1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPEAL NO.1212 OF 2004 Dinesh Mahadev Bhondve ) Age: 24 years, ) Residing at Upper Indira ) Nagar, Pune. )..Appellant. (Yerwada Central Prison) )(Org.Accd.No.4) V/s. The State of Maharashtra, ) (At the instance of ) Wadgaon Maval Police Station, ) Dist.Pune. )..Respondent. WITH CRIMINAL APPEAL NO.1374 OF 2004 Vishal Parshuram Sunake ) Age 24 years, Occ: Business, ) Residing at Upper Indira Nagar, ) Pune. ) At present detained behind bar ) at Yerwada Central Prison )..Appellant. at Pune. )(Org.Accd.No.3) V/s. State of Maharashtra, through ) The Police Inspector ) Lonawala Police Station, )..Respondent. Lonawala. )(Org.Complainant.) WITH CRIMINAL APPEAL NO.24 OF 2005 Kisan Nathu Pardeshi, ) Age 37 years,Occupation-Business) Residing at-Upper Indira ) Nagar, Pune. ) (At present detained in Yerwada )..Appellant. Central Prison, Pune 411 006.) )(Org.Accdd.No.1) 2 V/s. The State of Maharashtra ) (through Officer-in-charge, ) Vadgaon, Maval Police Station, )..Respondent. District-Pune) )(Org.Complainant) Mr.Deopam Kathrani i/b. Mr.Indrajeet Joshi for Appellant in Cri.Appeal No.1212/04 Mr.J.B.Kothecha for Appellant in Cri.Appeal No.24/05 Mr.Uday Warunjikar for Appellant in Cri.Appeal No.1374/04 Mr.K.V.Saste, APP for State. CORAM CORAM CORAM : A.M.KHANWILKAR, J : A.M.KHANWILKAR, J : A.M.KHANWILKAR, J RESERVED RESERVED RESERVED ON : DECEMBER 4, 2006. ON : DECEMBER 4, 2006. ON : DECEMBER 4, 2006. PRONOUNCED PRONOUNCED PRONOUNCED ON: APRIL 9, 2007 ON: APRIL 9, 2007 ON: APRIL 9, 2007 ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. This common Judgment will dispose of all the three cognate appeals. 2. The foremost Appeal No.1212 of 2004 is filed by the accused no.4 (Dinesh Mahadeo Bondve). The following Appeal No.1374 of 2004 is filed by accused No.3(Vishal Parshuram Sunake) and the last Appeal No.24 of 2005 is filed by accused No.1(Kishan Nathu Pardeshi). The appellants along with other three accused were tried simplicitor for 3 offences punishable under sections 3 (1) (i), 3(1) (ii), 3 (2) and 3 (4) of the Maharashtra Control of Organised Crime Act,1999 (hereinafter referred to as MCOCA). The trial Court by the impugned Judgment and order in these appeals, dated 11th August, 2004, acquitted accused nos.2, 5 and 6 of all the charges. In so far as the appellants (accused nos.1,3 and 4) are concerned, they have been acquitted of offence punishable under section 3 (1) (i) and 3 (2) of the MCOCA. However, these appellants(accused Nos. 1,3 and 4) have been found guilty of offences punishable under section 3 (1) (ii) and 3 (4) of the MCOCA. For each of these offences, the appellants have been ordered to undergo sentence for 5 years and pay a fine of Rs.5,00,000/- each on each count, in default to further undergo rigorous imprisonment for 1 year on each count. The trial Court has however, directed the substantive sentences to run concurrently. 3. The prosecution case is that, a complaint of one Pujari of Kamshet was received in police station Vadgaon-Maval, which was registered as C.R.No.95 of 2001, for offences punishable under section 387 read with section 34 of the Indian 4 Penal Code. The said offence was registered against accused no.1 and others. In connection with the said offence, an inquiry was commenced. During such inquiry, it transpired that several criminal cases of serious offences were registered against the accused no.1 in the past. On inquiries with police station of Lonavla city, Lonavla Rural, Yerawada and also Vadgaon-Maval, it was revealed that there were as many as 23 offences registered against the accused no.1 and his henchmen. All these offences pertained to offences affecting human body or offences against property under Chapter XVI and XVII of the Indian Penal Code. It also transpired that the accused no.1 was the head of a gang which was indulging in such offences in the past. The accused no.1 himself and with the help of his associates, was indulging in those offences in the concerned areas for quite sometime. As it was revealed that more than one charge sheets have been filed before the competent local courts within the prescribed period of 10 years against the accused no.1 and his associates in relation to cognisable offences punishable with imprisonment of 3 years or more undertaken either singly or jointly as a member of an organised crime syndicate or on 5 behalf of such syndicate and the concerned Courts have had taken cognisance of such offences and more so that the said continuing