Bombay High Court
Umesh Gajanan Tapase And Ors vs The State Of Maharashtra And Ors on 6 January, 2020
Bench: B.P. Dharmadhikari, Nitin W. Sambre
WP-2433-19 with WP-4925.19.doc
BDP-SPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Bharat
D. Pandit
CRIMINAL APPELLATE JURISDICTION
Digitally signed by
Bharat D. Pandit
Date: 2020.01.07
17:53:12 +0530
WRIT PETITION NO. 2433 OF 2019
Mahesh Gajanan Tapase .... Petitioner.
V/s
The State of Maharashtra and Ors ..... Respondents
ALONGWITH
WRIT PETITION NO.4925 OF 2017
Umesh Gajanan Tapase and Ors. .... Petitioners.
V/s
The State of Maharashtra and Ors. ..... Respondents.
Mr. Niranjan Mundargi a/w Mr. Shailesh D. Chavan and Mr. Raviraj R.
Paramare for the Petitioner(s) in both the above Petitions.
Mrs Aruna S. Pai, APP for the State in both the above Petitions.
Mr Sameer Shaikh, ASP, Satara Sub-Division, Satara City Police
Station, present.
CORAM: B.P. DHARMADHIKARI &
NITIN W. SAMBRE, JJ.
Order reserved on : 3/12/2019 Order pronounced on : 6/1/2020 (In Chamber at 2.45 P.M.) P.C :
1] Heard respective Counsel.
2] Petitioner - Mahesh Gajanan Tapase has preferred Writ Petition
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WP-2433-19 with WP-4925.19.doc
No.2433 of 2019, seeking quashing of the FIR in Crime No.737 of 2017 registered with Satara City Police Station for offences punishable under Sections 395, 384, 506 of the Indian Penal Code read with Section 39 of the Money Lending (Regulation) Act, 2014 and Section 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to for the sake of brevity as "MCOCA") 3] Criminal Writ Petition No.4925 of 2017 is preferred by the Petitioners against whom allegations are that, they are members of the gang/organized crime syndicate who acted along with the Petitioner - Mahesh Gajanan Tapase in other Writ Petition No.2433 of 2019 in commission of violent act, which is otherwise not permissible under the provisions of law.
4] Petitioner - Mahesh Gajanan Tapase has also questioned the permission granted on 14/10/2017 in the form of prior approval pursuant to the provisions of Section 23(1)(a) of the MCOCA, so also final permission granted under sub-section (2) of Section 23 of the MCOCA.
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WP-2433-19 with WP-4925.19.doc 5] While inviting attention of this court to the prior approval order dated 14/10/2017 made under the signature of the competent authority i.e. Special Inspector General of Police, Kolhapur Range, Kolhapur, the learned Counsel for the Petitioners would urge that, so as to form an opinion against the Petitioners that they are involved in the offence punishable under the provisions of MCOCA, the authority has relied on in all five offences registered with Satara City Police Station viz. (i) C.R. No. 240/2011 for the Offences punishable under Sections 143, 147, 149, 427 of IPC, (ii) C.R. No.270/2012 for the offences punishable under Sections 143, 147, 148, 149, 452, 323, 506, 353, 332 of IPC r/w Section 37(1)(3)/135 of the Maharashtra Police Act, (iii) C.R. No. 699/2014 for the offences punishable under Section 143, 147, 148, 149 and 323 of IPC, (iv) C.R. No.837/2014 for the offences punisbale under Section 395, 120B, 452, 324, 427 323, 504, 506 of IPC r/w Section 37(1)(3)/135 of the Maharashtra Police Act and (v) C.R. No.737/2017 for the offences punishable under Sections 395, 384, 506 of IPC r/w Section 39 of the Maharashtra Money Lenders Act, 1946. While inviting attention of this court to the FIR in each of the aforesaid cases, the submissions are, except the last 3/15 WP-2433-19 with WP-4925.19.doc offence which has resulted in the registration of crime being C.R. 737/2017, rest of the offences are political in nature. 