Bombay High Court
Govind Sakharam Ubhe vs The State Of Maharashtra on 11 June, 2009
Author: Ranjana Desai
Bench: Ranjana Desai, Rajesh G. Ketkar
AJN
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.18 OF 2009
Govind Sakharam Ubhe, aged )
49 years, residing at 37/40, )
Manish Nagar, Four Bungalow, )
Andheri (West), Mumbai - 400 ) ... Appellant
053.
Vs.
The State of Maharashtra )
(At the instance of DCB, CID, )
Unit IV, Mumbai). ) ... Respondent
Mr. Amit Desai, senior counsel with Mr. Prakash Naik and
Mr. Gopalkrishnan Shenoy for the petitioner.
Mr. S.R. Borulkar, Public Prosecutor with Ms. V.R.
Bhonsale, A.P.P. for the State.
CORAM : SMT. RANJANA DESAI &
R.G. KETKAR, JJ.
DATE ON WHICH THE JUDGMENT IS RESERVED : 9TH APRIL, 2009.
DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 11TH JUNE, 2009.
JUDGMENT.:- (Per Smt. Ranjana Desai, J.)
1. Rule. Rule made returnable forthwith. Respondent ::: Downloaded on - 09/06/2013 14:38:30 ::: AJN 2 waives service. By consent of the parties, taken up for hearing and final disposal.
2. The appellant is original accused 8 in MCOC Special Case No. 8 of 2007 pending in the Special Designated Court constituted under the Maharashtra Control of Organized Crime Act, 1999 ("the MCOC Act" for short).
3. It is necessary to begin with the prosecution case.
The prosecution case rests on the evidence of two witnesses. They are referred to as Mr. `X' and Mr. `Y' so as not to disclose their identity. It is the case of Mr. `X' that on 8/10/2006 he received a telephone call from an unknown person who introduced himself as Guru Satam.
He stated that he and his associates are required to be paid Diwali. After two days, Mr. `X' received another call from one Raju threatening him of dire consequences and demanding money. After a few days the said person again gave a telephone call from overseas telephone number and asked Mr. `X' to contact Guru Satam on the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 3 said phone. Thereafter he received a call from a person who identified himself as Guru Satam and demanded money and threatened him of dire consequences if the demand was not fulfilled.
Mr. `X' apprehended danger to his life. He approached Anti Extortion Cell of DCB CID Mumbai and informed them about the incident. His statement was recorded by the police. It was treated as First Information Report.
During the investigation other accused came to be arrested on 7/12/2006, 8/12/2006 and 16/12/2006. It was revealed that the accused and their associates in India and abroad are members of organized crime syndicate headed by accused Guru Satam and they are indulging in commission of extortion by threatening the builders, who undertake development work under the Slum Rehabilitation Scheme.
::: Downloaded on - 09/06/2013 14:38:31 :::AJN 4 Prior approval to apply provisions of the MCOC Act was accorded by the Joint Commissioner of Police on 18/12/2006 and thereafter the provisions of the MCOC Act were applied to the case on 18/12/2006. The appellant was arrested on 29/12/2006.
During investigation, it was revealed that the appellant had taken active part in continuing unlawful activities and commission of organized crime on behalf of organized crime syndicate headed by accused Guru Satam. The investigation further revealed that the appellant had taken part in the negotiations of the extortion amount from a witness and he had accepted the amount on behalf of the syndicate. The appellant actively participated and facilitated in continuing the unlawful activities and commission of the organized crime in pursuance to a deep rooted conspiracy. On completing the investigation the charge sheet was submitted before the Special Court on 25/4/2007 against all the accused.
On 8/9/2007, learned Special Judge released the appellant ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 5 on bail. On 30/3/2009 the Special Court framed the charge under Section 3(2) read with Section 3(1)(ii) and 3(4) of the MCOC Act against the appellant.
4. The appellant filed an application for discharge before the Special Court. By the impugned order the said application was rejected. Hence the appellant has filed the present appeal challenging the said order.
