Gujarat High Court
Atulbhai Vitthalbhai Bhanderi vs State Of Gujarat on 7 September, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22475 of 2021
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ATULBHAI VITTHALBHAI BHANDERI Versus STATE OF GUJARAT ========================================================== Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1 MR MITEH AMIN, PUBLIC PROSECUTOR with MS MAITHILI MEHTA, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI Date : 07/09/2022 CAV ORDER 1 By way of this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed for enlarging him on bail in connection with FIR being CR No.I-11202008202186 of 2020 registered with A Division Police Station, Jamnagar on 15.10.2020 for the offences punishable under Sections 3(1), 3(2), 3(3), 3(4) and 3(5) and 4 of the Gujarat Control of Terrorism and Organized Crime Act, 2015 read with Sections 384, 385, 386, 387, 506(1), 506(2), 507, 201, 120B of Indian Penal Code, 1860.Page 1 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022
R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 2 Heard Mr.Hriday Buch, learned advocate for the applicant and Mr.Mitesh Amin, learned Public Prosecutor assisted by Ms.Maithili Mehta, learned Additional Public Prosecutor for the State respondent.
3 The FIR pursuant to which the applicant is arrested is in respect of an organized crime syndicate run by accused No.1 - Jaysukh @Jayesh Muljibhai Ranpara (Patel) and present applicant was shown as accused No.4 in the said FIR. In the FIR it is alleged that all the persons named in the FIR, in connivance with the main accused Jaysukh @Jayesh Muljibhai Ranpara (Patel), running an organized crime syndicate with an intent to extort money and are involved in land grabbing by threatening people at large. In the FIR a reference of as many as 59 cases registered against the leader of the syndicate - accused No.1 - Jaysukh @Jayesh Muljibhai Ranpara (Patel) and syndicate members wherein role of the present applicant is narrated as under: Page 2 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022
R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 3.1 Atul Vitthalbhai Bhanderi resident of Nandanvan Society, Sheri Number 4, Ranjeet Sager Road, Jamnagar is involved in intimidating and threatening the victims on behalf of Jaysukh Ranpriya so as to ensure that victim comply with extortion demands. He has been holding property derived from the funds of the organized crime. It has been identified from the inquiry that he has been directly involved in collecting the sums that have been extorted from hapless victims in the city. He has been found to be involved in passing on information likely to assist the crime syndicate in its activities thereby abetting the actions of the gang.
3.2 The present applicant is an ex-councilor and has alleged to have involved in intimidating and threatening the victims on behalf of accused No.1 in compliance with the exhortation demand and is alleged to have owned properties derived from the fund of organized crime.Page 3 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022
R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 4 Learned advocate Mr.Buch for the applicant submitted that in all till date there are 8 offences for which the present applicant is charge-sheeted, the details of which are as under:
[1] FIR being CR No.I-66 of 2011 registered with Jamnagar City A Division Police Station for the offence punishable under Sections 143 and 147 of the Indian Penal Code and under Section 3 of the Prevention of Damage to Public Property Act, 1984.
[2] FIR being CR No.I-287 of 2011 registered with Jamnagar City A Division Police Station for the offence punishable under Sections 324, 323, 147, 148 and 149 of the Indian Penal Code and under Section 135 of the Gujarat Police Act. [3] FIR being CR No.I-134 of 2014 registered with Jamnagar City A Division Police Station for the offence punishable under Sections 143, 147, 148, 149, 324, 323, 504, 506(2) of the Indian Page 4 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 Penal Code and under Section 135(1) of the Gujarat Police Act.
[4] FIR being CR No.I-120 of 2015 registered with Jamnagar City A Division Police Station for the offence punishable under Sections 143 and 427 of the Indian Penal Code and under Section 2, 3(e) of the Prevention of Damage to Public Property Act, 1984.
[5] FIR being CR No.I-121 of 2015 registered with Jamnagar City A Division Police Station for the offence punishable under Sections 143 and 435 of the Indian Penal Code.
