Document Fragment View

Matching Fragments

1] A challenge in the present petitions is to the prosecution of the petitioners for the offences punishable under Sections 307, 395, 143, 147, 349, 353, 332, 109, 324, 420, 427, 120-B of the Indian Penal Code, 1860, Sections 4 and 5 of the Maharashtra Prevention of Gambling Act, 1887, Section 37 read with 135 of the Police Act 1861, Section 65(e) of the Maharashtra Prohibition Act, 2016, Section 21(2), 21(3) and 23 of the Banning of Unregulated Deposit Schemes Act, 2019 and Sections 3(1)(II), 3(2), 3(4) and 3(5) of Maharashtra Control of Organized Crime Act, 1999 (MCOCA).

By conspectus reading of the above three definitions, if in the preceding 10 years from the date of third continuing unlawful activity if more than one charge-sheet has been filed before a competent Court which had taken cognizance of such offence which would result in imposition of a punishment of three years or more, undertaken by a person individually or jointly either as a member of an 'organized crime syndicate' or on its behalf, such crime if falls within the definition of 'organized crime', the invocation of MCOCA would be the resultant position."

18] As regards the contention that the provisions of the MCOC Act cannot be invoked against the petitioners since their names were not included in the order under Section 23(1)(a) needs no consideration in view of the judgment of the Hon'ble Supreme Court in 2007 (3) SCC 633 in the case of Vinod G. Asrani vs. State of Maharashtra. The Hon'ble Supreme Court has observed thus:

"8. We have carefully considered the submissions made on behalf of the respective parties and the relevant provisions of MCOCA and we are of the view that the High Court did not commit any error in dismissing the petitioner's writ application. We are [email protected] inclined to accept Mr. Altaf Ahmed's submissions that non-inclusion of the petitioner's name in the approval under Section 23 (1) (a) of MCOCA was not fatal to the investigation as far as the petitioner is concerned. On the other hand, his name was included in the sanction granted under Section 23 (2) after the stage of investigation into the complaint where his complicity was established. The offences alleged to have been committed by the petitioner has a direct bearing and/or link with the activities of the other accused as part of the Chhota Rajan gang which was an organized crime syndicate.
9. As pointed out by Mr. Ahmed, this Court in the case of Kari Choudhary vs. Mst. Sita Devi & Ors., (2002) 1 SCC 714, had while considering a similar question observed that the ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so, who had committed it. The scheme of the Code of Criminal Procedure makes it clear that once the information of the commission of an offence is received under Section 154 of the Code of Criminal Procedure, the investigating authorities take up the investigation and file charge sheet against whoever is found during the investigation to have been involved in the commission of such offence. There is no hard and fast rule that the First Information Report must always contain the names of all persons who were involved in the commission of an offence. Very often the names of the culprits are not even mentioned in the F.I.R. and they surface only at the stage of the investigation. The scheme under Section 23 of MCOCA is similar and Section 23 (1) (a) provides a safeguard that no investigation into an offence under MCOCA should be commenced without the approval of the concerned authorities. Once such approval is obtained, an investigation is commenced. 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 MCOCA."