1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO. 866 OF 2009 AND CRIMINAL APPLICATION NO. 539 OF 2010 The State of Maharashtra At the instance of A.T.S. Police Station, Bombay, Through Assistant Commissioner of Police, Anti-Terrorism Squad, Bombay .. Appellant (Org.Complainant) Vs. 1. Pragyasinh Chandrapalsinh Thakur and ors. .. Respondents (Org. Accused Nos.1 to 11) WITH CRIMINAL APPEAL NO. 867 OF 2009 AND CRIMINAL APPLICATION NO. 1318 OF 2009 The State of Maharashtra .. Appellant Vs. Lt. Colonel Prasad Shrikant Purohit .. Respondent (Org.Accd.No.9) WITH CRIMINAL APPEAL NO. 868 OF 2009 2 The State of Maharashtra .. Appellant Vs. Rakesh Dattatray Dhawade .. Respondent (Org.Accd. No.7) WITH CRIMINAL APPEAL NO. 869 OF 2009 The State of Maharashtra .. Appellant Vs. Ajay Eknath Rahirkar .. Respondent (Org.Accd.No.6) WITH CRIMINAL APPEAL NO. 1024 OF 2009 Shri Ajay Eknath Rahirkar .. Appellant (Org.Accd.No.6) Vs. The State of Maharashtra .. Respondent Mr. Amit Desai, Senior Advocate with Mrs. Rohini Salian, Mr. P. A. Pol, PP and Mr. J. P. Yagnik, APP for State in Cri. Appeal Nos.866 to 869 of 2009 and for respondent in Cri. Appeal No. 1024/09. Mr. V. T. Tulpule, Senior Advocate with Mr. Harshad Kandalkar and Ms. Veena Rohirkar for appellant in Cri. Appeal No. 1024 of 2009 and respondent no. Cri. Appeal No. 867 of 2009. Mr. Mahesh Jethmalani, Senior Advocate i/by Mr. Ganesh Sovani for 3 respondent no.1 in Cri. Appeal No. 866/09. Mr. Rajendra Parkar for respondent nos.2 and 3 in Cri. Appeal No. 866/09. Mr. Subhash Jha i/by Mr. Naveen Chomal for respondent no.4 in Cri. Appeal No. 866/09. Mr. Naveen Chomal for respondent no. 5 in Cri. Appeal No. 866/09. Mr. V. T. Tulpule, Senior Advocate a/w Ms. Nisha Parab and Mr. Harshad Kandlkar for respondent no.6 in Cri. Appeal No. 866/09 and for respondent in Cri. Appeal No. 869/09. Mr. Madhav Jamdar i/by Mr. Subhah Jadhav for respondent no.7 in Cri. Appeal No. 866/09 and for respondent in Cri. Appeal No. 868/09. Mr. M. S. Mohite for respondent no. 8 in Cri. Appeal No. 866/09. Mr. Shrikant Shivade a/w Mr. Manoj Mohite for respondent no.9 in Cri. Appeal No. 866/09. Mr. U.R. Lalit, Senior Advocate with Mr. Shrikant Shivade for respondent no.10 in Cri. Appeal No. 866/09. Mr. Rajeev K. Pandey i/by Mr. Sanjeev Punalekar for respondent no.11 in Cri. Appeal No. 866/09. CORAM : B.H. MARLAPALLE & ANOOP V. MOHTA, JJ. Reserved on : June 23, 2010 Pronounced on : July 19, 2010. 4 ORDER ( Per B. H. Marlapalle, J.) 1. In MCOC Special Case No. 1 of 2009, 11 accused are facing trail. Accused Nos. 6, 7 and 9 filed bail applications i.e. Bail Application Nos. 40, 41 and 42 of 2008 respectively, for being released on bail and while deciding these applications, the learned Special Judge by his order dated 31/7/2009 was pleased to discharge all the accused under the provisions of Section 227 of Cr. P. C. from the offences punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control of Organized Crime Act, 1999 (for short the MCOC Act) and consequently the case came to be transferred in exercise of the powers under Section 11 of the said Act to the regular court having jurisdiction under Cr. P. C. for trial of the offences punishable under Sections 302, 307, 326, 324, 427, 153-A, 120-B of IPC read with Sections 25(1) and 25 (3) of the Arms Act read with Sections 3, 4, 5, 6 of Explosive Substance Act read with Sections 15, 16, 17, 18, 20 and 23 of Unlawful Activities (Prevention) Act, 1967 (Amended) 2004. The bail applications came to be rejected. The order of prior approval under Section 23(1)(a) of the MCOC Act passed on 20/11/2008 by the Deputy 5 Inspector General of Police and ATS, Mumbai in C.R. No. 18 of 2008 and the sanction given by the Additional Director General of Police, Railways, Mumbai on 15/1/2009 under Section 23(2) of the said Act came to be quashed and set aside by a separate order passed below Exh. 1 on the same day i.e. 31/7/2009. 2. Criminal Appeal No. 866 of 2009 has been filed by the State of Maharashtra against the order dated 31/7/2009 passed below Exh. 1 by the learned Special Judge holding that the charges for the offences under the MCOC Act against the accused in C.R. No. 18 of 2008 registered with the ATS Mumbai do not survive and the accused came to be discharged for the offences under the said Act in MCOC Special Case No. 1 of 2009. Criminal Appeal No. 867 of 2009 has been filed by the State against accused no.9 – Lt. Colonel Prasad Shrikant Purohit, who has been discharged from the charges punishable under the MCOC Act while rejecting his Bail Application No. 42 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 868 of 2009 has been filed against accused no. 7 – Rakesh Dattatray Dhawade, who has also 6 been discharged from the offences punishable under the MCOC Act while rejecting his Bail Application No. 40 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 869 of 2009 has been filed by the State against accused no. 6 – Ajay Eknath Rahirkar who was discharged from the offences punishable under the MCOC Act while rejecting his Bail Application No. 41 of 2008 as per the order dated 31/7/2009. Criminal Appeal No. 1024 of 2009 has been filed by accused no. 6 against the rejection of his Bail Application No. 41 of 2008 by the learned Special Judge as per the order dated 31/7/2009. 