((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.73 OF 2005 The State of Maharashtra through SDPO, Shrirampur City Police Station, Shrirampur, District Ahamednagar. Appellant versus 1. Bharat Baburao Gavhane R/o.Ward No.2, Shrirampur, District Ahamednagar and 13 others. Respondents Shri P.S.Hingorani, Asstt.Public Prosecutor for appellant. Shri S.R.Chitnis-Sr.Advocate for respondents. CORAM : S.C.DHARMADHIKARI, J. DATE OF RESERVING THE JUDGEMENT : 25.08.2006 DATE OF PRONOUNCING THE JUDGEMENT : 29.09.2006 JUDGEMENT :- 1. The Appellant-State of Maharashtra has preferred this Appeal challenging the judgement and order passed by the learned Special Judge, MCOC Act, Nashik in MCOC Case No.2 of 2002. By the Judgement and order dated 2nd September 2002 the learned Special Judge has allowed an ((-2-)) application preferred by the respondents-original accused for transfer of the case under section 11 of MCOC Act, 1999 (for short referred to as "MCOC Act). 2. In the view of learned Judge the application preferred by the accused, prior to framing of charges, is capable of being allowed because there is no material to arrive at a prima facie conclusion that the accused can be prosecuted under the MCOC Act and more particularly section 3 thereof. 3. This appeal invokes appellate powers conferred upon this Court vide MCOC Act. Earlier, it was filed as a Revision Application but later on finding that the order under challenge is appealable, the same was converted with leave as the instant appeal. The prosecution case in a nut shell is as under. 4. That on 18th July 2001 at about 10.30 to 11.00 hrs. in the night, the complainant Jakir Hamid Shah residing at Ward No.2, Shrirampur along with friends i.e. Gabbar @ Ansar Kureshi, Aslam Dada Kureshi were discussing about their business at Islami Chowk, Ward No.2, Shrirampur. ((-3-)) At that time, Shatrughan Gavane, Ejaj Bagvan, Nisar Bhikan Bakar Kasai were passing through the said spot and they told by saying towards Gabbar @ Ansar Kureshi that he was saved last time, however, now he can not be saved and as such they threatened him and went away. After some time, all of them returned back with deadly weapons like sword, koytas. At that time, Bharat Gavane, Shiva Gavane, Pintya Shaikh, Rafik Shaikh, Illiyas Shaikh, Raju Rickshawala, Asif Tailor, Lucky Shaikh were also along with said three accused persons and they were also armed with deadly weapons. At that time, all the accused started assaulting the complainant and his friends as mentioned above. After the assault, all the accused persons went away from the spot. Due to the assault, Ansar Kureshi and Aslam Kureshi died and complainant Jakir Shah sustained serious and grievous injuries. 5. Thereafter, on 19th July 2001, at about 3.30 hours, on the complaint lodged by the injured Jakir Hamid Shah in Dr.Shirsat Accident Hospital, Shrirampur, an offence was registered at Shrirampur City Police Station, vide CR No.I-134/2001 for the offences punishable under sections 302, 307, 324, 325, 143, 147, 148, 149 ((-4-)) of IPC and under section 4(25) of Indian Arms Act against the accused persons and the investigation was taken over by the then Police Inspector Shri Vasant Sanap, Shrirampur City Police Station. 6. It is the further case of the prosecution that during the course of investigation the respondents came to be arrested. From the facts disclosed and materials collected the State formed an opinion that the accused are prima facie guilty of the offences under MCOC Act. 7. The prosecution then sought necessary permission to apply MCOC Act and details with regard to the permission sought and approval in that behalf are set out at paras 4 to 7 of the memo of appeal. 8. The case of the prosecution is that in Shrirampur City there are two rival gangs. One belonging to Shatrughna Gavane and others and another belonging to Ayub Papa Shaikh and others. Due to the war between these gangs there are continuing illegal criminal activities in the city. There is a serious fear in the minds of common people. ((-5-)) 9. Thus, the prosecution pointed out that approvals being granted to apply more stringent provisions of MCOC Act, the cases ought to be dealt with by the Designated Judge appointed under that Statute. All steps in that behalf be taken by him and that Court alone. Since the case was made over to the Designated Judge and numbered as MCOC Case No.2 of 2002 so also learned Designated Judge deciding to proceed, the respondents applied for transfer and Miscellaneous Application was filed invoking the Court’s power under section 11 of the MCOC Act. 10. In the application the respondents averred thus. The accused along with two other absconding accused viz. Shatrugan Baburao Gavane and Farid Jamal Sheikh are charged