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Showing contexts for: mcoc act in The State Of Gujarat vs Sandip Omprakash Gupta on 15 December, 2022Matching Fragments
32. The High Court after referring to the various provisions of the MCOCA looked into its own decision delivered by a Division Bench in the case of Jaisingh Ashrfilal Yadav and Others v. State of Maharashtra and Another reported at 2003 All MR (Cri) 1506. We quote paras 42 and 43 resply of the decision of the High Court in Prafulla (supra):
“42. In Jaisingh Ashrfilal Yadav v. State of Maharashtra, reported at 2003 All MR (Cri) 1506, to which the learned A.P.P. drew my attention, a Division Bench of this Court was considering the constitutionality of the provisions of MCOC Act. The Court observed in paragraph 9 as under:
33. The High Court, thereafter in para 44 of Prafulla (supra) referred to its decision, rendered by a Division Bench in Bharat Shantilal Shah v. State of Maharashtra reported at 2003 All MR (Cri) 1061. In Bharat Shantilal Shah (supra), the challenge was to the constitutional validity of MCOCA. We quote paras 44, 45 and 46 resply:
“44. In Bharat Shantilal Shah v. State of Maharashtra, reported at 2003 All MR (Cri) 1061 the challenge to the constitutional validity of MCOC Act, was considered by another Division Bench. Definition of continuing unlawful activity in Section 2(1)(d) was sought to be attacked by advancing the following arguments:
50. In Appa @ Prakash Haribhau Londhe v. State of Maharashtra, reported at 2006 All MR (Cri) 2804 : ((2006) 6 AIR Bom R 401), a Division Bench of this Court was considering the challenge to the applicability of MCOC Act. The Court observed as under in paragraph 10 of the judgment:
“10. For the purpose of organised crime there has to be a continuing unlawful activity and there cannot be continuing unlawful activity unless at least two charge-sheets are to be found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years. If no illegal activity as contemplated by MCOC Act are committed after 1999, then the past activities prior to 1999 may not be of any help for registering any FIR only on the basis of those past activities as has been observed by the Division Bench (R.M.S. Khandeparkar and P.V. Kakade, JJ.) of this Court in Writ Petition No. 689 of 2005 and other petitions, but if two or more illegal activities are committed after 1999, then the past activities can be taken into consideration in order to show the continuity. We are therefore not in agreement with the submissions made by Mr. Pradhan that on the date of registration of FIR against the petitioners they had not committed any act, as contemplated.”
“24. The Section 23 of the MCOC Act which opens with non-obstante clause and further clothed with negative words clearly discloses the mandate of the legislature that the cognizance of the offences under the MCOC Act should not be in routine course, but only upon the facts disclosing the applicability thereof and satisfaction of the officer of the high rank, the minimum being of the rank of Deputy Inspector General of Police, in that regard. In fact, the officer of such high rank is required to decide about the approval even for recording of FIR in relation to any offence under the MCOC Act. This obviously discloses that the approving authority has to apply its mind about the applicability of the provisions of the MCOC Act to the facts disclosed in a matter before allowing the recording of FIR and for that purpose, he must be, prima facie, satisfied about the commission of offence of organised crime under the MCOC Act by the person or persons against whom the FIR is to be recorded. Obviously, for prima facie satisfaction regarding the commission of the offence of organised crime or of participation therein in whatever manner, the approving authority must have some materials before it disclosing the activities of the person or the persons to be of the nature of offence under the MCOC Act and having committed such activities on or after 24th February, 1999. In other words, the activities of a person to be termed as the offence under the MCOC Act, the same should inevitably disclose to have been committed on or after 24th February, 1999. If the activity of the person is relating to the period prior to 24th February, 1999, obviously, it cannot be said to be an offence under MCOC Act, even though the activity may be an offence under the provisions of some other statute in force at the relevant time…..” (Emphasis supplied)