Mere charge of an offence without any substantive crime is insufficient to constitute unorganized crime: Bombay High Court

 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.901 OF 2018WITH APPLN 430 2021 IN APPEL 901 20181.Darasing @ Maruti Vakilya Bhosale Age : 49 years Occu.: Labour R o. Dhamangaon Tq. AshtiDistrict Beed.2.Ramesh @ Rajjya Madhav @ Dhuraji Kale Age : 43 years Occu.: Labour R o. Brahmangaon Tq. AshtiDistrict Beed.3.Bandya @ Baan Nilgirya @ Utam Bhosale Age : 41 years R o. Walunj Tq. GangapurDistrict Aurangabad.4.Habib @ Habbya Panmalya BhosaleAge : 41 years Occ : LabourR o. Sablkhed Tq. Ashti District Beed.5.Garmanya Khubjat Chavan Age : 48 years Occ: LabourR o Shori Tq. AshtiDistrict Beed.6.Raju @ Adnyan @ Ashok @ Killya Bhosale Age : 36 years Occ: Labour R o. Dhamangaon Tq. Ashti District Beed.7.Umbrya Dhansha BhosaleAge : 48 years Occ: LabourR o Shorti Tq. AshtiDistrict Beed.8.Rasalya Diggya Bhosale Age : 41 years Occ : LabourR o. Chikhli Tq. Ashti District Beed.9.Santosh @ Hari Suryabhan @Discharge Kale Age : 36 years Occ: Labour R o. Hiwre Pimparkhed Tq. Ashti District Beed.10.Suresh @ Tirsha @ TintashaChintaman @ Chinchwanya KaleAge : 32 years Occ : LabourR o Shori Tq. Ashti District Beed.1 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt11.Hanumant Naksha BhosaleAge : 36 years Occ: LabourR o Hire PimparkhedTq. Ashti District Beed.12.Chiku @ Chikkya @ VivryaSarmalya Bhosale Age : 35 years R o. Walunj Tq. Gangapur District Aurangabad… APPELLANTSVERSUSThe State of MaharashtraRESPONDENTS…Advocate for Appellants : Mr. N.S. GhanekarAPP for Respondent State : Mr. R.B. Bagul…CORAM: MANGESH S. PATIL J.Reserved on:29.07.2021Pronounced on:03.08.2021JUDGMENT : This is an appeal under Section 12 of the Maharashtra Controlof Organized Crime Act 1999being aggrievedand dissatisfied by judgment and order returned by the learned SpecialJudge MCOC Aurangabad convicting the appellants under Section 3(1)(ii)and Section 3(4) of the MCOC Act and sentencing them to suffer rigorousimprisonment for 12 years under Section 3(1)(ii) and rigorousimprisonment for 10 years under Section 3(4) and in addition imposing afine of Rs.5 00 000 on each count in default sentencing them to furtherrigorous imprisonment of two years on each count.2.The facts which lead to the Appeal may be summarized asunder:2 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtIn the night intervening 16.01.2001 and 17.01.2001 theappellants committed dacoity in village Kothewadi Tq. Pathardi DistrictAhmednagar and even committed rape on few women for which CrimeNo.08 2001 was registered for the offences punishable under Section 395 342 376(2)(g) 354 506(2) of the Indian Penal Code. During theinvestigation of that crime it transpired that the appellants were involved inorganized crime wherein charge sheets were filed and the courts had takencognizance. Accordingly the approval was sought under Section 23 and thepresent crime was registered. The prosecution examined in all 11 witnessesmostly on the point and concerning the earlier crimes. By the impugnedjudgment the appellants have been convicted and sentenced as mentionedherein above.3.The learned advocate Mr. Ghanekar vehemently submitted thatbearing in mind the fact that Section 3 of the MCOC Act prescribes forpunishment for ‘organized crime’ as defined under Section 2(1)(e) and notfor being involved in ‘continuing unlawful activity’ as defined under Section2(1)(d) the appellants could not have been convicted under that provisionwithout being charged for any substantive offence. He would submit thatthough continuing unlawful activity is an ingredient for constituting anorganized crime in order to constitute an organized crime the offendermust be involved in some crime of the kind described in the definition oforganized crime. He would therefore submit that mere proof regardinginvolvement of the appellants in continuing unlawful activity was not3 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtsufficient to convict them. He would submit that admittedly the appellantshave not been charged for any substantive offence in the present crime andhave been convicted merely for engaging in continuing unlawful activityduring previous years. 4.The learned advocate would point out that the witnessesexamined by the prosecution are mostly relating to the previous crimesregistered against the appellants and do not make out any new substantiveoffence. He would further submit that the appellants have been duly triedfor the previous crimes and consequently could not have been again tried forcommission of those crimes. He would submit that even though theappellants have been involved in several crimes they have been duly triedfor all those crimes and irrespective of the decisions all these previouscrimes would merely demonstrate as to how they have been engaged incontinuing unlawful activity as defined under Section 2which ispunishable under Section 3.5.In support of his submission the learned advocate Mr. Ghanekarwould place reliance on the Division Bench decision of this