3. The operative part of the order passed below Exh. 1 on 31/7/2009 by the Special Court reads as under:- “ Accused No.1 Pragyasingh Chandrapalsingh Thakur @ Swami Purnachetanand Giri, No.2 Shivanarayan Gopalsingh Kalsangra, No. 3 Shyam Bhavarlal Sahu, No. 4 Ramesh Shivji Upadhyaya, No. 7 5 Sameer Sharad Kulkarni @ Chanakya Sameer, No.6 Ajay @ Raja Eknath Rahirkar, No. 7 Rakesh Dattatray Dhawde, No. 8 Jagdish Chintaman Mhatre, No. 9 Prasad Shrikant Purohit, No. 10 Sudhakar Udaybhan Dhar Dwivedi @ Dayanand Pande @ Swami Amrutanand Devtirth and No. 11 Sudhakar Omkarnath Chaturvedi @ Chanakya Sudhakar are discharged from the charge of the offences punishable under Sec. 3(1)(i), 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control of Organized Crime Act, 1999. The case is transferred u/s 11 of the Maharashtra Control of Organized Crime Act, 1999 to the regular court having jurisdiction under the Code of Criminal Procedure for the trial of the offences under Secs. 302, 307, 326, 324, 427, 153-A, 120-B of the Indian Penal Code r/w 3, 5, 25 Arms Act, r/w 3, 4, 5, 6 of Explosive Substance Act r/w 15, 16, 17, 18, 20 and 23 of Unlawful 8 Activities (Prevention) Act, 1967 (Amended) 2004. It will first have to be filed in the court of the Judicial Magistrate having territorial jurisdiction for committal to the Sessions Court as it involves sessions triable offences. Registrar (S) is directed to ascertain the court having jurisdiction under the Code of Criminal Procedure to which the charge-sheet is to be sent. All accused be produced before that court on the next date of appearance.” Whereas the operative part of the order passed on 31/7/2009 rejecting Bail Application Nos. 40, 41 and 42 of 2008 reads as under: “ Application is rejected and disposed off. Attested true copy of this order be annexed with 9 the order on Ext. 1 in MCOC Special Case No. 01 of 2009 of today’s date.” 4. Paras 4 and 5 of the order passed below Exh.1 read as under:- “4. In view of the above discussion, the prior approval under Sec. 23(1)(a) of Maharashtra Control of Organized Crime Act, 1999 in this case given on 20/11/2008 given by Dy. Inspector General of Police, Anti Terrorism Squad (ATS), Mumbai in C. R. No. 18 of 2008 registered with Police Station ATS Mumbai (C.R. No.130/08 of Police Station Azad Nagar, Malegaon), against all the accused in this case is quashed. Similarly, the sanction given by the Addl. Director General of Police, Railways, Mumbai dated 15/1/2009 under Sec. 23(2) of the Maharashtra Control of Organized Crime Act, 1999 is also quashed. 10 5. As a consequence of the above discussion, all the accused in this case are entitled for being discharged of the charges of the offences under the MCOC Act, 1999 levelled against them. As per the provisions of Sec. 11 of the Act, the case will have to be transferred to the regular court for trial of the offences under the Indian Penal Code, Unlawful Activities (Prevention) Act, 1967 etc.” 5. It would also be useful to reproduce paras 42 to 44 of the order rejecting the bail applications: “42. In view of the above discussion, it is clear that as on 20/11/2008, though two charge-sheets were filed against accused Rakesh Dattatray Dhawde who is accused No. 7 in Crime No. 18/08 registered with Police Station ATS, Mumbai, the competent court had 11 not taken cognizance of the offences against him and more particularly of the offence under Sec. 153-A of the Indian Penal Code. Hence, one of the basic ingredients of the offence of continuing unlawful activity as defined in Sec.2(d) of MCOC Act was not present on 20/11/08. Hence, the prior approval cannot sustain in the eyes of law and needs to be quashed. Consequently, the sanction under Sec. 23(2) of MCOC Act, 1999 given on 15/1/2009 by the Addl. Director General of Police, Railways, Mumbai, also does not survive. (Emphasis supplied). 43. In view of the above discussion, it will have to be held that the charges for the offences under the MCOC Act, against the applicant accused as well as all o ther accused in C.R. No. 18/08 registered with police station ATS Mumbai, do not survive and they will have to be discharged from those offences. Order is accordingly 12 passed below Exh.1 in MCOC Special Case No. 01/09 which is filed for C.R.No. 18/08, registered with police station ATS, Mumbai. 