with commission of offences punishable u/s. 302, 307, 324, 325, 143, 147, 148, 149 of the Indian Penal Code r/w 4 and 25 of the Arms Act and Section 3 of the MCOC Act. On a complaint lodged by the injured Jakir Hamid Shah, an offence vide Shrirampur City Police Station C.R.No.134 of 2001 u/s 302, 307, 324, 325, 143, 147, 148, 149 of the Indian Penal Code r/w 4 and 25 of the Arms Act, was registered against the accused and the absconding accused on 19th July 2001. It is the ((-6-)) prosecution case that the accused persons are members of the organised crime syndicate and have jointly or singly committed several serious offences against human bodies and properties and have created a sense of terror and insecurity in the minds of the people in Shrirampur City and adjoining areas and have tried to cover up their criminal activities by getting affiliation and patronage of political parties to escape the clutches of law. 11. The respondents further stated that the Additional Director General of Police (Law and Order) M.S. Shri O.P.Bali on 12th January 2002 granted sanction u/s 23(2) to prosecute the respondents and the absconding accused u/s 3 of the MCOC Act. A perusal of the sanction order shows that the absconding accused Shatrugan Baburao Gavane is a gang leader and the other accused are his associates. It is the prosecution case that the said Shatrugan Baburao Gavane and his other associates, had been to Islamia Chowk of Shrirampur City on 18th July 2001 around 23.00 hours, and threatened to kill Jakir Hamid Shah, Gabbar and Ansar Qureshi and Aslam Dada Qureshi, all residents of Shrirampur and members of rival gang led by Ayub Papa Sheikh ((-7-)) of Shrirampur City. It is further the prosecution case that after a while Shatrugan Baburao Gavane and other associates came over there armed with Swords and Koithas and attacked Jakir Hamid Shah, Gabbar @ Ansar Qureshi and Aslam Dada Qureshi, causing the death of Gabbar @ Ansar Qureshi and Aslam Dada Qureshi and grievous injuries to Jakir Hamid Shah. 12. The respondents further stated that the prosecution in order to show the filing of more than one previous charge sheets within the preceding period of ten years, has recorded statements of certain Police Officers who have stated regarding filing of eight charge sheets and registration of 3 N.C. complaints against the absconding accused Shatrugan Baburao Gavane. It is significant to note that one of the eight charge sheets mentioned in the said statements, is the present case, and hence the same ought to be excluded from consideration. The other seven cases relates to offences u/s 326, 394, 452, 307 of Indian Penal Code and all these cases are registered in respect of previous conflicts between two groups viz. one led by absconding accused Shatrugan Baburao Gavane and the other led by Ayub Papa Sheikh. It is admitted position ((-8-)) that the present incident was a fall out of previous enmity. It is further admitted that the rival gang led by Ayub Papa Sheikh including the deceased had made an attempt on the life of Shatrugan Baburao Gavane and nearly murdered him prior to this incident. Out of vendetta and retaliation, the alleged incident occurred. Under the above circumstances, it was submitted that no offence u/s 3 of the MCOC Act is disclosed from the charge sheet and accompanying statements and documents, and therefore, the accused approached the Special Court in exercise of its jurisdiction u/s 11 of the MCOC Act for transfer of their case to the Court of Sessions for trial. 13. The respondents further stated that reading Section 2(1)(d), (e) and (f) together, what is punishable is continuing unlawful activity as a member or on behalf of such syndicate, in respect of which more than one charge sheet has been filed in the competent Court, within the preceding 10 years and the Court has taken cognizance of the same. The use of words in the definition clearly establishes that the object of the Act is to punish a person or persons, indulging in continuing unlawful activity with ((-9-)) the objective of gaining pecuniary benefit or gaining undue economic or other advantage for himself or any other person or promoting insurgency. It was submitted that the intention of the legislature as stated hereinabove is borne out by Sec. 4 r/w S.20. If the legislature had intended holding of any such property referred in the sections as benaami for habitual thieves, robbers, dacoits or other criminals, then it would have specified the same, but using the words on behalf of the members of an organised crime syndicate, would not have been used, therefore the liability u/s 20 of the MCOC Act would have included general accumulation of wealth. It is not done because there are other laws like the Taxation Law, effective to curb this menace. 