spb/- 1 J-A239-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 239 OF 2011 The State of Maharashtra ... Appellant. (Org.Complainant) V/s. Rahul Ramchandra Taru ... Respondent. Age-24 yrs., Occ.-Service, R/a. 354- (Org.Accused) Bhoiraj Society,Sahakar Nagar No.1, Pune -411 009. (in Yerwada Central Prison) --- Mr. Y.P. Yagnik, APP for the Appellant/State. Mr. S.R.Pasbola i/by Rahul Arote for the Respondent. ----- CORAM : P. V. HARDAS & M.N.GILANI,JJ. DATE : Judgment reserved on 28th April, 2011. Judgment pronounced on 06th May, 2011. JUDGMENT : (PER M.N. GILANI, J.) 1 This appeal under section 12 of the Maharashtra Control of Organised Crime Act, 1999 (for short, “MCOCA”) is directed against the order dated 21.08.2008 passed by the Special Judge, Special Court, Pune in Special Case No. 2 of 2007, whereby, the learned Special Judge discharged the respondent- accused for the offence under MCOCA. 2 Special Case No. 2/2007 is arising out of Crime No. 562/2006 registered with the Kothrud Police Station, Pune under sections 302, 307, 143, 148, 149, 120-B and 109 of the Indian Penal Code and Section 3/25 spb/- 2 J-A239-11.sxw of Arms Act, The incident occurred on 14.10.2006. It is alleged that one Sachin Pote and his associates attacked one Sandeep Mohol (since deceased) while latter was proceeding in his Scorpio Jeep. The firearms and other deadly weapons were used by the accused while assaulting the deceased. Sandeep Mohol succumbed to the injuries which resulted in registration of the crime as indicated above. 3 The investigation revealed that the accused are the persons of the organised crime syndicate and therefore, provisions of MCOCA were invoked against them. 4 The respondent submitted an application vide Exh. 99, seeking his discharge from the offence punishable under section 3(i), 3(ii), 3(iii) and 3(iv) of the MCOCA. It was submitted that the material placed on record does not disclose any offence under the provisions of MCOCA. There is no evidence to show that the respondent-accused was at any point of time was a member of the organized crime syndicate. The State resisted this application. The learned Special Judge after considering the rival submissions, held that the material placed on record does not disclose offence punishable under the MCOCA. He therefore, discharged the respondent-accused from the offences punishable under the MCOCA. Being aggrieved, by this order, the State has preferred this appeal. 5 Learned APP submitted that the order of discharge passed by the learned Special Judge is erroneous and inconsistent with the documentary evidence placed on record. According to him there is ample material to show that the respondent-accused is a member of the organized crime syndicate. He alongwith the other is involved in spb/- 3 J-A239-11.sxw continuing unlawful activity and this is evident from the chargesheets filed against him within preceding period of ten years and that the court has taken cognizance of such offence. 6 Similar submissions were advanced before the learned Special Judge, Special Court, Pune. As regards two previous chargesheets, one being Sessions Case No. 418 of 2006 under section 395, 143, 147, 148 of the IPC and other being regular Criminal Case No. 120 of 2000 under sections 324, 323, 504 read with 34 of the IPC, the learned Special Judge observed that these offences were not committed by the organized crime syndicate. As regards the allegations in special case no. 02 of 2007, the offence with which the respondent-accused and others have been charged have not been committed with an objective of gaining pecuniary benefits or gaining undue economic or other advantage to the respondent-accused. Therefore, he discharged the respondent-accused. 7 Before we consider the merits of the present case, it would be appropriate to set out certain provisions of the MCOCA, in particular Sections 2(d), 2(e) and 2(f) of the MCOCA as under : “Sec. 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 chargesheets have been filed before a competent Court within the spb/- 4 J-A239-11.sxw preceding period of ten years and that Court has taken cognizance of such offence”. “Sec.2(e) “Organised 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 unsurgency”. “Sec. 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. “ (emphasis supplied) 8 Under section 2(d) of MCOCA, “continuing unlawful activity” means an activity prohibited by law for the time being in force which is a cognizable offence punishable with imprisonment for three years or more, undertaken either singly or jointly, as a member of the organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheets have been filed. It is, therefore, clear that one or more chargesheets, containing allegations that the alleged offence was committed either singly or jointly as a member of the organized crime syndicate or on behalf of such syndicate, is sine qua non for invoking stringent provisions of MCOCA. This follows that mere filing of more than one chargesheets within the preceding period of ten years, alleging commission of congnizable offence punishable with imprisonment of spb/- 5 J-A239-11.sxw three years or more, is not enough. 