6] As observed hereinabove, Mr. Mundargi would rely on the copies of FIR and other material in respect of the crime referred therein so as to substantiate his claim. According to him, perusal of the said material prima facie would reflect that the authority, while passing the order under Section 23(1)(a) and 23(2), has not applied its mind, as could be inferred from the material available on record for invoking the provisions of MCOCA. He would further add that, acts defined under the provisions of Sections 2(1)(d) "continuing unlawful activity", 2(1)(e) "organised crime" and 2(1)(f) "organised crime syndicate" cannot be inferred from the language and the material on record. He would urge that as far as C.R. No.270/2012 is concerned, Petitioner - Mahesh Gajanan Tapase who was a Vice President of Rashtravadi Youth Congress has been claimed to have committed the said offence, which has political colour. He would further urge that for offences registered under C.R. No.240/2011, maximum punishment is of two years and as such, same cannot be taken into account for invoking the provisions of MCOCA. Further 4/15 WP-2433-19 with WP-4925.19.doc submissions are, C.R. No.699/2014 has a complete political colour, whereas C.R. No.837/2014 pertains to extortion and dacoity wherein no evidence is available, as the Applicant/Petitioner was granted pre- arrest bail in the said matter. He would then urge that there is no material to infer that the Petitioner - Mahesh Gajanan Tapase is connected with any criminal activity prohibited by law and has committed cognizable offence, which is punishable with imprisonment for three years or more. According to him, it is also not demonstrated in the charge-sheet that the Petitioner - Mahesh Gajanan Tapase singly or jointly, as a member of the orgnised crime syndicate, has carried out such violent activity which is criminal in nature and in relation to which for last 10 years more than one charge-sheet is submitted. According to him, it cannot be inferred that the offences alleged against the Petitioner - Mahesh Gajanan Tapase were for pecuniary gain. He would also draw support from the judgment of the Apex Court in the case of Ranjitsing Brahmajeetsing Sharma vs. Sate of Maharashtra and Another1, so as to claim that the Petitioners are involved only in the offences under the provisions of the Indian Penal Code and other penal statutes. Even if for commission of such 1 (2005) 5 SCC 294 5/15 WP-2433-19 with WP-4925.19.doc offences punishment provided is more than three years, unless it is established that the Petitioners have committed crime after committing unlawful activity in an organised way through forming syndicate, mens rea for invoking the provisions of MCOCA cannot be inferred. Mr. Mundargi would also draw support from the judgment in the case of State of Maharasthra vs. Rahul Ramchandra Taru 2 so as to claim that for bringing the alleged act within the ambit of MCOCA, it is necessary to demonstrate that there was continuing unlawful activity as defined under Section 2(1)(d) of MCOCA. He would also claim that mere registration of offences under IPC which are cognizable and punishable with imprisonment of more than three years, is not a only requirement. He would also claim that such offences in which accused is acquitted cannot be relied on as is observed in the aforesaid judgment. By inviting attention of this Court to the order of the Supreme Court dated 16/3/2012, it is claimed that the aforesaid view is approved by the Supreme Court. The learned Counsel would also rely on the Judgment of the Apex Court in the case of State of Maharasthra vs. Shiva @ Shivaji Ramaji Sonawane & Ors 3 in support of the aforesaid proposition.