unlawful activities were carried out by use of violence or threat of violence with the objective of gaining pecuniary benefits or gaining undue economic advantage for the accused no.1 himself as well as for his associates, the concerned Police Officer Vijay Kumar Bhoite (PW 1) prepared a report dated 30th October, 2001 addressed to the Special I.G. Kolhapur Range for seeking approval to register offence under the stated provisions of the MCOCA, as was required in terms of section 23 (1) (a) of that Act. The said report Exhibit 21 is quite exhaustive- as it refers to every singular criminal case against the respective accused. Most of the cases are covered by offences either under Chapter XVI or XVII of Indian Penal Code. Incidently, this report names 37 persons who were stated to be indulging in continuing unlawful activities as members of the organised crime syndicate or on behalf of such syndicate and committing organised crimes within the meaning of MCOCA. 4. The report Exh.21 evinces that the enquiry 6 revealed that there were 23 offences of serious nature already registered against the accused no.1, who has had held out himself to be the head of an organised crime syndicate/gang. Besides, it was noticed that several offences were pending against the named associates of the accused No.1. For, 9 criminal offences were reportedly pending against accused Raju Gaikwad(A5), 6 against Jalinder More(A6), 4 against Vishal Sunake(A3), 4 against Dinesh Bondve(A4), 3 against Sunil Pardeshi(A2). P.W.1 has meticulously referred to all the relevant aspects in his report Exhibit 21 about the fact that the appellants along with other associates were indulging in continuing unlawful activities as organised crime syndicate and committing organised crimes within the meaning of MCOCA. It is stated that the accused no.1 had formed this organised crime syndicate with his local contacts and also with others having criminal track record who had come in association with accused No.1 while he was in jail in connection with criminal cases against him. The accused no.1 is the fountain head of the gang who was indulging in such continuing unlawful activities and operating within the stated area. The report graphically reproduces the details of 7 several criminal cases in respect of which separate charge sheets have been filed against the concerned accused and concerned Courts having taken cognisance thereof. The offences referred to therein are cognisable offences punishable with imprisonment of 3 years or more in which accused were engaged singly or jointly, who are members of the syndicate. As the said offences were of serious nature, covered under chapter XVI and XVII of Indian Penal Code, committed by use of violence or threat of violence or coercion or other unlawful means with the objective of gaining pecuniary benefits or gaining undue economic advantage for accused or any other person; therefore, the PW 1 submitted the report to the competent authority for according approval for registration of FIR against the named persons for offences punishable under the provisions of the MCOCA. 5. The said report along with other relevant material was examined by the Special I.G.Kolhapur Range- Ramrao Bhausahab Pawar (PW 12), the appropriate authority. He however, accorded approval to register FIR for MCOCA offences only against six of the named persons. The approval 8 order so issued by PW 12 has been proved in evidence and marked Exhibit 22. Accordingly, as per the approval accorded for registration of the FIR, PW 1 proceeded to file FIR only against the six accused, on 12th December, 2001. The FIR is Exhibit-23. The FIR more or less replicates the relevant information given in the report of PW 1 Exhibit-21, as was submitted for approval to PW 12. The appellants before this Court have been named as accused nos. 4,3 and 1 respectively in the said FIR, which has been registered as C.R.No.54 of 2001 for offences under MCOCA. 6. As PW 1 became the complainant in the present offence, PW 12 issued instructions that the investigation of the case as registered, be taken over by ACP Narhari Maruti Athawale PW 11. Immediately on and from the next day after registration of offence i.e. 13.12.2001 and receipt of instructions, PW 11 took over the investigation of this case. He commenced inquiry by first examining witness Balasaheb Walunj (P.W.9). He then examined other witnesses in due course. During this inquiry, he has not only examined private persons but also made inquiry with 9 the police officials of different police stations where offences against the accused were registered. He claims to have examined several witnesses and recorded their statements. He also claims to have collected copies of the FIR, charge sheet in relation to the stated offences against the accused from different police stations. He also claims to have collected copies of the judgments of the criminal cases against the accused from the respective Courts as also called upon the revenue officers to furnish information regarding the landed properties of the accused. 