1 cri.appeal-190-10.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.190 OF 2010 The State of Maharashtra ) through Loni-Kalbhor Police ) Station, Pune). )..APPELLANT Versus 1.Appa @ Prakash Haribhau Londhe ) & Ors. )..RESPONDENTS Mrs. A.S. Pai, APP for the Appellant. Mr. Kuldeep S. Patil, for respondent Nos. 1 to 6. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: 1ST FEBRUARY, 2011 PRONOUNCED ON: 10TH FEBRUARY, 2011 P.C. This is an appeal filed under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 (“the MCOC Act” for short) and it is directed against the order of acquittal passed by the learned 2 cri.appeal-190-10.doc Special Judge under the said Act in Special Sessions Case No.6 of 2004 on 28th May, 2009. 2. As per the prosecution case on 14th July, 2003 C.R. No.208 of 2003 came to be registered with the Loni-Kalbhor Police Station in Haveli Taluka, Pune District for the offences punishable under Section 302. 364, 201 read with Section 34 of the I.P.C. against six accused and the said crime was committed under the leadership of accused No.1 with accused Nos.2 to 6 as the members of an organised crime syndicate. Shri Shirish Shinde, (P.W.2) who was the then Senior Police Inspector with the said Police Station noticed that as many as eight different crimes were registered against accused No.1, 3 offences against accused No.2 and more than one offences against the other accused and all these offences were offences punishable with imprisonment for 3 years or more and were committed either single or jointly either as members of the said organised crime syndicate or on behalf of such a crime syndicate. More than one charge sheets were filed against each of the accused in the preceding years with reference to 10th November, 2003 and, therefore, on the said date P.W.2 submitted a proposal for permission under Section 23(1)(a) of the MCOC Act to the Special Inspector General of Police, Kolhapur Range at Kolhapur against accused 3 cri.appeal-190-10.doc Nos.1,2 and 4 as well as against Shri Arjun Mahadeo M. Kokate (absconding accused) and Uttam Ramchandra Hole (deceased). He enclosed a list of crimes registered against the said accused along with the proposal. Vide the letter dated 9th December, 2003 the Special Inspector General of Police pointed out to the Sub Divisional Officer, Haveli Division as well as the Police Inspector, Loni- Kalbhor Police Station that vital information in respect of the properties of the accused, their business, accummulation of property by the accused and derived from commission of organised crime or acquired through the funds of organised crime syndicate, was not forthcoming and, therefore, he called for material information as regards the organised crime syndicate. P.W.2 vide his reply dated 23rd January, 2004 purportedly submitted the information to the Special Inspector General of Policde on 23rd January, 2004 and the Special Inspector General of Police passed an order on 18th May, 2004 granting approval under Section 23(1)(a) for the registration of offences under Section 3(1) and 3(4) of the MCOC Act only against accused Nos. 1, 2 and 3 by his order dated 18th May, 1994 (Exhibit 321). In the said order it was also stated that in respect of accused No.4 and the deceased accused there was no sufficient material available and, therefore, permission was not granted, but it was directed to submit a fresh proposal for them after collecting 4 cri.appeal-190-10.doc sufficient material. By the communication dated 19th May, 2004 P.W.2 was directed to file an F.I.R. against accused Nos. 1, 2 and 3 under the MCOC Act and such an FIR was loedged on 22nd May, 2004 (Exhibit 312) and accordingly C.R. No.70 of 2004 came to be registered with the said Police Station on 22nd May, 2004. Shri Balasaheb Sakharam More, P.W.3 and incharge Police Inspector of Loni-Kalbhor Police Station submitted a proposal for approval under Sectioln 23(1)(a) of the MCOC Act (Exhibit 313) and sought permission against accused Nos. 4, 5 and 6. Such a permission was granted by the order dated 7th August, 2004 (Exhibit 322) to take cognisance of the offences against accused Nos. 4, 5 and 6 and Shri Arjun Mahadeo Kokate (abscondeing) and