9 In the case of Ranjeetsingh Brahmajeetsing Sharma Vs. State of Maharashtra & Anr. (2005 ALL MR (Cri) 1538 (S.C.), the Supreme Court observed that : “The Statement of Objects and Reasons clearly states 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 the MCOC Act seeks to prevent or control. In other words, an offence falling within the definition of organized crime and committed by an organized 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 chargesheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA”. (emphasis supplied) In order to constitute “continuing unlawful activity” following requirements of law should be satisfied :- i. more than one chargesheet, alleging commission of congnizable offence punishable with imprisonment of three years or more; ii a chargesheet should consists of averments, alleging unlawful activity undertaken either singly or jointly by the accused; spb/- 6 J-A239-11.sxw iii as a member of organized crime syndicate or on behalf of such syndicate; iv the congnizance of such offence is taken by the competent court. 10 In order to bring an alleged act within the ambit of the MCOCA, the aforementioned requirements are mandatory. The word “in respect of which” occurring in the definition clause of “continuing unlawful activity” connotes that it is not a normal chargesheet, alleging commission of congnizable offence punishable with imprisonment of 3 years or more. The chargesheet sans allegations that the alleged act is undertaken either singly or jointly by the accused who is a member of an organized crimes syndicate or is undertaken on behalf of such syndicate, would not fall within the ambit of the expression “continuing unlawful activity”, occurring in MCOCA. 11 In Prafulla s/o. Uddhav Shende vs. State of Maharasthra, (2009 ALL MR(Cri.) 870), the learned single Judge of this court while dealing with the bunch of appeals arising out of judgments passed by the Special Court at Nagpur, placed reliance on the various decisions, mainly, the decision in Ranjeetsingh Brahmajeetsing Sharma;s case (supra), also made a reference to the case of Sherbahadur Akram Khan (Supra) and observed in paragraphs 29, 43 and 44 that : “29. Since the definitions, though intertwined in a cyclic order, are clear and unambiguous, it would follow that each ingredient in the definitions, or the alternative thereof provided by the spb/- 7 J-A239-11.sxw definitions themselves, would have to be proved. Viewed thus, for charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in : (i) an activity, (ii)which is prohibited by law, (iii)which is a congnizable 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. (vi)(a) in respect of similar activities (in the past) more than one chargesheets 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. “43. This fortifies the conclusion that mere proof of filing chargesheets in the past is not enough. It is only one of the spb/- 8 J-A239-11.sxw requisites for constituting offence of organised crime. If only the past charge-sheets were to be enough to constitute offence of organised crime, it could have offended the requirement of Article 20(1) of the Constitution and possibly Article 20(2) as well, (and in any case Section 300, Cr.P.C.). Had these judgments of the Supreme Court and Division Benches of this Court been cited before the learned single Judge deciding Amarsingh Vs. State (2006 ALL MR (Cri.)407) the learned Single Judge, without doubt, would not have held that the matter was simply one of an arithmetical equation. The said judgment cannot be reconciled with the judgments of division benches in Jaising Vs. State (2003 ALL MR (Cri) 1506 and Bharat Shah vs. State 2003, ALL MR (Cri) 1061 which I am bound to follow. 44. ................. Therefore, since the previous criminal history of the applicants denotes that they had been or are being separately charged/tried for those offence before competent courts, there is no question of such offences constituting offence of organised crime.”