7. On the basis of the inquiry so made and the materials collected, PW 11 proceeded to submit report to Omprakash Bali PW 13, Director General of Police at the relevant time, for according sanction under section 23 (2) of the Act. PW 13 examined all the relevant investigation case papers and the report of the Investigating Officer PW 11. After carefully examining and being fully satisfied, accorded sanction to prosecute the six accused for offences punishable under MCOCA. 8. Significantly, the present prosecution is 10 simplicitor under the provisions of MCOCA and not associated with the offence reported by one Pujari of Kamshet, in respect of which PW 1 had undertaken inquiry which led him to believe that the named persons were required to be proceeded for offences under MCOCA. 9. Be that as it may, after PW 13 accorded sanction to prosecute the six accused, the Investigating Officer PW 11 proceeded to file charge sheet against the said persons for offences punishable simplicitor under provisions of MCOCA. The MCOCA Court then took cognizance of the case and proceeded with the trial. The accused denied the charges and claimed to be tried. 10. During the trial, the prosecution examined different categories of witnesses. The first amongst them were Police officials who had made inquiry which led to the institution of present prosecution under the provisions of MCOCA. The initial inquiry was made by PW 1. After following the necessary procedure, he registered formal FIR against the named six accused. Soon thereafter the investigation of the case was taken over by PW 11 11 as per the directions of his superior. These witnesses have spoken about the steps taken by them and the material collected for justifying filing of the charge sheet for offences punishable under MCOCA against the accused. The second set of witnesses are superior officials who were involved at the stage of granting approval for registering of FIR as required under section 23 (1) (a) of the MCOCA; and for according sanction to prosecute the accused as required by section 23 (2). PW 12 acted as authority to grant approval to register FIR, whereas PW 13 acted as sanctioning authority to accord sanction to prosecute accused under section 23 (2). The third set of witnesses are again police officials PW 2, PW 3 and PW 4. PW 2 was attached to Lonavala police station between 1999 to 2002 during which period he was required to register criminal cases relating to serious offences against accused nos.1, 3 and 4. Such as, offences punishable under sections 324, 504, 337 read with section 34 of IPC being C.R.No.3 of 2001; under sections 143, 147,148,307 of IPC being C.R.No.6 of 2001; and under section 3, 25 of the Arms Act being C.R.No.50 of 2001. He has spoken not only about the registration of the said cases 12 against the stated accused, but also having undertaken investigation of the said offences and of filing charge sheet in the respective case against them. PW 3 is another police official, Pratap Vithal Markand, who was attached to Kamshet outpost- which is under Vadgaon Maval police station- for the period between January, 2001 to June, 2003. During this period, he had occasion to register offence of robbery against appellants and their associates, punishable under section 392 read with section 34 IPC being C.R.No.58 of 2001; and another offence punishable under section 387 read with section 34 of IPC being C.R.No.95 of 2001. PW 4, Raju Anand Chavan, who was attached to police station Vadgaon-Maval for the period between June, 1997 to 31st December, 1998 and with police station Lonavla between April, 2000 to December, 2001, he has spoken about the registration of criminal cases and filing of charge sheet in relation to those cases after completion of investigation against the appellants. The first offence referred to by him is offence punishable under section 387, 365, 504 read with section 34 of IPC as also section 3, 25 of Arms Act. Second criminal case is again