AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.930 OF 2009 Ganesh Nivrutti Marne, age 30 years, Occ. Business, R/at Gururaj Society, Mantri Vihar, Flat No.6, Paud Road, Kothrud, Pune – 411 038. ) ) ) ) ) ... Appellant Versus The State of Maharashtra through Kothrud Police Station, Pune. ) ) ... Respondent Mr. S.R. Chitnis, senior counsel with Mr. Ashish Sawant for the appellant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 28TH APRIL, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 7TH MAY, 2010. JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The appellant is accused 7 in MCOCA Special Case No.2 of 2007 pending in the court of Special Judge (under AJN 2 MCOCA), Pune. In this appeal filed under Section 12 of the Maharashtra Control of Organized Crimes Act, 1999 (for short, “the MCOCA”), the appellant has challenged order dated 19/8/2009 whereby his application for discharge was rejected. 2 The prosecution case needs to be shortly stated. It is as under: The appellant along with other accused hatched conspiracy and committed murder of Sandeep Mohol (for convenience, “the deceased”) on 4/10/2006 at about 11.30 a.m. while he was proceeding in his four wheeler near a traffic signal near Paud Flyover Bridge, Paud Road, Pune. The appellant and others committed murder of the deceased with the aid of chopper, sickle, revolver, etc. on account of previous enmity and rivalry between the two gangs. The appellant heads the Ganesh Marane Gang and all the accused are members of the said gang. The appellant and other members of the organized crime syndicate have committed several offences of similar AJN 3 nature in the past to gain an edge over the rival gang and to achieve supremacy in the local area. The appellant and other accused acting in a synchronized manner planned and conspired to murder the deceased on 4/10/2006. The accused came on motorcycles and surrounded the four wheeler in which the deceased was sitting. They broke the glasses of the windows of the four wheeler of the deceased and attacked the deceased in a well planned manner. After successfully commissioning the crime, they fled away. Offences punishable under Sections 302, 307, 143, 147, 148, 149, 120-B and 109 of the Indian Penal Code (for short, “the IPC”) and Section 3(25) of the Arms Act were registered vide C.R. No.562 of 2006 at Kothrud Police Station, Pune on the complaint lodged by Mr. Prakash Dagdu Karpe against five named accused and 3-4 unknown persons. During the course of investigation, police came to the conclusion that the appellant and other accused are members of organized crime syndicate headed by the appellant and they were indulging in organized crime with a view to gaining pecuniary benefits. AJN 4 Therefore, after obtaining approval under Section 23(1) of the MCOCA, offences under Sections 3(1), 3(2) and 3(4) of the MCOCA came to be added. Thereafter, sanction under Section 23(2) of the MCOCA was obtained from the Competent Authority. The appellant and others came to be arrested on 25/10/2006. The application preferred by the appellant praying for discharge has been rejected vide the impugned order and, hence, the appellant has preferred this appeal. 3. We have heard, at some length, Mr. Chitnis, senior counsel appearing for the appellant. Mr. Chitnis has taken us through the Statement of Objects and Reasons and the Preamble of the MCOCA. He has also taken us through the relevant provisions of the MCOCA more particularly Sections 2(1)(d), 2(1)(e) and 2(1)(f). Mr. Chitnis submitted that Section 2(1)(e) of the MCOCA describes “organized crime” as continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of AJN 5 violence or threat of violence or intimidation or coercion, or other unlawful means, with the object of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. Mr. Chitnis submitted that if we read the Statement of Objects and Reasons of the MCOCA and the Preamble thereof and definition of the term “organized crime”, it is clear that the continuing unlawful activity must be indulged in 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. Mr. Chitnis submitted that pecuniary benefits is the main ingredient of this section and unless there is material to show that the continuing unlawful activity was carried out for pecuniary benefit, the provisions of the MCOCA cannot be attracted. In this connection, Mr. Chitnis relied on the judgment of the Division Bench of this court in Sherbahadur Akram Khan & Ors. v. State of Maharashtra, 2007 ALL MR (Cri.) 1. Mr. Chitnis relied AJN 6 upon the observations made by the Division Bench that the provisions of the MCOCA would be attracted only if it is established that unlawful activity is undertaken by a person with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or for promoting insurgency. Mr. Chitnis submitted that in this case this court has made it clear that the words in Section 2(1)(e) - “with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage” will have to be given some effective meaning and applying the principle of ejusdem generis, the words “other advantage” would have to be interpreted in the same manner as the previous terms “pecuniary benefits” or “undue economic advantage”. On the doctrine of `ejusdem generis', Mr. Chitnis relied on R. & B. Falcon (A) PTY Ltd. v. Commissioner of Income-tax (2008) 12 SCC 466 and the Commissioner of Income-tax v. McDowell & Co. Ltd. (2009) 10 SCC 755. Mr. Chitnis submitted that in Sherbahadur Khan, this court has agreed with the view AJN 7 taken by learned Single Judge of this court in State of Maharashtra v. Bharat Baburao Gavhane & Ors. 2006 ALL MR (Cri.) 2895 that merely stating that a gang leader and his associates run a crime syndicate with a view to gaining pecuniary benefits and advantages and supremacy over rival gangs by violence, intimidation and other coercive means, is not sufficient to maintain a prosecution under the MCOCA. There must be some material even at prima facie stage in that behalf. Counsel submitted that there is absolutely no material in this case to indicate that the offence in question was committed to gain pecuniary benefit or advantage. Counsel submitted that the view taken by learned Special Judge that whenever there is a gang war and a murder, it is necessarily prompted by a desire to have pecuniary gain or pecuniary advantage is a wrong view of law. 4. Counsel also relied on Madan s/o. Ramkisan Gangwani v. State of Maharashtra 2009 All MR (Cri.) 1447 in support of his submission that continuing AJN 8 unlawful activity evidenced by more than one charge- sheets is one of the ingredients of the offence of organized crime and the purpose thereof is to see antecedents and not to convict without proof of other facts which constitute the ingredients of Section 2(1)(e). Therefore, two charge-sheets cannot be considered by themselves. There has to be something more. The object of the organized crime has to be to gain pecuniary advantage. 5. Mr. Chitnis then submitted that learned Special Judge ignored the order passed by his predecessor discharging accused Taru. Mr. Chitnis submitted that learned Special Judge was bound by that order and he should have followed it. Learned Special Judge has not given any reasons why he has departed from the view taken in the case of co-accused where obviously same facts are involved. Counsel urged that the Special Judge has merely made a reference to Sherbahadur Khan and Bharat Gavhane and has not discussed and indicated AJN 9 why he has not followed these judgments which were followed by his predecessor. Counsel submitted that the predecessor of learned Special Judge has referred to Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja & Ors. AIR 1990 SC 1962. This judgment has great relevance to the issues involved in this case and learned Special Judge has not even referred to it. 6. Counsel submitted that approval under Section 23(1) (a) of the MCOCA is bad in law because it discloses non application of mind. There is a Jawak letter referred to in the approval order which is not forthcoming. Counsel submitted that it is wrong on the part of the State to suppress the said letter on the ground that it is a confidential document. In this connection, he relied on the judgment of the Supreme Court in Anirudhsinhji Karansinhji Jadeja & Anr. v. State of Gujarat, (1995) 5 SCC 302. He submitted that in this judgment, the Supreme Court was considering an identical provision pertaining to approval under Terrorist and Distruptive AJN 10 Activities (Prevention) Act, 1987 (for short, “the TADA”) and the Supreme Court has referred to the entire proposal, which was forwarded by the police. He submitted that therefore, there is nothing confidential in this letter and this letter ought to have been furnished to the appellant. Counsel submitted that in this judgment, the Supreme Court has found fault with the police because while granting approval, they had considered the accused statements. Counsel submitted that the ratio of this judgment is squarely applicable to this case. 7. Lastly, counsel submitted that the approval and sanction must contain the individual role of every accused. Role of each accused should be highlighted. In this connection, counsel relied on paragraphs 3, 4 and 5 of the judgment of the Supreme Court in Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat, (1997) 7 SCC 744. Counsel also relied on judgment of the Division Bench of this court to which one of us (Tahilramani, J.) is a party in Adnan Bilal Mulla v. AJN 11 State of Maharashtra 2010 All M.R. (Cri.) 1212. Counsel also relied on judgment of the Supreme Court in Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394 in support of his submission that if while examining an application praying for discharge the court comes to a conclusion that two views are possible and evidence produced before the court gives rise to suspicion only as distinguished from grave suspicion, the court will be within its right to discharge the accused. Counsel submitted that the present case is fully covered by the ratio of Yogesh and, hence, the impugned order needs to be set aside. 