mcoca-division bench order 26mar09

8/14/2019 MCOCA-Division Bench Order 26mar09

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH, NAGPUR.

CRI. APPEAL NO.308 OF 2002

WITH

CRI.APPEAL NO.317 OF 2002

WITH


WITH

CRI. APPEAL NO.323 OF 2002

WITH


WITH


WITH

CRI.APPEAL NO.374 OF 2002.

CRI.APPEAL NO.308/2002.

Madan S/o. Ramkisan Gangwani,

aged about 35 years, R/o. Itwari Bhaji Mandi,

Nagpur (Dead).

Shamsundar S/o. Ramkisan Gangwani.

.... APPELLANT.

// VERSUS //

The State of Maharashtrathrough A.C.P. Crime Branch,

NAGPUR.

.... RESPONDENT.

---------------------------------------------------------------------------------------------

Shri R.M.Daga, Advocate for the Appellant.

Mrs. Bharti Dangre & Shri S.S.Doifode, A.P.P. for Respondent/State.

---------------------------------------------------------------------------------------------


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WITH


Milind S/o. Wamanrao Kharwade,

aged about 26 years, Occu.: Business,

(Presently lodged in Central Prison,Nagpur) R/o. Itwari Garud Khamb,

Police Station, Nagpur. (Now in Jail)

.... APPELLANT.

// VERSUS //

State of Maharashtra throughA.C.P. Crime Branch, Nagpur.

.... RESPONDENT.

---------------------------------------------------------------------------------------------

Shri J.M.Gandhi, Advocate for the Appellant.


---------------------------------------------------------------------------------------------

WITH


Bablya @ Hemant Narayan Mohite,

Aged 30 yrs., R/o. Rukmini Nagar,

Nagpur.

.... APPELLANT.

// VERSUS //

State of Maharashtra throughA.C.P., Crime Branch, Nagpur.

.... RESPONDENT.

---------------------------------------------------------------------------------------------

Shri Sachin Zoting, Advocate for the Appellant.

Mrs. Bharti Dangre Addl.P.P. &

Shri S.S.Doifode, A.P.P. for Respondent/State.

---------------------------------------------------------------------------------------------


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WITH


Ashok S/o. Inderlal Botnis,aged about 39 years, R/o. Mahal, Nagpur.

.... APPELLANT.

// VERSUS //

The State of Maharashtra

Through A.C.P. Crime Branch, Nagpur.

.... RESPONDENT.

----------------------------------------------------------------------------------------------------

Shri R.S.Renu, Advocate for the Appellant.

Mrs. Bharti Dangre & Shri S.S.Doifode, Addl.P.P. for Respondent/State.----------------------------------------------------------------------------------------------------

WITH


Santosh S/o. Shashikant Ambekar,

aged about 31 years, Occu.: Nil,

R/o. Itwari High School,

Nagpur.

.... APPELLANT.

// VERSUS //


Through A.C.P. Crime Branch,

Nagpur.

.... RESPONDENT.

WITH


1. Shashikant S/o. Damodar Ambekar,

aged about 68 years, Occu.: Business,

2. Sushma W/o. Shashikant Ambekar,

aged 58 years, Occu.: Business.

3. Vandana W/o. Rajkumar Verma,

Aged 35 years, Occu.: Household.


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All R/o. Shanti Road, Itwari,

Nagpur.

4. Mahesh S/o. Mansingh Solanki,Aged 35 years, R/o. Juna Sakkardara,

Nagpur.

5. Ashok S/o. Vishwanath Mathale,

Aged about 43 years, R/o. Mahal,

Nagpur.

.... APPELLANTS.

(Accused Nos.10 to 12, 5 & 6.)

// VERSUS //


Through A.C.P. Crime Branch,

Nagpur.

.... RESPONDENT.

---------------------------------------------------------------------------------------------

Shri R.K.Tiwari, Advocate for the Appellant.

Mrs. Bharti Dangre Addl.P.P. &

Shri S.S.Doifode, A.P.P. for Respondent/State.

---------------------------------------------------------------------------------------------

WITH


Habib Abdul Rashid S/o. Abdul Rashid Rathod,

Aged : 25 years, R/o. Itwari Bhajimandi,

Post : Lakadganj, Nagpur.

.... APPELLANT.

// VERSUS //The State of Maharashtra

through A.C.P. Crime Branch,

Nagpur.

.... RESPONDENT.

---------------------------------------------------------------------------------------------------

Shri A.M.Rizwy, Advocate for the Appellant.


----------------------------------------------------------------------------------------------------


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CORAM: A.H. JOSHI &

R.C.CHAVAN, JJ.

Date of Reserving Judgment : 23.03.2009.

Date of Pronouncing Judgment: 26.03.2009.

JUDGMENT : ( Per : R.C.Chavan, J)

1. This bunch of appeals arise out of judgment dated

17.05.2002, by the learned Judge, Special Court under the Maharashtra

Control of Organised Crime Act, 1999 (hereinafter referred to as

MCOCA for the sake of brevity) in Special Criminal Case No.1 of 2000.

2. Facts, which led to prosecution and conviction of appellants

have been elaborated by the learned Judge, Special Court under MCOC

Act in her painstakingly written judgment. They may be briefly stated as

under :

In Itwari area, which is commercial hub of Nagpur having

large number of jewellers and goldsmiths, a gang led by appellant

Santosh Ambekar (in Criminal Appeal No.324 of 2002) was operating.

This gang indulged in extortion, forcing transfer of properties and other


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criminal acts whereby they amassed huge wealth. Appellant Santosh

was working with builder Anil Ninawe, who was originally a goldsmith.

Ninawe had engaged a commission agent by name Ashok Botnis

(appellant in Criminal Appeal No.323 of 2002) for deals in property.

Santosh and Ashok Botnis, who knew of Anil Ninawe's deals, started

recovering money meant for Anil Ninawe without latter's knowledge.

This led to clashes between Santosh and Anil.

3. On 9-4-1999 after 5.30 p.m., Anil had received a telephonic

warning to save himself. After about 8.05 p.m., 15-16 persons armed

with deadly weapons assaulted Anil Ninawe while he was about to

board his car for returning home. Anil's brother Subhash attempted to

ward off assailants by pelting stones but fled when assailants attacked

him. Anil was lying in a pool of blood. He was taken to Mayo Hospital

but was pronounced dead. An offence was registered against appellant

Santosh and others at Police Station Lakadganj, which has been

separately investigated into, and in which separate chargesheet was

filed.

In the said Sessions Case No.161 of 2000, appellants Santosh,

Babloo and Prakash were acquitted by Court of Sessions on 5-8-2005.


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4. PI Prakash Mahajan submitted a proposal on 20-8-1999 for

permission under Section 23(i)(a) of MCOC Act for registering

information against appellant Santosh under MCOC Act. On 26-9-1999,

necessary permission was granted by the Commissioner of Police,

Nagpur. ACP Kotwali Division was entrusted with investigation.

Accordingly, PI Mahajan registered Crime No.299 of 1999 for offences

punishable under Sections 3 and 4 of MCOC Act and Sections 386, 387,

120-B and 109 of the Penal Code on 26-9-1999 and made over

investigation to ACP Shri Siram.

5. Appellant Santosh was absconding. A search was launched

and a proclamation too was issued. Since Santosh failed to appear, his

properties were attached. Permission to tap telephone connections of

relatives of Santosh was obtained and on the basis of information

received from the intercepts, appellant Santosh was arrested at Mumbai

Airport on 23-7-2000. The intercepts also provided clues about

involvement of other accused.

6. Upon transfer of ACP Siram, investigation was entrusted to

ACP Solanki and after him to ACP Rude. In course of investigation,

other gang members were arrested, interrogated and at their instance


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properties were seized. Inventories of properties amassed were also

drawn up. Criminal record of gang members was collected and on

finding that there was enough evidence of involvement of the accused

persons in offences punishable under Sections 3 and 4 of MCOC Act

along with other offences, permission was sought under Section 23(2) of

MCOC Act to file chargesheet. Upon receipt of such permission,

chargesheet was filed in the Special Court against the following accused

persons (hereinafter referred to by their numbers in Trial Court).:

Sr.

No.