for offence punishable under section 387, 326, 506 read 13 with section 34 IPC being C.R.No.30 of 1998. Third case is in relation to similar offence which was then registered as C.R.No.31 of 1998 with Lonavala city police station. He has lastly referred to another criminal case punishable under sections 386, 365 read with section 34 IPC and under section 3 and 25 of the Arms Act registered as R.C.C.No.74 of 1998 against the appellant. These witnesses have asserted that accused persons had created a reign of terror in the locality of Vadgaon Maval and Lonavala for quite sometime. The reports submitted by PW 1 and PW 11 refer to the fact of continuing unlawful activities of the gang of which the accused no.1 held out himself to be the head and master mind. It is noted that even the special police force was required to be deployed. These witnesses, during evidence before the Court, have brought on record all the relevant materials collected by them during inquiry or investigation. They have spoken about having scrutinised the relevant FIRs, and charge sheets in all the above referred criminal cases against the accused. The last category of witnesses examined by the prosecution is PW 5 to PW 10. They have spoken about individual offences committed by the 14 appellants on account of which they have suffered at the hands of the appellants. Two of these witnesses PW 5 and PW 9 turned hostile. The trial court permitted the Public Prosecutor to cross-examine the said witnesses. All these witnesses were subjected to thorough cross examination. 11. On analysis of the entire evidence, both ocular and documentary, the trial court proceeded to record finding of guilt only against the appellants (accused nos.4,3 and 1 respectively), for offences punishable under section 3 (1) (ii) and 3 (4) of the Act only. The trial court first adverted to the admitted facts. It has noted the number of criminal cases as against each of the accused. It has also noted that, offences so registered against the accused, were cognisable offence punishable with imprisonment of 3 years or more. It has then noted that more than one charge sheets have been filed against each of the accused. It has also noted that in so far as appellants are concerned, more than one charge sheet have been filed against them for having committed cognisable offence punishable with imprisonment of 3 years or 15 more undertaken either singly or jointly as member of the gang headed by the accused no.1 in respect of which the court has taken cognisance thereof. It has also found that, the fact that the accused were convicted or acquitted in those criminal cases, was of no consequence. It has noted that there can be no direct evidence of forming an organised crime syndicate. But, that has to be and can be inferred on the basis of material collected by the investigating agency. From the materials, it was seen that the appellant-accused no.1 and his associates indulged in offences of organised crimes. The trial Court has also adverted to the argument of the accused that the offence committed prior to 7th November, 1998 cannot be taken into account for proceeding against the accused for offences under special enactment i.e. MCOCA. It then proceeded to examine the evidence of each of the prosecution witnesses. On analysing that evidence, it has noted that the named accused operated singly or jointly as member of the gang headed by accused no.1 and created reign of terror in the locality. It has found that the accused no.1 was the master mind or kingpin of the gang, indulging in organised crime in the locality in 16 association with other accused who were members of that gang. It has also found that the evidence also evinces that the offences in which the accused had indulged were one of violence or threat of violence or intimidation or coercion and that arms and weapons were recovered from them. It has also found that the object of continuing unlawful activity was to gain pecuniary benefits or otherwise for the appellants themselves and members of their gang. The trial court then proceeded to hold that from the oral and documentary evidence on record, it was obvious that during last 10 years period, preceding the date of complaint, the accused no.1 indulged in as many as 21 offences which were punishable with imprisonment for 3 years or more and cognisance of those offences were taken by the competent court. The accused no.3 had indulged in as many as 4 offences successively during the year 2000-2001, alongwith accused no.2, by using violence. It is further found that in the year 2001, the accused no. 4 alongwith accused no.1 was involved in offences of same kind one after the other. The trial Court accordingly, proceeded to conclude that so far as accused nos. 1,3 and 4 were concerned (appellants before this 17 Court), they were working in association as organised crime syndicate and committing organised crime, of which accused no. 1 was the mastermind and head of the syndicate. 