5. We have heard Mr. Amit Desai, learned senior counsel appearing for the appellant at some length. Mr. Desai submitted that the Special Court erred in dismissing the application for discharge filed by the appellant. He submitted that the appellant is involved in the present case on account of business rivalry. The present prosecution is a malafide prosecution. Learned counsel submitted that the entire case of the prosecution rests on statements of two witnesses. Mr. Desai took us through those statements and submitted that they do not show that the appellant is a part of the organized crime ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 6 syndicate and he is involved in their activities of giving threats or collecting money, etc. There is no evidence to indicate that the appellant is involved in the alleged deep rooted conspiracy. The statements indicate that the appellant only wanted to help his colleague in business, who was in distress. He wanted to ensure that the matter is settled and Mr. 'X' is relieved of threats of extortion. On the basis of such evidence according to Mr. Desai, the appellant cannot be charged for offences under the stringent provisions of the MCOC Act. Mr. Desai further submitted that approval under Section 23(1)(a) was accorded on 8/12/2006. In that approval the appellant's name does not figure. Mr. Desai submitted that even if this challenge is not specifically raised in the trial court or in this court, the contention of the appellant that the evidence collected by the accused does not make out an offence under the MCOC Act against him, covers this plea.
6. Mr. Desai drew our attention to Section 2(1) (a) which defines the word 'abet'. Relying on the judgment of ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 7 the Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr., 2005 ALL MR (Cri.) 1538 (S.C.). Mr. Desai submitted that the case of the prosecution that the appellant abetted the crime must also fail. He submitted that abetment involves mensrea, knowledge and intention. He submitted that the offence under Section 3(2) of the MCOC Act must have a direct nexus with the offence committed by an organized crime syndicate. and abetment of commission of offence must be by way of accessories before the commission of an offence. Mr. Desai submitted that such is not the case here and hence charge of abetment cannot be sustained.
7. Mr. Desai then submitted that Section 2(1)(d) of the MCOC Act defines continuing unlawful activity. This provision requires that an activity can be a continuing unlawful activity if it is prohibited by the law for the time being in force which is a cognizable offence punishable with imprisonment of three years or more undertaken ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 8 either singally or jointly as a member of organized crime syndicate or on behalf of such syndicate in respect of which more than one charge sheet have been filed before a competent authority within the preceding period of 10 years and that court has taken cognizance of such offence. Mr. Desai submitted that so far as the appellant is concerned except the present complaint no other charge sheet is filed against him. Therefore, submitted Mr. Desai, provisions of the MCOC Act could not have been used against the appellant.
8. In this connection he relied upon the judgment of the Supreme Court in State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr., 2007 Cri. L.J. 1678 and judgments of learned Single Judges of this court in Sherbahadur Akram Khan & Ors. v. State of Maharashtra, 2007 (1) BCR (Cri.) 26 and State of Maharashtra v. Bharat Baburao Gavhane & Ors., 2007 Cri. L.J. 552. Reliance was also placed on the judgment of the Division Bench of this court in Bharat ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 9 Shantilal Shah v. State of Maharashtra, 2003 All MR (Cri.) 1061.
9. On the scope of Section 227 of the Code of Criminal Procedure, 1973 (for short, "the Code"), Mr. Desai relied on the judgment of the Supreme Court in Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135.
He submitted that while considering an application for discharge under Section 227 of the Code, if the court finds that two views are equally possible and the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be fully justified in discharging the accused. Mr. Desai submitted that if this case is viewed in the light of the settled principles underlying Section 227 of the Code, the impugned order will have to be set aside and the appellant will have to be discharged.
10. Mr. Borulkar, learned Public Prosecutor, on the other hand, submitted that the statements of Mr. `X' and Mr. `Y' ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 10 are sufficient to establish the appellants' connection with the organized crime syndicate and his involvement in its activities. Mr. Borulkar submitted that the appellant knew Guru Satam. He facilitated the exchange of extortion amount. He was present when the money was exchanged. His case that he wanted to help Mr. `X' is a tissue of lies.