2 2011 0 ALLMR (Cri) 2100 3 2015 ALL MR (Cri) 3310 (S.C.) 6/15 WP-2433-19 with WP-4925.19.doc 7] While countering the submissions referred to above, Mrs. Pai, learned APP, would urge that the judgment in the matter of Rahul Ramchandra Taru (supra) was explained in the matter of Sachin Bansilal Ghaiwal vs. State of Maharashtra4. By inviting attention of this Court to para 20 and 21 of the said judgment, her submissions are, the intention of makers of the statue is required to be appreciated by construing intent behind making of such statute. According to her, provisions of statute are required to be construed to make it effective and workable. Such construction which reduces the statute to futility be avoided. She would further urge that judgment in the matter of Rahul Ramchandra Taru (supra) is in the facts of the said case. She would claim that FIR C.R. No. 737/2017 provides for an offence which is punishable for more than three years, as provisions of Section 395 of IPC provides for punishment for more than three years. According to her, for other offences which are referred to, punishment is for more than three years and the offences are committed by the accused in an organised way by forming a syndicate for pecuniary gain. She would further try to embark on the nature of the offences committed and 4 2014 CRI L.J. 4217 7/15 WP-2433-19 with WP-4925.19.doc allegations against the Petitioners. By inviting attention of this Court to the order of prior approval granted under Section 23(1)(a) of MCOCA, all relevant material required for the same was taken into consideration and the requirement under Section 2(d), 2(e) and 2(f) of the MCOCA was satisfied. It is pointed out that the name of the Petitioners, role and nature of offences committed by each of the Accused is taken into account. As such, she sought dismissal. 8] Considered the rival submissions.
9] The Accused - Mahesh Gajanan Tapase came to be arrested on 9/9/2017 in Crime No. 737/2017 wherein, admittedly, punishment is prescribed for more than three years and the number of accused are also more than two. The nature of accusations against the Petitioners in the said crime is that of extortion for which punishment under Section 384 is for three years, dacoity for which punishment under Section 395 is for 10 years etc. During investigation, it has been noticed that the Petitioner - Mahesh Gajanan Tapase appears to be the gang leader of the organised crime syndicate from whose custody 16 stamp papers out of which 9 containing transaction of Rs 8/15 WP-2433-19 with WP-4925.19.doc 2,40,00,000/-, 7 blank stamp papers, 55 cheques of various Banks out of which 26 cheques were for an amount of Rs 3,92,39,000/- and 29 blank cheques and vehicle of the complainant came to be recovered. 10] Admittedly, under the said crime including that of FIR, names of the Petitioners were recorded along their four unknown accomplice. The accused persons are involved in commission of serious crime of extortion and dacoity.
11] The other crime which was committed under the banner of protest of May day/labour day wherein the accused have damaged business establishments and assaulted staff working therein. 12] In C.R. No.837 of 2014, the offence is of dacoity which punishable under Section 395 for 10 years. However, it is claimed that the Accused are acquitted in the said crime. Fact remains that record depicts that the offences referred supra and referred to in an order under Section 23(1)(a) of the MCOCA are committed in last 10 years. There are more than one charge-sheet filed against the accused before the competent court of which cognizance was taken. 9/15
WP-2433-19 with WP-4925.19.doc The conduct of the Petitioners in commission of crime prima facie demonstrate that the they are alleged to have indulged in continuing unlawful activity and have committed organised crime by forming syndicate. There is material to infer that the offences alleged to have been committed by the Petitioners are for pecuniary gain.
In aforesaid crimes, the Court has taken cognizance against the Petitioners/Accused, as charge-sheet against the accused persons was already filed.
The activity referred to in both these offences demonstrates "continuing unlawful activity" within Section 2(1)(d) i.e. activity prohibited by law. As a matter of fact, there are charge-sheets in two earlier cases before the competent court. So as to substantiate the aforesaid observations, support can be drawn from the judgment of the Apex Court in the matter of Prasad Shrikant Purohit vs. State of Maharashtra and Ors.5.
Apart from above, the expression "member" referred to in Section 2(1)(d) can be termed as an accused person who participates in commission of crime either actively or passively on behalf of the organized crime syndicate.