8. We have also heard Ms. Kantharia, learned A.P.P. appearing for the State. She submitted that the present case is completely covered by the judgment of this court in Anil Sadashiv Nanduskar v. State of Maharashtra, 2008 (3) Mh.L.J. (Cri.) 650. She submitted that every point which is argued before this court was also argued in Anil Nanduskar and this court AJN 12 has expressly rejected those submissions. Learned A.P.P. submitted that in Anil Nanduskar, this court has taken a view that if the sanction or the approval order does not ex facie show consideration of all the materials and or application of mind, the prosecution is entitled to establish the same by leading necessary evidence regarding production of material before the concerned authority. This court has observed that the accused cannot be discharged merely on this basis. Learned A.P.P. submitted that the reliance placed by counsel for the petitioner on Sherbahadur Khan is totally misplaced. In Anil Nanduskar, this court has held that Sherbahadur Khan does not lay down a binding principle because in that case, this court was not dealing with the definition of the expression “organized crime” under Section 2(1)(e) but the court was discussing the matter in relation to the facts of a particular case. Learned A.P.P. pointed out that even in Govind Sakharam Ubhe v. State of Maharashtra, 2009 All M.R. (Cri) 1903, a Division Bench of this court to which one of us (Smt. Ranjana Desai, J.) was a party AJN 13 has observed that in the facts of Sherbahadur Khan, the offences could, by no stretch of imagination, be considered to give the accused any pecuniary or undue economic or other advantage. Sherbahadur Khan must be, therefore, restricted to its own facts. Learned A.P.P. pointed out that in Bharat Gavhane, a learned Single Judge of this court has rejected the submission that the words “or other advantage for himself or any other person” appearing in the definition of the term “organized crime” would take their colour from earlier part of the words i.e. the principle of ejusdem generis would apply. Learned A.P.P. pointed out that in Sidharth Ramesh Janmejay v. State of Maharashtra, 2005 (1) Bom.C.R. (Cri.) 372, another Single Judge of this court has taken a similar view. Learned A.P.P. submitted that in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra & Anr. 2005(2) Bom.C.R. (Cri.) 567 SC, the Supreme Court has expressly kept this question open. Learned A.P.P. submitted that therefore this submission deserves to be rejected. AJN 14 9. Learned A.P.P. submitted that there is sufficient material on record to indicate the complicity of the appellant and, therefore, application of the MCOCA is justified. Learned A.P.P. submitted that this is not a case where two views are possible. The only view which is possible is that the application of the MCOCA is justified. Learned A.P.P. submitted that so far as the discharge of the co-accused is concerned, the State is taking steps to appeal against that order and, therefore, that order should not weigh with this court while considering the present appeal. Learned A.P.P. submitted that in the circumstances, no interference is called for with the impugned order. 10. Since we are dealing with a discharge application, we shall first ascertain the principles which should guide us while dealing with a discharge application. In Govind Ubhe, this court has considered all the relevant judgments including the judgment of the Supreme Court AJN 15 in State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699 and summarized the law in the following manner. “25. The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. AJN 16 That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage.” 11. Mr. Chitnis has relied on Yogesh to which reference is not made in Govind Ubhe. Yogesh lays down the same principles. In that case, the Supreme Court has observed that if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the AJN 17 accused. There can be no two opinions on this statement of law. In fact, in the paragraph which we have quoted hereinabove from Govind Ubhe, this court has reproduced the same principle. Keeping the above parameters that determine the courts' power qua prayer for discharge, we will deal with this case. 12. Mr. Chitnis strenuously urged that since the facts involved in the co-accused's case are identical and similar arguments were advanced in both the matters, judicial propriety demanded learned Special Judge to follow the view taken in the similar matter by his predecessor and discharge the appellant. Ordinarily if the role of the accused is identical and all the facts are similar, a court would follow the view taken by a coordinate court. However, before us the entire matter is at large. We will have to consider the case of the present appellant independently. The view taken by a coordinate trial court is not binding on us. We must also bear in mind that the present appellant heads the gang. The gang is named AJN 18 after him. We would, therefore, consider his case independently. We must however note our dissatisfaction about the conduct of the investigating agency. It is not understood how if it was desirous of challenging the order discharging the co-accused Taru, it slept over the matter for such a long time. The Director General of Police, State of Maharashtra needs to look into this matter. 