44. As a consequence of the above finding, the applicant accused is entitled to be released on bail as per the provisions of Sec. 21(4) of the MCOC Act, as there are reasonable grounds for believing that he is not guilty of the offences under the MCOC Act. However, in view of the finding arrived at in the above paragraph, as all the accused are entitled to be discharged of the offences under the MCOC Act, I am not considering the case of the applicant – accused for the offences under the Indian Penal Code, Unlawful Activities (Prevention) Act 1967, Arms Act, Indian Explosive Substance Act etc., because this court is a special court for trying offences under the MCOC Act. Once it is held that the accused cannot be tried by this 13 court, the case will have to be sent to the competent court having jurisdiction under the Code of Criminal Procedure as per the Sec. 11 of the MCOC Act. As the applicant accused as well as all the accused in C.R. No. 18/08 registered with police station ATS, Mumbai against whom chargesheet is filed and given MCOC Special Case No. 01/09 will have to be discharged of the offences under the MCOC Act, it is not necessary to consider the submissions of both sides on the other grounds and the merits of the evidence against the applicant accused in the charge-sheet.” 6. The main ground for passing the impugned order would find place in para 3 of the order passed below Exh. 1 and it reads as under: “3. In view of the above discussion, it is clear that as on 20/11/08, though two charge-sheets were filed against Rakesh Dattatray Dhawde, who is accused no. 14 7 in crime no. 18/08 registered with Police Station ATS, Mumbai, the competent court had not taken cognizance of the offences against him and more particularly of the offence under Section 153-A of the Indian Penal Code. Hence, one of the basic ingredients of the offence of continuing unlawful activity as defined in Sec.2(d) of MCOC Act was not present on 20/11/08. Hence, the prior approval cannot sustain in the eyes of law and needs to be quashed. Consequently, the sanction under Sec. 23(2) of MCOC Act, 1999 given on 15/1/2009 by the Addl. Director General of Police, Railways, Mumbai, also does not survive.” (Emphasis supplied). 7. Sections 2, 11 and 23 of the MCOC Act, read as under: “2. Definitions. (1) In this Act, unless the context otherwise requires, - (a) “abet”, with its grammatical variations and 15 cognate expressions, includes, - (i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate; (ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and (iii) the rendering of any assistance, whether financial or otherwise, to the organised crime syndicate. (b) “Code” means the code of Criminal Procedure, 1973 (2 of 1974); (c) “Competent Authority” means the Competent Authority appointed under section 13; (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 16 before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence; (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; (g) “Special Court” means the Special Court constituted under section 5. (2) Words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in the Code. 11. Power to transfer cases to regular Courts.- 17 Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that 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 the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence. 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 18 offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police.” 8. To understand the meaning of “organised crime”, as defined under Clause (e) of Section 2(1) of MCOC Act, it would be necessary to understand the meaning of “continuing unlawful activity” and “organised crime syndicate” as defined under Clause (d) and (f) of the said Section. If so understood, for charging a person of organised crime or being a member of organised syndicate, it would be necessary to prove that the accused 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 syndicate or a gang, or on behalf of such syndicate. 19 (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. 