14. On these grounds it was prayed that the Designated Judge should exercise his powers u/s 11 and transfer the case to the Court of Sessions having necessary jurisdiction so also pass such orders as are permissible in law. This application was preferred on 29th July 2002. 15. The prosecution filed its reply thereto. The reply is that the statement made by the ((-10-)) accused in their application that MCOC was erroneously applied, is denied. The action to apply MCOC Act was justified. It was contended that other provisions were found to be insufficient to contain the organized unlawful activities of the accused persons. It was contended that multiple charge sheets have been filed against the accused. They have committed present offences when they were released on bail. There is rivalry between the accused persons due to some illegal business and they are also getting pecuniary advantage from their continuous illegal activities. Hence, it was necessary to initiate proceedings against them under MCOC Act. Even otherwise, the present case was fixed for framing charge and at this stage the application Exhibit-14 should not be entertained. 16. After the application and reply thereto was taken on record the learned Judge heard both sides and by the impugned order held that there is no prima facie evidence to connect the accused with the crime. The statements of the prosecution witnesses and the material collected by the prosecution in the form of pecuniary benefits, is not sufficient to apply provisions of Section 3 of MCOC Act. The learned Judge was ((-11-)) of the view that it was the duty of the prosecution to show that the acts of the accused amount to continuing unlawful activities of an organized crime syndicate and such activities fall within the definition of term "Organized Crime" appearing in MCOC Act. In other words, prosecution must show that the accused have formed a syndicate for committing the organized crime and that they have got together to derive pecuniary benefits or advantages. While it is true that there are two rival gangs and criminal cases are pending against each other, yet, the order of sanction/approval is not enough to prosecute the acts u/s.3 of MCOC Act. Merely because several cases are pending it is not that MCOC Act has to be applied. Hence, after the relevant provisions of the Enactment to be applied are considered in the light of the materials collected it is seen, prima facie, that the illegal or unlawful activities have not been committed by the accused as members of organized crime syndicate in order to get pecuniary benefits or advantages. Hence, the application could be considered even before framing charge and the Court need not wait till entire evidence is led. For all these reasons, prima facie conclusion was recorded and the case was ((-12-)) transferred to the Court of Additional Sessions Judge, Shrirampur, District Ahamednagar for trial in accordance with law. 17. It is the aforesaid conclusion which is subject matter of challenge in this appeal. 18. Shri Hingorani, learned APP appearing for the State states that the judgement is erroneous and wholly illegal. The learned Judge could not have recorded a finding of the present nature. He submits that the learned Judge was in error in holding that no prima facie case is made out against the respondents-original accused under MCOC Act. Shri Hingorani submits that the learned Judge has gone behind the sanction/approval order and has virtually set aside the same. He submits that in the order granting approval the authority has referred to the criminal cases pending against the respondents. He submits that as pointed out in the memo of appeal, at para 7, eight cases which are presently pending, would demonstrate that the offences alleged therein shows direct nexus of the accused with the property derived from the commission of the same. In other words, while committing these offences, the accused had ((-13-)) collected monies and derived benefits and advantages for themselves and others involved therein. This should satisfy the requirements of the provisions of MCOC Act. It is in these circumstances that the approval was granted after a proposal to apply MCOC Act was moved. Once such a proposal is placed before the competent authority and the competent authority applies its mind thereto and grants approval, then it is not open for the learned Designated Judge to brush aside the same and hold that MCOC Act is not attracted. Shri Hingorani invited my attention to para 11 of the impugned order and submitted that the observation therein is erroneous and contrary to record. There are seven charge sheets filed, eight cases are pending. He submits that if the details of the charge sheets as set out in para 6 of the appeal memo are perused, then the offence of "organized crime" is, prima facie, made out. The accused are also charged with offences punishable under sections 394 and 452 of IPC.. Thus, the ingredients with regard to pecuniary benefits and advantages are fully satisfied. The judgement is totally erroneous and illegal. It is vitiated by non application of mind to the provisions of law and facts. For these reasons, it deserves to be ((-14-)) quashed and set aside. 