Name of Accused Appeal No. Remarks

1

Santosh Shashikant Ambekar 324/2002

Son of Accused Nos. 1& 11, brother of

Accused No.12.2 Bablu @ Hemant Narayan Mohite 318/2002 -

3 Prakash Namdeo Dhande No Appeal No appeal

4Habib Abdul Rashid S/o. AbdulRashid Rathod

374/2002 -

5 Mahesh Mansingh Solanki 325/2002 -

6 Ashok Vishwanath Matole 325/2002 -

7 Milind Wamanrao Kharwade 317/2002 -

8 Ashok Inderlal Botnis 323/2002 -

9 Madan Ramkisan Gangwani 308/2002

Died after conviction.Appeal allowed to beprosecuted by brotherShamsunder S/o.Ramkisan Gangwani.


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Sr.

No.

Name of Accused Appeal No. Remarks

10Shashikant Damodar Ambekar 325/2002

Father of Accused

No.1, Husband ofAccused No.11.

11Sushma Shashikant Ambekar 325/2002

Mother of AccusedNo.1, wife of AccusedNo.10.

12Vandana Rajkumar Verma

325/2002 Sister of AccusedNo.1, Daughter of

Accused Nos. 10 & 11.

13

Dhananjay @ Dhannu Haribhai

Dusane.

- Acquitted by Trial

Court.

7. After hearing the prosecution and the accused, the learned

Judge, Special Court under MCOC Act charged the accused persons for

offences punishable under Sections 3(1)(i)(ii), 3(2), 3(3), 3(4), 3(5)

and 4 of MCOC Act and Sections 384, 386, 387 and 120-B of the Penal

Code.

8. The accused pleaded not guilty and, therefore, they were put

on trial. The prosecution examined in all 81 witnesses. After

considering their evidence in the light of defence of denial, the learned

Judge, Special Court convicted the appellants of various offences and

sentenced them as indicated below :


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Sr.

No.

Convicted for

offence

punishable

under Sections

Accused

Nos.

Sentence

A 3(1)(i) MCOCAread with 120 BIPC.

1 to 3 Convicted and sentenced to imprisonmentfor life and fine of Rs.One Lac each or indefault imprisonment for 3 years.

B 3(1)(ii) MCOCAread with 120 BIPC.

1 to 7 Rigorous Imprisonment for ten years andfine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

3(1)(ii) MCOCAread with 120 B

IPC.

10 & 11 Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in default

imprisonment for 3 years.C 3(2) MCOCA

read with 120 BIPC.


3(2) MCOCAread with 120 BIPC.

10 to 12 Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

D 3(4) MCOCA read with 120 BIPC.



10 to 12 Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

E 3(5) MCOCA read with 120 BIPC.

1, 4 & 7 Rigorous Imprisonment for ten years andfine of Rs.Two Lacs each or in defaultimprisonment for 2 years.


8 & 9 Rigorous Imprisonment for ten years andfine of Rs.Two Lacs each or in defaultimprisonment for 3 years.


10 & 11 Rigorous Imprisonment for seven yearsand fine of Rs.Two Lacs each or in defaultimprisonment for 2 years.

F 4 MCOCA readwith 120 B IPC.

1, 8 & 9 Rigorous Imprisonment for ten years andfine of Rs.One Lac each or in defaultimprisonment for 2 years.


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Sr.

No.

Convicted for

offence

punishable

under Sections

Accused

Nos.

Sentence

4 MCOCA readwith 120 B IPC.

4, 10 &11

Rigorous Imprisonment for seven yearsand fine of Rs.One Lac each or in defaultimprisonment for 2 years.

G 3(i)(ii) MCOCA,384 IPC read

with 120 B IPC. 1

Rigorous Imprisonment for ten years andfine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

3(i)(ii) MCOCA,384 IPC read

with 120 B IPC.

2 to 9 Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in default

imprisonment for 2 years.3(i)(ii) MCOCA,384 IPC read

with 120 B IPC.

10 & 11 Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

H 3(i)(ii) MCOCA,384, 387 IPCread with 120 BIPC.

1, 2, 10& 11

Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

3(i)(ii) MCOCA,384, 387 IPC

read with 120 BIPC. 3 to 8

Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in default

imprisonment for 2 years.

3(i)(ii) MCOCA,384, 387 IPCread with 120 BIPC. 10 to 12

Rigorous Imprisonment for seven yearsand fine of Rs.Five Lacs each or in defaultimprisonment for 3 years.

9. She acquitted accused No.13 of all the offences for which he

was charged. All the accused were acquitted of offence punishable

under Section 386 read with Section 120-B of the Penal Code. Accused

Nos.1 to 9 were acquitted of offence punishable under Section 3(3) of

MCOC Act read with Section 120-B of the Penal Code. Accused Nos.2, 3,


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5, 6 and 12 were acquitted of offences punishable under Section 3(5)

and 4 of MCOC Act. Accused Nos.5, 6 and 8 to 12 were acquitted of

offences punishable under Section 3(1)(i) of MCOC Act read with

Section 120-B of the Penal Code. Accused No.12 was acquitted of

offences punishable under Section 3(1)(ii) of MCOC Act read with

Section 120-B and Sections 384 and 386 read with Section 120-B of the

Penal Code.

10. Aggrieved by their convictions, appellants have preferred

these appeals. We have heard the learned counsel for appellants as also

the learned Additional Public Prosecutor for State and with their help

have gone through the record.

11. As far as offences punishable under Sections 3(1)(i) and

3(1)(ii) of MCOCA, the learned counsel for appellants contended that

the learned trial judge had held those offences as proved by ignoring the

ingredients of organised crime. According to them :

(i) Evidence in respect of previous charge sheets filed

before MCOCA came into force would, at worst,

provide background, but would not help in holding

appellants guilty of an offence which was not on

statute book when those offences were registered;


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(ii) Previous charge sheets unrelated to offences for

pecuniary or other gain were not relevant;

(iii) Previous charge sheets unrelated to offences committed

by use of force were likewise not relevant;

(iv) oral evidence of witnesses in relation to incidents

covered by charge sheets already filed and trials

separately held was irrelevant and inadmissible;

(v) oral evidence in respect of incidents which were not

referred to in the FIR under MCOCA was irrelevant and

inadmissible ;

(vi) Evidence in respect of previous charge sheets may at

worst prove involvement in continuing unlawful

activity, but not organised crime;

Therefore, they contended that there was really no evidence

to prove complicity of appellants. The learned Additional Public

Prosecutor contested this submission and contended that there was

enough evidence to prove the charges.

12. Before going to evaluation of evidence in light of above

points, it may be useful to mention that out of 81 witnesses, confidential


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witness Nos. 1 to 8 who were examined as P.W. 1 to 7 and 10 have

refused to support the prosecution leading to failure to prove the charge

Sixthly. They are all businessmen in Sarafa Area of Itwari Nagpur.

Likewise, P.W. 12 Sanjay Khule has also refused to support the

prosecution leading to failure to prove the charge Ninethly. P.W. 45

Rajesh Gadekar who was supposed to be panch witness at Exh.366

turned hostile. P.W. 50 Arvind Jaiswal who was supposed to state that

appellant Santosh Ambekar took away TV set and VCR, turned hostile

and refused to support the prosecution. P.W. 54 Mohd. Sabir Mohd.

Issar who was supposed to be panch at seizure vide Exh.527, turned

hostile. Significance of evidence of P.W. No.35 Rahat Irshad is not at all

clear. He only states that Habib Rathod took a room on rent, paid rent

to him and nothing is due from Habib Rathod. Though, even evidence

of hostile witnesses can be considered, the evidence of these witnesses is

unhelpful to support cases of prosecution as well as defence.

13. P.W. 13 Girish Ingale has tendered evidence about his

daughter's kidnapping about 9 to 10 years ago by Santosh Ambekar and

others in respect of which offence a trial had taken place in the Court of

Sessions at Khamgaon bearing Criminal Case No.17/1992 in which

appellant Santosh Ambekar was convicted. There is no dispute about


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! "

this. This was long before MCOCA was enacted. Though technically

this could be taken as an instance where chargesheet in respect of an

offence punishable with imprisonment for more than 3 years was filed

and congnizance taken within the preceding ten years it seems to be an

isolated incident unconnected with any crime syndicate.

