Bombay High Court
The State Of Maharashtra vs Panditsing S/O Dharamsing Junni (Res. ... on 21 February, 2020
Bench: T. V. Nalawade, M. G. Sewlikar
1 Cri. Appln. No. 2755-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2755 OF 2016
WITH CRIMINAL APPLICATION NO. 2754 OF 2016
The State of Maharashtra,
Through - Bhagyanagar Police Station,
Nanded. .. APPLICANT
VERSUS
1. Panditsing S/o Dharamsing Junni,
Age : Major, Occ. Nil, R/o. Old Railway
Station, Shivaji Chowk, Parati,
District Beed.
(Deleted as per Court order dated 26.06.2019)
2. Rajusing S/o Mayasing Bawri,
Age : 35 Years, Occ. Business,
R/o. Bakkri Bazar, Tq. Umri,
District Nanded.
3. Bachchansing Mangalsing Bawri,
Age : 36 Years, Occ. Business,
R/o. Parali, District Beed.
4. Tarasing S/o Pujarising Tak,
Age : 42 Years, Occ. Business,
R/o. Old Bus stand, Krantinagar,
Zopadpatti, Degloor.
5. Jagdishsing @ Jagjeetsing Acholsing Dudhani,
Age : 28 Years, Occ. Business,
R/o. Shivaji Chowk, Zopadpatti,
Parali, Dist. Beed.
6. Hirasing S/o Vijaysing Junni,
Age : 35 Years, Occu. Business,
R/o. Islampura, District Latur
7. Hirasing S/o Bhuryasingh Chavan,
Age : 30 Years, Occ. Business,
R/o In front of Railway Station,
Vasmat, Dist. Hingoli ..RESPONDENTS
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2 Cri. Appln. No. 2755-2016.odt
...
Mr. M.M. Nerlikar, A.P.P for Applicant State.
Mr. S.A. Gaikwad, Advocate for respondent No.2.
Mr. S.P. Katneshwarkar, Advocate for respondent No.7.
...
CORAM : T. V. NALAWADE AND
M. G. SEWLIKAR, JJ.
DATE : 21.02.2020.
ORDER :-
Application No. 2755 of 2016 is fled for condonation of delay of 90 days caused in fling the proceeding for grant of leave to fle appeal. The respondents are acquitted by the learned Special Judge (MCOCA) Aurangabad in Sessions case (MCOCA) No. 03/2010. Though the matter was fled in the month of May 2016, respondent No.5 could not be served with the notice of the present proceeding. As the State was not ready to go against the remaining respondents, the State was asked to make out the case for notice in proceeding fled for condonation of delay by showing that the State has some case in the main matter.
2. Sessions Case No. 3 of 2010 was fled as against seven persons and one of them namely Panditsing Dharamsing Junni (accused No.1) was shown as absconding accused. The case was fled only for ofences punishable under Sections 3(1)
(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 3 Cri. Appln. No. 2755-2016.odt Act, 1999 (hereinafter, referred to as "MCOCA Act") was not for any ofence like robbery, decoity etc. The trial Court has acquitted all the six accused who faced the trial. The trial Court has given reasoning that no ofence of making money by committing any of the ofences punishable under Sections 393, 395, 380 etc. of the Indian Penal Code is proved against any of the accused and so these accused persons cannot be convicted only due to circumstances that there were more than one charge sheets fled against them for the ofences punishable under Sections 394, 395, 399, 380, 457 etc. of the Indian Penal Code and few sections of the Arms Act. Some cases were already tried and in all those cases the accused were acquitted in the past. Some cases were still pending on the date of decision of case No.3/2010. The prosecution examined some witnesses to prove that the cases were fled against the respondents for aforesaid ofences. Only on the basis of circumstance that many cases were fled against the accused, prosecution wanted to get conviction under aforesaid provision of MCOCA Act. In the case, there was no case or charge for any ofence punishable under Indian Penal Code.
3. The learned counsel for some respondents placed reliance on the observations made by the Apex Court in the case reported as State of Maharashtra Vs. Shiva alias ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 4 Cri. Appln. No. 2755-2016.odt Shivaji Ramaji Sonawane and others (2015 AIR SCW 4314). The facts of the reported case show that in the past some cases were fled against respondents under the provison of IPC and Arms Act and then for the ofences punishable under the MCOCA Act separate and independent charge sheets were fled. In the cases fled separately under the provisions of MCOCA Act the accused were convicted and this decision was challenged in the High Court. The High Court had made observations for giving decision of acquittal and those observations are discussed by the Apex Court at paragraph No.8 and they are as under :-
"8. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the ofence punishable under the IPC and Arms Act in Crime Nos. 37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the ofence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA crime Nos. 1 and 2 of 2002 all that remained incriminating was the fling of charge-sheets against the respondents in the past and taking of cognizance by the competent Court over a period of ten years prior to the enforcement of the MCOCA. The fling of charge-sheet or taking of the cognizance in the same did not, declared the High Court, by itself constitute an ofence punishable under Section 3 of the MCOCA. That is because the involvement of ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 5 Cri. Appln. No. 2755-2016.odt respondents in previous ofences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an ofence by the respondents that would constitute '' continuing unlawful activity''. So long as that requirement failed, as was the position in the instant case, there was no question of convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, sufer from any infrmity. The very fact that more than one charge-sheet had been fled against the respondents alleging ofences punishable with more than three years imprisonment is not enough. As rightly pointed out by the High Court commission of ofences prior to the enactment of MCOCA does not by itself constitute an ofence under MCOCA. Registration of cases, fling of charge sheets and taking of cognizance by the competent court in relation to the ofence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisifed. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 6 Cri. Appln. No. 2755-2016.odt to have committed an ofence under Section 3 of the Act.