[6] FIR being CR No.I-185 of 2015 registered with Panch-B Division Police Station for the offence punishable under Sections 143, 147, 149, 186, 332, 337, 342 and 427 of the Indian Penal Code.
[7] FIR being CR No.I-187 of 2015 registered Page 5 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 with Panch-B Division Police Station for the offence punishable under Sections 143, 147, 149, 186, 332, 337, 341, 427 and 506(1) of the Indian Penal Code.
[8] FIR being CR No.I-142 of 2019 registered with Jamnagar City C Division Police Station for the offence punishable under Sections 386, 507 and 128(b) of the Indian Penal Code and under Sections 25(1-B)A and 29 of the Arms Act and under Section 135(1) Gujarat Police Act. 4.1 Mr.Hriday Buch, learned advocate for the applicant, submitted that out of total 8 offences for which the applicant is charge-sheeted, 7 offences are of 2015 or prior thereto and there are no recent offences, except the last offence, which was registered in the year 2019. Learned advocate further submitted that most of the offences are in respect of Sections 143 and 147 of the Indian Penal Code, which may not be said to be grave in nature, which may compel the authority to invoke the provisions of Page 6 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 Gujarat Control of Terrorism and Organized Crime Act, 2015 (for short, `GUJCTOC Act') against the present applicant.
4.2 Learned advocate for the applicant submitted that in respect of 2019 complaint being CR No.I-142 of 2019 the complainant is a broker involved in the business of land deals and according to the complainant in respect of the land bearing survey No.961 the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) has on several occasions threatened the complainant and witnesses, who were parties to the aforesaid land deal to cancel the aforesaid land deal. Thereafter, on 1.11.2019 a meeting was held in the office of Bhagwanjibhai Kanjariya between the complainant and witnesses and during that meeting the applicant dialed a call from his mobile phone and thereby facilitated a conversation between main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) and the complainant and threatened them to cancel the said land deal or to pay a sum of Rs.1 crore to the applicant which they refused. According to learned Page 7 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 advocate for the applicant, the aforesaid allegations are factually incorrect inasmuch as after registration of offence on 14.11.2019, the very next day, said Bhagwanjibhai Kanjariya, Manish Keshavji Panara, Maheshbhai Khodabhai Chikaliya and Maganbhai Hirjibhai Harsoda by giving statements before In- charge Police Inspector, LCB Police Station, Jamnagar have controverted the facts stated in the FIR that the present applicant never dialed any phone call to facilitate a telephonic conversation between the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) and witness by Bhagwanbhai Kanjariya. 4.3 Mr.Buch learned advocate for the applicant, further submitted that as per the aforesaid FIR, the present applicant arranged a telephonic talk between the accused No.1 and complainant as well as Bhagwanbhai Kanjariya and as they neither cancelled the deal of the plot nor paid the extortion amount of Rs.1 crore, the applicant along with main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) hatched a conspiracy and sent six persons to the residence of Page 8 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 the complainant and they fired three rounds of bullets, one at the Creta Car parked outside the residence of the complainant and broken glass of the car by threatening the complainant. According to Mr.Buch, learned advocate for the applicant, the applicant was not even present when the firing took place and as per the statement of aforesaid witnesses before In-charge Police Inspector on 15.11.2019, the applicant has not played any role in the aforesaid offence basis upon which the applicant has been arraigned as witness in the impugned FIR. 4.4 Mr.Buch, learned advocate for the applicant, submitted that except for the aforesaid incident, in respect of all other offences though charge sheet is filed against the applicant those offences can be said to be of personal nature and cannot be said to be an offence committed by organized crime syndicate and merely on the basis of only one offence the applicant cannot be said to be a member of the organized crime syndicate and the provisions of the GUJCTOC could not have been invoked Page 9 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 against the applicant.
