Bombay High Court
Gajanan S/O. Damodhar Mhatre vs The State Of Maharashtra on 10 August, 2018
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
1 Cri.Appeal 350-2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 350 OF 2017
Gajanan s/o Damodhar Mhatre,
Age 55 years, Occupation Service,
R/o. Plot No. G-8, Seon Nagar,
Pahadsingpura, Begumpura,
Aurangabad. ...Appellant
Versus
The State of Maharashtra,
Through Begumpura Police Station,
Aurangabad. ...Respondent
----
Mr. M. V. Ghatge, Advocate for appellant.
Mr. S. P. Sonpawale, Addl. Public Prosecutor, for respondent/
State.
----
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving
the order : 06th July, 2018.
Date of pronouncing
the order : 10th August, 2018.
ORAL JUDGMENT :
1. Present appeal has been filed under Section 12 of the Maharashtra Control of organized Crimes Act, 1999 (for short, 'MCOC Act') in order to challenge order below Exhibit 83 in Special M.C.O.C.A. Case No. 21 of 2012 dated 14-07-2017, pending before Special (M.C.O.C.A.) Court, Aurangabad.
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2 Cri.Appeal 350-2017
2. The appellant contends that, he was initially charged for crime under Section 302, 201, 120 (B), 114, 109, 328 read with 34 of the Indian Penal Code and Section 135 of Bombay Police Act vide Crime No. 81 of 2012 dated 20-03-2012 by Kranti Chowk Police Station, Aurangabad. It was alleged that, the present appellant and other accused had caused the murder of the Nilesh, son of the present appellant. The matter was investigated and the case i.e. Sessions Case No. 285 of 2012 is pending before Additional Sessions Judge, Aurangabad. Thereafter, another offence vide Crime No. 21 of 2012 came to be registered on 16-03-2012 with Begumpura Police Station Aurangabad, for Section 302, 201, 120 (B), 147, 148, 149 of Indian Penal Code alleging that the present appellant has committed murder of Sindubai Mhatre i.e. his own wife in conspiracy with other accused persons. The charge-sheet has been submitted after the investigation. In that case itself a proposal was forwarded to the Commissioner of Police seeking report in regard to application of MCOC Act. The learned Commissioner of Police, Aurangabad vide order dated 30-05-2012 granted approval under Section 23 (1) (a) of MCOC Act and directed the investigating officer on 31-05-2012 to handover the investigation papers to Assistant Commissioner of Police, Chavani Division, Aurangabad. Charge-sheet is filed on the basis of the said investigation and the same has been registered as Special MCCOA Case No. 21 of 2012 ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 3 Cri.Appeal 350-2017
3. The appellant contends that, along with other accused, the applicant has filed application Exhibit 54 and sought discharge from MCOCA case. The said application is rejected on 24-06-2016. The said order was challenged before this Court in Criminal Appeal No. 85 of 2017, however this Court after considering the matter remitted the same for fresh consideration by order dated 09-06-2017. Thereafter, the matter was again heard and by order dated 14-07- 2017 the said application Exhibit 83 has been rejected.
4. It is contended that, the material that has been collected during the course of the investigation, does not show that the appellant is member of 'organized syndicate'. Allegations in both the complaints show that, the motive of the appellant was personal and it cannot be covered under the provisions of MCOC Act which is a special enactment focusing on controlling organized crime. The allegations in both the cases do not constitute the offence defined by the act of organized crime. Therefore, the charge of MCOC Act against the appellant is beyond the scope of the statute. The approval granted by learned Commissioner is also not inconsonance with the legal provisions. In fact the learned Special Court under MCOC Act could not have taken cognizance as there was no previous sanction of the police officer below the rank of Additional Director General of Police. The trial Court has erred in holding that there was ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 4 Cri.Appeal 350-2017 no need of filing charge-sheet against each individual accused. By misinterpreting the provision by reading Section 2 (d) vis-a-vis act committed singly or jointly. Therefore, the appellant has prayed for setting aside the order below Exhibit 83 and discharge him from the provisions of MCOC Act, 1999.
5. Heard learned advocate Mr. M. V. Ghatge, appearing for the appellant and learned Addl. Public Prosecutor Mr. S. P. Sonpawale for the State - respondent.
6. It has been vehemently argued on behalf of the appellant that, only two charge-sheets have been filed against the present appellant, one is Cr. No. 81 of 2012 registered with Kranti Chowk Police Station Aurangabad, and another is Cr. No. 21 of 2012 registered with Begumpura Police Station, Aurangabad. Unless the third charge-sheet ought to have been filed, the provisions of MCOC Act could not have been applied. He has taken me through the provisions of Section 2 (1) (e) of MCOC Act wherein "organized crime" has been defined, second 2 (1) (d) of MCOC Act wherein "organized crime syndicate" has been defined.
