Bombay High Court
Rushikesh @ Chakula Pandurang Dethe vs The State Of Maharashtra on 13 August, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:33696-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL (ST) NO. 2834 OF 2024
Rushikesh @ Chakula Panduranga Dethe .. Appellant
Versus
The State Of Maharashtra .. Respondent
...
Mr. Keshav S. Chavan a/w Ms. Anita Marbhal, Mr. Arif A.
Shaikh, for the Appellant.
Ms. M. M. Deshmukh, A.P.P. for the State/Respondent.
Mr. Pramod V. Bhosale, A.P.I., Wadala Truck Terminal Police
Station, is present.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 13th AUGUST, 2024 P.C:-
1. On the last date of hearing, the learned A.P.P. Ms. Deshmukh sought time to go through the FIRs, on the basis of which the prior approval and sanction was granted to prosecute the Appellant under the Maharashtra Control Of Organised Crime Act, 1999 ("MCOCA").
Today, she has produced before us the two CRs, which are relied upon by the Sanctioning Authority to establish that the accused being a member of 'organised crime Chaitanya ::: Uploaded on - 22/08/2024 ::: Downloaded on - 23/08/2024 07:54:52 ::: 2/8 45-Apeal(St)-2834-2024.doc syndicate' having committed violent crimes for pecuniary gain and having continued his unlawful activities, under the leadership of Rushikesh @ Chakula Panduranga Dethe, deserve to be prosecuted under the provisions of MCOCA.
The first crime bearing C.R. No.0056 of 2018, is registered with Kopar Khairane Police Station, has invoked Section 327, 341 read with Section 34 of the Indian Penal Code ("IPC"), and the copy of the same is placed before us, by Ms. Deshmukh. We have perused the same.
2. Mr. Roshan Kank, who was acquainted to the present Appellant narrated that he had borrowed the camera of Canon Company from Rushi, somewhere in the year 2017 but he lost it and therefore Rushi was after him to either return the camera or pay the money for it.
According to Roshan, he paid a sum of Rs.50,000/- to Rushi as compensation for the camera being lost, but he was still demanding Rs. 20,000/- and this resulted into a quibble.
On the date of incident at around 1.00 p.m., Roshan was carrying a sum of Rs. 20,000/- for being deposited in a bank and while he was en route, he saw Rushi in the company of two other persons on their motorcycle and on approaching him, they started demanding money. He resisted the demand by saying that the money was already paid and at that moment Rushi and the two persons alighted from the motorcycle and started assaulting him. Suraj Kadam is alleged to have assaulted on his head by means of iron rod, whereas Pawan Shelke and Rushi also assaulted him, and in the Chaitanya ::: Uploaded on - 22/08/2024 ::: Downloaded on - 23/08/2024 07:54:52 ::: 3/8 45-Apeal(St)-2834-2024.doc incident his golden chain and cash amount of Rs.20,000/- was snatched from him.
This is the cause for registration of C.R.No. 56 of 2018.
3. Another C.R. bearing No.0456 of 2020, registered with Shahupuri Police Station, by invoking Section 392 of the IPC, is registered on the complaint of Smt. Chaya Chavan, a maidservant, who deposed that on 13.12.2020 when she was enroute her house, an unknown person chased her on his motorcycle and knocked her down, and he pulled the chain with golden beads, which she was wearing and upon the same having been snatched, 15 golden beads fell on the ground and remaining were stolen by him.
Though the FIR was registered against the unknown person, later on it was revealed that it is Rushikesh @ Chakula Panduranga Dethe i.e. the Appellant, who was responsible for the act.
4. We have perused the order granting approval passed by the Additional Commissioner of Police on 09.08.2021, under Section 23(1)(a) of the MCOCA, where the satisfaction is expressed that after going through the investigation papers, statement of witnesses, record of evidence and applying his mind to the case, he formed an opinion that the arrested person Rishikesh @ Chhakula and Shiva Rajesh Verma are active members of 'Organised Crime Syndicate' headed by Rishikesh @ Chhakula. Reference is Chaitanya ::: Uploaded on - 22/08/2024 ::: Downloaded on - 23/08/2024 07:54:52 ::: 4/8 45-Apeal(St)-2834-2024.doc made to the two charge-sheets i.e. C.R. No.56 of 2018 and C.R. No. 402 of 2018, which have invoked the offence punishable with more than three years of imprisonment and since they are committed with the motive of pecuniary gain, charge- sheets have been filed in the competent Court on which the cognizance has been made.
5. The Additional Commissioner of Police in the approval order has recorded specifically as under :
" The accused being the members of Organized Crime Syndicate, singly or jointly, have committed violent crimes for pecuniary gain and having continued in unlawful activities. Hence, the crime committed in the present case amounts to an Organized Crime committed by Organized Crime Syndicate headed by Rishikesh @ Chhakula Pandurang Dethe, age 25 years as defined in section 2(1) of Maharashtra Control of Organized Crime Act, 1999. NOW THEREFORE, in exercise of the power conferred upon me by section 23(1)(a) of the Maharashtra Control of Organized Crime Act, 1999, I, Sanjay Darade, Additional Commissioner of Police, East Region, Mumbai, hereby grant approval to apply the section 3(1)
(ii), 3(2) and 3(4) of Maharashtra Control of Organized Crime Act, 1999 to Govandi Police Station, C.R. No. 355 of 2021 u/s 392, 34 I.P.C.