Uttam Ramchandra Holte (deceased) in respect of the offences punishable under Sections 3(1), 3(4) and 3(5) of the MCOC Act. Suresh Krishnaji Kamalakar, P.W.7, then Additional Superintendent of Police (Rural) recorded confessions of accused No.4 on 1st September, 2004 (Exhibit 339) and both of them were produced before the Chief Judicial Magistrate at Pune on 2nd September, 2004 and both of them retracted from their statements (Exhibit 333 and Exhibit 334 vide their statements at Exhibit 437 and 438 respectively). On 27th August, 2004 the Sub Divisional Police Officer, Haveli submitted a proposal for sanction under Section 23(2) of the MCOC Act to prosecute the accused No.1 5 cri.appeal-190-10.doc under Section 3(1), 3(4) of the MCOC Act. Shri Rahul Gopal P.W.5 then Additional Direector General of Police (Law & Order) Maharashtra State, accorded sanction against accused Nos.1 and 2 under Sections 3(1)(i), 3(1(ii), 3(2), 3(4) and 3(5) of the MCOC Act by his order dated 17th September, 2004 (Exhibit 320). 3. The Special Divisional Police Officer, Haveli Division, submitted another proposal (Exhibit 327) seeking sanction under Section 23(2) of the MCOC Act against accused No.3 to 6 along with Uttam Ramchandra Hole (deceased) and Arjun Kokate (absconding). Shri Jivan Veerkar, Additional Director General of Police (Law & Order), Maharashtra State, granted sanction to prosecute all these accused under Section 3(1), 3(2), 3(4) and 3(5) of the MCOC Act by his order dated 3rd December, 2004 (Exh.328). The charge sheet came to be submitted on 20th September, 2004 for the offences punishable under Section 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the MCOC Act. Charge at Exhibit 215 was framed on 13th September, 2007 and the prosecution examined in all 9 witnesses. The statements of the accused under Section 313 of Cr.P.C. were recorded on 5th November, 2008 and they filed their statements of defence on the same day vide Exhibit 245 along with several documents including certified copies of the judgments in respect of the past 6 cri.appeal-190-10.doc charge sheets and relied upon by the prosecution. The accused also examined Shri Dnyaneshwar Wamanrao Modak, D.W.1, the then Chief Judicial Magistrate at Pune as a defence witness. The trial Court framed the following six issues and on appreciation of the evidence adduced before it and answered all of them in the negative:- No. Points 1. Whether the approvals dated 18.05.2004 and 07.08.2004 accorded by the Special Inspector General, Kolhapur Range, Kolhapur under Section 23(1)(a) to take cognizance of the offence under the Act are valid? 2. Whether the sanctions dated 17.09.2004 and 03.12.2004 accorded by the Additional Director General (Law and Order) Maharashtra State under Section 23(2) of the Act are valid? 3. Does the prosecution prove that accused Nos.1 to 6 committed the offence of Organized crime? 4. Does the prosecution prove that accused Nos.1 to 4 conspired or attempted to commit or advocated or abetted or Knowingly facilitated the commission of organized crime or any act Preparatory to the organized crime? 5. Does the prosecution prove that accused nos.1 to 6 are the members of an organized crime syndicate under the Leadership of accused no.1? 7 cri.appeal-190-10.doc 6. Does the prosecution prove that accused Nos. 1 and 4 held any property derived or obtained from commission of Organized crime or which has been acquired through the organized crime syndicate funds? 7. What order? Consequently all the accused came to be acquitted. 4. We have noticed that the acquittal order is mainly based on the legal issues and more particularly non-compliance of the requirements of Section 23 of the MCOC Act and, therefore, we thought it appropriate to decide the appeal finally at the admission stage itself. We have perused the record and proceedings as well. 5. In support of the order of acquittal the trail Court relied upon the following decisions:- (i) State of Maharashtra & Ors. vs.Lalit Somadatta Nagpal & Anr. (2007) 4 SCC 171; 8 cri.appeal-190-10.doc (ii) Prafulla Uddhav Shende vs. State of Maharashtra 2009 (1) Mah. Law Journal (Cri) 221. (iii) Altaf Ismile Shaikh vs. State of Maharashtra, 