1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.667 of 2009 The State of Maharashtra Appellant Vs. 1. Pravin @ Pappu Dayanand Shetty 2. Ajimuddin Maulasab Shaikh 3. Harish Rama Mandvikar @ Ganiga 4. Suhas @ Balu Mahadev Roge 5. Kiran Baban Amle 6. Kiran Raghu Pujari 7. Smt. Jaya Talakshi Chheda 8. Hitesh Suresh Bhagat Respondents (Org.Accused Nos. 1 to 8) Mrs.M.M.Deshmukh, APP for Appellant – State. Mr.Shirish Gupte, Senior Counsel with Mr.Ram Pawde for Resp.nos.1 to 3, 5 and 7. Mr.A.Majeed Memon for Resp.nos.4 and 8. Mr.Prakash Shetty for resp.no.6. 2 CORAM: B.H.MARLAPALLE & R.Y.GANOO,JJ. Reserved on : December 16, 2009 Pronounced on: January 08, 2010 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. Heard Mrs.Deshmukh, the learned APP. 2. Admit. 3. Respondents waive service and by consent of the parties, the Appeal is heard finally. 4. This appeal is filed under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 (“the MCOC Act” for short) by the State Government against the order dated 24th April 2009 passed by the Special Judge for MCOC below Exhibit 26 in MCOC Special Case No.14 of 2008, thereby discharging all the eight accused from the offences punishable under the MCOC Act. 5. It appears on 13th June 2008 the deceased Suresh Bhagat along with six others was on his way back to Mumbai from 3 Alibaug Sessions Court in his Scorpio Jeep bearing registration no.MC-01 AC 2475 after attending a case under the NDPS Act. There was a headon collusion between his jeep and the truck / dumper bearing registration no. MC-04 CA 4445 and in the said accident Suresh Bhagat and six others who were in the jeep died, two of the deceased were the body guards of Suresh, one was his lawyer and other three were the clients of the lawyer. Based on the complaint filed by the Head Constable, an offence punishable under Section 304(A) of IPC was registered. It was the case of the prosecution that accused no.4 – Suhas Roge along with accused no.7 – Smt. Jaya Chheda and accused no.8- Hitesh had hatched a conspiracy to eliminate the deceased Suresh Bhagat and hired accused no.3 – Harish Mandvikar for a consideration of Rs.70 lacs. Accused no. 2 – Ajmuddin’s truck / dumper was hired for a consideration of Rs.10 lacs. Accused no. 1 – Pravin Shetty was driving the said truck and he was promised a sum of Rs.3 lacs and accused no. 6 – Kiran Pujari was engaged to hush up the matter as an accident. As per the prosecution more than one charge-sheets were already pending / filed against accused no.3 – Harish Mandvikar and, therefore, with the prior sanction under Section 23(2) of the MCOC Act of the Additional Commissioner, charge-sheet for the 4 offences punishable under Section 3(1)(i), 3(2), 3(4) and 3(5) of the MCOC Act and the corresponding offences punishable under the IPC came to be laid before the Special Court. 6. The present respondent no.4 (accused no.4) filed an application at Exhibit 26 and prayed for discharge in respect of the offences punishable under the MCOC Act. The said application was opposed by the State Government. The learned Addl. Special Judge by the impugned order dated 24th April 2009 allowed the application at Exhibit 26 and the operative part of the order reads as under: “The offence in question is not an organised crime punishable under Section 3(1)(i) or any other provision of the MCOC Act. This Court has therefore, no jurisdiction to try the offence in question in view of Section 5 of the MCOC Act. The case alongwith bail applications Exh. Nos. 22, 25 and 39 be transferred to the Court of the Hon’ble Sessions Judge, Gr. Mumbai. Discharge Application – Exh. No.26 is 5 accordingly disposed of. All the accused persons be produced before the Sessions Court on 5th May, 2009.” It is stated across the bar that the bail applications at Exhibits 22, 25 and 39 have been subsequently rejected by the learned Additional Sessions for Greater Mumbai. 7. The Special Court considered the provisions of Section 2(a), 2(d), 2(e) and (2(f) of the MCOC Act and the decisions in the case of (1) Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 295], (2)State of Maharashtra Vs. Lalit Somdatta Nagpal [(2007) 4 SCC 171] and (3) State of Maharashtra Vs. Bharat Shanti Lal Shah [2008 Scale (12) 167] and held that the charge-sheets filed against the accused no.3 in C.C. No.3995/PW/2005 and C.C.No.2600325/PW/2008 could not have been taken into consideration for invoking the MCOC Act and, therefore, the offence in question alleged to have been committed by the said accused could not be said to be an organised crime punishable under the said Act. The Special Court referred to Section 11 of the MCOC Act and held that for 6 the offences punishable under the Indian Penal Code the prosecution case was required to be transferred to the Sessions Court as the accused was discharged. 