11. Mr. Borulkar relied on the judgment of the Supreme Court in Vinod Asrani v. State of Maharashtra in Special Leave Petition (Cri.) No.6312 of 2006 decided on 21/2/2007 in support of his submission that because the appellant's name is not mentioned in the approval order, that does not vitiate the prosecution. Mr. Borulkar submitted that in any case, the appellant has not raised any challenge to approval, at any stage. He cannot be now allowed to raise it.
12. Mr. Borulkar submitted that the appellant's case that because there is only one case registered against him, his ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 11 case is not covered by Section 2(1)(d) of the MCOC Act must be rejected because Section 2(1)(d) refers to registration of more than one charge-sheet against the organized crime syndicate and not against individual member of the organized crime syndicate. He submitted that in Lalit Nagpal's case, this point was not raised and, hence, the Supreme Court has not dealt with it. The said judgment must be confined to its own peculiar facts.
There, the cases registered against the accused were under the Essential Commodities Act and the Supreme Court ultimately came to a conclusion that the only offence registered against the accused was one under Section 63 of the Sales Tax Act. The Supreme Court expressed that Section 63 of the Sales Tax Act would not attract the provisions of the MCOC Act. Mr. Borulkar submitted that therefore, the said judgment will not be applicable to the present case. Mr. Borulkar relied on a judgment of this court in Criminal Appeal No.749 of 2007 decided by this court (R.M.S. Khandeparkar and V.K. Tahilramani, JJ.) decided on 16/10/2007 ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 12 where this court has referred to Sherbahadur Akram Khan's case and observed that once it is disclosed that a person is a member of the organized crime syndicate and the offence is part of the continuing unlawful activity by the organized crime syndicate, then charge-sheet referred to in Section 2(1)(d) refers to organized crime syndicate.
13. As regards the scope of Section 227 of the Code, Mr. Borulkar relied on the judgments of the Supreme Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 and State of Maharashtra v. Priya Sharan Maharaj & Ors. (1997) 4 SCC 393. Mr. Borulkar submitted that, at this stage, the court is not required to undertake an elaborate enquiry and record a finding regarding guilt or otherwise of the accused. If there is a strong suspicion about the involvement of the accused, it is not open to the court to discharge him. Mr. Borulkar submitted that in this case, there is enough indication in the statements of Mr. `X' and Mr. `Y' that the accused is a part of the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 13 organized crime syndicate and is actively participating in its illegal activities and, therefore, the appeal deserves to be dismissed.
14. Before we deal with the rival submissions, we must ascertain what is the scope of Section 227 of the Code which provides for discharge. In several judgments, the Supreme Court has outlined the scope of Section 227 of the Code. We shall refer to a few of them.
15. Section 227 of the Code reads as under :
227.Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
16. In State of Bihar v. Ramesh Singh (1977) 4 SCC 39, while referring to Section 227 of the Code, the Supreme Court observed :
::: Downloaded on - 09/06/2013 14:38:31 :::AJN 14 "At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of the suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, if there is a strong suspicion, which leads the Court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused".
The Supreme Court further observed that -
"If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial".
The Supreme Court then went on to observe -
"If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 15 of benefit of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227."
17. In Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366, the Supreme Court reiterated the same principles but added that at the stage of Section 227 of the Code, the Court has power to sift and weigh the evidence to find out whether there is prima facie case against the accused but if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court further observed that the Judge cannot act as a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and so on. The Supreme Court clarified that this however does not mean that the Judge should make a ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 16 roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
18. In Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Bhunja & Ors. AIR 1980 SC 52, the Supreme Court observed that the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or Section 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence.
19. Same principles were reiterated by the Supreme Court in Niranjan Singh Karam Singh Punjabi v.
Jiendra Bijja & Ors. AIR 1990 SC 1962.
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20. In State of Maharashtra & Ors. v. Som Nath Thapa & Ors. (1996) 4 SCC 659, the Supreme Court observed that if there is a ground for presuming that the accused has committed the offence, it can be said that a prima facie case has been made out against the accused.
Even if the court finds that the accused might have committed the offence, it can frame the charges. The Supreme Court clarified that at the stage of framing of charge, probative value of the materials on record cannot be gone into.