5 (2015) 7 SCC 440 10/15 WP-2433-19 with WP-4925.19.doc 13] All this material has been rightly considered by the authority while passing the order under Section 23 of MCOCA for granting prior approval. Perusal of the order of grant of prior approval demonstrates that the material placed before it was considered and there is application of mind in appreciating the said material. The question of validity of prior approval and sanction cannot be decided unless the Respondent/Prosecution is given an opportunity to lead evidence in that regard. Perusal of the order granting prior approval, as observed hereinabove, speaks of total number of offences committed in last 10 years by the accused persons.
14] On perusal of each of the FIR and the material collected during investigation of such crime as referred supra, it is apparent that the Petitioners are involved in the offence in question which is an unlawful activity by forming syndicate For each of the offences, the very group/gang could be noticed of the offenders who alleged to have committed the crime. The observations in paras 33 and 34 of the Full Bench Judgment of this Court in the case of The State of Maharashtra vs. Jagan Gagansingh Nepali @ Jagya & Others6 are worth referring to, 6 2011 5 MhL.J. 386 11/15 WP-2433-19 with WP-4925.19.doc which read thus :
"33. It is pertinent to note that in both Statement of Objects and Reasons and the Preface, though certain activities have been mentioned the same are followed by the term "etc". It is, thus, clear that the activities mentioned in the Statement of Objects and Reasons and the Preface are only illustrative in nature and not exhaustive. It is, thus, clear that the legislative intent is not only to curb only the activities mentioned in the Statement of Objects and Reasons or Preface but to curb various other activities of the organised crime syndicate so that unlawful elements spreading terrorism in the society can be controlled to a great extent, with an intention that the feeling of fear spread in the society is minimised."
"34. It can, thus, clearly be seen that the purpose behind enacting MCOCA was to curb the activities of the organised crime syndicates or gangs. The perusal of the Preamble and the Statement of Objects and Reasons and Preface, in our considered view, does not lead to any narrower meaning that MCOCA has been enacted only for the purpose of curbing activities which involve pecuniary gains or 12/15 WP-2433-19 with WP-4925.19.doc undue economic advantages. The mischief which is sought to be cured by enactment of MCOCA is to curb and control menace of organized crime. The law has been enacted with the hope that the elements spread by the organised crime in the Society can be controlled to a great extent and for minimizing the fear spread in the society. If a narrower meaning as sought to be placed is accepted, it will frustrate the object rather than curing the mischief for which the Act has been enacted".
15] As far as contention of the learned Counsel for the Petitioners that the offences alleged to have been committed are not for pecuniary gain but are regular offences under the provisions of IPC and as such the very test of commission of offence for pecuniary gain is not satisfied is concerned, same is also liable to be rejected. Reading of FIR with material collected during investigation in each of the Crime referred to in the order of grant of prior approval demonstrates that the offences, as has been claimed to have been registered with political motive cannot be so inferred. There are specific attributions against the accused persons of commission of offence and their conduct in commission of offence is not in the backdrop of any political scenario 13/15 WP-2433-19 with WP-4925.19.doc but is an independent act of commission of offence. Involvement of the accused therein prima facie speaks of committing such violent act which is not permissible in law and which is in the form of organised crime committed in calculated and organised manner. The offence committed by organised crime syndicate cannot be inferred from very first offence but it is after consideration of more than one charge-sheet in last 10 years. It could be noticed that there is prima facie material on record which speaks of the criminal act of the Petitioners who have committed offences in organised way. Material on record is required to be appreciated cumulatively, as there is more than one charge- sheet and contents in such charge-sheets are required to be appreciated while invoking the provisions of MCOCA, as has been done in this case. The charge-sheet which is placed on record and statements of witnesses speak of prima facie involvement of the accused persons in commission of crime in organised way through syndicate. That being so, order of invoking provisions of MCOCA for granting prior approval/sanction under Section 23(1)(a) of MCOCA is very much justified.
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WP-2433-19 with WP-4925.19.doc 16] No case for quashing is made out in both these Petitions. Both these Petitions stand dismissed.
( NITIN W. SAMBRE, J. ) (B. P. DHARMADHIKARI, J.) 15/15