13. In the context of rival submissions, we need to examine whether the role of each accused must be stated in the proposal and the sanction. Similarly, what needs to be examined is whether objective of gaining pecuniary advantage is the core of Section 2(1)(e) and the words “other advantage” found therein are to be construed “ejusdem generis” with the earlier terms in the light of Sherbahadur Khan. 14. Section 2(1)(e) of the MCOCA must be kept in the forefront as the arguments revolve around it. It reads as under : AJN 19 “2. Definitions. (1) In this Act, unless the context otherwise requires, - (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) “organized crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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; 15. At the outset, we must state that we are unable to accept the argument that the approval order or the sanction order must specifically state the charges and the role of each accused. Neither the approval order nor the sanction order is expected to be like a treatise. It cannot be equated with a charge-sheet. Undoubtedly, it is AJN 20 necessary for the investigating authority to place adequate material before the authority which grants approval and sanction and the approval order and the sanction order being not a mechanical exercise must disclose application of mind. But, they are not expected to be verbose. It is wrong to hold that prolixity is indicative of application of mind. We have carefully read the approval order. It refers to the proposal and relevant papers submitted by the Kothrud Police Station. It states the names of the accused, who are members of the organized crime syndicate. It states that after perusal of the material it appears that the accused are indulging in continuing unlawful activities for gaining pecuniary undue economic and other advantages and, therefore, it is necessary to initiate action under the provisions of the MCOCA and, therefore, the approval is being given for that purpose. The approval order, in our opinion, is issued after proper application of mind. 16. It is pertinent to note that the sanction order begins AJN 21 by saying that the Assistant Commissioner of Police, Crime-I has submitted official note sheets dated 20/3/2007 and 28/3/2007 along with papers of investigation of C.R.No.562 of 2006 and proposal for sanction under Section 23(2) of the MCOCA. It states the names of the accused. It refers to the evidence collected during investigation and states that it reveals that the accused are members of the organized crime syndicate. It states that the investigation has revealed that the appellant and his associates run an organized crime syndicate with a view to gaining pecuniary benefits and other advantages for themselves by use of violence, intimidation and other coercive means. It states that the evidence clearly establishes that the appellant and his associates in furtherance of the activities of their organized crime syndicate have committed offence in question by using firearms voluntarily to establish their supremacy over their rival gang. 17. We are, therefore, of the opinion that the sanction AJN 22 order has been issued after perusing the proposal as well as two official note sheets. It is not as if the sanction order has been issued on the basis of a cryptic note placed before the sanctioning authority. The averments made in the sanction order indicate that it is issued after application of mind. 18. We shall now turn to the submission based on Anirudhsinhji Karansinhji Jadeja that the javak letter referred to in the approval order should be supplied to the appellant. 19. In our opinion, Anirudhsinhji Karansinhji Jadeja is not applicable to the facts of the present case. No doubt, Section 20-A(1) of TADA is similar to Section 23(1) of the MCOCA. But, in Anirudhsinhji Karansinhji Jadeja, the appellant had urged that prior approval as required under Section 20-A(1) was not taken. After considering the facts, the Supreme Court came to the conclusion that the DSP did not exercise the jurisdiction vested in him under AJN 23 Section 20-A(1) and referred the matter to the Additional Chief Secretary requesting for permission to invoke the provisions of Sections 3 and 5 of the TADA. The Supreme Court observed that by sending a report, the DSP did not exercise his power vested in him in law. It must be remembered that there is no such allegation in this case. The Supreme Court then went on to examine the sanction in that case and came to the conclusion that the sanction was issued without application of mind on the following grounds: (a) Sanction was given merely on a fax message of the DSP; (b) The Government did not take steps to satisfy itself whether what had been stated by the DSP was borne out by the record which apparently had not been called for (emphasis supplied). AJN 24 (c) Sanction was given post haste on 18/3/1995 i.e. the very next day of the fax message of DSP dated 17/3/1995. (d) The DSP emphasized the political angle and referred to statements of the accused before arrest. (e) The State Government gave the sanction even without discussing the matter with the investigating officer. 20. In this case, sanction is not granted merely on the basis