21. In State of Maharashtra v. Priya Sharan Maharaj & Ors. AIR 1997 SC 2041, the Supreme Court again reiterated that at the stage of framing of the charge, the court has to consider the material with a view to finding out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 18 likely to lead to a conviction.
22. In Dilawar Kurane's case (supra), the Supreme Court extensively quoted observations made by it in Prafulla Kumar Samal's case and reiterated the same principles.
23. It is also necessary to refer to the Supreme Court's judgment in the State of Karnataka v. L. Muniswamy & Ors. (1977) 2 SCC 699. In that case, some of the accused were discharged by learned Session Judge under Section 227 of the Code. So far as the other accused were concerned, learned Sessions Judge adjourned their case for framing charges against them. Two revision petitions were filed against this order. These petitions were allowed by the Karnataka High Court on the view that there was no sufficient ground for proceeding against them. It is clear from the first paragraph of the Supreme Court judgment that the High Court had, in exercise of its powers under Section 482 of the Code, quashed the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 19 proceedings initiated by the State of Karnataka. Being aggrieved by this judgment, the State of Karnataka approached the Supreme Court. The Supreme Court referred to Section 227 of the Code and observed that the High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order of discharge is justified. The Supreme Court then referred to Section 482 of the Code and observed that in exercise of the wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The Supreme Court further observed that this power is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The following observation of the Supreme Court needs to be quoted.
::: Downloaded on - 09/06/2013 14:38:31 :::AJN 20 "In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
24. It is significant to note that when the attention of the Supreme Court was drawn to the judgment in R.P. Kapur v. The State of Punjab, AIR 1960 SC 866 to the effect that in its inherent jurisdiction, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not, the Supreme Court reaffirmed this position and referring to the facts before it observed that in that case, there was no material on record on the basis of which any court can reasonably come to the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 21 conclusion that the accused were in any manner connected with the crime. Of course, in this case, the Supreme Court has also referred to Section 227 of the Code and observed that in exercise of this power, the court can determine the question whether the material on record if unrebutted is such on the basis of which a conviction can be reasonably possible. But, it must be remembered that primarily the Supreme Court was dealing with the High Court's power under Section 482 of the Code and that was a case where there was no material to reasonably connect the accused with the crime. Undoubtedly, the powers of the High Court under Section 482 of the Code are very wide and as observed by the Supreme Court, it has to consider ends of justice and not the ends of mere law. In any case, what the Supreme Court has said in this judgment does not go counter to what it has said on this point in a line of judgments, which we have referred to hereinabove.
25. The principles laid down by the Supreme Court in the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 22 above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 23 because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage.
26. We will examine the present case in the light of the above principles. Since the case of the prosecution qua the present appellant rests basically on the statements of ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 24 two witnesses, that is Mr. `X' and Mr. `Y', we will first ascertain what these witnesses have said in their statements. Mr. 'X' is a cable distributor.
27. Gist of statement of Mr. `X'.:
The appellant who is cable distributor/operator is known to him personally. Every month a meeting is convened of cable operators. In such meetings business activities and other consequential matters are discussed for redressal of grievances of the cable operators. From 28/4/2005 he was receiving threatening calls from one Ravi Pujari. An amount of Rs.50 lakhs was demanded from him as extortion amount., The said extortion amount was to be paid to Guru Satam. He was given threats of dire consequences if the amount was not paid.
In the meeting held in May 2005 he disclosed the above facts to all business colleagues. At that time the appellant whom he personally knows was present. The appellant told him that he knew a relative of Guru Satam personally.
Two to three days after the said meeting the appellant ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 25 told him to come to a particular place. Around 7 p.m. in the evening he along with his another business friend reached that place. The appellant was present there. The appellant dialed someone and 15 to 20 minutes thereafter two unknown persons came on the motorcycle. The appellant introduced them to him as Bhushan Satam s/o Guru Satam and Sachin Shetye a relative of Guru Satam.
