charge-sheet is not for our present purpose. While the definition of Section 2(1)(d) to be valid High Court of in the case of Bharat Shantilal and Ors. v. The State of Maharashtra Writ Petition No. 27/2003, as under:

27. We also do not find in the challenge that the equality in the Constitution is violated because the ropes in anyone charged than once, irrespective of the charge resulted in an acquittal or The circumstances that followed the are not material. The provision only what is continued unlawful and refers to whether a person has charged over a period of ten for the purpose of seeing whether the is charged for the first time or has charged often. The

Crl.Rev.P.42/2012 20 of 57 circumstance of conviction or acquittal followed the charge are not material. The purpose is to see antecedents of the person. Not to

18. The definition of the offence, i.e. unlawful activity and organized under Section 2(d) (e) of pre-supposes an earlier trial filing of the charge-sheet and cognizance taken by the Court. The acquittal or is not determinative of commission of the offence. the filing of the charge-sheets and cognizance by the are regarded as demonstrative of indulging in and propensity in unlawful activity or crime, which is actionable the Act.

19. Learned Counsel for the had laid considerable emphasis in that the facts of the cases in petitioners have been cannot be taken into for the purposes of invocation of MCOCA. As earlier, the conviction is not a sine qua non for of the offence under Section (e) of MCOCA. The ingredients of the offence to be are filing of more than one before the Competent Court a member of the organized crime and taking of cognizance. The requirement of has understandably not been made one of the of the offence considering the object to be achieved. Respondents have to demonstrate the chain and sequence of where acquittals have witnesses turning hostile or the of witnesses. Understandably, petitioners be permitted to take advantage of acquittals, especially which followed witnesses turning or evidence being obliterated.

Page 21 of 57

54. Learned counsel for relied upon on para 39 of the above cited case, it has been observed as under:- 19. Counsel for the petitioners had laid emphasis in urging that the of the cases in which petitioners been acquitted cannot be into account for the purposes of of MCOCA. As noted earlier, the is not a sine qua non for invocation of the offence Section 2(d) (e) of MCOCA. The of the offence to be satisfied are filing of than one charge-sheet before the Court against a member of the crime syndicate and taking of The requirement of conviction has understandably not made one of the ingredients of the offence the object sought to be achieved. have sought to demonstrate the and sequence of events, where have followed witnesses hostile or the non-availability of witnesses. petitioners cannot be permitted to advantage of these acquittals, which have followed turning hostile or evidence obliterated.

39. Thus existence of a syndicate could be inferred by the Commissioner of Police when he sanction for including MCOCA in FIR

At the time when the sections of were included in the FIR, were allegations of their involvement in crime syndicate in offences of extortion and intimidation. of the main accused and the brothers amassed wealth by means of criminal activities was also discovered. It is not necessary that activity of extortion or other of violence gets registered in the of an FIR. Since the allegations are the brothers are indulging in unlawful activity, even those for which no FIR had been registered then could be taken account. Thus,

Crl.Rev.P.42/2012 22 of 57 the FIR being registered on the basis of material as discussed above be quashed on the ground that investigation did not yield any evidence all the four or against anyone of the The sufficiency of the evidence for the purpose of can be examined either at the time of of the accused or at the time of framing of When FIR has been rightly the police has a right to proceed to the accused. The arrest of the four namely, Jai Chand @ Munna, Mohan @ Pappu, Khoob and Sher Singh, have kept in abeyance and they been interrogated by the investigation arrest. The embargo against arrest is accordingly removed and the can proceed against them as per law as

55. On the aspect of sanction, learned for petitioner relied upon Nivrutti Marne v. The State of Crl.Appeal No.930/2009 on 07.05.2010 by Bench of Mumbai High wherein it has been held as

15. At the outset, we must state we are unable to accept the argument the approval order or the sanction specifically state the charges and the of each accused. Neither the order nor the sanction order is to be like a treatise. It cannot be with a charge-sheet. Undoubtedly, it is for the investigating authority to place material before the authority grants approval and sanction and the order and the sanction order not a mechanical exercise must application of mind. But they are not to be verbose. It is wrong to hold prolixity is indicative of application of We have carefully read and the order. It refers to the proposal and papers submitted by the Kothrud Station. It states the names of the who are members of the organized crime It states

Crl.Rev.P.42/2012 Page 23 of 57 after perusal of the material it that the accused are indulging in unlawful activities for gaining undue economic and other and, therefore, it is necessary to action under the provisions of the and, therefore, the approval is given for that purpose. The order, in our opinion, is issued proper application of mind.

56. counsel for respondent in addition to para, relied upon the of Division Bench in para 12, 16 17 which reads as under:-

2. The case needs to be shortly It is as under:

The appellant along other accused hatched and committed murder of Sandeep (for convenience, the deceased) on at about 11.30 a.m. he was proceeding in his four wheeler a traffic signal near Flyover Bridge, Paud Pune. The appellant and others murder of the deceased with the aid of sickle, revolver, etc. on of previous enmity and rivalry the two gangs. The appellant heads the Marane Gang and all the accused are of the said gang. The appellant and members of the organized crime have committed several of similar nature in the past to an edge over the rival and to achieve supremacy in the local The appellant and other accused in a synchronized manner planned and to murder the deceased on 4/10/2006. The came on motorcycles and surrounded the wheeler in which the deceased was They broke the glasses of the of the four wheeler of the deceased and the deceased in a well planned After successfully commissioning the they fled away. punishable under Sections 307, 143, 147,