2005 All M.R. (Cri.) 2403. (iv) Kashmira Singh vs. State of Madhya Pradesh, AIR 1952 S.C. 159 (v) Shabbir Mohamad Vs. State, 2006 (2) Mh. L.J. (Cri) 578. The trial Court held that since the sanction order under Section 23(1) of the MCOC was vitiated the entire proceedings under the MCOC Act were bad in law. The approvals dated 18th May, 2004 (Exh.321) and 7th August, 2004 (Exhibit 322) suffered from total non-application of mind as also gross irregularities and, therefore, the approvals so granted to take cognizance of the offences under the MCOC Act against the accused failed to stand the scrutiny of law. 6. Section 23 of the MCOC Act reades as under:- “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 9 cri.appeal-190-10.doc 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.” 7. In the case of Altaf Ismile Shaikh (supra) it is held as under:- “ 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 decide about 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 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 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 organized crime 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 the 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 10 cri.appeal-190-10.doc approval is granted for recording of 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 on the face of it that the offence was committed on or after 24th February, 1999, obviously, the concerned authority must be above 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 a or as autocart. The power should be exercised on application of mind to the facts of the case and with necessary prudence and circumspection.” Similarly, in the case of Ramabhai Ghadhavi & Ors. Vs. State of Gujarat 1979 S.C.C. (Crime) 1169 the Supreme Court held thus:- ““Taking cognizance is the act which the Designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. Latter is the condition precedent for the former. Sanction contemplated in the Sub- section is the permission to prosecute a particular person for the offence or offences under TADA. Sanction is not granting to the Designated Court to take cognizance of the offence, but it is granted to the prosecuting agency to approach the court concerned for enabling it to take cognizance of the offence and to proceed to trial against the persons arraigned in the report. Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the court in order to enable the court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction.” 11 cri.appeal-190-10.doc 8. Having regard to the well settled legal position, the trial Court examined the sanction/approval granted under Section 23 of the MCOC Act by the concerned Competent Authorities. It noticed that the proposal at Exhibit 296 was without any date and it only mentioned Nov. 2003 though its opening, dates were mentioned as 31-10-2003 and 10-11-2003. P.W.2 in his evidence before the trial Court made a categorical statement that the said proposal at Exhibit 296 was not prepared on 31st October, 2003 and in fact was prepared on 10th November, 2003. At the same time the said proposal under Section 23(1)(a) was submitted against accused Nos. 1, 2 and 4 and under Section 3 and 4 of MCOC Act. However, the approval order dated 18th May, 2004 at Exhibit 321 had granted an approval for taking cognizance of the offences under Section 3(1) and 3(4) of the said Act. Thus the order was contrary to the proposal submitted in as much as the proposal was submitted for the offences under Sections 3 and 4 whereas the sanction was granted under Section 3(1) and 3(4) of the MCOC Act. This was also clear from the substantive evidence before the Court of Shri K.K. Pathak, P.W.4. The story does not stop here itself. In the proposal submitted Section 3(1) and Section 3(4) of the MCOC Act were mentioned, but sub- section (1) of Section 3 has been divided in two different clauses i.e. (i) and (ii). As per Section 3(1)(i) a person committing an offence of organized crime is punishable for life or imprisonment for life along with minimum fine of rupees one lac, whereas Section 3(1)(ii) provides for punishment of 12 cri.appeal-190-10.doc imprisonment for a minimum term of 