He apprised Bhushan Satam about the phone calls which he had received from Guru Satam. He told Bhushan Satam that the extortion amount was quite large and out of his reach. Thereafter Bhushan Satam and Sachin Shetye talked to Guru Satam and Guru Satam insisted for payment of certain amount. He expressed inability to pay even that amount. He told them the amount which he could pay. Bhushan Satam then said that he should keep that amount ready with him within two days. Two days after that meeting at around 5 p.m. the appellant phoned him and asked him to reach near a particular place and hand over the agreed amount to Bhushan Satam for onward payment to Guru Satam. Accordingly he packed ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 26 the amount in bundles and along with his friend reached that place at about 8 p.m. The appellant was present there. He gave the said amount to the appellant for handing it over to Bhushan Satam and Sachin Shetye. He did not receive any threatening calls thereafter.
28. Gist of statement of Mr. `Y'.
Mr. `Y' knows the appellant. Mr. `Y' was present in the meeting held in May, 2005 where the appellant stated that he was harassed by Ravi Pujari on telephone by making demands for payment of extortion money. He advised Mr. `X' to lodge a police complaint. At that time the appellant told Mr. 'X' that a relation of Guru Satam was personally acquainted with him. After the meeting was over, the appellant dialed someone and called him to the ground opposite K.E.M. Hospital. As called by the appellant he accompanied Mr. `X' to the ground opposite K.E.M. Hospital. After they arrived there, the appellant dialed someone and asked him to come to that place.
Sometime thereafter two persons came at that place.
::: Downloaded on - 09/06/2013 14:38:31 :::AJN 27 One of them was known to Mr. 'Y' as Sachin Shetye. He was normally seen in the company of the appellant. The appellant introduced the other person as Bhushan Satam, son of Guru Satam. Thereafter the appellant, Mr. Bhushan Satam and Sachin Shetye had a discussion. Four days thereafter the appellant dialed someone and called him at a specific place and thereafter Mr. `X' went to that place accompanied by Mr. `Y' when the bundle containing currency notes was handed over by Mr. `X' to the appellant for onward handing over to Guru Satam and Ravi Pujari through Bhushan Satam and Sachin Shetye.
After the money was handed over to the appellant by Mr. `X' for onward transmission to Guru Satam and Ravi Pujari Mr. 'X' stopped receiving threatening calls from Ravi Pujari and Guru Satam.
29. The irresistible, prima facie, conclusion from the above statements is that the appellant intimately knows the son and a relative of Guru Satam. This is evident from the fact that he was confident that he would settle the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 28 extortion amount. He, therefore, took lead in settlement talks. His intimacy with Guru Satam gang is evident from the fact that within 15 minutes of his dialing the son and relative of Guru Satam, they came to the agreed place.
The appellant was present when the extortion amount was settled. The appellant was present when the extortion amount was to be handed over. In fact he took that amount from Mr. `X' and through Guru Satam's son and relative he handed it over to Guru Satam. That the money reached Guru Satam is prima facie evident from the fact that Mr. `X' stopped receiving threats thereafter.
30. Prima facie, it is difficult to accept the story of the appellant that he merely wanted to help Mr. `X'. The appellant's intimacy with Guru Satam's son, his being present at the time of settlement of extortion amount and at the time of handing over the said amount cannot be lightly brushed aside. It is difficult to digest prima facie the appellant's case that he merely wanted to help Mr. `X'. If that was so, he could have merely introduced Mr. ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 29 `X' to right persons. There was no need for him to play such active role. The fact that after the money was paid Mr. `X' stopped receiving threats is important. Thus, prima facie, it appears that the appellant is a member of the organized crime syndicate of Guru Satam and is connected with its activities of collecting extortion amount by giving threats. We prima facie also feel that charge of abetment is rightly framed. It is true that in Ranjitsingh Sharma's case the Supreme Court has reiterated that it is not enought that an act on the part of the alleged abettor happens to facilitate the commission of the crime.
Intentional aiding and therefore active complicity is the gist of the offence of abetment. Prima facie, we feel that by taking part in the negotiations of extortion amount and by taking charge of the extortion amount and handing it over to Guru Satam's son so that it reaches Guru Satam, the appellant has intentionally aided the commission of the crime. He has actively participated in the crime. The argument of Mr. Desai that offence of abetment is not made out must, therefore, fail.