8. Mrs.Deshmukh, the learned APP placed reliance on the earlier two decisions of this Court in the case of Bharat Shantilal Shah Vs. State of Maharashtra [2003 All MR (Cri) 1061] and Anil Sadashiv Nanduskar Vs. State of Maharashtra [2008 (12) LJSOFT 156] and submitted that the Special Court committed a gross error in law in allowing the discharge application. As per the learned APP the prosecution was justified in laying the charge-sheet for the offences punishable under the MCOC Act on the basis of the charge-sheets filed / pending against accused no.3 who himself is a gang leader and has his own gang engaged in organised crimes in different parts of Mumbai city. It was further contended that the Special Court failed to appreciate the charge-sheets filed in C.C.No.3995/PW/2005 and C.C.No.2600325/PW/2008 and a plain reading of the charges as set out in the charge-sheets clearly indicated that they were for the offences of organised crime committed by accused no.3. 9. With the help of the learned APP we have perused the FIRs 7 as well as the charge-sheets. Admittedly in C.C.No. 2376/PW/2008 arising from C.R.No.30 of 2003 all the four accused came to be acquitted by the learned Metropolitan Magistrate, 17th Court, Borivali, Mumbai as per his judgment and order dated 12/6/2009 for the offences punishable under Sections 323, 324 and 326 read with Section 34 of IPC and accused no.3 was not one of the four accused in the said case. Before we examine the submissions made by the learned APP in support of this appeal, it would be necessary to reproduce the definitions of “continuing unlawful activity”, “organised crime” and “organised crime syndicate” under the MCOC Act and hence they are reproduced as under: 2(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. 8 2(e) “organised crime” means any continuing unlawful activity by an individual, signly or jointly, either as a memebr 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. 2(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.” It is thus clear that so as to make out the ingredients for laying the charge-sheet for the offences punishable under the MCOC Act it was necessary for the prosecution to point out that at least two charge-sheets were filed during the last ten years against the accused or any of his gang members for the offences punishable with imprisonment of three years or more undertaken by him jointly or singly by use of violence or threat 9 of violence with the objective of, (a) pecuniary benefits; (b) undue economic advantage for himself or any other person; (c) other advantage for himself or any other person; or (d) for promoting insurgency. 10. In C.R.No.311/07 it was pointed out by Mrs.Deshmukh that the accused – applicant was indulging in the alleged violent acts / offences to establish his supremacy in the area and thereby to gain advantages. There may be some merit in these contentions. However, when Mrs.Deshmukh read out the complaint in FIR No.30 of 2003 it was so obvious that the said complaint did not make out a case even for any other advantage, leave alone the economic advantage or pecuniary benefits. Though the Special Court in para 18 of the impugned order held that none of the accused in the case in hand were the co-accused in CC No.3995/PW/05, the charge-sheet goes to show that one of the gang members of the accused – applicant was impleaded as an accused. However, the C.R. from which the said case arose i.e. C.R.No.30 of 2003 belied the contentions 10 that the alleged crime was committed for the pecuniary gains or any other advantages. Then the only charge-sheet that remained was in C.C.No.2600325/PW/08 arising from C.R. No. 311/07. Consequently the ingredients for laying a charge-sheet for the offences punishable under the MCOC Act viz. pendency of charge-sheets where the accused or any of his gang members is charged for the offence punishable with three years or more imprisonment and committed for pecuniary benefits, economic gains or other advantage is not satisfied. Resultantly the order passed by the Special Court and impugned in this appeal does not call for any interference. The application at Exhibit 26 was rightly allowed so as to discharge the accused from the charges under the MCOC Act. 11. Hence the appeal fails and the same is hereby dismissed. (R.Y.GANOO,J.) (B.H.MARLAPALLE,J.)