5 years which may extend to imprisonment for life with a minimum fine of rupees five lacs. It was, therefore, necessary for P.W.2-Shirish Shinde to specify clause (i) or clause (ii) of sub-section (1) of Section 3 in his proposal and it was not so done. Surprisingly the order dated 18th May, 2004 at Exhibit 321 merely states that the proposal was granted for taking cognizance under Section 3(1) and 3(4) of the MCOC Act. This was sufficient to hold that P.W.2- Shirish Shinde and P.W.4-K.K. Pathak did not apply their mind to the penal provisions and mechanically the approval order was passed on 18th May, 2004. At the same time approval/permission was sought against accused Nos. 1, 2 and 4, but it was granted against accused Nos. 1, 2 and 3. Accused No.3 was not mentioned in the proposal submitted by P.W.2-Shirish Shinde originally i.e. Exhibit 296. This is again another instance of non-application of mind by the Competent Authority i.e. P.W. 4-K.K. Phatak while granting sanction under Section 23(1)(a) of the MCOC Act. 9. The communication at Exhibit 297 dated 9/10th December, 2003 clearly stated that the proposal at Exhibit 296 was found to be totally unsatisfactory on the ground that the relevant information including the number of criminal cases, details in respect of properties of the accused, the details in respect of acquiring 289 acres of land by the accused No.1 in illegal manner, etc., were not furnished. It was also pointed out that the said 13 cri.appeal-190-10.doc proposal did not reveal that the accused had accumulated wealth from the funds by an organized crime syndicate or derived property from commission of an organized crime. There were in all about 12 deficiencies pointed out by the Special Inspector General. The compliance submitted by PW.2- Shirish Shinde on 23rd January, 2004 (Exhibit 298) clearly showed that he did not furnish any of the information or material as was called and required by the Special Inspector General. Nevertheless the sanction order was granted against accused Nos. 1, 2 and 3. P.W.9-Pravin Patil, P.W.6 – Jivan Veerkar, P.W.5 Rahul Gopal and P.W.4-K.K. Pathak admitted before the Court that the cases mentioned in the list of charge sheets on record, did not demonstrate any pecuniary gain achieved by the accused in the commission of offence as mentioned in the charge sheets. 10. Similarly, the proposal at Exhibit 313 dated 22nd April, 2006 submitted by P.W.3 against accused Nos.4,5 and 6 was not accompanied with any relevant documents including copies of the chargesheets and that also indicated that P.W.4 granted approval without application of kind. Shockingly P.W.2- Shri Shirish Shinde, who forwarded the proposal at Exhibit 296 for lodging FIR against the accused was not aware about the contents of the said proposal. He admitted before the Court that he did not collect copies of the chargesheets filed in the Court saying that the Court had taken cognizance of the offences. P.W.3-B.S. More further admitted in his 14 cri.appeal-190-10.doc evidence before the Court that he filed F.I.R. as per the directions of the higher authorities and he personally did not collect any documents against the accused. Thus the evidence of P.W.2 and P.W.3 proved that the proposals at Exhibit 296 and Exhibit 313 were forwarded to the Competent Authority when the officers concerned were not aware about the facts of the material and both the proposals did not bear the date on the last page of each of the proposals. P.W.4 K.K. Phatak deposed before the Court that when any document was received in his office there would be an inward number, but strangely both the proposals at Exhibit 296 and 313 did not have any such numbers. 