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31. Mr. Desai then submitted that since against the appellant only one charge-sheet is filed, he is not covered by Section 2(1)(d) of the MCOC Act which defines "continuing unlawful activity". Consequently, the appellant cannot be tried for offences under the MCOC Act.
32. In order to understand this submission it is necessary to have a closer look at certain provisions of the MCOCA and its preamble. The preamble states that it is an Act to make special provisions for prevention and control of, and for coping with the criminal activity by organized crime syndicate or gang, and for matters connected therewith and incidental thereto. The MCOCA, states the preamble, makes special provisions for prevention and control of, for coping with, criminal activity by organized crime syndicate or gang. Essentially, therefore, the MCOCA targets the unlawful activities of the organized crime syndicate.
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33. Section 1(f) defines `organized crime syndicate' to mean a group of two or more persons who acting singly or collectively as a syndicate or gang indulge in activities of organized crime. Section 1(e) defines `organized crime' to mean 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 objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
34. Therefore, the MCOCA contemplates a situation where a group of persons as members of organized crime syndicate indulge in organized crime. That is, they indulge in use of violence, threats of violence, intimidation, etc. to gain pecuniary benefit or undue economic or other advantage for themselves or any other ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 32 person. These activities as per the definition of organized crime are continuing unlawful activity prohibited by law.
35. It is now necessary to go to the definition of `continuing unlawful activity'. Section 2(1)(d) defines `continuing unlawful activity' to mean 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 organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-
sheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a `continuing unlawful activity' -
a) the activity must be prohibited by law;
b) it must be a cognizable offence punishable with imprisonment of three years or more;::: Downloaded on - 09/06/2013 14:38:31 :::
AJN 33
c) it must be undertaken singly or jointly;
d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate
e) in respect of which more than one charge-sheet have been filed before a competent court.
36. The words `in respect of which more than one charge-sheet have been filed' cannot go with the words `a member of a crime syndicate' because in that case, these words would have read as `in respect of whom more than one charge-sheet have been filed'.
37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines `continuing unlawful activity' sets down a ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 34 period of 10 years within which more than one charge-
sheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished 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 fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 35 economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate.
Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the `organized crime syndicate' is the crux of the term `continuing unlawful activity'. If this link is not established, that person cannot be roped in.
38. In order to substantiate our construction of Section 2(1)(d) of the MCOCA, we will take hypothetical example ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 36 of accused 1(A), accused 2(B), accused 3(C) and accused 4(D), who are members of the organized crime syndicate and who have committed crimes within preceding ten years. Insofar as accused A is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(1) of the MCOCA.
Accordingly, one charge-sheet is filed against him. Insofar as accused B is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(2) of the MCOCA. Accordingly, one charge-sheet is filed against him. Likewise, insofar as accused C is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(3) of the MCOCA. Accordingly, one charge-sheet is filed against him. Finally, it is alleged that accused D is a member of organized crime syndicate as described in Section 3(4) of the MCOCA and as such has ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 37 indulged in organized crime and against whom also one charge-sheet is filed.
39. The submission on behalf of the appellant is that even though all the four accused namely, A, B, C and D may be members of the organized crime syndicate since against each of the accused not more than one charge-
sheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provisions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndicate, in our opinion, Section 2(1)(d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 38 described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge-sheet is qua the unlawful activities of the organized crime syndicate.
40. In our opinion, in this connection, reliance placed by Mr. Desai on Lalit Nagpal's case is misplaced. The ratio of the said judgment is misconstrued by the appellant. In that case, the issue whether the words `more than one charge-sheet' refer to the unlawful activities of an organized crime syndicate or to the individual members was neither raised nor canvassed. Consequently, the said issue did not fall for consideration and was not decided.
