1 cri.app.14-11 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.14 of 2011 The State of Maharashtra ..Appellant Vs. Balu Baban Waghire & Ors. ..Respondents Mrs.A.S. Pai, APP for State. Mr. Avinash Avhad with Mrs. Rucheeta Dhuru for respondent No.5. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATED: 1st February, 2011 P.C. This appeal filed under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 (for short “ the MCOC Act”) arises from the order dated 22nd December, 2009 pssed by the learned Special Judge under the said Act in MCOC Special Case No.6/08 and by the said order the applications at Exhibits 88 and 94 filed under Section 227 of the Code of Criminal Procedure came to be allowed and the accused have been discharged from the offences punishable under Section 3(1)(i), 3(1)(ii), 3(2) and 3(4) of the said Act. 2. C.R. No.3137 of 2008 came to be registered on 17th May, 2008 with the Pimpri Police Station purportedly for the offences punishable under 2 cri.app.14-11 Section 3(1)(i), 3(1)(ii), 3(2) and 3(4) of the said Act against the accused persons solely on the basis of 27 different criminal cases pending before or decided by different Courts in the State of Maharashtra. It was contended that the number of cases pending or decided against each accused was as under:- Sr.No. Accused No. Number of cases: 1. 1 10 2. 2 4 3. 3 3 4. 5 5 5. 6 4 6. 7 6 7. 8 3 8 9 2 Admittedly, C.R. No.3137 of 2008 was registered under the Act merely on the basis of the past criminal cases and without there being any fresh commission of offence allegedly reported against any of the accused. It was under these circumstances these applications came to be filed under Section 227 of the Cr.P.C., and the State Government filed its reply at Exhibits 95 and 97 opposing the said application. The learned trial Judge was, therefore, called upon to decide only on the point of law as to whether in the absence of any fresh commission of offence and only on the basis of the previous criminal history, C.R. No.3137 of 2008 could be filed under the MCOC Act and the accused could be put on trial for the offences 3 cri.app.14-11 punishable under Section 3 of the said Act. Hence we are deciding this appeal filed by the State of Maharashtra at the admission stage itself. 3. The learned Judge of the trial Court considered the definitions of the terminologies namely “continuing unlawful activity”, “organised crime” and “organised crime syndicate” as defined under Section 2(d),(e) and (f) of the MCOC Act and held that merely on the basis of past criminal activity and in the absence of a fresh commission of offence, there cannot be said to be any continuation to the past criminal activity and, therefore, the criminal Court would not be able to prove the existence of continuing unlawful activity as defined under Section 2(1)(d) of the said Act. The observations made by the trial Judge in paragraphs 14 and 15 of the impugned order are reproduced as under:- “14. The scheme of the Act, as can be seen from Section 3 and 4, does not make continuing unlawful activity as an offence punishable under that Act. In respect of past criminal activity, undoubtedly, cognizance of such valid offences has been taken by Courts of different jurisdictions, whether convicted, acquitted or pending, the fact remains that those past offences can never be tried by the Special Court constituted under the provisions of the MCOC Act. Such trying of the past offences is not even stipulated in the Act. Further the provisions of Section 300 of the Cr.P.C., 4 cri.app.14-11 constitutes a bar for trying an offence more than once. The Constitution of India, under Article 20 debars the prosecution from such recourse, as it would amount to double jeopardy. Thus, where the prosecution desires to try the accused, alleging commission of offence or organized crime punishable under several sub-sections of the Section 3 of the Act, merely on the basis of past criminal history of the accused, it needs to be asserted that such attempt and such recourse is not recognized by the scheme of the Act, being unconstitutional and opposed to the criminal jurisprudence. In such circumstances, where the prosecution alleges commission of offences of organized crime, merely on the basis of past criminal activity, at the most the prosecution can establish continuing unlawful activity under Section 2(1)(d) of the Act. However, there cannot be said to be any continuation to the past criminal activity unless and until the prosecution bridges the past criminal activity with a fresh commission of offence to show continuation of the past activity. 15. Thus, in a case like the instant one, where the prosecution did not allege commission of fresh offence under the substantive provisions of the law, there can neither be said to be any continuing unlawful activity nor organized crime as defined under Section 2(1) (e) and punishable under Section 3 of the MCOC Act.” 5 cri.app.14-11 4. The learned Judge also perused the F.I.R., the charge sheet, the approval and sanction orders. Undoubtedly the approval was accorded under Section 23(1)(a) of the MCOC Act by the Competent Authority and investigation was carried out by the Assistant Commissioner of Police, Pimpri Division, Pune. On completion of the investigation the Investigating Officer submitted a proposal for sanction to prosecute the accused under the provisions of the MCOCAct and such a sanction under Section 23(2) was granted on 15th October, 2008. Pursuant to the order of sanction to prosecute the accused a charge sheet came to be filed on 17th October, 2008. 5. From the chart placed before us by the learned A.P.P., regarding the progress or status of the criminal cases pending against all the 9 accused it is clear that on the day the order was passed the picture was as under:- Sr.No. Accused No. Number of cases pending: 1. 1 3 2. 2 1 3. 3 1 4. 4 2 5. 5 3 6. 6 1 7. 7 0 8 8 1 9. 9 2 6 cri.app.14-11 6. The only question that arises for reconsideration is whether the learned Judge was in error in discharging the accused on the ground that without there being a fresh commission of offence and merely because of the past criminal cases the accused could not be tried for the offences punishable under the MCOC Act. 7. In our considered opinion the view taken by the trial Court cannot be held to be illegal. It is an admitted fact that as on 17th May, 2008 or any date proximate to the said date there was no fresh offence alleged/registered and punishable either under the Indian Penal Code or under any special law against any of the accused. Merely on the basis of the past or pending cases, C.R. No.3137 of 2008 came to be registered with the Pimpri Police Station for the offences punishable under Section 3 of the MCOC Act. Section 23 of the Act reads 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 7 cri.app.14-11 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.” Sub-section (1) of Section 23 states that notwithstanding anything contained in the Criminal Procedure Code, no information about the commission of an offence of organised crime under the Act shall be recorded by Police Officer without the prior approval of the Police Officer not below the rank of the Deputy Inspector General of Police and no investigation of an offence under the Act shall be carried out by a Police Officer below the rank of the Deputy Superintendent of Police. The “organised crime” has been defined under Section 2(e) of the Act and it 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 (emphasis supplied) . Therefore, what is essential for the prosecution is to demonstrate the existence of continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate. In the absence of any fresh complaint of crime reported and registered against an individual singly or jointly, either as a member of the organised crime syndicate or on behalf of such syndicate, merely on the basis of the past criminal cases either 8 cri.app.14-11 decided or pending the provisions of the MCOC Act cannot be invoked and the trial Judge was right in holding that the invocation of the said Act in such a case would defeat the guarantee enshrined under Article 20 of the Constitution of India as well as under Section 300 of Cr.P.C. Unless there is a fresh offence/crime registered against any of the accused, there would be no occasion to seek an approval under Section 23(1)(a) and to appoint an investigating officer under Section 23(1)(b) of the MCOC Act. 8. In the premise, the challenge to the order of discharge passed by the Special Court is without any merits and, therefore, the appeal must fail at the threshold. Hence the same is hereby dismissed. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)