11. In the report dated 27th August, 2004 submitted by P.W.9-Pravin Patil seeking prior sanction under Section 23(2) of the MCOC Act, sanction against accused No.1 was sought under Sections 3(1), 3(4) and 3(5) of the MCOC Act and not under Section 3(1) and 3(4) of the MCOC Act against accused No.2. But the sanction order passed by P.W.5-Rahul Gopal indicated that sanction was accorded to prosecute accused Nos. 1 and 2 under Section 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the MCOC Act. This also indicated that P.W.5-Rahul Gopal while granting sanction for prosecution of the accused Nos.1 and 2 vide his order dated 17th September, 2004 (Exhibit 324) did not apply his mind and he passed the order mechanically. From his further order dated 18th May, 2004 (Exhibit 321) it is 15 cri.appeal-190-10.doc clear that it was only in respect of Section 3(1) and 3(4) and it did not speak anything about Section 3(5) of the MCOC Act. He further accorded sanction under Section 4 of the MCOC Act which was never sought. Thus the approval granted to prosecute accused Nos. 1 and 2 was vitiated on all counts. At the same time there was no proposal forwarded for the sanction against accused No.3 at any time, but P.W.6-Jeevan Veerkar granted such a sanction of against accused No.3. Similarly, the approval was sought to proceed for the offences under Section 3(1), 3(4), 3(5) whereas P.W.6- Jeevan Veerkar accorded sanction to prosecute accused Nos. 3 to 6 along with the deceased accused and absconding accused under Section 3(2) of the MCOC Act which was never sought for. This also indicated total lack of application of mind on the part of P.W.6, the Competent Authority. 12. The details of the chargesheets against the accused and which chargesheets were relied upon by the prosecution for prosecuting them under the MCOC Act are as under:- Sr.No. Name of Police C.R. Case No. Date of incident Accused involved Result Exh Sections 1. Loni- Kalbhor 58/96 97/96 30.3.96 12.3.96 1,2 Acquitted 24.9.01 260 325, 324, 323, 504, 506/34 2. Yavat 81/97 89/97 3.7.97 13.6.97 1,4 Acquitted 7.3.08 261 143,147,148, 149,324,337, 427, 504, 506 3. Yavat 86/97 86/97 19.6.97 1 Acquitted 262 147,148,149, 16 cri.appeal-190-10.doc 6.1.01 307,324 & 3/25 Arms Act 4. Yavat 113/98 173/99 12.8.98 1.10.99 1 Acquitted 16.1.07 264 307,452,504, 120B 5. Loni- Kalbhor 198/02 29/04 23.7.02 24.12.03 1,5 Acquitted 24.1.07 266 141,143,144, 3/25 Arms Act 6. Loni- Kalbhor 274/99 137/00 6.5.97 12.10.99 1 Convicte d 3yrs, fine Rs.30,00 0/- Appeal preferred 244 417,465,467, 3/25 Arms Act 7. Swargate 170/02 38/04 SC 44/04 22.6.02 1,5 Acquitted 6.4.04 267 307, 120B, 3/25 Arms Act 8. Loni- Kalbhor 244/02 563/02 5.9.02 1,2,6 Acquitted 10.8.04 268 302,364,201, 120B 9. Loni- Kalbhor 204/03 8.4.09 9.7.03 1 Acquitted 14.9.05 269 302,504,34, 3/25 Arms Act 10. Loni- Kalbhor 208/03 340/03 3.3.97 1,2,3 Acquitted 2.8.05 270 364,302,201, 34 11. Loni- Kalbhor 233/01 166/02 20.11.00 3 P 286 302,34 12. Yavat 246/00 4.2.09 30.11.01 4 Acquitted 30.6.05 287 307,323,504, 506,27 Arms Act 13. Yerwada 3215/0 3 16/04 21.8.03 10.3.04 4 Acquitted 4.2.06 293 3/25 Arms Act 14. Yavat 909/07 2/98 30.6.97 13.10.97 4 Acquitted 9.5.03 282 307,341 15. Loni- Kalbhor 125/99 193/99 14.5.99 19.7.99 5,6 Acquitted 16.3.06 283 341,324,504 16. Loni- Kalbhor 226/99 285/99 SC 496/99 28.8.99 30.8.99 5,6 Acquitted 27.12.01 284 302,504,506 17. Swargate 186/02 142/02 SC 239/ 04 6.7.02 5 Acquitted 4.11.04 290 143,147,148, 149 18. Sahakar- nagar 72/03 104/03 22.3.03 16.4.03 5 Acquitted 30.8.08 291 326, 4/25 Ams Act 19. Sahakar- nagar 3096/0 3 203/03 11.6.03 22.6.03 5 Acquitted 13.12.05 292 3/25 17 cri.appeal-190-10.doc 20. Loni- Kalbhor 239/99 262/99 24.5.99 27.10.99 6 Acquitted 15.6.06 285 452,323,504, 506 13. It is clear from the above statement that except in the case at Serial No.6, in all other cases the accused were acquitted. In respect of the case at Serial No.6 i.e. R.C.C. No.137/2000 only accused No.1 was convicted for the offences punishable under Sections 417, 465, and 468 of the I.P.C. and under Sections 325 and 27 of the Arms Act, 1959. All the seven witnesses examined in the instant case were the police officers and there was no independent witness examined before the trial Court to prosecute the accused as members of a crime syndicate, under the MCOC Act. Mere proof of filing of charge sheets in the past is not enough and it is only one of the requisites for constituting an offence of organized crime. If only past charge sheets are held to be enough to constitute an offence of organized crime it would offend the guarantee enshrined under Article 20(2) of the Constitution of India and at the same time Section 300 of the Code of