Page 24 of 57 148, 149, and 109 of the Indian Penal Code short, the IPC) and Section of the Arms Act were registered C.R. No.562 of 2006 at Police Station, Pune on the lodged by Mr. Prakash Dagdu against five named and 3-4 unknown persons. During the of

investigation, police came to the that the appellant and other are members of organized crime headed by the appellant and they indulging in organized crime a view to gaining pecuniary Therefore, after obtaining under Section 23(1) of the offences under Sections 3(2) and 3(4) of the MCOCA to be added. Thereafter, sanction Section 23(2) of the MCOCA was from the Competent Authority. The and others came to be arrested on The application preferred by the appellant for discharge has been rejected the impugned order and, the appellant has preferred this

12. Mr. Chitnis strenuously urged since the facts involved in the case are identical and similar were advanced in both the judicial propriety demanded Special Judge to follow the taken in the similar matter by his and discharge the appellant. Ordinarily if the of the accused is identical and all the facts are a court would follow the taken by a coordinate court. before us the entire matter is at We will have to consider the of the present appellant independently. The taken by a coordinate trial is not binding on us. We must also in mind that the present heads the gang. The gang is after him. We would, consider his case independently. We however note our dissatisfaction the conduct of the investigating

Crl.Rev.P.42/2012 Page 25 of 57 agency. It is not how if it was desirous of challenging the order the co-accused Taru, it slept the matter for such a long The Director General of Police, of Maharashtra needs to look this matter.

16. It is pertinent to that the sanction order by saying that the Assistant of Police, Crime-I has submitted note sheets dated and 28/3/2007 along with of investigation of C.R.No.562 of 2006 and for sanction under Section of the MCOCA. It states the names of the It refers to the evidence collected investigation and states that it that the accused are members of the crime syndicate. It states the investigation has revealed that the and his associates run an organized crime with a view to gaining benefits and other advantages for by use of violence, intimidation and other means. It states that the clearly establishes that the and his associates in furtherance of the activities of organized crime syndicate committed offence in question by firearms voluntarily to establish supremacy over their gang.

17. We are, therefore, of the that the sanction order has issued after perusing the as well as two official note It is not as if the sanction order has been on the basis of a cryptic note before the sanctioning authority. The made in the sanction order that it is issued after of mind.

Crl.Rev.P.42/2012 Page 26 of 57

57. On of „pecuniary gain‟ learned for petitioner relied upon G. Asrani v. State of Mahrashtra. (3) SCC 633 wherein the Apex Court in Nos. 7 to 9 observed as under:- 7. to Mr. Altaf Ahmed, the non-inclusion of the name in the approval granted Section 23 (1) (a) is of no consequence since investigation his complicity was established and sanction was sought to prosecute him with the others under 23 (2) of MCOCA. Mr. Ahmed submitted the allegations against the petitioner sufficient to charge sheet him the provisions of MCOCA along other accused as being of an organized crime syndicate in the commission of organized crimes.

8. We carefully considered the submissions on behalf of the respective parties and the provisions of MCOCA and we are of the view the High Court did not commit any in dismissing the petitioner’s writ We are inclined to accept Mr. Altaf submissions that non-inclusion of the name in the approval under 23 (1) (a) of MCOCA was not fatal to the investigation as far as the is concerned. On the other hand, his was included in the sanction granted Section 23 (2) after the stage of into the complaint where his was established. The offences alleged to been committed by the petitioner has a bearing and/or link the activities of the other accused as of the Chhota Rajan gang was an organized crime syndicate.

9. As out by Mr. Ahmed, this Court in the of Kari Choudhary vs. Mst. Devi

Crl.Rev.P.42/2012 Page 27 of 57 1 SCC 714, had while considering a question observed that the object of every investigation is to out whether the offences alleged been committed and, if so, who had it. The scheme of the Code of Criminal makes it clear that the information of the commission of an offence is under Section 154 of the Code of Procedure, the investigating authorities up the investigation and file charge against whoever is found the investigation to have been in the commission of such offence. is no hard and fast rule the First Information Report always contain the names of all who were involved in the commission of an Very often the names of the are not even mentioned in the F.I.R. and surface only at the stage of the The scheme under Section 23 of is similar and Section 23 (1) (a) provides a that no investigation into an under MCOCA should be without the approval of the concerned Once such approval is an investigation is commenced. Those who are found to be involved in the commission of the crime can very well be against once sanction is against them under 23 (2) of MCOCA.

58. On the aspect whether advantage‟ has to be read with pecuniary advantage‟ in Section of MCOCA, learned counsel for relied upon State of v. Jagain Gagansingh Nepali @ Ors. Crl. Appeal decided by Full Bench of High Court in August, wherein it has been observed as

Crl.Rev.P.42/2012 Page 28 of 57 Since the Bench of this Court its order dated 26th 2011 passed in Criminal No.20/2011 has disagreed with the taken earlier by two Division of this Court in Sherbahadur Khan v. State of Maharashtra, ALL MR (Cri) 1 and Madan Ramkisan

2009 ALL MR (Cri)1447 that the other advantage used in 2(e) of the Maharashtra Control of Crime Act,1999 (MCOCA for has to be read ejusdem generis the words for pecuniary benefits and

enonomic, the matter is placed us.

2. The question, therefore, that we are upon to answer is as to whether the other

advantage has to be read as generis with the words pecuniary benefits, or gaining economic advantage or whether the term other advantage is to be given a wider meaning.