7. He further submitted that, unless the facts will not fall under either 2 (1) (d) or 2 (1) (e) of MCOC Act, question of invoking Section 3 of MCOC Act will not arise. There were absolutely no allegations against the present appellant in both the cases that he ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 5 Cri.Appeal 350-2017 has done the act for gaining any pecuniary benefits. He relied on the decision in State of Maharashtra Versus Rahul Ramchandra Taru, reported in 2011 ALL MR (Cri) 2100, wherein it has been held that, "In order to constitute "continuing unlawful activity"
following requirements of law should be satisfied :
i. more than one charge-sheet, alleging commission of congnizable offence punishable with imprisonment of three years or more;
ii. a charge-sheet should consists of averments, alleging unlawful activity undertaken either singly or jointly by the accused;
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.
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 charge-sheet, alleging commission of congnizable offence punishable with imprisonment of 3 years or more. The charge-sheet 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 ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 6 Cri.Appeal 350-2017 MCOCA."
"Merely alleging that more than one charge-sheets 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. The unlawful activity alleged in the previous charge- sheets 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."
8. Further reliance has been placed on the decision in, Mr. Arpan Jaru Bhosle Versus The State of Maharashtra, reported in 2014 ALL MR (Cri) 1603, wherein it has been held that, "It is the settled position of law that the singular unlawful activity would attract the provisions of ordinary law and if it is the continuing one, and to wit, third offence of specified type which fulfills the requirement of the provisions of MCOC Act, it becomes organized crime to be registered as an offence under the MCOC Act. In such situation there were two options are available to the prosecution / Investigating Agency, that is, either they can separately record the information about the commission of an offence of organized crime after successive unlawful activity of the specified type have been committed, for and on behalf of the organized syndicate, which has been done in the present case, or invoke the provisions of the said enactment to the ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 7 Cri.Appeal 350-2017 unlawful activity already reported which is the successive in point of time that is to say the provisions of MCOC Act can be invoked or applied to an existing CR/FIR." He submitted that, when only two charge-sheets have been filed against the present appellant, the provisions of MCOC Act will not be applicable, and therefore, the learned Special Judge ought to have allowed the application for discharge of the appellant from MCOC Act.
9. Per contra, the learned Addl. Public Prosecutor has submitted that the allegations against the present appellant are that, on both the occasions when the murder of his own son and wife has been committed, the appellant has given contract to kill to one Imran @ Mehendi Nasir Shaikh who is operating an organized crime syndicate for his own benefits. He is co-accused with other persons and as against those persons there are more than two charge-sheets. It is the prosecution case that said Imran and his gang are working as organized syndicate and by taking contract to kill, they are committing murder of various persons. Case of the present appellant under such circumstance cannot be segregated. He placed reliance on the decision in Prasad Shrikant Purohit Versus State of Maharashtra and Another, reported in 2015 ALL MR (Cri) 2853 (S.C.), wherein it has been held that, "An 'organized crime' should be any 'continuing unlawful ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 8 Cri.Appeal 350-2017 activity' either by an individual singly or jointly, either as a member of an 'organized crime syndicate' or on behalf of such syndicate. The main ingredient of the said definition is that such 'continuing unlawful activity' should have been indulged in by use of violence or threat of violence or intimidation or coercion or other unlawful means. Further such violence and other activity should have been indulged in with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. Therefore, an 'organized crime' by nature of violent action indulged in by an individual singly or jointly either as a member of an 'organized crime syndicate' or on behalf of such syndicate should have been either with an object for making pecuniary gains or undue economic or other advantage or for promoting insurgency. If the object was for making pecuniary gains it can be either for himself or for any other person. But such promoting insurgency, there is no such requirement of any person interest or the interest of any other person or body. The mere indulgence in a violent activity etc. either for pecuniary gain or other advantage or for promoting insurgency as an individual, either singly or jointly as a member of 'organized crime syndicate' or on behalf of a such syndicate would be sufficient for bringing the said activity within the four corners of the definition of 'organized crime'."
Though the appellant might have been involved in two crimes only but the co-accused were involved in other crimes also, and ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 9 Cri.Appeal 350-2017 therefore, as regards their act is concerned, it was the act of 'organized crime' and it was 'continuing unlawful activity' by the leader i.e. accused Imran @ Mehendi Nasir Shaikh.