I, also hereby appoint Shri. Amar Tatyasaheb Desai, Assistant Commissioner of Police, Chembur Division, Mumbai to investigate the case."
6. Similarly, when the sanction order passed by the Chaitanya ::: Uploaded on - 22/08/2024 ::: Downloaded on - 23/08/2024 07:54:52 ::: 5/8 45-Apeal(St)-2834-2024.doc Commissioner of Police, Grater Mumbai, dated 23.11.2021 is perused, the Commissioner while granting the sanction under Sub-Section 2 of Section 23 of the MCOCA, has made reference to the two CRs, registered against the Appellant.
7. We have heard the learned A.P.P. who has strongly contended before us that the two CRs clearly reflected that the act was committed for pecuniary gain and therefore the activity would fall within the meaning of 'organized crime' as defined under Section 2(e) of the Act, and since there was continuity in the activity of Appellant, as required to be an 'continued unlawful activity' for the purpose of Section 2(d), no fault can be found in the prior approval and sanction order.
8. We must take note of the fact that the MCOCA is a special enactment for prevention and control of and for coping with criminal activity by organized crime syndicate or gang and definitely it differs in its complexion from a normal offence registered under the normal law like the Indian Penal Code.
'Organise Crime' is assigned a definite meaning and Section 2(e) of the Act convey that it means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised 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 the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
Chaitanya
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The necessary ingredients for an 'organized crime' being a continuing unlawful activity by an individual, committed singly or jointly but necessarily either as a member of 'organized crime syndicate' or on behalf of such syndicate.
'Organize Crime Syndicate' is defined under Section 2(f), means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
9. Perusal of the two CRs as indicated above, clearly reflect individual acts committed by the Appellant and though we do not intend to go into the veracity of sustainability of the accusations and invocations of the relevant provisions under the Indian Penal Code and despite being persistently querying to Ms. Deshmukh, we fail to understand as to how it can be established that this activity was committed on behalf of an 'organised crime syndicate', which necessarily involved a group of two or more persons, who are acting as a syndicate or gang or indulge in activities of organised crime, we did not receive any satisfactory answer.
10. The learned A.P.P. Ms. Deshmukh, placed reliance upon the decision of the Hon'ble Apex Court in the case of Abishek V/s. State of Maharashtra And Ors., reported in (2022) 8 SCC 282 and we must specifically note that the said decision has placed reliance upon the earlier decision of the the Hon'ble Apex Court in case of State of Maharashtra V/s. Lalit Somdatta Nagpal, reported in (2007) 4 SCC 171, which has categorically held that having regard to stringent Chaitanya ::: Uploaded on - 22/08/2024 ::: Downloaded on - 23/08/2024 07:54:52 ::: 7/8 45-Apeal(St)-2834-2024.doc provisions of MCOCA, its provisions will have to be very strictly interpreted and the authorities concerned would be bound to the strict observations of the said provision. It is specifically held that while invoking the provisions of MCOCA, what is required to be seen is as to whether the basic and threshold requirements, as per combined reading of the clauses (d) (e) and (f) of Section 2(1) thereof, are fulfilled, and if they are not so fulfilled, mere use of the expressions of the statute in the sanction order would be of no effect but on the other hand, if the requirements are fulfilled, mere want of any expression or word, in particular passage in the sanction order would not take away the substance of the matter.
It has been repeatedly insisted that the strict adherence by the authorities concerned to the requirement of the MCOCA can not be stretched beyond common sense and practical requirement in terms of the letter and spirit of the statue.
11. Applying the aforesaid law to the facts of the case, though we find that the approval order and the sanction order is specifically couched, in the terms which are defined in the statute, in absence of any material in the two CRs establishing that the Appellant was operating as an 'organised crime syndicate' and the offence was committed by him, individually on behalf of the syndicate, the sanction order suffers from the grave lacuna and fall short of the necessary ingredients of the offences under the MCOCA being made.
Chaitanya
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12. In the wake of the above, we allow the Appeal in terms of prayer clause (a) which reads thus :
"a) This honourable court may kindly be pleased to quash the approval granted under section 23(1)(a) of the Maharashtra control of organised crime act, 1999 and the sanction order dated 23.11.2021 and discharge rejection order vide application no.Exh-31 in SPL Case 1511 of 2021 dated 29.01.2024 sanctioned u/s 23(2) of the Maharahstra control of organised crime act, 1999.
a1) that the order dated 29.01.2024 may be set aside."
13. We must clarify that though we have quashed the sanction under the provisions under MCOCA, the prosecution has liberty to prosecute the two CRs invoking the IPC offences before the Competent Court.
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.) Digitally signed by CHAITANYA CHAITANYA ASHOK ASHOK JADHAV JADHAV Date:
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