3. We heard Mrs.A.S.Pai, learned P.P. and Mr.Amit Desai, senior counsel in support of the that the term other is required to be given wider and Mr.S.R. Chitnis, learned counsel, Mr.A.H.H.Ponda and Mr.Shrikant learned counsel in support of the that the term other is required to be read as ejusdem with the words gaining benefits, or gaining undue advantage.

20. The perusal of section would reveal that the words gaining pecuniary there is a comma followed by the or gaining undue economic or advantage. We have already hereinabove the dictionary meaning of and economic. To a

Crl.Rev.P.42/2012 Page 29 of 57 query as to what the words

advantage could mean, if the of ejusdem generis was to be applied. learned counsel stated other advantage would and include financial, material, profit, corruption, controlling parallel market and enrichment of It can, thus, clearly be that all these would within the term either or economic. It would, thus, be that the class or category of benefit and economic advantage stand exhausted. As such one of the conditions for applying the principle of generis, would not be available. the preceding words do not constitute specification of the genus but constitute of complete genus, the rule of generis will have no as held by the Apex Court in Chandra Chakraborty v.Collector of Tripura Tribhuban Parkash v. of India (cited supra). It is a principle of law that the rule has to be with care and caution. It is not rule of law but it has only permissible in the absence of any indication to the contrary. For the to be discussed herein-after we also that even the legislative would not permit such a construction. If the construction as put forth by the has to be accepted, then the term advantage would become The Apex Court in the case of Industries Ltd. v. Collector of Bombay, (2002) 4 SCC 297 has observed :

10. No words or expressions used in any can be said to be redundant or superfluous. In of interpretation one should not concentrate too on one word and pay too little attention to words. No provision in the statute and no

Page 30 of 57 word in any section can be in isolation. Every provision and word must be looked at and in the context in which it is used. It is that every statute is an of the legislature. The elementary principle of any word while considering a is to gather the mens or sentential of the legislature. Where the words are and there is no obscurity, and there is no and the intention of the legislature is clearly there is no scope for the Court to upon itself the task of or alternating the statutory provisions. the language is clear the intention of the is to be gathered from the language While doing so what has said in the statute as also has not been said has to be noted. The which requires for its support or substitution of words or which in rejection of words has to be avoided. As by the Privy Council in

Crawford v. we cannot aid the Legislature’s defective of an Act, we cannot add or mend by construction make up deficiencies are left there . In case of an word there should be no to

substitute or paraphrase of general Attention should be confined to is necessary for deciding the particular This principle is too well and reference to few decisions of this would suffice. [See: Rayons Silk Mfg. Co. Ltd. v. Custodian of Vested 1990 Supp SCC 785:AIR SC 1747, Union of India v.

Nandan Aggarwal, 1992 (1) SCC

Crl.Rev.P.42/2012 Page 31 of 57

59. On Para 34, 35, 37, 38, 42 of the same decision has been upon by respondent, which as under:- 11. From the perusal of 2(e), it can be seen that the ingredients will be necessary to out the case of an organised crime:

(i) there has to be a continuing unlawful (ii) that such an will have to be by an individual, or jointly; (iii) that an activity is either by a member of an crime syndicate or on behalf of syndicate; (iv) that has to be use of violence or threat of violence or or coercion or other unlawful (v) that such an activity has to be an objective of gaining pecuniary or gaining undue economic or advantage for the person who undertakes an activity or any other person or insurgency.

The ingredients of continuing activities would be: (i) that an activity should be prohibited by law for the being in force; (ii) such an activity is a cognizable punishable with imprisonment of years or more (iii) such an activity is undertaken singly or jointly, as a member of an crime syndicate or on behalf of syndicate; (iv) that in of such an activity more one charge-sheet must have filed before a competent and (v) that the charge-sheets must been filed within a period of ten years; and (vi) the Courts have taken of such offences.

34. It can, clearly be seen that the

behind enacting the MCOCA was to the activities of the organised crime or gangs. The perusal of the Preamble and the

Page 32 of 57 Statement of Objects and and Preface, in our considered view, not lead to any narrower meaning MCOCA has been enacted for the purpose of curbing activities involve pecuniary gains or economic advantages. The mischief is sought to be cured by enactment of is to curb and control menace of crime. The law has been enacted the hope that the elements by the organised crime in the Society can be to a great extent and for minimizing the spread in the society. If a narrower as sought to be placed is accepted, it frustrate the object rather curing the mischief for which the Act has enacted.

35. For appreciating this it would also be relevant to to subsection (4) of section 3 of MCOCA. It can be that the said provision provides for punishment only by of a

person being a member of the crime syndicate. If the contention by the respondents is to be accepted, subsection (4) of 3 will be rendered redundant. We are of the considered view that could be various unlawful activities by a member of organised syndicate or by any person on behalf of a syndicate which can be

for the advantages than economic or

pecuniary. We consider some illustrations. (i) A is murdered by a member

of organised syndicate or gang on its behalf at the of rival political leader. In the of a given case, this was any

pecuniary or economic consideration, it was to an advantage in the nature of political to the said organised crime by the political leader at whose the murder has taken place.

Crl.Rev.P.42/2012 Page 33 of 57 (ii) If a of an organised crime

syndicate or any on its behalf murders or kills the of another syndicate or rival in order to get supremacy in the area, may be no direct economic or pecuniary by that particular unlawful However, in the long term by the fact of having supremacy in the

the organised crime syndicate be in a position to get economic or pecuniary (iii) A witness in the trial the member of an organised crime may be killed. There may not be any pecuniary in such an activity, however, of assuring acquittal of member of the could be there.