14. In order to prove charge firstly i.e. offences punishable

under Sections 3(1)(i) & 3(1)(ii) of MCOCA read with Section 120B of

IPC, among others, the prosecution examined P.W. 56 P.S.I. Govind

Tamhankar who stated that, as directed by ACP Rude, he collected

certified copies of 15 chargehseets Exh.572 to 585 from various courts

and Record Section of District Court, Nagpur and handed them over to

ACP Rude. P.W. 65 P.I. Hirachand Umbarkar stated that ACP Rude had

asked him to furnish information about MPDA proceedings against the

accused Santosh vide letter at Exh.649. Similar request was made about

accused Bablu Mohite and Mahesh Solanki. He stated that he furnished

necessary documents vide letter Exh.650 and the documents are at

Exh.651 to 665. Though documents in respect of other crimes referred

to in the charge could not be located, from the charge, as well as copies

of chargsheets filed on record, chargesheeting of the appellants is

indicated in the following offences :


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$ %

CHART SHOWING INVOLVEMENT OF ACCUSED

IN SPECIAL CRI.CASE NO.1/2000.

Sr.

No.

Name of

Police

Station/

Crime No.

Section Cri.

Case

No.

Date of

incident

Which

accused

was

involved

Result Remarks

1 2 3 4 5 6 8 9

1

Kotwali

170/88

395, 324,

323 IPC

266/88 A-2

2

Kotwali

126/89

406, 420, 32

IPC

58/90

08/04/89

A-1 Acquitted

3

Kotwali

60(667)/90

343, 427, 34

IPC

69/90 A-2

4

Kotwali

166/90

294, 506 IPC 329/90 A-2

5

Kotwali

271/90

294, 506-B

IPC

160/91 A-2

6 Nandura,

Distt.

Buldana

153/91

363, 376

IPC, r/w

4/25 Arms

Act.

17/92

06/04/88

A-1 Acquitted

7

Lakadganj

697/91

147, 148,149, 323 IPC

108/92

08/12/91

A-1, A-4 Not Known PW 17RavindraParaspure

8

Dhantoli

235/91

342, 395,

114 IPC

357/91 20-7-91 A-2

9

Kotwali

343/91

134, 148,

149, 143,506 IPC & 4Explosive Act

277/91 20-7-91 A-2, A-5 Not Known

10

Sakkardara

266/91

135 B.P. Act. A-2

11

Dhantoli

235/91

395, 342

IPC

A-2


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& '

Sr.

No.

Name of

Police

Station/

Crime No.

Section Cri.

Case

No.

Date of

incident

Which

accused

was

involved

Result Remarks

12

Mouda

181/91

147,148,149,302,324 IPC

267/92 A-2, A-5 Acquitted

13

Ramtek

203/91

364, 365,

368 r/w 34

A-2, A-5

14

Lakadganj

750/92

294, 506-B

IPC

210/93 14-9-92 A-1 Not Known

15

Lakadganj

277/94

147, 148,149, 307 IPC

148/05

09/05/94

A-1, A-4,A-7

Pending PW 22Jayant

Wankar

16

Lakadganj

130/94

332, 354 r/w34 IPC

196/94 21-2-94 A-1 Not Known

17

Kotwali

163/94

324 IPC 308/94 A-2

18

Sakkardara

418/95

324, 326, 34

Arms IPC

A-2

19

Imamwada 185 M.V. Act 180/95

(99)

A-5 Acquitted

20

Sakkardara

35/96

392, 435 34

IPC

113/96 -

15.01.96

A-5 Acquitted

19.4.99

21

Kotwali

226/96

324, 34 IPC 304/96 A-2

22

Kotwali

471/96

392, 34 IPC 45/97 26.11.96 A-2, A-5

23

Sakkardara

360/96

324,34 IPC 248/96 A-5 Pending

24

Sakkardara

197/97

394, 448,

427 r/w 34

IPC

267/97

06/04/97

A-3 A-5 Acquitted

25-2-99

25

Kotwali

336/97

452, 448,

294, 506 IPC

137/98 A-2

26

Sakkardara

28/97

4/25 Arms

Act

A-2

27

Sakkardara

416/97

265, 342,136, 506 IPC

A-2


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) 0

Sr.

No.

Name of

Police

Station/

Crime No.

Section Cri.

Case

No.

Date of

incident

Which

accused

was

involved

Result Remarks

28

Tahsil

226/1997

392, 34 IPC A-2

29

Kotwali

24/97

135 B.P. Act 50/97 A-5

30

Imamwada

7/97

142 B.P. Act 179/97 A-5

31

Lakadganj

387/99

392, 506-II,34 IPC

109/00 23-9-98 A-1 Pending

32

Lakadganj116/99

302, 34 IPC,4/25 Arms

Act, 135 B.P.Act

377/99

09/04/99

A-1, A-2,A-3

Acquittedon 5-8-05

PW 18SubhashNinawe

33

Tahsil

290/99

399 IPC,4/25 Arms

Act, 135 B.P.Act

285/01 18-9-09 A-1, A-3,A-5, A-6.

Acquittedon 5-3-05

34

Kotwali

375/99

307, 34 IPC 117/00 18-10-99

35

Tahsil

3054/99

294, 506,

323 IPC

79/99 24.04.99 A-4 PW 11

RajeshSaxena

36

Deolapar

15/00

302, 201 r/w34

A-1, A-2,A-4

DischargedunderSection169 ofCr.P.C.

Cognizancenot taken

15. This chart will show that :

(i) Accused Nos. 8 to 12 are not involved in any criminal

activity prior to the recording of information in respect

of present crime of MCOCA. Accused No.7 was

involved only in crime at Sr.No.15 in the chart i.e.

Crime No.277/1994 of Police Station, Lakadganj.


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1 2

(ii) Crimes at Sr.Nos. 1 to 31 were committed prior to date

when MCOCA came into force.

(iii) Out of the remaining crimes, in crime at Sr.Nos. 32 &

33, the accused have been acquitted after the judgment

under challenge was delivered.

(iv) In crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23,

25, 26, 29, 30, 32, 34, 35, 36 appellants are not

arraigned for gaining or attempting to gain any

pecuniary benefits, or undue economic / other

advantage, or for promoting insurgency.

(v) only crime allegedly committed after MCOCA came

into force with the object of gaining pecuniary/ other

advantage by use of force is crime of Sr.No.33, being

Crime No.290/99 at P.S. Tahsil for offence of preparing

to commit a dacoity, punishable under Section 399 of

the Indian Penal Code and Section 4/25 of the Arms

Act for which accused were acquitted on 05.03.2005 in

Criminal Case No.285/2001.

16. The learned counsel for the appellants relied on a judgment

of the Supreme Court in S.K. Sinha, Chief Enforcement Officer v. Videocon

International Ltd. and others, reported at (2008) 2 SCC 492, on the


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3 4

question as to what amounts to taking cognizance of offences under

FERA 1972 within two years of coming into force of FEMA on 1-6-2000.

The Chief Metropolitan Magistrate had by his order dated 24-5-2002

(i.e. within two years from 1-6-2000) taken cognizance. Summons

which was made returnable on 7-2-2003 was actually issued

on 3-2-2003.

17. The Court took a review of several judgments on the point.

In paras 36 and 37, the Court distinguished between issuing process

and taking cognizance and held that issuing process was a sequel to

taking cognizance. It is not clear as to how this judgment would help

appellants. In respect of past chargesheets, except Sr.No.36, Crime

No.15/2000 of Police Station, Deolapar, it is not shown that cognizance

was not taken or processes were not issued. On the other hand, some of

those cases seem to have culminated in acquittals or convictions. Crime

No.15 of 2000 of Police Station Deolapar, would, however, have to be

excluded.

18. Coming next to the question of relevance of evidence about

charge sheets filed before MCOCA was enacted it may be seen from

judgment in Appa @ Prakash Haribhau Londhe v. State of Maharashtra


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6 7

and Anr., reported at 2006 ALL MR (Cri.) 2804, that their significance

is limited. The Court observed as under in paragraph 10 of the

judgment :

10. For the purpose of organised crime there has to be a

continuing unlawful activity and there cannot be

continuing unlawful activity unless at least two charge-

sheets are to be found to have been lodged in relation to

the offence punishable with three years imprisonment

during the period of ten years. If no illegal activities as

contemplated by MCOC Act are committed after 1999,

then the past activities prior to 1999 may not be of any

help for registering any FIR only on the basis of those past

activities as has been observed by the Division Bench

(R.M.S. Khandeparkar and P.V. Kakade, JJ.) of this court

in Writ Petition No.689 of 2005 and other petitions, but

if two or more illegal activities are committed after 1999,

then the past activities can be taken into consideration in

order to show the continuity. We are therefore not in

agreement with the submissions made by Mr. Pradhan

that on the date of registration of FIR against the petitioners they had not committed any act, as

contemplated.