19. On the other hand, Shri Chitnis - learned Senior Counsel appearing for the respondents has invited my attention to the provisions of Section 11 of MCOC Act and has contended that once a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and thereafter the Court to which the case is transferred, may proceed with the trial of the offence. In his submission, the application made by the respondents clearly points out that no case even prima facie, exists for applying MCOC Act. It is open for the Court and the Special Judge to take into consideration such a plea and pass appropriate orders after giving opportunity to both sides. Precisely, this is what is done by the learned Special Judge. Once the respondents pointed out to him that no case is made out even prima facie of the respondents/ accused having committed any offence punishable under section 3 of MCOC Act, then for trial of offence under IPC, the learned Judge had no alternative but to transfer the case to ((-15-)) appropriate Sessions Court. Thus, neither the power nor the authority and jurisdiction of the learned Judge to exercise the same has been questioned by the prosecution. Therefore, it cannot be said that the order is illegal. 20. Shri Chitnis submits that the order also cannot be said to be erroneous and vitiated by non application of mind. On the other hand, the learned Special Judge while considering the application of the respondents even at the prima facie stage has gone by the order of sanction and approval to apply MCOC Act. Having gone through those orders the learned Judge has opined that they do not make out a case for applicability of MCOC Act. 21. In this behalf, the argument of Shri Chitnis is that the incident arose out of gang rivalry. The offence was registered at Shrirampur Police Station vide CR No.134 of 2001. Shri Chitnis has invited my attention to page 182 of the paper book which is an order dated 17th September 2001. The said order refers to a letter dated 14th September 2001 addressed by the Superintendent of Police, Ahamednagar. The order is rendered in the context of the offence covered by this CR ((-16-)) No.134 of 2001 and punishable under sections 302, 307, 324, 325, 143, 147 to 149 of IPC r/w Sections 4 and 25 of Arms Act. The Superintendent of Police, Ahamednagar has sought permission to include Section 3 of MCOC Act in this C.R.. According to Shri Chitnis, the order passed by the Special Inspector General of Police, Nashik Division, Nashik is not in consonance with Section 23(1)(a) i.e. it is not an approval but a permission to include MCOC along with other offences in C.R.no.134 of 2001. The order does not refer to any material by which it could be concluded that the provisions of a stringent and harsh Enactment like MCOC Act should be applied. Thus, the approval itself is contrary to the provisions of MCOC Act. Shri Chitnis submits that the MCOC Act was not invoked initially but afterwards. Sanction is accorded bearing in mind provisions of MCOC Act which define "continuing unlawful activities", "organised crime", "organised crime syndicate". However, no material is produced on record to support gaining of pecuniary benefits or advantages to the accused. Shri Chitnis has thereafter referred to the sanction u/s 23(2) of MCOC Act granted on 12th January 2002. He submits that the order granting sanction merely ((-17-)) relies upon the earlier order of Special IGP, Nashik Region dated 17th September 2001. That apart, it refers to the evidence collected during investigation of Shrirampur City Police Station CR No.134 of 2001. It refers specifically to the activities of gang headed by Shatrughan Ghavane and his associates and the alleged attack and assault on the members of rival gang resulting in grievous and serious injuries to one Jakir Hamid Shah. It merely refers to the fact as to how a complaint was lodged by this injured Jakir and the reference therein to the respondents before this Court leading to their arrest. Thereafter, Shri Chitnis relies upon sanction order in which it is observed that all accused persons are members of an organized crime syndicate and jointly and singly have committed several serious offences against human body and property. It is stated that they have created a sense of terror