(iv) A of an organised crime syndicate another member of such There may be no pecuniary or economic by

such an activity, however, may be advantage to a person committing of getting a stronghold or supremacy in the crime syndicate‟ of which he is a

These could be some of the few which may come in the term advantage. There can be many

37. The answer to this question in the

observations of the Apex Court, in the of Sanjay Dutt (cited that merely because the is likely to be abused cannot be a for upsetting its constitutionality or construction. In respect, it will also be to refer to the judgment of the Apex in the case of

Ranjitsing Brahmajeetsing (supra); wherein the Apex has observed thus:

23. Interpretation contained in Sections 2 (d) 2(e) and are inter-related. An ‘organised

Crl.Rev.P.42/2012 34 of 57 crime syndicate’ refers to an crime’ which in turn to ‘continuing unlawful activity’. As at advised, it may not be necessary for us to consider as to the words or other lawful contained in Section 2(e) be read ejusdem generis/ with the words (i) violence, threat of violence, (iii) or (iv) coercion.

We may, notice that the word has been used only in 146 and 153A of the Indian Penal The word ‘intimidation’ alone has not used therein but only 506 occurring in Chapter XXII refers to ‘criminal intimidation’. The ‘coercion’ finds place in the Contract Act. If the words means’ is to be

widely construed as any or other unlawful means, regard to the provisions contained in 400, 401 and 413 of the IPC relating to commission of of cheating or criminal breach of the provisions of the said Act can be applied, prima facie, does not to have been intended by the

24. The Statement of Objects and Reasons state as to why the said Act had to be enacted. it will be safe to presume the

expression ‘any unlawful must refer to any such act has a direct nexus with the of a crime which MCOCA to

prevent or control. In other an offence falling within the of organized crime and committed by an crime syndicate is the offence by the Statement of Objects and Reasons. are offences and offences under the Penal Code and other

Page 35 of 57 penal statutes for punishment of three years or and in relation to such offences than one charge-sheet may be filed. As we indicated hereinbefore, only a person cheats or commits breach of trust, more once, the same by itself may not be to attract the provisions of MCOCA. The Court had held that it be safe to presume that the

`any unlawful means‟ refer to any such act which has a nexus with the commission of a which MCOCA seeks to or control.‟

The Apex Court had that it will be safe to that the expression `any means‟ must refer to any act which has a which direct with the commission of a crime MCOCA seeks to prevent or

38. It is difficult to accept the contention if the wider meaning is given to the of section 2(e), provisions of would be

invoked even for offences. In case of

Sherbahadur Khan v. State of Maharashtra supra), some of the offences from the quarrel at public tap. In the said matter, as in of the cases, the accused had assaulted the with a fist blow. By no of imagination, such an activity be construed to be the one for which MCOCA be invoked. If there are some between two businessmen within corners of shop and, as a of which one of them slaps the by no stretch of imagination it can be said to be an for which MCOCA is to be invoked. a

dispute between two brothers on property issue and even and that too by a

Crl.Rev.P.42/2012 Page 36 of 57 weapon would not come in the of MCOCA.

The legislative intent is that MCOCA is for curbing the crime. Unless there is facie material, firstly, to that there is an organised syndicate and, secondly, organised crime has been by any member the organised crime or any person on behalf of such the provisions of

MCOCA cannot be In the earlier paragraph we have in detail as to what are the so as to constitute an of organised crime. The prosecution therefore, have to firstly that there is an organised syndicate. It will have to that there exist the of continuing unlawful activity. It thereafter have to satisfy the

ingredients of the organised crime as out by us hereinbefore exist, prior to the provisions of MCOCA. We are, unable to accept the contention if the wider meaning is given, the can be invoked even for

sundry As held by the Apex Court in the of Ranjitsing Brahmajeetsing Sharma merely because the person who or commits a criminal breach of more than once, the by itself may not be sufficient to attract the of MCOCA. By the same analogy, if a commits murder more once, would not by itself be to attract the provisions of MCOCA. At the of repetition, we make it clear unless all the ingredients to constitute the punishable under MCOCA are it will not be permissible to invoke the of MCOCA.

42. For the reasons aforesaid, we the issue that the term advantage cannot be read as

Crl.Rev.P.42/2012 Page 37 of 57 generis the words pecuniary benefits and economic.

60. Learned counsel for relied upon Govind Udhe v. State of Maharashtra. (3) Bombay CR (Crl.) 144 wherein Bench of Mumbai High observed as under: 34. Therefore, the contemplates a

situation where a of persons as members of organized syndicate indulge in organized That is, they indulge in use of threats of violence, intimidation, to gain pecuniary benefit or economic or other advantage for or any other person. These as per the definition of organized crime are unlawful activity prohibited by

35. It is now necessary to go to the definition of „continuing activity‟. Section 2(1)(d) „continuing unlawful activity‟ to an activity prohibited by law for the time in force, which is a cognizable punishable with imprisonment of years or more,

undertaken singly or jointly as a member of an crime syndicate or on behalf of syndicate in respect of which than one

charge- sheet been filed before a court within the preceding ten and that court have cognizance of such offence. for an activity to be a `continuing unlawful — a) the activity must be by law;

b) it must be a cognizable punishable with imprisonment of years or more;

c) it must be singly or jointly;

Crl.Rev.P.42/2012 38 of 57 d) it must be undertaken as a member of an

crime syndicate or on behalf of syndicate

e) in respect of which than one charge-sheet have filed before a competent

36. The words `in respect of which than one charge-sheet have filed’ cannot go with the `a member of a crime syndicate’ in that case, these would have read as `in of whom more than one have been filed’.

