{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1391 OF 2010 1. Ulka s/o Fakira Pawar Age-60 years, Occ-Agri R/o Brahmani, Tq-Adilabad, Dist-Nirmal, Andhra Pradesh 2. Pundlik s/o Ulka Pawar Age-30 years, Occ-Agri R/o As above 3. Dashrath s/o Ulka Pawar Age-29 years, Occ-Agri R/o As above APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mr. N.S.Ghanekar, Advocate for the applicants Mrs.V.A.Shinde, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] RESERVED ON : 8th July 2010 PRONOUNCED ON : 20th July 2010 ORDER: 1. By the present criminal application, the applicants have prayed to release them on bail in connection with CR No. {2} 02/2010, registered with Hadgaon police station, Dist-Nanded for an offence punishable u/s 3 (1) (ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act 1999 (for short MCOC Act). As the provisions of section 21 of the MCOC Act, deals with the bail applications filed by the persons who are arrayed as accused in offence under the MCOC Act and hence, this application is moved under section 21 of the MCOC Act. 2. Heard learned counsel for the applicants followed by the submissions of learned APP. Also perused the special report submitted by the learned APP. Perusal of the special report indicates that the present applicants came to be arrested in connection with CR No.02/2010 on 17th January 2010. 3. Applicant No.1 is the father of applicants No.2 and 3. Learned counsel for applicants contended that perusal of the charge sheet indicates that only two offenses are registered against the present applicants i.e. Crime No.118/2005, which was registered with Hadgaon police station for an offence punishable u/s 395 of the Indian Penal Code and Crime No.190/2005 which was registered with Latur Police Station for an offence punishable u/s 395 of the Indian Penal Code. According to the learned counsel for the applicants, out of the above two crimes, the applicants are already acquitted by the Sessions Court vide judgment and order dated 20.06.2006 in Sessions Case No.111/2006, which arisen out of CR No.118/2005 of Hadgaon police station. Therefore, as per the {3} contents of the charge sheet only one offence / crime is pending against the present applicants i.e. Crime No.190/2005 registered with Latur police station and hence the applicants cannot be implicated in offence punishable under the provisions MCOC Act. I am afraid to accept these submissions, for, the applicants are also shown as accused in Crime No.62/2009, which is registered with Hadgaon police station. 4. Papers of investigation show that Crime No.62/2009 is registered for an offence punishable u/s 395 and 397 of the Indian Penal Code in which total 10 persons are arrayed as accused including the present applicants. Therefore, in exercise of powers conferred u/s 23 (1) (a) of the MCOC Act, the Special Inspector General, Nanded Range Nanded granted sanction to register offence against the applicants and others under the provisions of the MCOC Act vide sanction order dated 11.01.2010. 5. During the course of submissions, learned counsel for the applicants placed reliance on the observations of this Court in the judgment reported in 2006 ALL MR (Cri) 984 : 2006 (5) LJSOFT 85 in the matter of “Anil Bhaiyaji Raut V/s State of Maharashtra”. It is observed by the Nagpur Bench of this Court that as out of the two crimes against the applicant therein, the applicant was acquitted in one crime and hence the provisions of the MCOC Act would not be attracted and therefore, the applicant is entitled for bail and hence learned counsel for the applicants {4} has prayed that as the case of the applicants is covered by the ratio of this judgment and hence they be released on bail as provisions of the MCOC Act are not attracted in the case of the applicants. 6. Division Bench of this Court had an occasion to deal with the scope and object of the provisions of the MCOC Act in the matter of “Govind Sakharam Ubhe V/s State of Maharashtra” reported in 2009 ALL MR (Cri) 1903. The Division Bench of this Court in paragraphs No.32 to 39 has observed thus- 32. In order to understand this submission it is necessary to have a closer look at certain provisions of the MCOCA and its preamble. The preamble states that it is an Act to make special provisions for prevention and control of, and for coping with the criminal activity by organized crime syndicate or gang, and for matters connected therewith and incidental thereto. The MCOCA, states the preamble, makes special provisions for prevention and control of, for coping with, criminal activity by organized crime syndicate or gang. Essentially, therefore, the MCOCA targets the unlawful activities of the organized crime syndicate. 33. Section 1(f) defines `organized crime syndicate’ to mean a group of two or more persons who acting singly or collectively as a syndicate or gang indulge in activities of organized crime. Section 1(e) defines `organized crime’ to mean any continuing unlawful activity by an individual singly or jointly, either as a member of an organized crime syndicate or on {5} behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means, with objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. 