10. He further relied on the decision in, Mujahid s/o Ibrahim Pathan Versus The State of Maharashtra, reported in 2015 ALL MR (Cri) 876, wherein it has been held by the Division Bench of this Court that, "The clause which defines the 'continuing unlawful act' which is prohibited by law and must be cognizable offence punishable with imprisonment for three years or more. Such unlawful activity can be undertaken by singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court. The words "in respect of which more than one charge-sheets have been filed", cannot be stretched to the extent that minimum one charge-sheet is required to be pending against each member of the crime syndicate. A reading of the entire scheme of the Act reflects that pendency of more than one charge sheets within a period of ten years is enough qualification for invoking the provisions of the MCOCA, provided same is pending against the members of the crime syndicate, who operates as individually or jointly in commission of organized crime. What is required to be taken note of is the very involvement, attachment, nexus or the link of such member/person with the organized crime syndicate while commission of the ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 10 Cri.Appeal 350-2017 offence, the very link of such member of the crime syndicate is considered to be the crux of the term "continuing unlawful activity". What is contemplated under section 2 (1) (d) of MCOCA is the activities prohibited by the law have been undertaken either singly or jointly, as a member of an organized crime syndicate and as such the requirement of one or more charge- sheets is in relation to the unlawful activity of the unlawful crime syndicate and not of each and every member of such syndicate"
He therefore, submitted that the learned Special Judge has rightly rejected the application.
11. Having considered the rival contentions of the parties. It is required to be seen that, as per the contention of the appellant only two charge-sheets are filed against him, one is at Kranti Chowk Police Station and another is at Begumpura Police Station. One is regarding causing murder of his son and another is causing murder of his own wife. But the prosecution story in both the cases is that, the applicant had given contract to kill the respective deceased to one Imran @ Mehendi Nasir Shaikh and others, who are stated to be forming 'organized crime syndicate'. Therefore, even Section 120-B of Indian Penal Code is also invoked. As per the prosecution story said accused Imran @ Mehendi Nasir Shaikh takes contract to kill persons, and thereafter, murders are committed. Therefore, for those other accused persons it was "a continuing unlawful act". A ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 11 Cri.Appeal 350-2017 different view cannot be taken than that has been taken in State of Maharashtra Versus Rahul Ramchandra Taru's case (Supra) and Mr. Arpan Jaru Bhosle's case (Supra). However, it is to be noted that on the facts of the case before the Hon'ble Division Bench of this Court, the allegations against the accused and the others were different in nature; in a sense, the accused persons therein were stated to be the associates of the main accused who had then attacked the deceased/ committed murder.
12. Here in this case, as regards applicant is concerned there might be only two charge-sheets, however as regards other co- accused are concerned there, there are certain other offences also. In Prasad Purohit's case (Supra), the Hon'ble Supreme Court in para No. 51 has observed that, "51. The submission of the learned counsel for the appellants was that under Section 2(1) (d), in order to construe a 'continuing unlawful activity' two earlier charge-sheets in the preceding 10 years should exist and that such charge-sheets should have been taken cognizance by the competent court within the said period of 10 years and it must have been accomplished. It was also contended that for ascertaining the said position, the date of the third occurrence should be the relevant date for counting the preceding 10 years. Insofar as that claim is concerned, it can be straight away accepted that since Section 2 (1) (d) uses the expression 'an activity' in the very opening set of expressions, which is ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 12 Cri.Appeal 350-2017 prohibited by law, the date of such activity, namely, the third one can be taken as the relevant date for the purpose of finding out the two earlier charge-sheets in the preceding 10 years, in which event in the present case, the preceding 10 years will have to be counted from 29.09.2008 which was the date when the third occurrence of Malegaon bomb blast took place. Which means word 'an activity', used in Section 2 (1) (d) of MCOC Act would attribute to the date of such activity that is the third one to be taken as relevant date for the purpose of finding out the two earlier charge-sheets in the preceding 10 years. However, that does not mean that, for each and every accused, to be brought under MCOC Act, more than two charge-sheets are necessary. When it is organized crime syndicate then the unlawful activity of the syndicate as a whole is required to be considered.
13. In para No. 57 of the decision in Prasad Shrikant Purohit's case (Supra) it has been observed that, "57. One of the contentions raised and which was countered by the respondents was that such two earlier offences should also satisfy the other requirements stipulated under MCOCA, namely, as a member of an organized crime syndicate or on behalf of an organized crime syndicate either singly or jointly. A strict interpretation of Section 2 (1) (d) would definitely mean the fulfillment of such requirement since the definition specifically reads to the effect 'undertaken either singly ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 13 Cri.Appeal 350-2017 or jointly as a member of an organized crime syndicate or on behalf of such syndicate'. (Stress supplied by me). Therefore, even if the earlier offences were not initiated under the provisions of MCOCA such initiations should have been capable of being brought within the provisions of MCOCA, namely, as part of an activity of an organized crime syndicate either by its own members either singly or jointly or though not as a member but such participation should have been on behalf of an 'organized crime syndicate'. As far as filing of the charge-sheet is concerned what all it refers to is such filing before a Competent Court and that Court should have taken cognizance of such offence."