37. But otherwise, if all provisions are read we reach the same conclusion. 2(1)(d) which defines unlawful activity’ sets a period of 10 years within more than one charge- have to be filed. The members of the syndicate operate either or jointly in commission of organized They operate in different A person may be a part of the module jointly undertakes an organized or he may singly as a member of the organized syndicate or on behalf of such undertake an organized crime. In the situations, the MCOCA can be applied. It is the of organized crime syndicate makes a person liable the MCOCA. This is evident section 3(4) of the MCOCA states that any person who is a of an organized crime syndicate be punished with imprisonment for a which shall not be less five years but which may to imprisonment for life and shall be liable to fine, subject to a of fine of Rs.5 lakhs. The under the MCOCA ropes in a who as a member of the organized crime commits organized crime acts of extortion by giving etc. to gain economic or

Crl.Rev.P.42/2012 Page 39 of 57 supremacy, as a of the crime syndicate singly or Charge is in respect of unlawful of the organized crime syndicate. if within a period of preceding ten one charge-sheet has been filed in of organized crime committed by the of a particular crime syndicate, the charge-sheet can be taken against a of the said crime syndicate for the of application of the MCOCA against him if he is involved in one case. The organized committed by him will be a part of the unlawful activity of the organized syndicate. What is important is the or the link of the person with crime syndicate. The link the `organized crime syndicate’ is the of the term `continuing unlawful If this link is not established, person cannot be roped in.

38. In to substantiate our construction of Section of the MCOCA, we will take

example of accused 1(A), 2(B), accused 3(C) and 4(D), who are members of the organized syndicate and who have committed within preceding ten years. as accused A is concerned, it is alleged he has committed an offence resulting in the of any person which is punishable death or imprisonment for life as in Section 3(1) of the MCOCA. one

charge-sheet is filed against Insofar as accused B is concerned, it is that he has committed an offence in the death of any person which is with death or

imprisonment for as described in Section 3(2) of the Accordingly, one charge-sheet is filed him. Likewise, insofar as C is concerned, it is alleged that he has an

Crl.Rev.P.42/2012 Page 40 of 57 offence in the death of any person which is with death or imprisonment for as described in Section 3(3) of the

Accordingly, one charge-sheet is filed him. Finally, it is alleged accused D is a member of organized syndicate as described in Section of the MCOCA and as such has indulged in crime and against whom one

charge-sheet is filed.

39. The submission on of the appellant is that even all the four accused namely, A, B, C and D may be of the organized crime syndicate against each of the accused not than one charge- sheet is it cannot be held that are engaged in continuing unlawful as contemplated under Section of the MCOCA. Apart from the which we

have given as to why such a

construction is not possible, regard to the object with the MCOCA was enacted,

namely to special provisions for prevention and of organized crime syndicate and for with criminal activity by crime syndicate, in our opinion, 2(1)(d) cannot be so construed. a construction will defeat the of the MCOCA. What is contemplated Section 2(1)(d) of the MCOCA is

activities prohibited by law for the time in force which are punishable as therein have been either singly or jointly as a of organized crime syndicate and in

of which more than one have been filed. is on the unlawful activities committed by the crime syndicate.

Requirement of one or charge-sheet is qua the unlawful activities of the crime syndicate.

Crl.Rev.P.42/2012 41 of 57

Volkswagen Gol G4

45. Mr.Desai’s submission that as the appellant’s name is not mentioned in the granted under Section of the MCOC Act, the prosecution qua the is vitiated, must also be In its judgment in Vinod Asrani v. of Maharashtra (Special Leave (Cri.) No.6312 of 2006 21/2/2007, the

Supreme Court has the same

submission and observed non inclusion of the accused in the approval Section 23(1)(a) of the MCOC Act is not to the investigation qua that accused. The Court observed that 23(1)(a) provides a safeguard no investigation into an offence the MCOC Act should be commenced the approval of the concerned authorities. such approval is obtained, an is commenced. The Supreme Court observed that those who are found to be involved in the commission of the crime can very well be against once sanction is against them under 23(2) of the MCOC Act.

61. counsel for petitioner also upon The State of Maharashtra v Ramchandra Taru Crl.Appeal decided on 06.05.2011 by Division of Bombay High Court para No.14 held as

14. The learned APP placed reliance on

judgment in the case of Ganesh

Marne vs. The State of Maharashtra in Appeal No. 930 of 2009 decided on May, 2010. That also had arisen from the Case No. 02 of 2007 which was by the accused no.7 whose for discharge was

Crl.Rev.P.42/2012 Page 42 of 57 by the Special Judge, Special Pune. It appears that the in the said case was operating his own called as Ganesh Marne Allegations against him were he was operating a crime syndicate and several offences of similar in the past to gain an edge the rival gang and to achieve in the local area. The Division in the case (supra) examined the in Special Case No. 2 of 2007 qua the before analysing

expressions unlawful activity,

organised and organized crime

syndicate. A was made to the judgment of the Division of this court in the case of Akram Khan vs. State of

(2007 ALL MR (Cri.) 1) and held

Sherbahadur Akram Khan’s must be

restricted to its own facts. The Bench while rejecting laid great emphasis on the in the case of Anil Sadashiv vs. State of Maharashtra [2008 (3) L.J. (CRI) 650]. In the of Ganesh Nivrutti Marne as as Anil Nanduskar, the question was addressed by the Division Bench was

expressions other advantage under section 2(1)(e) are to be ejusdem generis with the terms or it should be given meaning. The Division Bench in the of Ganesh Nivrutti Marne has made

reference to the Supreme decision in the case of Ranjeetsingh Sharma vs. State of Maharashtra and observed that the Supreme has expressly kept this

open.