12. In so far as other accused namely accused nos. 2,5 and 6 are concerned, it is not necessary to dilate further except to observe that the trial court recorded finding of no guilt in their favour. For, one case was registered against of year 1988 and 1989, which was for the period earlier to 10 years preceding the date of complaint and could not be reckoned. The only other case against accused no.2 was C.R.No.6 of 2001 of individual offence and not as a member of the organised crime syndicate or for and on behalf of the Gang. Similar view is expressed in relation to accused nos. 5 and 6 that they were not involved in continuing unlawful activities as members of the organised crime syndicate or for and on behalf of the Gang. As the view in favour of accused Nos.2, 5 and 6 has not been challenged, the correctness thereof cannot be subject matter of these appeals. 13. Accordingly, it is the view taken by the 18 trial court against accused Nos.4,3 and 1 respectively made subject matter of the present appeals. They have been found guilty for offences under sections 3 (ii) and 3 (4) of the Act. The question is: whether the findings recorded by the trial court or for that matter the conclusions reached by it against the appellant(accused Nos. 4,3 and 1 respectively), can be said to be a possible view on the basis of the materials before it. In my opinion, the trial court has carefully analysed each relevant aspect of the matter to record findings of fact on the basis of which the ultimate conclusion has been reached. It is not a case of finding returned by the trial court being perverse or manifestly wrong. 14. Before we analyse the evidence on record, it will be apposite to first refer to the requirements of law, so as to constitute offence under section 3 (1) (ii) or 3 (4). Although, appellants were additionally charged for offence punishable under section 3 (1) (i) and 3 (2), however, I shall confine discussion only in relation to provisions of section 3 (1) (ii) and 3 (4) of the Act for which the appellants have been found guilty. 19 "Section 3 (1) (ii) and 3 (4) reads thus : 3.3.3. Punishment Punishment Punishment for organised crime : for organised crime : for organised crime : (1) Whoever commits an offence of organised crime shall,.... (ii) in any other case, be punishable with imprisonment for a term which shall not be less than a five years but which may extend to imprisonment for life and shall also be liable to a fine subject to a minimum fine of rupees five lacs. (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to minimum fine of rupees five lacs." 15. The opening expression of section 3 (1) (ii) in any other case refers to cases other than offence resulting in death of any person. Indeed, the offence should necessarily be an organised crime. To understand the meaning of organised crime, though defined under section 2 (1) (e) of the Act, it will be necessary to also refer to sections 2 (1)(d) and 2 (1) (f) which defines the expression "continuing unlawful activity" and " organised crime syndicate". In fact, these definitions are so inextricably mixed that they 20 will have to be considered together. 16. For the sake of convenience, the meaning of the said terms provided in section 2 (1) (d) (e) and (f) are reproduced thus : "2(1) In this Act, unless the context otherwise requires- (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, under taken 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 ; (e) "organized 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 ;" 21 17. The issue of sweep of these provisions is no more res integra. res integra. res integra. It will be useful to advert to the decision of our Court in the case of Bharat Bharat Bharat Shantilal Shantilal Shantilal Shah vs.State of Maharashtra Shah vs.State of Maharashtra Shah vs.State of Maharashtra reported in 2003 2003 2003 All M.R.(Cri) 1061 All M.R.(Cri) 1061 All M.R.(Cri) 1061. In para-19 of this decision the Court observed thus: "Dealing with the next definition in section 2 (1) (d) of ’continuing unlawful activity