Court inCriminal Appeal No.308 2002 Madan S o. Ramkisan Gangwani Vs. State ofMaharashtra and connected Appeals dated 26.03.2009 and Single BenchDecision of this Court in Criminal Appeal No.184 2015 Pundlik S o. UklaPawar and Ors. Vs. State of Maharashtra with connected Appeals dated4 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt14.07.2020.6.Per contra the learned APP would submit that there is enoughevidence to demonstrate as to how the appellants have been engaged incontinuing unlawful activity. They were involved in number of cases. As isheld in the case of Bharat Shantilal Shah Vs. State of Maharashtra 2003ALL MR1061 conviction or otherwise is inconsequential. There is noerror or illegality committed by the trial court appreciating the evidence andconcluding that appellants have engaged in organized crimes.7.The learned APP would also refer to the decision of this Courtin the case of Govind Sakharam Ubhe Vs. State of Maharashtra 2009 ALLMR1903 and the order passed in Kishor S o. Changdev Dandwate Vs.The State of Maharashtra Criminal Appeal No.222 2019 and Suryakant @Suresh S o. Shriram Mule Vs. The State of Maharashtra and Anr. CriminalAppeal No.34 2019.8.I have considered the rival submissions and perused the record.There is no dispute about the fact that as the matter stands the appellantshave been charged tried and convicted only for the offences punishableunder Section 3(1)(ii) and 3(4) of the MCOC Act and have not beensimultaneously charged and tried for any substantive crime. The issuetherefore which arises for determination and which in fact is no longer resintegra is as to if a person can be convicted for the offence of organizedcrime without there being a substantive offence. A similar argument wascanvassed before the Division Bench in the case of Madan Ramkisan5 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtGangwaniof‘continuing unlawful activity’ it was submitted that it suffersfrom violation of Article 14 as it treats unequals as equals. Itmakes an activity continuing unlawful activity if more than onecharges of cognizable offence punishable with imprisonment ofthree years or more are filed in competent Court it does nottouch an activity as continuing unlawful activity if undertakenby a person who is known to be a criminal but more than onecharge sheets have not been filed against him. A personcharged ten times of an offence though acquitted on everyoccasion may yet be roped in as a person engaged in continuingunlawful activity. Whereas a person who is convicted for anoffence for three years punishment cannot be touched by thisdefinition if he is not charged with more than two of suchoffences. The definition therefore treats as equal persons whoare hopelessly unequal … The arguments appear to beattractive at the first blush but deeper scrutiny reveals thehollowness of the argument.25.In our opinion there is no violation of Article 14 by this definition. Ifwe read the definition again what has been defined as continuingunlawful activity is a member of organized crime syndicate in respectof which any activity prohibited by law and done repeatedly i.e. morethan once for which charge sheet has been filed in the Court ofcompetent jurisdiction in the past ten years. The purpose of definitionis to define what continuing unlawful activity is and it is for thepurposes of defining what is continued unlawful activity that thosecharges are to be taken into consideration. Mere taking intoconsideration of such charges cannot result in discrimination of thekind alleged by Shri Manohar. The activity must be continuingunlawful activity and to define it with clarity it is provided that anyperson who in the past was charge sheeted for more than one chargeof such activity or crime the cognizance of which has been taken andimprisonment for which is more than three years should be taken intoaccount. The fact of the person having been charge sheeted in suchcognizable offences in the past makes the unlawful activity continuing unlawful activity. This section only defines what theactivity is. It does not itself provide for any punishment for thatactivity. Had punishment been provided the submission that it treatswhile punishing unequals as equals may carry weightage. That being6 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtnot the case in the challenge to section 2(1)(d) of the Act we see novagueness or violation of Article 14 by the definition. We find that theprovision treats all those covered by it in a like manner and does notsuffer from the vice of class legislation.27.We also do not find substance in the challenge that the equalityclause in the Constitution is violated because the definitionropes in anyone charged more than once irrespective ofwhether the charge resulted in an acquittal or conviction. Thecircumstances that followed the charge are not material. Theprovision only defines what is continued unlawful activities andrefers to whether a person has been charged over a period of tenyears for the purpose of seeing whether the person is chargedfor the first time or has been charged often. The circumstance ofconviction or acquittal that followed the charge are notmaterial. The limited purpose is to see antecedents of theperson. Not to convict.”