There can be no quarrel with these findings.

19. On the question of significance of pecuniary gain, the

learned counsel relied on the judgment in Sherbahadur Akram Khan &

ors. Vs. State of Maharashtra, reported at 2007(1) Bom.C.R.(Cri.) 26 =

2006 ALL MR 2895. A Division Bench of this Court was considering the

appeals filed by the accused challenging orders rejecting their


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9 9

applications for discharge for the offence punishable under MCOC Act.

The Court considered statement of objects and reasons, definition and

other provisions of the Act and observed as under :

10. ..... An activity would be termed as a continuing

unlawful activity if more than one charge-sheet has been

filed before the competent Court against the members of

the gang either individually or jointly within the

preceding ten years. However, it must be established

that such an offence or unlawful activity is undertaken

by a person with the objective of gaining pecuniary

benefits or gaining undue economic or other advantage

for himself or any other person or for promoting

insurgency. Such unlawful activity could include the use

of violence or threat of violence or intimidation or

coercion.

11. Taking into consideration the details of the

various charge-sheets which have been filed by the

prosecution and admitted by the learned A.P.P., it isobvious that some of the accused have been charged for

offences which can, by no stretch of imagination, be

considered to give the accused any pecuniary or undue

economic or other advantage, either for the accused

himself or for any other person. Offences punishable

under sections 323, 324, 325 and 326 read with 34 are

not such as would provide any pecuniary benefit or

undue economic gain to the accused. Some of these

offences have resulted from a quarrel at a public water

tap. Fist blows have been allegedly used by the accusedin most of the cases whereas in one or two instances the

accused has allegedly used a chopper or an iron rod to

assault the victim. ...

12. Apart from this, as aforesaid, the unlawful

activity is not relatable to any pecuniary advantage or

economic gain for the accused. The words in section


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2(e) with the objective of gaining pecuniary benefits or

gaining undue economic or other advantage will have

to be given some effective meaning. Applying the

principle of ejusdem generis the words other advantagewould have to be interpreted in the same manner as the

previous terms pecuniary benefits or undue economic

advantage. A quarrel at a water tap which resulted in

violence cannot be an offence which falls within this

definition. Assaults on some persons also cannot be

considered as offences which have been undertaken for

pecuniary gain or undue economic advantage......

20. In view of this, it cannot be disputed that unless the crime

was aimed at pecuniary or other like advantage, it would be of no avail

for proving offence of oganised crime.

21. The learned Additional Public Prosecutor referred to the long

title of the Act, which reads as under :

An Act to make Special Provisions for

Prevention and Control of Organized Crime and for

coping with, Criminal Activity by Organized Crime

Syndicate or Gang, and for matters connected therewith

or incidental thereto.

She also took us through painstakingly collected resources

from the internet on the definition of organised crime in various

jurisdictions abroad. She submitted that these resources would

highlight the concern of civilized society world over to combat organised

crime. In this light, she argued that various terms in MCOC Act would


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need a broader interpretation which would advance the object of the Act

as indicated in the long title. She submitted that this unusual law had to

be enacted to overcome the threat from organised crime to the very

existence of civilized society. In view of this, according to her, the

definition of organised crime, contained in Section 2(e) of the Act ought

to be considered only as an internal or intrinsic aid to interpretation and

not as limiting or restricting the meaning of organised crime.

22. As rightly countered by her learned adversaries, clinches and

platitudes have no place while judging conduct of a person which is

alleged to be a serious crime attracting heavy punishment. They

submitted that merely because long title of the Act also mentions that

the Act was passed to prevent and control organised crime, it would not

be open to first presume that a person is involved in organised crime

because police say so and then deprive him of his liberty. They

submitted that the manner in which the provisions of this stringent law

has to be interpreted is no longer res integra and the Apex Court in Lalit

Somdatta Nagpal v. K.K. Pathak, reported at 2005 ALL MR (Cri) 2164=

(2007) 4 SCC 171, has categorically held that the provisions need to be

constructed strictly. Thus read, in view of judgment Sherbahadur Akram

Khan, crimes at Sr.Nos. 3 to 7, 9, 10, 12, 14 to 19, 21, 23, 25, 26, 29,


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30, 32, 34, 35 and 36 would be unhelpful in establishing offence of

organised crime. As already pointed out in view of judgment in Appa

Londhe, crimes at Sr.Nos. 1 to 31, having been committed prior to

coming into force of MCOCA can only provide a background and cannot

in themselves constitute organised crime; leaving only crime at Sr.No.33

in the chart as relevant for the present purpose. Even so, independently

of this, we would be examining contentions advanced by the State in

respect of the crime chart.

23. In Raipur Development Authority Vs. Anupam Sahkari Sanstha,

reported at (2000) 4 SCC 357 on which the learned Additional Public

Prosecutor relied, the Supreme Court was interpreting the provisions of

the M.P. Town and Country Development Act, 1973. It considered the

mischief rule in Heydon's case and observed in para 16 as under :

16. Whenever there are two possible

interpretations, the one which subserves to the

intent of the legislature is to be accepted. The

object of the aforesaid Act is for planned

development and thus the interpretation, whichupholds any such scheme should be followed.

Heydon's principle is now well recognised in

interpreting any enactment. It lays down that

courts must see (a) what was the law before

making of the Act; (b) what was the mischief or

defect for which the law did not provide; (c) what

is the remedy that the Act has provided; (d) what is

the reason of the remedy. It states that courts must


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11. ... The statute shall have to be

considered in its entirety and picking up of one

word from one particular provision and thereby

analysing it in a manner contrary to the statementof objects and reasons is neither permissible nor

warranted. ... Statement of objects and reasons is

undoubtedly an aid to construction but that by

itself cannot be termed to be and by itself cannot be

interpreted. It is a useful guide but the

interpretations and the intent shall have to be

gathered from the entirety of the statute and when

the language of the sections providing an appeal to

a forum is clear and categorical no external aid is

permissible in interpretation of the same.

26. The learned APP rightly submitted that it would be necessary

to interpret the provisions concerned after reading the statute as a whole

in a manner which would fulfill the purpose for which the statute is

enacted. The Statement of Objects and Reasons for which Maharashtra

Control of Organised Crime Act is enacted reads as under :

Organised crime has for quite some years now come

up as a very serious threat to our society. It knows

no national boundaries and is fueled by illegal

wealth generated by contract killings, extortion,

smuggling in contrabands, illegal trade in

narcotics, kidnappings for ransom, collection of

protection money and money laundering, etc. theillegal wealth and black money generated by the

organised crime is very huge and has serious

adverse effect on our economy. It is seen that the

organised criminal syndicates make a common

cause with terrorist gangs and foster narco

terrorism which extend beyond the national

boundaries. There is a reason to believe that


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organised criminal gangs are operating in the State

and thus, there is immediate need to curb their

activities.

It is also noticed that the organizedcriminals make extensive use of wire and oral

communications in their criminal activities. The

interception of such communications to obtain

evidence of the commission of crimes or to prevent

their commission is an indispensable aid to law

enforcement and the administration of justice.

2. The existing legal frame i.e. the penal

and procedural laws and the adjudicatory system

are found to be rather inadequate to curb or

control the menace of organised crime.

Government has, therefore, decided to enact a

special law with stringent and deterrent provisions

including in certain circumstances power to

intercept wire, electronic or oral communication to

control the menace of the organised crime.

27. The Act then defines various terms used in Section 2 of the

Act. The definitions of continuing unlawful activity, organised crime

and organised crime syndicate contained in Section 2(d), (e) and (f),

which are relevant may be reproduced as under :

Sec.2(d) : Continuing unlawful activity means

an activity prohibited by law for the time being in

force, which is a cognizable offence punishable withimprisonment of three years or more, under-taken

either singly or jointly, as a member of an

organised crime syndicate or on behalf of such

syndicate in respect of which more than one

charge-sheets have been filed before a competent

Court within the preceding period of ten years and

that Court has taken cognizance of such offence;


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(e) : organised crime means any continuing

unlawful activity by an individual, singly or

jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of

violence or threat of violence or intimidation or

coercion, or other unlawful means, with the

objective of gaining pecuniary benefits, or gaining

undue economic or other advantage for himself or

any other person or promoting insurgency;

(f) : organised crime syndicate means a group of

two or more persons who, acting either singly or

collectively, as a syndicate or gang indulge in

activities of organised crime. (Emphasis supplied).

28. Other clauses define terms 'abet', 'Code', 'Competent

Authority' and 'Special Court'.