4.5 Mr.Buch, learned advocate for the applicant, relying upon the decision of the Hon'ble Apex Court in the case of Mohamad Iliyas Mohamad Bilal Kapadiya vs. The State of Gujarat, in Petition for Special Leave to Appeal (Cri.) No.1815 of 2022 vide order dated 30.5.2022, more particularly, the conditions which must fulfill for invoking the provisions of GUJCTOC Act, learned advocate Mr.Buch submitted that in the instant case the requirement of condition (iii) is not fulfilled as the offence for which the charge sheet is filed against the applicant cannot be said to be an activity undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate. 4.6 Learned advocate for the petitioner next relying upon the decision of this Court in the case of Rais Ahmed @Raishmamu Gulamnabi Mamu (Vora) vs. State of Gujarat in Criminal Misc. Application No.23098 of 2021, vide order dated 29.7.2022, Page 10 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 submitted that since this Court has exercised discretion in favour of the applicant by releasing him on bail in that application and by considering the gravity of offence registered against him as well as by taking into consideration the fact that one each charge sheet was filed from the year 2017, 2018 and 2019 and the applicant was enlarged by the court. In the instant case also, no charge sheet was filed against the applicant between 2015 till 2019, and therefore, he also may be enlarged on bail taking into consideration the aspect that the offence alleged against the applicant can be said to have been committed in his individual capacity and not as a member of the organized crime syndicate. 4.7 Learned advocate for the petitioner thereafter relied upon the decision of this Court in the case of Shaileshbhai Bhagwanbhai Desai vs. State of Gujarat in Special Criminal Application No.1388 of 2022 with Special Criminal Application No.1394 of 2022 vide Common CAV order dated 20.7.2022, submitted that the Division Bench of this Court while passing Page 11 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 interim order has considered the decision of the Hon'ble Apex Court in the case of Kavitha Lankesh vs. State of Karnataka and Others reported in 2021 SCC OnLine SC 956 and observed that for invoking provisions of the Act like GUJCTOC, the prosecution must establish nexus between the applicant and the members of the organized crime syndicate, who have committed the organized crime, as reflected in respective FIR by way of proper material. Leaned advocate Mr.Buch submitted that in the instant case there is no material to establish the nexus between the present applicant and his involvement in the offences allegedly committed by organized crime syndicate.
4.8 By making the aforesaid submissions, Mr.Hriday Buch, learned advocate for the applicant prays to enlarge the applicant on bail in exercise of powers under Section 439 of the Code of Criminal Procedure, 1973.
5 Mr.Mitesh Amin, learned Public Prosecutor Page 12 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 for the State respondent, vehemently opposed the bail application and submitted that the applicant is an active member of an organized crime syndicate, who haw facilitated the crime by threatening and intimidating the people at large and by collecting extortion money from them. Learned Public Prosecutor further submitted that the present applicant along with 4 other witnesses were present at the place of secrete witness No.5 in a meeting which took place on 1.11.2019 and facilitated a telephonic conversation with main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel), who threatened the witnesses and demanded extortion and also intimidated the witnesses to fulfill the demand of extortion failing which those witnesses were threatened that they also would meet the same fate as Kirit Joshi, advocate, who was murdered by the allies of the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel).
5.1 Mr.Amin, learned Public Prosecutor, submitted that the present applicant threatened the witnesses and asked for cancellation of sale deeds by Page 13 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 witness Nos.3 to 5. Learned Public Prosecutor further submitted that the present applicant was an ex municipal councilor and by misusing his position achieved the motive of the organized crime syndicate of grabbing very valuable lands. In that process, the applicant used to make agitations about the aforesaid land and tried to pressurize the authorities by getting news articles about the aforesaid land published in the newspaper run by the wife of the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) by spreading rumours in respect of the land and the crime syndicate tried to see that the deal in respect of survey No.961 is cancelled. However, when such tactics failed, ultimately, the witnesses were threatened to cancel the said land deal and extortion money was demanded.