(emphasis supplied)The Division Bench concluded in paragraph Nos.105 to108 as under :“105.Since in the present case the question raised is about thedefinition of "organised crime" in view of these observations of theSupreme Court it may be permissible to conclude that the findingsof this Court in Bharat Shah s case in this regard which have beenquoted earlier would have to be followed.106. This Court had specifically held that had punishment beenprovided for continuing unlawful activity the submission thatwhile punishing it treats unequals as equals may carryweight. The Court upheld the validity of the provisiondefining "continuing unlawful activity" only because the Actdid not provide any punishment for that activity. In para 27 itwas made clear that the limited purpose of continuingunlawful activity was to see antecedents of the person andnot the convict.107. It was contended that the observations in Bharat Shah s case by thisCourt have to be read in context of the fact that Section 2 is a definitionclause which just defines the offence and therefore could not haveprescribed punishment which Section 3 prescribes. It is truly saidthat Section 2 merely defines not only the offence of "organised crime"but also other terms used in the Act. What is material is the definition ofoffence of "organised crime" and not the definitions of other termsincluded in Section 2. Had the term "continuing unlawful activity" beensynonymous with "organised crime" it would not have been necessary7 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtfor the Legislature to include two definitions. It would have beensufficient to provide for only one definition of continuing unlawfulactivity and make that activity punishable. The definitions in clausesclearly show that one of the components of organised crime iscontinuing unlawful activity and therefore organised crime is somethingmore than mere continuing unlawful activity.108. Thus the fact of more than one chargesheet having been filed incompetent Court in preceding period of ten years and such Court havingtaken cognizance of such offence is merely one of the ingredients of theoffence of organised crime. Therefore it cannot be contended that theoffence of organised crime is completed by collection of previouscriminal activities.(emphasis supplied)Again in paragraph No.109 the observations of the DivisionBench in the case of Jaisingh Ashrfilal Yadav and Ors Vs. State ofMaharashtra and Anr. 2003 ALL MR1506 where quoted with aconclusion that even these observations would substantiate the submissionthat for establishing offence of organized crime something more than merecontinuing unlawful activity is necessary. It is pertinent to note that eventhe observation and conclusion of a Single Judge in the case of DineshMahadev Bhondwe Vs. State of Maharashtra 2007Mh.L.J.718 tothe contrary was held to be incorrect. Summarizing the conclusion in paragraph No.115 it has beenobserved as under:“115. If the provisions of the Act are read in entirety in the light offoregoing discussion they will show that offence of"organised crime" is constituted by atleast one instance ofcontinuation apart from continuing unlawful activityevidenced by more than one chargesheets in preceding tenyears : This is so because :(a)If "organised crime" was synonymous with "continuingunlawful activity" two separate definitions were notnecessary.8 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt(b) The definitions themselves show that ingredients of use ofviolence in such activity with the objective of gainingpecuniary benefit are not included in definition of"continuing unlawful activity" but find place only indefinition of "organised crime".(c) What is made punishable under Section 3 is "organisedcrime" and not "continuing unlawful activity".(d) If "organised crime" were to refer to only more than onechargesheet filed the classification of crime in Section3(1)(i) and 3(1)(ii) on the basis of consequence ofresulting in death or otherwise would have been phraseddifferently namely by providing that "if any one of suchoffence has resulted in the death" since continuing unlawful activity requires more than one offence.Reference to "such offence" in Section 3(1) implies aspecific act or omission.(e) If the offence of organised crime itself is comprised ofprevious offences in respect of which chargesheets havebeen filed or in other words such chargesheets are acomponent of the offence of organised crime all suchoffences referred to in such chargesheets could be tried atone trial and the rider in Section 7 about triability of theaccused under the Code at the same trial would beredundant.(f) Entire Section 18 of the Act would become redundant if"continuing unlawful activity" evidenced by proof of filingof two chargesheets is equal to organised crime sincequestion of recording confessions would not arise. Certifiedcopies of chargesheets with certified copy of order thereonby the Court taking cognizance would be admissiblewithout formal proof and if this itself was enough toconstitute offence no other evidence would be required tobe tendered.