9. The constitutional validity of the MCOC Act and more particularly the provisions of Section 2(1)(d), (e) and (f) and Sections 3, 4 and 13 to 16 as well as Section 21(5) has been considered by the Supreme Court in the case of State of Maharashtra vs. Bharat Shantilal 20 Shah and ors. [(2008) 13 SCC 5]. The constitutional validity of all these provisions has been upheld and the words “or under any other Act” from Section 21(5) of the said Act were struck down. Once again the constitutional validity of Section 2(1)(e) of the MCOC Act was challenged and the said challenge has been negatived by the Supreme Court in the case of Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra and ors. [(2010) 5 SCC 246]. The Supreme Court reiterated the meaning of “insurgency”, as was adopted earlier in the case of Sarbananda Sonowal vs. Union of India [(2005) 5 SCC 665], and as follows: “Insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State” The term “unlawful means”, as appearing in Section 2(1)(e), had also fallen for consideration before the Supreme Court in the case 21 of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and anr. [(2005) 5 SCC 294] and the Supreme Court stated thus, “32. The Statement of Objects and Reasons clearly stated 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 and committed 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 hereinbefore, only because a person cheats or commits a criminal breach of trust, 22 more than once, the same by itself may not be sufficient to attract the provisions of MCOCA.” 10. Section 9 of the MCOC Act deals with the procedure and powers of the Special Court. The Special Court may take cognizance of any offence when the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon police report of such facts. Section 11 of the MCOC Act states that where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall notwithstanding that 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 the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence. The Special Court can exercise this power on its own or on an application submitted before it and the Special Court has no jurisdiction to try the case if in its opinion the 23 offence of which cognizance has been taken is not triable by it. Section 23 of the MCOC Act provides the procedure for cognizance of and investigation into an offence. No information about the commission of an offence of an organised crime under the MCOCO Act shall be recorded by a police officer without the prior approval of the police officer not below the rank of Deputy Inspector General of Police and no investigation of an offence under the provisions of the said Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. No court shall take cognizance of any offence under the MCOC Act without the previous sanction of the police officer not below the rank of Additional Director General of Police. 11. In the instant case, C. R. No. 130 of 2008 came to be registered with the Azad Maidan Police Station at Malegaon regarding the incident of bomb blast that had taken place on 29/9/2008 and 6 persons lost their lives and 101 persons were injured. Respondent Nos. 1 to 3 came to be arrested on 23/10/2008 and respondent no.7 was 24 arrested on 2/11/2008. During the course of investigation, the alleged involvement of respondent no.7 in C.R. No. 161 of 2003 registered with Nanal Peth Police Station, Parbhani and in C.R. No. 194 of 2004 registered with the Sadar Bazar Police Station, Jalna was noticed. C. R. No. 161 of 2003 registered with the Nanal Peth Police Station at Parbhani was in respect of the incident of blast that had taken place on 21/11/2003 and some persons were injured in the same. A charge- sheet was filed against accused no.1 – Sanjay Choudhary on 7/9/2006 for the offences punishable under Sections 302, 307, 324, 337, 338, 285, 286 and 295 read with Section 34 of IPC and Section 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act and the case came to be registered as RCC No. 467/06. On 29/9/2006 a supplementary charge-sheet (2 nd charge-sheet) came to be filed against 4 accused for the offences punishable under Sections 302, 307, 324, 337, 338, 285, 285, 295, 120-B, 153-A read with Section 34 of IPC and Sections 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act. A third charge-sheet came to be filed in the said case on 13/11/2008 against respondent no.7 for the offences 25 punishable under Sections 302, 307, 324, 337, 338, 285, 286, 295, 120- B, 153-A read with Section 34 and Sections 3, 4, 6 of Explosive Substance Act and Sections 25(1) and 25(3) of the Arms Act. C.R. No. 194 of 2004 registered with the Sadar Bazar Police Station at Jalna was in respect of the incident of blast that had taken place on 27/8/2004 and the first charge-sheet was filed against accused no.1 on 30/9/2006 for the offences punishable under Sections 307, 436, 324, 323, 153-A, 120-B read with Section 34 of IPC and Sections 3, 4, 6 of Explosive Substance Act and the case came to be registered as RCC No. 504/06. The case was committed to the Sessions Court on 12/2/2007 and came to be registered as Sessions Case No. 28 of 2007. Second charge-sheet was filed on 7/1/2008 against four additional accused and the third charge-sheet was filed against 5 accused on 14/1/2008. Committal order was passed on both the charge-sheets by the learned CJM