29. Section 3 of the Act provides for punishment for organised

crime in the following words :

3. Punishment for organised crime

(1)Whoever commits an offence of organised crime shall

(i) if such offence has resulted in the death of any

person, be punishable with death or

imprisonment for life and shall also be liable to

a fine, subject to a minimum fine of rupees one

lac;

(ii) in any other case, be punishable with

imprisonment for a term which shall not be less

than five years but which may extend to


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imprisonment for life and shall also be liable to

a fine, subject to a minimum fine of rupees five

lacs.

(2) Whoever conspires or attempts to commit or

advocates, abets or knowingly facilitates the commission

of an organised crime or any act preparatory to

organised crime, shall be punishable with imprisonment

for a term which shall be not less than five years but

which may extend to imprisonment for life and shall

also be liable to a fine, subject to a minimum fine of

rupees five lacs.

(3) Whoever harbours or conceals or attempts to

harbour or conceal, any member of an organised crime

syndicate shall be punishable with imprisonment for a

term which shall not be less than five years but which

may extend to imprisonment for life, and shall also be

liable to a fine, subject to a minimum fine of rupees five

lacs.

(4) Any person who is a member of an organised crime

syndicate shall be punishable with imprisonment for aterm which shall not be less than five years but which

may extend to imprisonment for life and shall also be

liable to a fine, subject to a minimum fine of rupees five

lacs.

(5) Whoever holds any property derived or obtained

from commission of an organised crime or which has

been acquired through the organised crime syndicate

funds shall be punishable with a term which shall not be

less than three years but which may extend toimprisonment for life and shall also be liable to fine,

subject to a minimum fine of rupees two lacs.

(Emphasis supplied)


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30. Section 4 prescribes punishment for possessing

unaccountable wealth. Sections 5 to 12 provide for constitution of

Special Courts, their jurisdiction and powers, public prosecutor,

procedure, appeals, etc.

31. Section 13 provides for appointing a competent authority for

authorizing interception, etc. under Section 14. Section 15 prescribes

that such authorisation shall be reviewed by a Committee constituted

under clause (2). Section 16 enacts safeguards to prevent abuse by

prescribing punishment for such abuse. Section 17 contains special

rules of evidence. Section 18 makes certain confessions admissible.

Section 19 ensures protection of witnesses. Section 20 provides for

forfeiture and attachment of property. Section 21, modifies provisions

in the Code relating to grant of bail and custody for the purpose of

investigation of offences under MCOCA. Section 22 mandates that the

Court shall presume that the accused had committed such offence if

material is proved to have been seized from possession of accused and

there is a reason to believe that such material was used in commission

of such offence, etc. As to cognizance and investigation, Section 23

provides as under :


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23. Cognizance of, and investigation into, an

offence.-- (1) Notwithstanding anything contained

in the Code,--

(a) no information about the commission of an

offence of organised crime under this Act, shall be

recorded by a police officer without the prior

approval of the police officer not below the rank of

the Deputy Inspector General of Police;

(b) no investigation of an offence under the

provisions of this Act shall be carried out by a

police officer below the rank of the Deputy

Superintendent of police.

(2) No Special Court shall take cognizance of

any offence under this Act without the previous

sanction of the police officer not below the rank of

Additional Director General of Police.

32. Section 24 provides for punishment to public servant failing

to discharge their duties. Section 25 gives overriding effect to provisions

of the Act. Section 26 protects actions taken in good faith. Section 27

requires the State Government to place before the Legislature an annual

report about interception. Sections 28 and 29 give power to make rules

and Section 30 is repeal and savings clause.

33. After this survey of all the provisions of MCOCA, it may be

useful to have one more look at the relevant definitions in Section 2 of

the Act. The learned APP relied on the judgments in Ranjitsing


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e e

Brahmajeetsing Sharma v. State of Maharashtra and another, rendered

by a learned Single Judge of this Court and reported at 2004 ALL MR

(Cri) 2899, and one reported at 2005 Cri.L.J. 2533, rendered by the

Supreme Court in the context of grant of bail, where the definitions had

been considered.

34. In Ranjitsingh's case the learned Single Judge observed that

the definitions, though intertwined in a cyclic order, are clear and

unambiguous. Even the Apex Court in Bharat Shah's case ( 2008 AIR

SCW 6431) observed that the definitions were not vague and they

defined the terms with clarity. It would, therefore, follow that each

ingredient in the definitions, or the alternative thereof provided by the

definitions themselves, would have to be proved. Viewed thus, for

charging a person of organised crime or being a member of organised

crime syndicate, it would be necessary to prove that the persons

concerned have indulged in:

(i) an activity,(ii) which is prohibited by law,

(iii) which is a cognizable offence punishable with

imprisonment for three years or more,

(iv) undertaken either singly or jointly,

(v) as a member of organised crime syndicate i.e. acting as a


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f g

syndicate or a gang, or on behalf of such syndicate.

(vi) (a) in respect of similar activities (in the past) more than

one charge sheets have been filed in competent court

within the preceding period of ten years,

(b) and the court has taken cognizance of such offence.

(vii) the activity is undertaken by :

(a) violence, or

(b) threat of violence, or intimidation or

(c) coercion or

(d) other unlawful means.

(viii)(a) with the object of gaining pecuniary benefits or

gaining undue or other advantage or himself or any

other person, or

(b) with the object of promoting insurgency.

35. In Ranjitsingh the Courts had considered what amounts to

other unlawful means in Section 2(1)(e) of MCOC Act. The learned

Single Judge of this Court had held in paras 28, 29 and 30 as under :

28. It is thus clear that the general words

must ordinarily bear their natural and larger

meaning and need not be confined to ejusdem generis

to things previously enumerated unless the language

of the statute spells out an intention to that

effect. ...


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29. The specific enumeration in section

2(1)(e) are use of violence, threat of violence,

intimidation, coercion and the general words otherunlawful means. There is no difficulty in

understanding what is meant by violence, use of

violence or threat of violence. But on the basis of

this enumeration, it is clear that they are contiguous

to the class to which they all belong. All these

enumerations are in relation to bringing about

pecuniary benefits or undue advantages by actual or

threatened pressures being applied to

individuals. ...

30. Having regard to the definitions of words

coercion in the Contract Act and intimidation in

IPC, when we take close look at the language of

section 2(1)(e), one finds that the general words viz.

other unlawful means were intended to receive

their wide meaning and were not to be construed in

a limited sense with the aid of ejusdem generis rule,

more particularly when we read those words in the

light of the Statement of Objects and Reasons ofMCOCA. ... It is thus clear that the expression other

unlawful means as occur in section 2(1)(e) of

MCOCA, which defines organised crime must be

given their natural wide meaning to cover each and

every kind of unlawful activity referred to in the

Statement of Objects and are not to be construed in a

limited sense with the aid of ejusdem generis rule

so as to defeat the object of the Act.

36. While considering the same aspect, the Apex Court held that

the words unlawful means cannot be so widely construed as to include

any unlawful means. The Court observed in paras 31, 32 and 33 of the

judgment as under :


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31. Interpretation clauses contained in

Sections 2(d), 2(e) and 2(f) are inter-related. An

'organised crime syndicate' refers to an 'organised

crime' which in turn refers to 'continuing unlawfulactivity'. As at present advised, it may not be

necessary for us to consider as to whether the words

or other lawful means contained in Section 2(e)

should be read ejusdem generis/noscitur-a-socils

with the words (i) violence, (ii) threat of violence,

(iii) intimidation or (iv) coercion. We may,

however, notice that the word 'violence' has been

used only in Sections 146 and 153A of the Indian

Penal Code. The word 'intimidation' alone has not

been used therein but only Section 506 occurring in

Chapter XXII thereof refers to 'criminal intimidation'.

The word 'coercion' finds place only in the Contract

Act. If the words 'unlawful means' is to be widely

construed as including any or other unlawful means,

having regard to the provisions contained in Sections

400, 401 and 413 of the IPC relating to commission

of offences of cheating or criminal breach of trust,

the provisions of the said Act can be applied, which

prima facie, does not appear to have been intendedby the Parliament.