62. Reliance has been upon above decision on of respondent on Nos.4, 6 15; wherein it has observed as under:-

Crl.Rev.P.42/2012 43 of 57 4. The respondent submitted an application Exh. 99, seeking his discharge the offence punishable under 3(i), 3(ii), 3(iii) and of the MCOCA. It was submitted that the placed on record does not any offence under the provisions of There is no

evidence to show the respondent-accused was at any point of time was a of the organized crime syndicate. The resisted this

application. The Special Judge after the rival submissions, held the material placed on record not disclose

offence punishable the MCOCA. He


therefore, discharged the from the offences punishable the MCOCA. Being aggrieved, by order, the State has preferred appeal.

6. Similar submissions advanced before the learned Judge, Special Court, As regards two previous chargesheets, one Sessions Case No. 418 of 2006 section 395, 143, 148 of the IPC and other being regular Case No. 120 of 2000 under 324, 323, 504 read 34 of the IPC, the learned Special observed that these were not committed by the organized syndicate. As regards the allegations in case no. 02 of 2007, the offence which the respondent- accused and have been charged not been committed with an of gaining

pecuniary benefits or undue economic or other to the respondent-accused.

Therefore, he discharged the

15. We propose to clarify that to the question which is posed in appeal,

interpretation of expressions or advantage and or other unlawful occurring under

Crl.Rev.P.42/2012 44 of 57 section 2(1)(e) of MCOCA, is not

necessary. Even if, both the are given wider meaning, the is not absolved of its duty to prove within the preceding period of 10 more than one chargesheets, commission of cognizable offence with imprisonment of three or more, have been and further to prove that in charge- sheets, it has been that the accused either or jointly and as a member of organized syndicate or on behalf of such committed the unlawful activity. follows that merely that more than one in respect of cognizable offence with imprisonment of three or more have been is not sufficient. This does not requirements of law. This is precisely held by the Supreme in the case of Ranjeetsingh Brahmajeetsing (supra). The unlawful

activity in the previous chargesheets should nexus with the commission of the which MCOCA seeks to or control. An offence falling the definition of

organized crime and by organized

crime syndicate is the contemplated by the Statement of Objects and under the

MCOCA.

63. Learned for respondent relied upon v. State of Maharashtra. Crl.Appeal decided on 18.11.2008 by Division of Bombay High Court it has been held as under:- 43. fortifies the conclusion that proof of filing charge in the past is not enough. It is only one of the for constituting offence of organized If only the past charges were to be enough to constitute of organized crime, it could the offended the

Crl.Rev.P.42/2012 Page 45 of 57 of Article 20(1) of the Constitution and Article 29(2) as well, in any case Section 300 Cr. P.C.). Had judgments of the Supreme Court and Benches of this Court cited before the learned Judge

deciding Amarsingh Vs. (2006 ALL MR (Cri) 407, the Single Judge, without would not have held the matter was simply one of an arithmetical The said judgment cannot be with the judgments of Division in Jaisingh Vs. State (2003) ALL MR 1506 and Bharat Shah Vs.

2003 ALL MR (Cri) 1061, I am bound to

follow.

44. It is not necessary to go the implications of the expression „prosecuted and used in Article 20(2) of the Section 300 Cr. P.C. itself bars a fresh trial for the offence. Section 21 of the MCOCA

prescribes modified applications of the to offences under MCOCA not make provisions of Section 300 inapplicable. Therefore, since the criminal history of the

applicants that they had been or are separately charged / tried for offences before competent there is no question of such constituting offences of organized

64. Further relied upon of Maharashtra v. Lalit Somdatta Ors. 2007(4) SCC 171 wherein the Court observed as under:- we are in agreement with the

submission having regard to the stringent of MCOCA, its provisions will to be very strictly interpreted and the authorities would have to be down to the strict observance of the provisions. There can

Crl.Rev.P.42/2012 46 of 57 be no doubt that the provisions of the have been enacted to with organized criminal in relation to offences which are to create terror and to endanger and the economy of the country for which

measures have been The provisions of the MCOCA seek to a citizen of his right to freedom at the initial stage of the

investigation, it extremely difficult for him to obtain Other provisions relating to the of evidence relating to the electronic have also been for. In such a situation it is to be whether the investigation from its inception has been conducted in accordance with the provisions of the

63. As has been repeatedly emphasized on of all the parties, the offence under must comprise continuing activity relating to organized undertaken by an individual

singly or either as a member of the organized syndicate or on behalf of such by use of coercive or other unlawful with the objective of gaining benefits or gaining undue or other

advantage for himself or for any person or for promoting insurgency. In the case, both Lalit Nagpal and Anil Somdutt have been shown to been involved in several of a similar nature which are trial or are under investigation. As far as Nagpal is concerned, his involvement has shown only in respect of CR of Rasayani Police Station, under Sections 468,420,34, Penal Code and Sections 3, 7,9 10 of the

Commodities Act. In our view, the as disclosed justified the application of the of the MCOCA to Lalit Nagpal and

Crl.Rev.P.42/2012 Page 47 of 57 Nagpal. the said ingredients are not available as far as Nagpal is concerned, since he has not shown to be involved in any continuing activity. Furthermore, in the approval was given by the Special Inspector of Police, Kolhapur Range,

approval to the Deputy Commissioner of (Enforcement), Crime Branch, Mumbai to commence investigation Section 23 (1) of MCOCA, Kapil has not been mentioned. It is only at a stage with the registering of CR of Rasayani Police Station, that Kapil Nagpal was in with Lalit Nagpal and Nagpal and permission was granted to the provisions of the MCOCA to him as well by dated 22nd August,

64. In addition to the a Nagpal, Kapil and one Parasnath

Ramdular Singh reveal that such was being sought for, as far as Nagpal is concerned, in respect of an allegedly under Section 63 of the Tax Act, which in our opinion not attract the provisions of the MCOCA.