5.2 The first meeting was held between the complainant and witnesses on 1.11.2019 during which the applicant was present and facilitated a telephonic conversation between Jaysukh @Jayesh Muljibhai Ranpara (Patel), Bhagwanbhai Kanjaria, Page 14 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 complainant and witnesses. After about one month thereafter as extortion money was not paid, another meeting between the complainant and same witnesses took place and in that meeting also present applicant was present and facilitated telephonic conversation between Jaysukh @Jayesh Muljibhai Ranpara (Patel), Bhagwanbhai Kanjaria, complainant and witnesses wherein extortion money was demanded, pursuant to which an amount of Rs.2.19 crores was paid to other members of the organized crime syndicate and the extortion money was paid to Pravin Chovatiya and Anil Parmar, who are members of the organized crime syndicate.
5.3 Mr.Amin, learned Public Prosecutor, drew attention of the Court that son of the applicant viz. Yagnik came to the office of the secrete witness on 20.2.2022 and again he was instructed to have telephonic talk with the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) and during that telephonic talk Jaysukh @Jayesh Muljibhai Ranpara (Patel) threatened the witnesses to pay a sum of Page 15 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 Rs.25 lakhs to the son of the applicant and ultimately on 21.2.2020 a sum of Rs.25 lakhs was paid to son of the present applicant by the said witnesses in the office of the witness.
5.4 The aspect of presence of the applicant in the office of the witnesses on 1.11.2019 as alleged in the FIR is supported by CCTV footage as well as statements of the witnesses along with statement dated 30.10.2020, applicant's son viz. Yagnik. By drawing attention to the aforesaid aspect, learned Public Prosecutor submitted that the aforesaid aspects are sufficient to establish nexus between the present applicant and organized crime syndicate and tried to justify arrest of the present applicant. 5.5 Mr.Amin, learned Public Prosecutor submitted that there are as any as 59 FIRs registered against the members of the syndicate. Relying upon the judgment of Kavitha Lankesh (supra), more particularly para 23, learned Public Prosecutor submitted that requirement of more than two charge Page 16 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 sheets is in reference to continuing unlawful activities by organized crime syndicate and not qua individual member. Once there is material to indicate that the present applicant is a member of the organized crime syndicate, then overall scenario and overall view in respect of offences of the syndicate is required to be considered and as there are 59 offences registered against the members of the organized crime syndicate, the said aspect is require to be considered by this Court.
5.6 Mr.Amin, learned Public Prosecutor submitted that in view of the fact that there is direct nexus between the offence committed by the organized crime syndicate and the role of the applicant in facilitating that offence, the order dated 30.5.2022 passed by the Hon'ble Apex Court in the case of Mohamad Iliyas Mohamad Bilal Kapadiya (supra) would not be applicable to the facts of the present case as the applicant has committed offence in capacity of member of an organized crime syndicate.
Page 17 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 5.7 Mr.Amin, learned Public Prosecutor, submitted that during the course of investigation, the investigating officer has recovered Rs.4.14 crores from P.M.Angadiya, Jamnagar and a sum of Rs.65 lakhs from four other witnesses and total amount of more than Rs.5 crores paid towards extortion money has been recovered which would clearly establish that the applicant is an active member of the organized crime syndicate.
5.8 Mr.Amin, learned Public Prosecutor drew attention of this Court to the provisions of Section 18 of the GUJCTOC Act that different plots of land valuing around Rs.8 crores were attached and one residential property valued around Rs.2.15 crores was also attached. Further, attachment of one residential property and one plot both valuing around Rs.5 crores is pending with the State Government.
5.9 By making the aforesaid submissions, Mr.Mitesh Amin, learned Public Prosecutor prayed for Page 18 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 dismissal of the bail application.