This is clear from the submissions made on behalf of the State and recorded particularly in paragraphs 15, 16 and 17 of the Judgment. In paragraph 54 of the said judgment, the Supreme Court clearly stated that from the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 39 submissions made on behalf of the State of Maharashtra, it appears that the main question for determination related to the applicability of the MCOC Act to offences under the Essential Commodities Act, 1955 having particular regard to the enactment of the Essential Commodities (Special Provisions) Act, 1981. The High Court had proceeded on the basis that offences punishable under igthe provisions of the Essential Commodities Act, 1955 committed during the period when the Essential Commodities (Special Provisions) Act, 1981 was in force, could not be said to be offences which could be considered for the purpose of continuing unlawful activity as defined in Section 2(1)(d) of the MCOC Act. On consideration of provisions of both the Acts, the Supreme Court rejected this contention. The Supreme Court then considered individual cases. The Supreme Court observed that so far as Lalit Nagpal and Anil Nagpal are concerned, their involvement was shown in several cases of similar nature. However, so far as Kapil Nagpal was concerned, his involvement was shown only in respect of C.R. No.25 ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 40 of 2003 of the Rasayani Police Station under Sections 468, 420, 34 of the IPC and Sections 3, 7, 9 and 10 of the Essential Commodities Act. However, permission to register offence under Section 1(ii) of the MCOCA was taken only in respect of an offence under Section 63 of the Sales Tax Act. The Supreme Court observed that Section 63 of the Sales Tax Act would not attract the provisions of the MCOC Act. Kapil Nagpal was thus not linked to the organized crime syndicate. The nexus was lacking. It is in this context that the Supreme Court observed that so far as Kapil Nagpal is concerned, he has not been shown to be involved in any continuing unlawful activity. The attempt was to apply the MCOCA to a person who had no nexus with the organized crime syndicate. The Supreme Court therefore observed that the provisions of the MCOCA have to be strictly interpreted and the concerned authorities would have to be bound down to strict observance of the said provisions.
Observations of the Supreme Court cannot be torn out of context. This judgment, in our opinion, does not lay down ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 41 the proposition canvassed by Mr. Desai.
41. Reliance was placed by Mr. Desai on the judgment of this court in Bharat Shah's case (supra). In that case, constitutional validity of the MCOC Act was under
challenge. The point raised before us was not raised in that case. What was argued was that the definition of continuing unlawful activity violates mandate of Article
14. It was argued that this definition ropes in anyone charged more than once, irrespective of whether the charge resulted in an acquittal or conviction. It is in this context that this court observed that this provision only defines what is continued unlawful activities and refers to whether a person has been charged over a period of ten years for the purpose of seeing whether a person is charged for the first time or has been charged often. This court further observed that the circumstance of conviction or acquittal that followed is not material. This judgment, in our opinion, does not lay down, the proposition canvassed by Mr. Desai.::: Downloaded on - 09/06/2013 14:38:31 :::
AJN 42
42. Reliance placed on the judgment of this court in Sherbahadur's case is also misplaced. In that case, on facts, this court came to a conclusion that the offences could, by no stretch of imagination, be considered to give the accused any pecuniary or undue economic or other advantage. This court observed that some of the offences had resulted from a quarrel at a public water tap. In most of the cases, the accused had given fist blows. The accused were related to each other. This court observed that merely because the accused are from one family, inference cannot be drawn that the accused formed an organized crime syndicate. Against one of the accused who was a lady, there was no charge-sheet pending. The allegation was that she had sheltered two of her sons after they committed certain offences. This court observed that members of one family need not necessarily be part of an organized crime syndicate because some members of the family are involved in unlawful activities. This court did not consider the ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 43 question whether requirement of more than one charge-
sheet is qua the unlawful activities of the organized crime syndicate or qua an individual member thereof. The appellant cannot draw any support from this judgment.
43. In this connection, we must refer to the judgment of the Division Bench of this court (R.M.S. Khandeparkar & V.K. Tahilramani, JJ.) in Asif Khan Bashir Khan v. The State of Maharashtra in Criminal Appeal NO.749 of 2007 decided on 16/10/2007. In that case, it was contended that the sanction to prosecute the accused under the MCOC Act was granted on the assumption that two charge-sheets are filed against them during the preceding period of ten years, when in fact, it was not so.