and insecurity in the minds of public at large in Shrirampur City and adjacent areas. It is observed that these persons have tried to cover up their criminal activities by getting affiliation and patronage of some of the political parties to escape the clutches of law. Shri Chitnis assails the conclusion that the gang leader Shatrughna Gavane and associates run an ((-18-)) organized crime syndicate with a view to gaining pecuniary benefits and other advantages and supremacy over the rival gang of Ayub Papa Shaikh by use of violence, intimidation and other coercive means. However, no material at all is referred to in his sanction order or even produced at this prima facie to support the conclusion in the sanction order. Thus, according to Shri chitnis, the order of sanction passed by the Additional D.G. of Police (Law and Order), M.S; Mumbai cannot be made basis of even a prima facie conclusion and to hold that offences punishable u/s 3 of MCOC Act are committed. 22. He relies upon several judgements of Supreme Court enunciating the principles with regard to approval and sanction for applying stringent provisions like MCOC Act. He submits that same principles will govern the approval and sanction insofar as MCOC Act is concerned. He submits that approach of the sanctioning authority is casual, to say the least. He submits that this is the basis of the application made before the Special Judge. The learned Judge has taken cognizance of the pleas raised therein and in the light of the definitions of relevant terms in ((-19-)) MCOC Act, appreciated the contentions of both sides. He submits that once both, approval as also sanction, is vitiated as above, then no cognizance can be taken pertaining to the alleged offence under MCOC Act. There is no need to face trial in such cases. Learned Judge, therefore, has rightly held that MCOC Act being not attracted, for trial of offences under IPC, the case must go back to the competent Sessions Court. 23. Shri Chitnis has relied upon following decisions :- a) (2005)2-SCC-13 (Jayendra Saraswathi Swamigal Vs. State of T.N.) b) (2004)7-SCC-696 (Ganesh Rajaram Dube Vs. State of Maharashtra & ors.) c) (2005)12-SCC-709 (Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & anr.) d) (1977)2-SCC-394 (Major S.K.Kale Vs. State of Maharashtra) e) 2005-SCC (Cri)-1057 (Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and another) f) BLR-Vol.IX-1957-161 (Criminal Appeal Nos.254/1957, 255/1957, 257/1957 and other). g) (1997)2-SCC-744 (Rambhai Nathabhai Gadhavi & ors. Vs. State of Gujarat and other cases) ((-20-)) h) 2003-Bom.C.R.(Cri)947 (Bharat Shantilal Shah and others Vs. State of Maharashtra) i) (2005)5-SCC-258 (Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi) 24. Shri Hingorani, learned APP, in rejoinder has once again emphasised the fact that the words appearing in Section 23 are "cognizance of" and "investigation into an offence". The provisions are an exception to those contained in Cr.P.C. pertaining to cognizance and investigation of an offence. Thereunder, information about commission of an offence of organized crime under this Act, has to be recorded by a Police Officer, after approval of a Police Officer not below the rank of Deputy Inspector General of Police. Similarly, no investigation of an offence under the provisions of this Act, shall be carried out by Police Officer below the rank of Deputy Superintendent of Police. Further, no Special Court can take cognizance of any offence under MCOC Act without previous sanction of the Police Officer not below the rank of Additional D.G. of Police. He submits that these provisions are exceptions to the normal rule and procedure prescribed with regard to investigation and taking cognizance of a crime in Cr.P.C.. ((-21-)) Although these provisions are mandatory, in the learned Asstt. Public Prosecutor’s submission, it cannot be said that a Trial Judge is permitted to reopen the matters of approvals and sanction under section 23 as if he is exercising an Appellate power. In such circumstances, the learned Judge was in error in relying upon these provisions. More so, when both, the approval as well as sanction, are clear. Those orders must be taken as they are and without any addition or subtraction thereto.. Once they refer to Sections 394, 452 and other provisions of IPC, then it is clear that the approval and sanction order have taken into account the fact that the accused have obtained to themselves pecuniary benefits and advantages. Therefore, the learned Special Judge should have proceeded with the case and his interdiction at this stage apart from being impermissible in law, was wholly uncalled for. Therefore, the order must be set aside. 25. With the assistance of learned APP and Shri Chitnis