32. The Statement of Objects and Reasons

clearly state as to why the said Act had to be

enacted. Thus, it will be safe to presume that the

expression 'any unlawful means' must refer to any

such act which has a direct nexus with the

commission of a crime which MCOCA seeks to

prevent or control. In other words, an offence falling

within the definition of organised crime andcommitted by an organised crime syndicate is the

offence contemplated by the Statement of Objects

and Reasons. There are offences and offences under

the Indian Penal Code and other penal statutes

providing for punishment of three years or more and

in relation to such offences more than one charge-

sheet may be filed. As we have indicated


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hereinbefore, only because a person cheats or

commits a criminal breach of trust, more than once,

the same by itself may not be sufficient to attract the

provisions of MCOCA.

33. Furthermore, mens rea is a necessary

ingredient for commission of a crime under MCOCA.

(Emphasis supplied)

Thus the Court had reversed the findings of the Bombay High

Court.

37. According to the learned Additional Public Prosecutor, the

observations of the Court in para 31 above, cannot be taken to mean

that ejusdem generis rule can be applied for interpreting the expression

other unlawful means. She pointed out that the Apex Court had

specifically observed that it was not necessary for the Court at that point

of time to decide whether the words other unlawful means should be

read ejusdem generis. We are afraid that this caveat in para 31 cannot

permit us to ignore observations that follow in paras 31 and 32. Even if

the Apex Court is taken to have not decided the question, the Court did

consider arguments advanced and did make observations which would,

in any case, bind this Court as dicta of the Apex Court.


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38. Therefore, as observed by the Apex Court, offences like

cheating or criminal breach of trust which have an element of passivity,

but not feeling of being rendered helpless, cannot come within the

sweep of activities covered in the expression by used of violence ....

etc. This helplessness on account of various factors enumerated in the

said clause is the crux of offence of organised crime. The learned

Additional Public Prosecutor submitted that the word coercion used in

the clause is not to be read as cognate of term violence or threat of

violence but as understood in the Law of Contract as cognate of

coercion, undue influence and fraud. Violence implies use of greater

degree of force as defined in Sections 349 and 350 of the Penal Code.

Intimidation referred to in the clause need not be criminal

intimidation as defined in Section 503 of the Penal Code. These

expressions have to be understood as indicating use of physical or

mental force to make the victim succumb to do something which will

result in pecuniary or other advantage to the accused or others at his

behest.

39. The learned counsel for appellants submitted that this would

also eliminate recourse to crime at Sr.No.33 in the chart, since it is an

offence of being caught while preparing to commit a dacoity, since an


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actual offence was not committed. They also point out that in respect of

this offence appellants concerned have been acquitted by the competent

Court on 05.08.2005.

40. The learned Additional Public Prosecutor rightly submitted

that conviction or acquittal are not relevant and for this purpose relied

on observations in judgments in Bharat Shah's case [2003 ALL MR (Cri)

1061 (para 27) and 2008 AIR SCW 6431] on which even the learned

counsel for appellants had placed reliance.

41. Since conviction or acquittal in a case previously filed are

irrelevant, it would be unnecessary to look into evidence in respect of

such crimes tendered in the present trial. The learned counsel for

appellants has sought to assail admissibility of such evidence on the twin

grounds of double jeopardy and possibility of two courts coming to

contradictory findings in respect of same incident. It may be seen that

though constitutionality of MCOCA on the ground of retrospective

criminalisation and violations of articles 14 and 21 was challenged, the

question of double jeopardy was not judicially decided.


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42. The learned counsel for the appellants further submitted that

treating continuing unlawful activity as synonymous with organised

crime by convicting a person merely on the basis of cognizance taken in

more than one chargesheet would violate the mandate of Articles 21

and 14 as also Article 20(2) of the Constitution and for this purpose

cited the following authorities :

43. In S. Krishnan and others v. The State of Madras and another,

reported at AIR 1951 SC 301, the Court was considering the provisions

of Article 22 of the Constitution and Preventive Detention

(Amendment) Act, 1951. The learned counsel for the appellants have

referred to the observations of the minority judgment of Justice Vivian

Bose in para 43 of the judgment. Though contained in minority

judgment, there should be no dispute about the principle enunciated

therein, namely, that it is the duty of the Courts to ensure that the right

and the guarantee (in Article 22) are not rendered illusory and

meaningless and wherever there is a scope for difference of opinion on

a matter of interpretation, the interpretation, which favours the subject,

must always be used and the doubts, if any, must be resolved in favour

of the subject.


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44. In Smt. Maneka Gandhi v. Union of India and another,

reported at AIR 1978 SC 597, the celebrated decision on procedural

due process, the Court had considered inter-relationship between

Articles 14, 19 and 21 and observed that the law must be taken to be

well settled that Article 21 does not exclude Article 19 and that even if

there is a law prescribing a procedure for depriving a person of personal

liberty and there is consequently no infringement of the fundamental

right conferred by Article 21, such law in so far as it abridges or takes

away any fundamental right would have to meet the challenge of

articles 14 and 19. Referring to the judgment of the Supreme Court in

R.C. Cooper v. Union of India, reported at AIR 1970 SC 564, the Court

reiterated the need to satisfy the requirements of other fundamental

rights such as Article 19 even if law of preventive detention passes the

test of Article 22.

45. In Bachan Singh v. State of Punjab, reported at AIR 1982 SC

1325, which reported a minority view of Bhagwati, J., on which the

learned counsel for the appellants placed reliance, it was observed in

para 10, the rule of law permeates the entire fabric of the Constitution

and indeed forms one of its basic features. ... 'Law' in the context of rule of

law does not mean any law enacted by the legislative authority, howsoever


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arbitrary or despotic it may be. ... What is a necessary element of rule of

law is that the law must not be arbitrary or irrational and it must satisfy

the test of reason and the democratic form of polity seeks to ensure this

element by making the framers of the law accountable to the people. (The

majority view is to be found atAIR 1981 SC 898).

46. In Olga Tellis and others v. Bombay Municipal Corporation

and others, reported at AIR 1986 SC 180, on which the learned counsel

for the appellants placed reliance, the Court was considering the right of

pavement dwellers and in this context held that the procedure

prescribed by any law for deprivation of right conferred by Article 21

must be fair, just and reasonable. In para 40, the Court held that the

substance of the law cannot be divorced from the procedure which it

prescribed, for, how reasonable the law is, depends upon how fair is the

procedure prescribed by it.

47. It is not necessary to dwelve at length on the submissions

made in relation to violation of Articles 21 and 14 of the Constitution.

These aspects were duly considered in Bharat Shah's case by a Division

Bench of this Court which read the provisions in order to ensure that

they do not offence the constitutional guarantees by holding that


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continuing unlawful activity is relevant only to see the antecedents of

the person and not to convict. This part of the judgment of this Court is

left undisturbed by the Apex Court. Observations of another Division

Bench while considering challenge based on Article 20(1) of the

Constitution in Jaisingh Ashrfilal Yadav [2003 ALL MR (Cri) 1506] are

equally apposite.

48. In State of Tamil Nadu and others v. S. Nalini and others,

reported at 1999 Cri.L.J. 3124, on which the learned counsel for the

appellants placed reliance, the Court was considering the provisions of

TADA Act in the context of assassination of Rajiv Gandhi. The Court

considered the scope of protection provided by Article 20(2) of the

Constitution and Section 300 of the Code of Criminal Procedure. It may

be useful to reproduce the observations in paras 238 to 242 of the

judgment.

238. The period of the aforesaid activities, as

involved in that case, covered between 1987 and end of

1991. Section 300(1) of the Code of Criminal Procedurecontains the ban against a second trial of the same offence

against the same person. Sub-section (1) reads thus :

A person who has once been tried by a Court

of competent jurisdiction for an offence and convicted or

acquitted of such offence shall, while such conviction or

acquittal remains in force, not be liable to be tried again

for the same offence, nor on the same facts for any other


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offence for which a different charge from the one made

against him might have been made under sub-section (1)

of Section 221, or for which he might have been convicted

under sub-section (2), thereof.

239. The well-known maxim 'nemo debet bis vexari

pro eadem cause (no person should be twice vexed for the

same offence) embodies the well established Common Law

rule that no one should be put to peril twice for the same

offence. The principle which is sought to be incorporated

into Section 300 of the procedure Code is that no man

should be vexed with more than one trial for offences

arising out of identical acts committed by him. When an

offence has already been the subject of judicial

adjudication, whether it ended in acquittal or conviction,

it is negation of criminal justice to allow repetition of the

adjudication in a separate trial on the same set of facts.