This court after focussing its attention on the definition of the term "continuing unlawful activity" observed as under:
"However, the charge-sheet is essentially in relation to the offence committed in a matter. Merely because it relates to a particular person, once it ::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 44 is disclosed that such person is a member of the organised crime or organised crime syndicate and the offence is part of the continuing unlawful activity by either the organised crime or organised crime syndicate, it obviously would mean that the charge-
sheet refers to, as defined in Section 2(d), the offence committed as part of a continuing unlawful activity by organised crime or organised crime syndicate and the person being a member of such organised crime or organised crime syndicate, such charge-
sheet can definitely be taken into consideration for the purpose of application of MCOC Act against any such person."
44. Since in Asifkhan, the point which we are considering was squarely raised and answered, its ratio is attracted to the present case. In Deepak Bajaj v. State of Maharashtra & Anr., 2008 AIR SCW 7788, while considering the precidential value of a judgment, the Supreme Court took a resume of several decisions rendered by it. The Supreme Court referred to its judgment in Ambica Quarry Works v. State of Gujarat & Ors. (1987) 1 SCC 213, where it has observed that the ratio of any decision must be ::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 45 understood in the background of the facts of that case and a case is only an authority for what it actually decides and not what logically follows from it. In the light of this, we are of the opinion that the words `more than one charge-sheet' contained in Section 2(1)(d) refer to unlawful activities of the organized crime syndicate.
Requirement of more than one charge-sheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof.
45. Mr. Desai's submission that inasmuch as the appellant's name is not mentioned in the approval granted under Section 23(1)(a) of the MCOC Act, the prosecution qua the appellant is vitiated, must also be rejected. In its judgment in Vinod Asrani v. State of Maharashtra (Special Leave Petition (Cri.) No.6312 of 2006 dated 21/2/2007, the Supreme Court has considered the same submission and observed that non inclusion of the accused in the approval under Section 23(1)(a) of the MCOC Act is not fatal to the investigation ::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 46 qua that accused. The Supreme Court observed that Section 23(1)(a) provides a safeguard that no investigation into an offence under the MCOC Act should be commenced without the approval of the concerned authorities. Once such approval is obtained, an investigation is commenced. The Supreme Court further observed that those who are subsequently found to be involved in the commission of the organized crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of the MCOC Act.
46. We must also note that the submission of Mr. Desai that the prosecution is malafide and is the outcome of business rivalry does not prima facie appear to have any basis and, hence, we reject it.
47. We have already noted the principles laid down by the Supreme Court which should guide us while dealing with the prayer for discharge made by an accused. In the light of these principles, we have sifted the material to ::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 47 find out whether there is a prima facie case against the appellant or not. The role played by the appellant as disclosed by Mr. `X' and Mr. `Y' has been narrated by us earlier. In our opinion, the material creates a strong and grave suspicion leading us to presume that the appellant is a member of the organized crime syndicate and is involved in its continuing unlawful activities. The appellant prima facie appears to have abetted the unlawful activities of the organized crime syndicate headed by Guru Satam. As stated by the Supreme Court in Ramesh Singh's case, the court has not to examine, at this stage, whether the case will end in conviction or not. We have not conducted a roving enquiry which is prohibited by law. But, in the light of Muniswamy's case, we have considered whether material on record, if unrebutted, is such on the basis of which a conviction can be reasonably be possible. We are of the prima facie, opinion that statements of Mr. `X' and Mr. `Y' lead to such a conclusion. At the cost of repetition, we must state that the appellant's intimacy with the son of Guru Satam, his ::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 48 phoning the son and relative of Guru Satam for settling the amount of extortion, his being present when settlement talks were going on, his being present when money was to be handed over and his accepting the money and handing it over to Guru Satam's son and the fact that Mr. `X' stopped receiving threats from that date, are sufficient to prima facie indicate the appellant's complicity. This is certainly not a case for discharge. It is not disputed before us that the fact that the appellant was released on bail has no relevance to the question whether he could be discharged or not because considerations for bail and considerations for discharge differ. In our opinion, learned Special Judge has rightly rejected the appellant's discharge application. The impugned order merits no interference.
48. The appeal is dismissed.
[SMT. RANJANA DESAI, J.] [R.G. KETKAR, J.] ::: Downloaded on - 09/06/2013 14:38:32 :::