(g) For the same reason there may be no need to examine anywitnesses and consequently Section 19 would beredundant.(h) If proof of filing two chargesheets is enough to establishoffence of organised crime there may be no occasion tocarry out any investigation other than collecting copies ofcharge sheets. Consequently it would be unnecessary forhigh ranking police officers to wield the power to allow9 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odtrecording information or to sanction prosecution after suchchargsheets are collected.9.Recently the learned Judge of this Court in the matter ofPundlik Ukla Pawarhas taken a similar view albeit withoutreference to the Division Bench judgment in the case of Madan RamkisanGangwaniwithutmost respect does not directly deal with and decide the issue as to if aperson can be tried and convicted for the offences punishable under Section3 without simultaneously implicating him for some substantive crime. EvenKishor Changdev Dandwate and Suryakant @ Suresh S o. Shriram Mule(supra) do not specifically deal with this issue. Besides in all these threematters the Division Benches were merely called upon to consider therequest of the accused for discharge. Even the decision in the case of MadanRamkisan Gangwaniwhich is earlier decision has not been citedbefore any of the Division Benches which decided the matters in GovindSakharam Ubhe Kishor Changdev Dandwate and Suryakant @ SureshShriram Mulewithout any substantive crime. Merely being involved in severalcrimes without being involved in any other crime to elevate the continuingunlawful activity to the case of organized crime as defined under Section10 11 on 03 08 2021 on 22 03 929.Crl.Apeal.901.18.odt2(1)(e) would not be sufficient. Therefore the appellants could not havebeen convicted and sentence only for the offence punishable under Section3(1)(ii) and 3(4) in the absence of any substantive crime so as to constitutean organized crime. The learned Judge of the Special Court has notconsidered all these aspects and has convicted and sentenced the appellantsmerely for being involved in continuing unlawful activity which in itself isnot an offence which is made punishable under the MCOC Act.11.In view of the above the Appeal deserves to be allowed and isaccordingly allowed. The impugned judgment and order convicting theappellants is quashed and set aside. They are acquitted of the offencespunishable under Sections 3(1)(ii) and 3(4) of the MCOC Act. They maybe set at liberty if not required in any other crime. Fine amount if paid berefunded.12.The Criminal Application No.430 2021 is disposed of. (MANGESH S. PATIL J.)habeeb11 11 

Summary: Merely being involved in several crimes without being involved in any other crime to elevate the continuing unlawful activity to the case of organized crime as defined under Section 2(1)(e) would not be sufficient; held, a single-judge bench of Justice Mangesh S Patil, while adjudicating the matter in Darasing v. The State of Maharashtra; [CRIMINAL APPEAL NO.901 OF 2018]. In the night intervening 16.01.2001 and 17.01.2001 the appellants committed dacoity in village Kothewadi Tq. Pathardi, District Ahmednagar and even committed rape on few women for which Crime No.08/2001 was registered for the offences punishable under Section 395, 342, 376(2)(g), 354, 506(2) of the Indian Penal Code. During the investigation of that crime it transpired that the appellants were involved in organized crime wherein charge sheets were filed and the courts had taken cognizance. Accordingly, the approval was sought under Section 23 and the present crime was registered. The prosecution examined in all 11 witnesses mostly on the point and concerning the earlier crimes. By the impugned judgment the appellants have been convicted and sentenced as mentioned herein above. The learned advocate Mr. Ghanekar vehemently submitted that bearing in mind the fact that Section 3 of the MCOC Act prescribes for punishment for ‘organized crime’ as defined under Section 2(1)(e) and not for being involved in ‘continuing unlawful activity’ as defined under Section 2(1)(d), the appellants could not have been convicted under that provision without being charged for any substantive offence. He would submit that though continuing unlawful activity is an ingredient for constituting an organized crime, in order to constitute an organized crime, the offender must be involved in some crime of the kind described in the definition of organized crime. He would therefore submit that mere proof regarding involvement of the appellants in continuing unlawful activity was not sufficient to convict them. He would submit that admittedly, the appellants have not been charged for any substantive offence in the present crime and have been convicted merely for engaging in continuing unlawful activity during previous years.