240. Though Article 20(2) of the Constitution of

India embodies a protection against second trial after a

conviction of the same offence, the ambit of the sub-article

is narrower than the protection afforded by Section 300

of the Procedure Code. It is held by this Court in ManipurAdministration v. Thokehom Bira Singh, (1965(2) Cri LJ

120) : AIR 1965 SC 87 that if there is no punishment for

the offence as a result of the prosecution, Article 20(2)

has no application. While the sub-article embodies the

principle of autrefois convict Section 300 of the Procedure

Code combines both autrefois convict and autrefois

acquit.

241. Section 300 has further widened the protective

wings by debarring a second trial against the sameaccused on the same facts even for a different offence if a

different charge against him for such offence could have

been made under Section 221(1) of the Code, or he could

have been convicted for such other offence under Section

221(2) of the Code. In this context it is useful to extract

Section 221 of the Procedure Code.


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221. Where it is doubtful what

offence has been committed.--

(1) If a single act or series of acts is of sucha nature that it is doubtful which of several offences the

facts which can be proved will constitute, the accused

may be charged with having committed all or any of

such offences, and any number of such charges may be

tried at once; or he may be charged in the alternative

with having committed some one of the said offences.

(2) If in such a case the accused is

charged with one offence, and it appears in evidence that

he committed a different offence for which he might have

been charged under the provisions of sub-section (1), he

may be convicted of the offence which he is shown to

have committed, although he was not charged with it.

242. As the contours of the prohibition are so

widely enlarged it cannot be contended that the second

trial can escape therefrom on the mere premise that some

more allegations were not made in the first trial. We

have absolutely no doubt that the offences which we have

indicated above were fully covered by the trial in CC 7 of1992, and therefore the prosecution is debarred in this

case from proceeding against A-16 and A-17 for the

aforesaid offences. Consequently the conviction and

sentence passed by the Designated Court as per the

impugned judgment for offences under Sections 3(3),

3(4) and 5 of TADA and also Section 5 of the Explosive

Substances Act as well as Section 3(1) of the Arms Act on

A-16 and A-17 are hereby set aside.

49. It may be seen from the observations in this judgment that

wider protection provided by Section 300 of the Code of Criminal

Procedure could be invoked by the accused to avoid such double

jeopardy. While MCOC Act provides for modified application of certain


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provisions of the Code of Criminal Procedure, significantly it neither

modifies Section 300 nor makes it inapplicable to trials under MCOC

Act.

50. There is indeed a fresh thinking amongst jurists about

continued utility of protection against double jeopardy in the present

times particularly in the context of possibilities of discovery of

unimpeachable scientific evidence after the trial ended in acquittal. It is

felt that in such cases trial ought to be re-opened. Attempt of the State

in the present case to have accused punished is, however, not based on

discovery of any new evidence but merely on the foundation of the fact

that previously a trial was held. This would hardly justify departure

from the principle enunciated in Section 300 of the Code of Criminal

Procedure, which in any case, cannot be violated in the absence of any

express provision.

51. The learned counsel for appellants submitted that evidence

of P.Ws. 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant could not be

received in this case, since it pertained to an offence which was

separately tried. They relied on judgment in Vijay Kisan Mate Vs. State

of Maharashtra, reported at 2007 ALL MR (Cri.) 3471, where the Court


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was considering an appeal under Section 12 of the MCOC Act against an

order rejecting the application by the accused to defer cross-

examination. This came in the context of an application by the

prosecution to amend the charge so as to exclude charge of murder of

one Swapnil Shirke in respect of which a separate chargesheet has been

filed. Thereafter, the prosecution resiled from its own stand and sought

to tender evidence of murder in case of MCOC Act. The learned single

Judge held that in the said case under MCOC Act the actual proof of

crime need not be offered unless that crime was also being tried

together. The learned single Judge, therefore, held as corollary that the

act of the Special Judge allowing the eyewitness of a murder case to be

examined in MCOC Act trial, without there being a joint trial of both the

offences, will have to be quashed and that the said witness shall not be

further examined in MCOC Act case, and that the case should be tried as

if the said witness was never examined at MCOC Act trial.

52. For proving the offence of organised crime, it has to be

proved among other things that accused indulged in continuing

unlawful activity. For proving involvement in continuing unlawful

activity, it is not necessary to prove the past crime, but only the fact that

a chargesheet has been filed in respect of that crime that the crime bears


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punishment of three years or more and that the Court has taken

cognizance of the crime. Therefore, examining witnesses in proof of

past crime itself is unnecessary and also undesirable, because it is not

the requirement or ingredient of offence under MCOC Act. Therefore,

testimonies of PWs 11 Rajesh, 17 Ravindra, 18 Subhash and 22 Jayant

are irrelevant.

53. The learned Additional Public Prosecutor submitted that the

prosecution case does not rest only on past crimes of appellants. She

submitted that there is sufficient evidence unearthed during

investigation after information was recorded under MCOCA, about

appellants' involvement in incidents of organised crime after MCOCA

came into force in respect of which they have not been /are not being

separately tried. This evidence is about incidents deposed to by P.Ws. 8,

14, 15, 16, 19, 20, 33 and 42.

54. The learned counsel for the appellants submitted that

evidence in respect of incidents about which PWs 8, 14, 15, 16, 19, 20

and 42 depose cannot be received in this case for three reasons. First,

the information recorded under MCOC Act did not pertain to these

instances. Secondly, charges Seventhly, Ninethly and Tenthly in


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respect of these instances are vague and lastly, that they cannot be tried

together at one trial in view of the provisions of Section 221 of the Code

of Criminal Procedure.

55. The learned counsel for the appellants submitted that

approval for recording information required under Section 23 of MCOC

Act is not an empty formality. In Altaf Ismail Sheikh Vs. State of

Maharashtra, reported at 2005 ALL MR (Cri.) 2403 a Division Bench of

this Court was considering the question of approval for recording a

crime under MCOC Act i.e. was considering the challenge to F.I.R. In

relation to Section 23 of the Act, the Court observed in paragraph 24 of

the judgment as under :

24. The Section 23 of the MCOC Act which opens with

non-obstante clause and further clothed with negative

words clearly discloses the mandate of the legislature

that the cognizance of the offences under the MCOC Act

should not be in routine course, but only upon the facts

disclosing the applicability thereof and satisfaction of the

officer of the high rank, the minimum being of the rank

of Deputy Inspector General of Police, in that regard. In

fact, the officer of such high rank is required to decideabout the approval even for recording of FIR in relation

to any offence under the MCOC Act. This obviously

discloses that the approving authority has to apply its

mind about the applicability of the provisions of the

MCOC Act to the facts disclosed in a matter before

allowing the recording of FIR and for the purpose, he

must be, prima-facie, satisfied about the commission of


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offence of organized crime under the MCOC Act by the

person or persons against whom the FIR is to be

recorded. Obviously, for prima facie satisfaction

regarding the commission of the offence of organizedcrime or of participation therein in whatever manner,

the approving authority must have some materials

before it disclosing the activities of the person or the

persons to be of the nature of offence under the MCOC

Act and having committed such activities on or after 24th

February, 1999. In other words, the activities of a

person to be termed as the offence under the MCOC Act,

the same should inevitably disclose to have been

committed on or after 24th February, 1999. If the

activity of the person is relation to the period prior to

24th February, 1999, obviously, it cannot be said to be

an offence under MCOC Act, even though the activity

may be an offence under the provisions of some other

statute in force at the relevant time. For the same

reason, when the approval is granted for recording of

FIR and the FIR is recorded, then such FIR should

apparently disclose the activities constituting offence

under the MCOC Act having been committed on or after

24th

February, 1999. When the FIR does not disclose onthe face of it that the offence was committed on or after

24thFebruary, 1999, obviously, the concerned authority

must be able to establish the said fact, at least, by

referring to the records which were available and placed

before the concerned authority before granting approval

and before recording FIR. It should not be understood

that the power vested in the authority under Section

23(1) of the MCOC Act can be exercised either as

automation or as autocrat. The power should be

exercised on application of mind to the facts of the caseand with necessary prudence and circumspection.

56. The learned counsel, therefore, submitted that since

information is allowed to be recorded in respect of a specific offence,


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investigation in respect of other crimes and sanction for prosecution of

such other crimes would be impermissible and, therefore, this evidence

cannot be considered. The learned Additional Public Prosecutor

countered by submitting that FIR just marks commencement of

investigation and does not lay down parameters limiting investigation.