65. We, have

66. Since we have of the MCOCA for offences under 3 7 of the 1955 Act as well as the 1981 we are left with the question as to the same had been applied to the of Lalit Nagpal and Anil strictly in accordance with the of the MCOCA 1999. Having to the

stringent provisions of the MCOCA, 23 (1) (a) provides a safeguard to the accused in notwithstanding anything contained in the of

Crl.Rev.P.42/2012 Page 48 of 57 Criminal no investigation of an alleged offence of crime under the MCOCA,

can be commenced without the prior

of a police officer not below the of Deputy Inspector General of An additional protection has been under Sub-section (2) of Section 23 prohibits any Special Court taking cognizance of any offence the Act without the previous sanction of a officer not below the rank of Director General of Police.

67. In the case, though sanction had given by the Special Inspector of Police, Kolhapur Range, on August, 2004, granting under Section 23 (1) (a) of the MCOCA to apply its provisions to the alleged said to have been by Anil Nagpal, Lalit and Vijay Nagpal, such reveals complete non- of mind as the same appears to been given upon of an enactment which is non est. if the

subsequent approval order of August, 2005 is to be taken consideration, the organized crime to in the said order is with to the alleged violation of Sales Tax and Laws, which, in our view, was not to be the basis for application of the provisions of the 1999. To apply the provisions of something more in the nature of acts and violence in required to be out so as to bring the unlawful activity of within the definition of organized in Section 2 (a) of MCOCA .

68. In our view, both the sanctions formed the very basis of the have been given and are vitiated and cannot be

Crl.Rev.P.42/2012 49 of 57 sustained. In taking recourse to the of the MCOCA 1999, which has the of

curtailing the liberty of an individual and him virtually incarcerated, a great has been cast on the authorities in that the provisions of the Act are strictly to and followed, which unfortunately not appear to have been in the instant case.

69.We are therefore, inclined to interfere the decision of the High Court for reasons which are entirely from those given by the Court.

65. I heard learned for parties.

66. Law has been settled in Nivrutti Marne (Supra) it is necessary for the investigating authority to adequate material before the which grants approval and and the approval order and the sanction being not a mechanical exercise disclose application of mind. are not expected to be verbose. In the aforesaid the appellant heads the Ganesh Gang and all the accused were of the said gang. The appellant and members of the organized crime have committed several of similar nature in the past to an edge over the rival and to achieve supremacy in the local Whereas in the present case the failed to establish that the belongs to which gang and on behalf of any syndicate.

67. In the case above, the appellant and other found members of organized syndicate headed by the appellant and

Crl.Rev.P.42/2012 Page 50 of 57 were in organized crime with a to gaining pecuniary benefits. facts are different in case in

68. It is also settled that the must heads the gang and he is of the gang and committing offences the gang members or on behalf of the when these facts are only thereafter, the provisions of are attracted. The prosecution had to establish respondent herein and his associates in of the activities of their organized syndicate have committed in question.

69. The Scheme under 23 of MCOCA is similar and Section 23 (i) (a) a safeguard that no Investigation an offence under MCOCA be commenced without the approval of the authority. Once such is obtained, the investigation is commenced. who are subsequently found to be involved in the of the organized crime can very be proceeded against once is obtained against them Section 23 (2) of MCOCA. I am conscious in a of Jagain Gagansingh Nepali @ Ors. (Supra) the term advantage used in section of the Maharashtra Control of Organized Control of Organized Crime 1999 has been read as generis with the words for benefits and undue enonomic.

70. referring the case of Apex in Chandra Chakraborty Vs. Collector of (Supra), wherein it is held principle of law that the rule has to be with care and caution.

Page 51 of 57

71. In matters of interpretation one not concentrate too much on one word and pay too attention to other words. statute has an edict of the legislature. The principle of interpreting any word considering a statute is to gather the or sentential legis of the legislature. the words are clear and there is no and there is no ambiguity and the intention of the is clearly conveyed, there is no for the Court to take upon the task of amending or alternating the provisions. The construction which for its support addition or substitution of or which results in rejection of has to be avoided. As stated by the Privy in Crawford v. Spooner we cannot aid the defective phrasing of an Act, we add or mend and, by construction up deficiencies which are left . In case of an ordinary word, should be no attempt to substitute or of general application.

72. On perusal of 2 (e), it can be seen that has to be continuing unlawful activities and activities will have be by an singly or jointly either by a of organized crime syndicate or on o such syndicate. Therefore, has to be use of violence there has to be use of violence or of violence or intimidation or coercion or lawful means and such an has to be with an objective of gaining benefits or gaining undue or other advantage for the person who such an activity or any other or promoting insurgency.