Further it has been observed in para No. 94 that, "94. To appreciate the said contention, it will be necessary to make a detailed reference to Section 2(1)
(e) of MCOCA. As far as the nature of activity is concerned, in Section 2 (1) (e), it is stated that 'organized crime' means continuing unlawful activity by use of 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 for any other person or for promoting insurgency. If we make a detailed reference to the said provision, the use of violence etc. should have been carried out with the object of either gaining pecuniary benefits or for gaining undue economic or other advantage for oneself or for any other person or for promoting insurgency. We find that the violent activity need not necessarily be for pecuniary advantage ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 14 Cri.Appeal 350-2017 in all acts of 'continuing unlawful activity'. Indulging in such violent activity can be for gaining pecuniary advantage or for gaining any other undue economic or other advantage or for promoting insurgency. Therefore, at the very outset, we do not find any scope to interpret 2 (1) (e), namely, an 'organized crime' to mean that in order to come within the said expression indulging in such violent or other activity should always be for pecuniary gain. On the other hand, we can safely hold that such indulgence in violent activity can be either for pecuniary gain or for economic advantage or for any other advantage either for the person who indulged in such activity or for any other person or for promoting insurgency. In that respect, we find that expected benefit for indulging in any violent or related activity could be for any of the above purposes independently and one such purpose may be for promoting insurgency."
14. Further the Hon'ble Division Bench of this Court in Mujahid s/o Ibrahim Pathan's case (Supra) has taken note of the fact that, "The authority after considering the investigation reports and the record of accused persons arrested in the offence, had recorded its satisfaction that accused persons involved in said offence are members of organized crime syndicate. The said authority has also taken into account of continuing unlawful activity of organized crime and as such recorded its satisfaction." In that case which was in fact a criminal application under Section 482 of the Code of Criminal Procedure, it was observed that, there ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 15 Cri.Appeal 350-2017 was total application of mind by the authority before granting approval and therefore it was held that no case is made out for interference.
15. Here in this case, the appellant has not challenged the said order which had granted sanction or approval for the application of offence under MCOC Act. He had filed only an application for discharge from the offence punishable under MCOC Act. Even if for the sake of arguments, it is stated that he is also challenging the approval order, it is to be seen that whether said authority had applied his mind or not would be decided at the end of trial, after the evidence is adduced. If connected to the offence under Section 302 of Indian Penal Code, the offence under MCOC Act is transpired against co-accused, then, applicant cannot seek discharge only for that offence by segregating himself from other co-accused persons. His trial in such a manner cannot be segregated. He had not sought discharge from the entire case, therefore there is question of maintainability of application. Discharge on limited point or in respect of some offence only is not contemplated under Section 227 of the Code of Criminal Procedure. If any offence is not transpiring against him, he can point it out to the Court while framing charge.
16. It appears that, in the earlier round of litigation by present appellant in Criminal Appeal No. 85 of 2017, this Court had directed ::: Uploaded on - 10/08/2018 ::: Downloaded on - 11/08/2018 01:55:59 ::: 16 Cri.Appeal 350-2017 the trial Court to decide the application expeditiously, and therefore, the impugned order came to be passed. In that order which was then set aside by this Court, it was observed that, accused No.5 Imran @ Mahendi had filed an application for discharge and it was rejected on 04-04-2014. It has not been pointed out now by the present appellant that, the said rejection of the application by accused No.5 has been challenged by him before this Court. Therefore, when the charge-sheet is against all the accused persons and taking into consideration the activity of the syndicate, the offence under MCOC Act has been invoked that does not allow the appellant to seek limited discharge. The point whether charge can be framed against present appellant under MCOC Act would be considered by the trial Court. Therefore, the learned trial Court has rightly rejected the application. No need to interfere, hence appeal is dismissed.
[SMT. VIBHA KANKANWADI] JUDGE Date : 10-08-2018.
17. Learned Advocate for the appellant, after pronouncement of the order, prayed for extension of the interim relief in respect of framing of charge, for further four weeks, as he intend to approach the superior Court.
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18. Since the appellant has preferred the said appeal against the order of discharge and the charge is yet to be framed, in order to give opportunity to the appellant, the interim relief granted earlier is hereby extended for further four weeks from today.
[SMT. VIBHA KANKANWADI] JUDGE vjg/-
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