57. In John D'Souza v. Assistant Commissioner of Police, Mumbai

and others, reported at2007(2) Mh.L.J. (Cri.) 313, on which the learned

Additional Public Prosecutor relied, a Division Bench of this Court was

considering the following questions :

(i) Whether it is necessary that a separate

information under section 23(1)(a) of Maharashtra

Control of Organised Crime Act, 1999 (for short,

MCOCA), should be recorded after the approval is

accorded under this section even in cases where the

crime had already been registered after recording the

FIR under section 154 of the Code for the offences

under the Indian Penal Code ?

(ii) Whether a police officer, other than the

officer mentioned in section 23(1)(a) of MCOCA,

has power to club two or more similar offences

together, having been committed by the very sameorganised crime syndicate before the sanction under

section 23(2) is accorded, without seeking a fresh

approval in respect thereof and the police officer

mentioned in sub-section 23(1)(b) can proceed to

investigate them as a single offence ?


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j k

(iii) Whether the sanction accorded under

section 23(2) of MCOCA would be rendered invalid

on the ground that the prior approval under section 23(1)(a) was not obtained for recording an

information about an offence registered earlier

bearing DCB, CID No.87/2005, which is clubbed

with the offence bearing DCB, CID No.86/2005 for

which the approval had been granted ?

58. These questions arose in the background of the following

facts :

An offence punishable under Section 387 read with Section

34 of the Penal Code was registered vide Crime No.128 of 2005 at Dr.

D.B. Marg Police Station against Vikki Malhotra and Farid Ahmed for

threatening the informer to extort a sum of Rs.1 Crore. On the same

day, Crime No.195 of 2005 was also registered against the same person

in L.T. Marg Police Station. The investigation of both these offences was

transferred to DCB, CID and they were registered afresh as C.R. Nos.86

of 2005 and 87 of 2005 and the petitioner came to be arrested in

connection with these offences though his name did not figure in any of

the First Information Reports. Eventually, after completion of

investigation, sanction under Section 23(2) of MCOC Act was sought

and granted for prosecution of the petitioner as well as the co-accused.

The petitioners' application for bail was rejected and, therefore, the


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m n

petitioner filed writ petition seeking to quash the Special Case as against

him.

59. In this context, after considering the relevant provisions, the

Court observed in para 10 that there are two categories of cases wherein

the provisions of MCOC Act could be invoked. The first being the cases

where an offence has already been registered after recording FIR,

disclosing cognizable offence under ordinary law, and other being the

cases where a police officer even before registering an offence under

Indian Penal Code, straightway, seeks approval for registering an

offence under MCOC Act and records FIR.

60. In para 11, referring to a Full Bench judgment of this Court in

Ashok Gyanchandra Vohra & etc. v. State of Maharashtra and anr. etc.,

reported at 2006 Cri.L.J. 1270, the Court observed that the word

information in Section 23(1) of MCOC Act means First Information

Report contemplated by Section 154 of the Code of Criminal Procedure.

61. In para 13, the Court observed that in short, the non-obstante

clause employed in section 23 of MCOCA overrides the procedure

contemplated under the Code in respect of recording of FIR,


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o

investigation, submitting a report under section 173 etc. However, it

does not put any impediment in assigning to the word information the

meaning assigned under section 154 of the Code.

62. The Court observed in para 17 that :

It is thus clear, that recording of FIR and registration of

an offence, though appear to be independent acts, where

latter follows the former, FIR cannot be recorded without

it being registered as an offence or there cannot beregistration of an offence without recording FIR. In other

words, an information about the commission of a

cognizable offence, becomes FIR within the meaning of

section 154 of the Code or even section 23(1)(a) of

MCOCA, only if and when the offence is registered on the

basis thereof, otherwise it would, at the most, be a

statement under section 161 of the Code. These two acts,

in fact, are performed simultaneously. The word

information and the expression shall be recordedemployed in section 23(1)(a), thus, mean registration of

an offence in the case where the offence had already been

registered under ordinary law. ...

63. The Court observed in para 24 that :

A conjoint reading of all the three definitions clearly

demonstrate that seeking prior approval of the competent police officer for recording information about the

commission of an offence of organised crime under

MCOCA is a condition precedent and it is mandatory in

nature. It does not provide for the prior approval in

relation to any single act of crime constituting an offence

but the approval is in relation to organised crime and

continuing unlawful activity of organised crime


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syndicate. Merely because a police officer approaching

the competent police officer seeking prior approval under

section 23(1)(a) making reference to a particular crime

does not mean that the prior approval pertains to onlythat crime. In our opinion, an act of making reference to

only one crime is with a view to seek the approval for

registering the commission of an offence of organised

crime by a particular organised crime syndicate and in

respect of continuing unlawful activity under MCOCA and

to set the criminal law in motion and marks the

commencement of investigation. ...In our opinion, once

the approval is granted, until the stage of seeking sanction

reaches, there is no prohibition or fetter on the powers of

such investigating officer to club other offence/s

committed by the very same organised crime syndicate

and which, in the opinion of the investigating agency, is a

part of organised crime, namely, continuing unlawful

activity of the very same organised crime syndicate.

The Court then dismissed the petition.

64. In Vinod G. Asrani v. State of Maharashtra, reported at

(2007) 3 SCC 633, on which too, the learned Additional Public

Prosecutor relied, the Supreme Court held that non-inclusion of

petitioner's name in the approval under Section 23(1)(a) of MCOC Act

was not fatal. In para 9, the Court observed as under :

9. ... The scheme of the Code of Criminal

Procedure makes it clear that once the information of the

commission of an offence is received under Section 154 of

the Code of Criminal Procedure, the investigating

authorities take up the investigation and file charge-

sheet against whoever is found during the investigation

to have been involved in the commission of such offence.


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There is no hard-and-fast rule that the first information

report must always contain the names of all persons who

were involved in the commission of an offence. Very

often the names of the culprits are not even mentioned inthe FIR and they surface only at the stage of the

investigation. The scheme under Section 23 of MCOCA is

similar and Section 23(1)(a) provides a safeguard that

no investigation into an offence under MCOCA should be

commenced without the approval of the authorities

concerned. Once such approval is obtained, an

investigation is commenced. Those who are subsequently

found to be involved in the commission of the organised

crime can very well be proceeded against once sanction is

obtained against them under Section 23(2) of MCOCA.

65. In Anil Sadashiv Nanduskar v. State of Maharashtra, reported

at 2008(3) Mh.L.J. (Cri.) 650, the question was in respect of approval

granted under Section 23 of MCOC Act. In that approval, involvement

of petitioner in the offence of organised crime was not referred to. It

was urged on behalf of the State that order of approval and that of the

sanction are merely to initiate the proceedings. The observations of the

Court in para 24 may be usefully reproduced as under :

24. The contention that the order of approval

or order of sanction should disclose consideration ofmaterial 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. ... As already seen above

section 23(1)(a) of MCOC Act speaks of approval for


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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 theapproval 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.

66. In view of these clear judicial pronouncements, the objection

to inclusion of incidents in relation to PWs 8, 14, 15, 16, 19, 20 and 42

in the chargesheet, which was filed pursuant to sanction accorded, has

to be rejected. It would be necessary to examine the evidence of these

witnesses to find out if offence of organised crime is made out and

against which appellants. Contrary impressions, if any, in judgment,

dated 18th November, 2008, in Criminal Appeal No.664 of 2002 would

have to be held as not correct.

67. P.W. 8 Sangita is widow of Anil Ninawe who was allegedly

murdered by the gang of the appellants. She stated that she was


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running a beauty parlour and her husband was doing business of sale

and purchase of gold and silver. Before Anil's death he had started his

construction business and was a builder. One Ratnakar Armarkar

allegedly introduced to her husband appellant Santosh Ambekar, who

was gas cylinder delivery boy at that time. Anil started construction of

Radhe building in partnership with appellant Santosh Ambekar and

one Raju Khule. She stated that Santosh Ambekar used to receive

amounts from various people without informing her husband. The land

on which Radhe building was constructed was purchased in the names

of Sangita and appellant Santosh Ambekar. Appellant Ashok Botnis also

entered the business around that time and used to be sent by her

husband to obtain her signatures whenever necessary. Appellant

Santosh Ambekar had not contributed any capital for construction of

Radhe building. Appellant Santosh Ambekar also worked as commission

agent for her husband for sale of the properties. Ashok Botnis nurtured

clashes between Santosh Ambekar and her husband. Her husband's

faith in Ashok Botnis grew from the profit in construction of Radhe

building.

68. It is clear from Sangeeta's evi

mcoca-division bench order 26mar09

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