34. Therefore, the MCOCA contemplates a situation where a group of persons as members of organized crime syndicate indulge in organized crime. That is, they indulge in use of violence, threats of violence, intimidation, etc. to gain pecuniary benefit or undue economic or other advantage for themselves or any other person. These activities as per the definition of organized crime are continuing unlawful activity prohibited by law. 35. It is now necessary to go to the definition of `continuing unlawful activity’. Section 2(1)(d) defines `continuing unlawful activity’ to mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge- sheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a `continuing unlawful activity’ - a) the activity must be prohibited by law; b) it must be a cognizable offence punishable with imprisonment of three years or more; {6} c) it must be undertaken singly or jointly; d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate e) in respect of which more than one charge- sheet have been filed before a competent court. 36. The words `in respect of which more than one charge-sheet have been filed’ cannot go with the words `a member of a crime syndicate’ because in that case, these words would have read as `in respect of whom m ore than one charge-sheet have been filed’. 37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines `continuing unlawful activity’ sets down a period of 10 years within which more than one charge- sheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished 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 fine, subject to a minimum of {7} fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the `organized crime syndicate’ is the crux of the term `continuing unlawful activity’. If this link is not established, that person cannot be roped in. 38. In order to substantiate our construction of Section 2(1)(d) of the MCOCA, we will take hypothetical example of accused 1(A), accused 2(B), accused 3(C) and accused 4(D), who are members of the organized crime syndicate and who have committed crimes within preceding ten years. Insofar as accused A is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(1) of the MCOCA. Accordingly, one charge-sheet is filed against him. Insofar as accused B is concerned, it is alleged that he has committed an offence resulting in the death of any person which is {8} punishable with death or imprisonment for life as described in Section 3(2) of the MCOCA. Accordingly, one charge-sheet is filed against him. Likewise, insofar as accused C is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(3) of the MCOCA. Accordingly, one charge-sheet is filed against him. Finally, it is alleged that accused D is a member of organized crime syndicate as described in Section 3(4) of the MCOCA and as such has indulged in organized crime and against whom also one charge-sheet is filed. 39. The submission on behalf of the appellant is that even though all the four accused namely, A, B, C and D may be members of the organized crime syndicate since against each of the accused not more than one charge- sheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provisions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndicate, in our opinion, Section 2(1)(d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets {9} have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge- sheet is qua the unlawful activities of the organized crime syndicate. 7. For clear understanding of the above observations, it is necessary to peruse the definitions of what are the continuing unlawful activities, what are the organized crimes and what is the organized crime syndicate. These definitions are given in sections 2 (1) (d), 2 (1) (e) and 2 (1) (f) of the MCOC Act, respectively, which reads thus - 2 (1) (d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken 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; 2 (1) (e) “organized crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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; 2 (1) (f) “organized crime syndicate” means a group {10} of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime:” 8. Now, involvement of the present applicants in this offence will have to be considered in the light of above sections coupled with the special report submitted by learned APP. Admittedly, the applicants are accused in CR No.118/2005 registered with Hadgaon police station. No doubt, they are acquitted in this offence, however, still Crime No.190/2005 registered with Latur Police Station and Crime No.62/2009 registered with Hadgaon police station are pending against the present applicants. Admittedly, these offenses are registered u/s 395 r/w 397 of the Indian Penal Code. If proved the charges, punishment of more 3 years can be imposed on the applicants. Thus, it is clear from the above discussion that the present applicants are active members and participants in the offenses registered against them showing their involvement in series of offenses and the applicants have continued their unlawful activities, covered u/s 2 (1) (d) of the MCOC Act, and the said offenses are committed by the organized crime syndicate as defined u/s 2 (1) (f) of the MCOC Act and hence definitely come within the ambit of organized crimes as defined u/s 2 (1) (3) of the MCOC Act. If it is so, the continuing unlawful activities of the applicants can definitely be termed as offence punishable u/s 3 (1) (2), 3 (2) and 3 (4) of the MCOC Act. In the premise, the observations of the Nagpur Bench of this Court in the case of Anil Raut, referred {11} supra, are not applicable to the present case. However, in view of the observations of the Division Bench of this Court in the case of “Govind Sakharam Ubhe” referred supra, it can safely be inferred that the applicants are the members of the organized crime syndicate and hence are not entitled to be enlarged on bail that too when the investigation in CR No.2/2010, is in progress. 9. In the result, the application, which is sans merits, stands rejected. [A.V.POTDAR, J.] drp/B10/criapln1391-10