6 Heard learned advocates appearing for the parties and perused the record of the case. It is true that in all there are 8 offences registered against the present applicant for which charge sheets are filed and some of the offences against the applicant are in respect of Sections 143 and 147 of the Indian Penal Code and offences under the Prevention of Damage to Public Property Act, 1984. However, the details of the offences registered against the applicant also indicate that since 2011 till 2019 except for the period between 2016 to 2018 continuously the offences are registered against the applicant, which would show the involvement of the applicant in continuing unlawful activities. 6.1 I have considered the submissions made by Mr.Hridy Buch, learned advocate for the applicant and Mr.Mitesh Amin, learned Public Prosecutor and on perusal of the record what is considered by this Court is the statements of various witnesses as well Page 19 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 as other material placed on record by the learned Public Prosecutor. The allegations against the present applicant are that the applicant has arranged a telephonic conversation between the witnesses and the main accused, who threatened them to cancel the sale deeds or else demanded extortion of Rs.1 crore. The statement of the witnesses would indicate that initially an amount of Rs.2.19 crores was paid towards extortion. The aforesaid statement if considered in light of the presence of the applicant on 1.11.2019 in the office of the witness - Bhagwanjibhai Kanjariya it would establish that the present applicant has acted in furtherance of achieving the object of crime in respect of the conspiracy hatched by accused No.1 - Jaysukh @Jayesh Muljibhai Ranpara (Patel) for the recovery of an amount of Rs.4.14 crores from P.M.Angadiya. The total recovery of cash is more than Rs.5 crores, as submitted by the learned Public Prosecutor would indicate that the extortion money was paid by the victim and was received by different persons of the gang. The statement of son of the applicant viz. Page 20 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 Yagnik as well as the fact that a sum of Rs.25 lakhs was paid to the son of the applicant towards extortion money on 21.2.2020 by the victims in the office of the witness would clearly establish the prima facie involvement of the applicant in the crime allegedly committed by the organized crime syndicate. 6.2 Further, as per the statement of one of the witnesses, an amount of Rs.2.19 crores towards extortion money was paid to Pravin Chovatiya and Anil Parmar. It is noteworthy that along with the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel), aforesaid Anil Parmar is also shown as co-accused in 3 FIRs [(1) CR No.I-105/2016 registered with Jamnagar City A Division Police Station, (2) CR No.I-122/2016 registered with Jamnagar City C Division Police Station and (3) CR No.I-135/2016 registered with Jamnagar City C Division Police Station] and Pravin Chovatiya is shown as co-accused in 1 FIR being CR No.I-135/2016 registered with Jamnagar City C Division Police Station and charge sheets are filed in all these 3 FIRs. The aforesaid fact would clearly Page 21 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 establish that when the applicant by facilitating telephonic conversation among the main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel) with the complainant, witnesses, Bhagwanjibhai Kanjariya and by threatening the complainant and witnesses extortion money was demanded and the same was paid to Anil Parmar and Pravin Chovatiya, who are also shown as co-accused along with main accused - Jaysukh @Jayesh Muljibhai Ranpara (Patel). The aforesaid material would clearly establish the nexus between the applicant and organized crime syndicate. 6.3 When there is prima facie nexus between the applicant and the organized crime syndicate, the submission of Mr.Buch, learned advocate for the applicant that the offence committed by the applicant can be said to have been committed in his individual capacity and not as a member of organized crime syndicate, cannot be accepted. Hence, according to this Court, the case of the applicant would fall within the parameters laid down by the Hon'ble Apex Court in the case of Mohamad Iliyas Mohamad Bilal Page 22 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 Kapadiya (supra), wherein it is held as under:
"We are of the prima facie view that for invoking the provisions of the GCTOC Act, the following conditions will have to be fulfilled:
[i] that such an activity should be prohibited by law for the time being in force;
[ii] that such an activity is a congnizable offence punishable with imprisonment of three years or more;
[iii] that such an activity is undertaken either singly or jointly, as a member of an organized crime syndicate or on behalf of such syndicate;
[iv] that in respect of such an activity more than one charge-sheet must have been filed before a competent Court; and [v] that the charge-sheet must have been filed within a preceding period of ten years; and [vi] that the Courts have taken cognizance of such SLP (Crl.) No. 1815/2022 offences.Page 23 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022
R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 Undisputedly, in the present case only one charge-sheet was filed in respect of an activity which can be said to have been undertaken by the petitioner/applicant as a member of an organized crime syndicate on behalf of such syndicate.