4. The Apex Court then made observations in paragraph No.9 in favour of the accused and they are as under
:-
''9. In the case at hand, the ofences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crime Nos. 37 and 38 of 2001 signifed that they were not involved in the commission of the ofences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crime Case Nos. 1 and 2 of 2002. No appeal against that acquittal had been fled by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an ofence under MCOCA. The High Court was, therefore, right in holding that section 3 of the MCOCA could not be invoked only on the basis of the previous charge-sheets for Section 3 would come into play only if the respondents were proved to have committed an ofence for gain or any pecuniary beneft or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justifed in allowing the appeal and setting aside the order passed by the Trial Court."::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 7 Cri. Appln. No. 2755-2016.odt
5. The Apex Court did not touch the propreity of the order, permission given for registration of crime under MCOCA Act, in view of the facts of the case but the Apex Court confrmed the decision of the High Court. In view of these observations this Court holds that unless some ofence committed as act of syndicate, as organized crime like ofence of theft, decoity etc is proved, the provision of MCOCA Act cannot be used for punishment under this special enactment be given.
6. On this point, learned A.P.P placed reliance on the observations made by Apex Court in the case reported as Prasad Shrikant Purohit Vs. State of Maharashtra (2015 AIR SCW 2782). The Apex Court has made observations at paragraph No. 61 with regard to taking cognizance of ofences punishable under Sections MCOCA Act and the observations are as under :-
"Keeping the said prescriptions of law in mind, when we apply the requirement as stipulated under Section 2(1)(d) of MCOCA, without starting any further on this question, it can be safely held that the requirement of fling of the charge-sheet in two earlier cases before the Competent Court in respect of an ofence stipulated under Section 2(1)(d) can be held to be satisfed once cognizance is taken by a Judicial Magistrate of First Class or for that matter an ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 8 Cri. Appln. No. 2755-2016.odt empowered Second Class Magistrate, in the event of fling of a police report as prescribed under Section 173(2) (i) by virtue of the power vested under Section 190(1) (b) of Cr.P.C If the ingredients of the above requirements are fulflled it will have to be held, that part of the requirement under Section 2(1)
(d), namely, the Competent Court taking cognizance of the ofence as stipulated under Section 2(1)(d) in respect of two earlier cases will get fulflled."'
7. It can be said that the Apex Court was considering the ingredients of ofence punishable under Sections 2(2)(1)(e) of MCOCA Act 1999 and the Apex Court considered the defnition of continuing unlawful activity given in Section 2(1)
(d). Thus, the tenability of the case fled under the provision of MCOCA Act or taking cognizance of ofence under this Act was considered by the Apex Court and the point involved in the present matter i.e whether conviction can be given only for the ofences punishable under provisions of MCOCA Act when no ofences punishable under Section Indian Penal Code is proved was not involved. It is true that he can be tried for the ofences punishable under the MCOCA Act when the requirement of provision of Section 2(1)(d) is complied with but at the end, while deciding the case the Court is expected to consider as to whether he was actually involved in such activities and for that the ofence of such activity needs to be ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 9 Cri. Appln. No. 2755-2016.odt proved. Thus, for taking cognizance of the ofences punishable under MCOCA Act requirements are diferent and for punishment/ conviction for ofences under MCOCA Act, requirements are diferent.
8. The learned A.P.P placed reliance on some observations made by this Court in the case reported as Mr. Bharat Shantilal Shah Vs. The State of Maharashtra ( 2003 ALL MR (Cri) 1061) and Madan S/o Ramkisan Gangwani Vs. State of Maharashtra [2009 ALL MR ( Cri) 1447 ]. The facts of the case show that the appellant of that case was tried for ofences of extortion, forcing transfer of property etc and also the provisions of MCOCA Act. Thus, there was charge not only for the provision of MCOCA Act but for Indian Penal Code ofences like ofences punishable under Section 384, 386, 387 and 120-B of the Indian Penal Code. The facts show that some of the accused were convicted for the ofences punishable under Sections 384, 387 read with Section 120-B of the Indian Penal Code and they were convicted for the ofence punishable under Sections 3(i)(ii) of the MCOCA Act but some of the accused were convicted for the ofence punishable only under MCOCA Act like punishable under sections 3(2)(1) of MCOCA Act read with Section 120-B IPC and Section 3(2) of MCOCA Act read with 120-B of the Indian ::: Uploaded on - 28/02/2020 ::: Downloaded on - 11/06/2020 04:44:23 ::: 10 Cri. Appln. No. 2755-2016.odt penal Code. In view of these circumstances, some observations were made by this Court. This Court is not reproducing those observations in view of the observations already made by this Court.
9. In view of the aforesaid position of law, this Court holds that nothing can be achieved by condoning the delay caused in fling proceeding for grant of leave to fle appeal. There is no arguable case to the State for appeal and so the leave itself cannot be granted. For all these reasons, this Court holds that the delay cannot be condoned by using discretionary power and so there is no need of notice. In the result, the application stands dismissed, other proceeding also stands disposed of.
(M.G.SEWLIKAR, J.) (T.V. NALAWADE, J.)
YSK/
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