Crl.Rev.P.42/2012 52 of 57

73. The purpose behind enacting the was to curb the activities of the organised syndicates or gangs. On perusal of and Statement of Objects and Reasons and it does not lead to any narrower that MCOCA has been only for the purpose of curbing which involve pecuniary or undue economic advantages. The which is sought to be cured by of MCOCA is to curb and control of organised crime. The law has been with the hope that the spread by the organised crime in the can be controlled to a great extent and for the fear spread in the society.

74. It can be that the said provision provides for punishment only by of a person having a trade of crime syndicate. There can be unlawful continuing activities by a of organized crime syndicate or by any on behalf of such a syndicate can be for the advantages other than or pecuniary.

75. For example, if a member of an crime syndicate or any person on its murders or kills the leader of syndicate or rival gang in to get supremacy in the area, there may be no economic or pecuniary advantage by particular unlawful activity. in the long term by the very of having supremacy in the area, the crime syndicate would be in a to get economic or pecuniary advantage.

76. The stated proposition has been by the Apex Court in case of Dutt vs. State of Maharasthra. merely because the

Crl.Rev.P.42/2012 53 of 57 statute is likely to be abused be a ground for upsetting its constitutionality or In the judgment of Apex Court in Brahmajeetsing Sharma (supra) it is that Interpretation clauses in Sections 2(d), 2(e) and are inter-related. An ‘organised crime refers to an ‘organised crime’ in turn refers to ‘continuing activity’.

77. As such Statement of and Reasons clearly state as to why the Act had to be enacted.

78. The expression ‘any means’ must refer to any act which has a direct nexus the commission of a crime which seeks to prevent or control. In words, an offence falling the definition of organized crime and by an organized crime syndicate is the contemplated by the Statement of Objects and If a person cheats or commits a breach of trust, more once, the same by itself may not be to attract the provisions of MCOCA.

79. It be safe to presume that the any lawful means, it would be to presume that the expression unlawful means’ must to any such act which has a direct with the commission of a crime MCOCA seeks to prevent or

80. Section 2(e) of MCOCA be invoked for petty offences. The intent is clear that is for curing the organized crime there is a prima facie to establish that there is an crime syndicate and prima material, firstly, to establish there is an

Crl.Rev.P.42/2012 Page 54 of 57 crime syndicate and, that organized crime has committed by any member of the organized syndicate or any person on behalf o syndicate, the provisions of MCOCA be invoked.

81. Therefore, the prosecution to firstly establish that is an organized crime syndicate. It have to satisfy that exists the ingredients of continuing activities. Finally, the Full of Bombay High Court the issue that the term advantage cannot be read as generis with the words pecuniary benefits or undue advantage

82. More so, in case of Sakharam Udhe (Supra), it is that the words in respect of more than one charge-sheet has filed cannot go with the Member of organized crime because in that case, words would have as in respect of whom more one charge-sheet have been A person should be a part of the which jointly undertakes an crime or he may singly as a member of the crime syndicate or on behalf of syndicate undertake an organized In both the situation MCOCA can be

83. It is also observed that in the mentioned above, that the crime committed by a person be a part of continuing unlawful of the organized crime syndicate. The factor is the nexus or the link of a with organized crime The link with the organized syndicate is the crux of the term unlawful activity. If this is not established, that person be roped in. Section 23(1) (a) of the provides a safeguard that no of an offence under

Crl.Rev.P.42/2012 55 of 57 the MCOCA Act should be commenced the approval of the concerned authorities. such an approval is obtained, is commenced. Those who are subsequently to be involved in the commission of the organized can very well be proceeded once sanction is obtained them under Section 23 (2) of

84. Therefore, the offence under must comprise continuing activity relating to organized undertaken by an individual singly or either as a member of the organized syndicate or on behalf of such by use of coercive or other unlawful with the objective of gaining benefits or gaining undue or other advantage for himself or for any person or for promoting insurgency.

85. In the in hand, to satisfy the condition of 2(d) of the Act, prosecution has upon a list of 34 Criminal which are filed against the during the period 1985 to These 34 cases includes one. The prosecution failed to as to whether the offences committed was related to organized crime or Out of remaining 16 cases 2 cases FIR No.183/2006 and 96/2006 pertain to the punishable under Section 25 of the Act, 1959. One case FIR No.09/04 pertain to Section 20 of Act. Therefore, the prosecution to establish that the respondent has an offence either as a member of crime syndicate or on behalf of syndicate. As regards the properties to Section 4 of the MCOCA, the prosecution to show prima facie the respondent was holding the properties above either having a of organized crime syndicate or on of member of any such syndicate.

Page 56 of 57

86. In view of the above submission of ld. Counsel appearing on of the parties and settled law, I no infirmity in the order passed by ld. Judge while discharging the from the provisions of MCOCA. I conquer the same.

87. Accordingly, Rev. 42/2012 is dismissed.

88. In of above order, the interim granted vide order 24.01.2012 in Crl.M.A.No.975/2012 (Stay) vacated and MA stands disposed of.

89. No as to costs.

SURESH KAIT, J

23, 2012

Mk/jg

Crl.Rev.P.42/2012 57 of 57

Volkswagen Gol G4
Volkswagen Gol G4
Volkswagen Gol G4
Volkswagen Gol G4
Volkswagen Gol G4

Interesting Articles

Tagged as:

Other articles of the category "Gol":

Twitter-news
Our partners
Follow us
Contact us
Our contacts

dima911@gmail.com

Born in the USSR

About this site

For all questions about advertising, please contact listed on the site.


Volkswagen all cars catalog with specifications, pictures, ratings, reviews and discusssions about cars Volkswagen.