Taking into consideration this aspect of the matter and further that the petitioner/applicant has already been directed to be released on bail in respect of crime registered at Serial Nos. 1 to 5, we are inclined to allow the present Special Leave petition.
The petitioner/applicant is, therefore, directed to be released on bail on such terms and conditions as found appropriate by the Trial Court."
6.4 In the instant case, according to this Court all the aforesaid conditions are fulfilled, and therefore, prima facie, the action of the respondent State in invoking provisions of CUJCTOC to the present case cannot be said to be illegal. 6.5 Further, this Court has also considered a very recent judgment of the Hon'ble Apex Court in the Page 24 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 case of Zakir Abdul Mirajkar vs. The State of Maharashtra & Ors. in Criminal Appeal No.1125 OF 2022 vide judgment dated 24.8.2022, wherein the Hon'ble Apex Court considered almost analogous provisions of MCOCA Act and held as under:
"77. From the analysis above, the appellants' submission that the allegation of engaging in illegal gambling would not sustain the invocation of the penal provisions of Section 3(2) MCOCA is simplistic. Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime. The question of whether the appellants are in fact abetting organized crime in this manner, is to be determined at the stage of trial. Similarly, the question of whether offences under the IPC would attract MCOCA in the present case is to be determined at the stage of trial and depends on the facts and circumstances of each case. The observation in Lalit Somdatta Nagpal (supra) that some degree of coercion or violence is required to charge an accused under provisions of MCOCA must be read together with Section 2(1)(e) recognizes that "other unlawful means" may be used while committing organized Page 25 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 crime, in addition to coercion and violence.
c. More than one charge-sheet is not required to be filed with respect to each accused person.
The appellants have argued that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them. This submission does not hold water. It is settled law that more than one charge sheet is PART D required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate.
78 In Govind Sakharam Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770 a two-judge Bench of the Bombay High Court, speaking through Justice Ranjana Desai (as the learned judge then was) held that:
"37 ...Section 2(1)(d) which defines `continuing unlawful activity' sets down a period of 10 years within which more than one charge-sheet have to be filed ... It is the membership of organized crime syndicate which makes a person liable under the Page 26 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 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 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 Page 27 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 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."
79. Other courts, too, have held that persons who are alleged to be members of an organized crime syndicate need not have more than one charge-sheet filed against them in an individual capacity. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d).
80. For the above reasons, we find no merit in the appeals. The appeals shall stand dismissed. However, it is clarified that: (i) the appellants are at liberty to approach the High Court for release on bail; and (ii) the evidentiary value of confessions alleged to have been made by the appellants shall be considered by the trial court and the mere validation of their being recorded by an officer in the rank of Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by this Court."
Page 28 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 6.6 Considering the aforesaid judgment and also keeping in mind the fact that the applicants were granted liberty by the Hon'ble Apex Court to approach the High Court for release on bail, this Court has also taken into consideration the aforesaid judgment and has considered the fact that as observed by the Hon'ble Apex Court that the question whether the applicant is in fact abetting the organized crime syndicate in this manner, is to be determined at the state of trial. However, considering the fact that the Hon'ble Apex Court has categorically stated in para 79 that, the charge sheet with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) of the Act, this Court after taking into consideration the totality of the facts and as there is sufficient material against the applicant, this Court do not deem it appropriate to release the applicant on bail by exercising powers under Section 439 of the Code. 7 In view of the above discussion, this Page 29 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022 R/CR.MA/22475/2021 CAV ORDER DATED: 07/09/2022 application is required to be dismissed and accordingly the same is dismissed. Rule discharges. No costs.
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 30 of 30 Downloaded on : Thu Sep 08 21:36:09 IST 2022