. (emphasis supplied) 12 In the present case, the prosecution relied upon two charesheets one relating to CR No. 113 of 2006 and the other relating to CR No.87 of 2000 registered at Sahakar Nagar Police Station, Pune under sections 323, 324, 506 read with section 34 of the IPC. 13 In R.C. No. 87 of 2000, the complainant Ritesh in his complaint spb/- 9 J-A239-11.sxw dated 07.05.2000 lodged on the night of 06.05.2000, stated that when he intervened in the quarrel going on between the respondent and his associates on one hand and one Sunil on the other hand, the respondent inflicted knife blow on his fingers of left hand. This has resulted into the filing of the chargesheet being crime no. 129 of 2000 before the court of Judicial Magistrate, First Class, Court No.4 ,Pune. The respondent was acquitted in this case on 26.03.2008. Here, we are only concerned about the filing of chargesheet on the date when the MCOCA was invoked. The perusal of the allegations in the aforesaid chargesheet, by no stretch of imagination, point out that the aforesaid offence was committed by the accused in the capacity as a member of organized crime syndicate or while acting as a syndicate or a gang or on behalf of such syndicate. It cannot be said that such allegations has any nexus with the Statement of Objects and Reasons under the MCOCA. To put it differently, such allegations do not satisfy all the mandatory requirements contemplated by the expression “continuing unlawful activity” occurring under MCOCA. 14 The learned APP placed reliance on unreported judgment in the case of Ganesh Nivrutti Marne vs. The State of Maharashtra in Criminal Appeal No. 930 of 2009 decided on 07th May, 2010. That appeal also had arisen from the Special Case No. 02 of 2007 which was filed by the accused no.7 whose application for discharge was rejected by the Special Judge, Special Court, Pune. It appears that the appellant in the said case was operating his own gang called as “Ganesh Marne Gang”. Allegations against him were that he was operating a crime syndicate and committed several offences of similar nature in the past to gain an edge over the rival gang and to achieve supremacy in the local spb/- 10 J-A239-11.sxw area. The Division Bench in the case (supra) examined the facts in Special Case No. 2 of 2007 qua the appellant before analysing expressions “continuing unlawful activity”, “organised crime” and “organized crime syndicate”. A reference was made to the judgment of the Division Bench of this court in the case of Sherbahadur Akram Khan vs. State of Maharashtra (2007 ALL MR (Cri.) 1) and held that Sherbahadur Akram Khan’s case must be restricted to its own facts. The Division Bench while rejecting appeal laid great emphasis on the decision in the case of Anil Sadashiv Nanduskar vs. State of Maharashtra [2008 (3) MAH. L.J. (CRI) 650]. In the cases of Ganesh Nivrutti Marne as well as Anil Nanduskar, the question which was addressed by the Division Bench was whether expressions “other advantage” occurring under section 2(1)(e) are to be construed “ejusdem generis” with the earlier terms or it should be given wider meaning. The Division Bench in the case of Ganesh Nivrutti Marne has also made reference to the Supreme Court decision in the case of Ranjeetsingh Brahmajeetsing Sharma vs. State of Maharashtra (Supra) and observed that “the Supreme Court has expressly kept this question open.”. 15 We propose to clarify that to address the question which is posed in this appeal, interpretation of expressions “or other advantage” and “or other unlawful means”, occurring under section 2(1)(e) of MCOCA, is not strictly necessary. Even if, both the terms are given wider meaning, the prosecution is not absolved of its duty to prove that within the preceding period of 10 years more than one chargesheets, alleging commission of cognizable offence punishable with imprisonment of three years or more, have been filed and further to prove that in such spb/- 11 J-A239-11.sxw chargesheets, it has been alleged that the accused either singly or jointly and as a member of organized crime syndicate or on behalf of such syndicate committed the unlawful activity. This follows that merely alleging that more than one chargesheets in respect of cognizable offence punishable with imprisonment of three years or more have been filed, is not sufficient. This does not satisfy requirements of law. This is what precisely held by the Supreme Court in the case of Ranjeetsingh Brahmajeetsing Sharma (supra). The unlawful activity alleged in the previous chargesheets should have nexus with the commission of the crime which MCOCA seeks to prevent or control. An offence falling within the definition of organized crime and committed by organized crime syndicate is the offence contemplated by the Statement of Objects and Reasons under the MCOCA. 16 On careful examination of one of the chargesheets, which exercise was also undertaken by the learned Special Judge, we have reached to the conclusion that the act constituting offence was not alleged to have been committed by the accused as a member of organized crime syndicate or on behalf of such syndicate. 17 For the foregoing reasons, we do not find any substance in the appeal. 18 Appeal is dismissed. 19 At this stage, learned APP requests for grant of stay for four weeks in order to enable the State to file appropriate proceedings in the spb/- 12 J-A239-11.sxw Supreme Court. In that light of the matter, therefore, we grant stay for four weeks as requested by the learned APP. [M.N.GILANI,J.] [P.V. HARDAS, J.]