ABHISHEK VS STATE OF MAHARASHTRA & ORS. CASE

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 869 OF 2022

ARISING OUT OF SLP (CRL.) NO. 1157 OF 2022

(@ DIARY NO. 2575 OF 2022)

ABHISHEK ……. APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA & ORS. ……. RESPONDENT(S)

JUDGMENT

Dinesh Maheshwari, J.

Leave granted.

2. By way of this appeal, the appellant has challenged the judgment

and order dated 16.12.2021, as passed by the High Court of Judicature at

Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of 2020

whereby, the High Court has rejected his challenge to the order dated

05.11.2020, as issued by the Additional Director General of Police and

Commissioner of Police, Nagpur City1

under Section 23(2) of the

Maharashtra Control of Organised Crime Act, 19992

sanctioning

prosecution of the appellant with five other accused persons in Crime No.

251 of 2020 of Sadar Police Station, Nagpur City for varying offences

1 Hereinafter also referred to as the ‘sanctioning authority’.

2 For short, ‘MCOCA’.

under the Indian Penal Code, 18603

, the Arms Act, 19594

as also

MCOCA.

3. The genesis of the present appeal is in the complaint filed on

08.05.2020 at Police Station Sadar, Nagpur City. Therein, the

complainant alleged that on 02.05.2019, he was forcefully kidnapped from

Motimahal Restaurant, Sadar, Nagpur; and was intimidated with knife and

a ransom of Rs. 20 lakhs was demanded by the accused persons. The

complainant alleged that three of the accused persons were known to

him, being the present appellant Abhishek Singh, as also one Ankit Pali

and another Roshan Sheikh. The complainant also alleged that the

accused persons asked him to give them papers of his ancestral property

and to hand over the shop; threatened him from time-to-time to kill;

forcefully took his son in a vehicle; created terror of killing him and his

son; and forcefully took out an amount of Rs. 9,000 to Rs. 11,000 from his

pocket. The complainant further alleged that the accused persons visited

his house from time-to-time demanding money; and that out of fear, he

had left his house and was staying at other places.

3.1. On the basis of the complaint aforesaid, the said Crime No. 251 of

2020 came to be registered for offences under Sections 363, 364A, 384,

386, 387, 397 and 504 IPC.

3 For short, ‘IPC’.

4 Hereinafter also referred to as ‘the Arms Act’.

3.2. It is noticed that the appellant, apprehending arrest, applied for

pre-arrest bail and on 11.05.2020, the Sessions Judge, Nagpur granted

him ad interim bail.

3.3. However, on 02.06.2020, the Additional Commissioner of Police

(Crime), Crime Branch, Nagpur City examined the proposal submitted by

the Police Inspector, Crime Branch, Nagpur City for addition of Sections

3(1)(ii), 3(2) and 3(4) of MCOCA in the said Crime No. 251 of 2020

against six accused persons, including the appellant. The said Additional

Commissioner of Police, in his approval order dated 02.06.2020, inter

alia, observed that more than one charge-sheet had been filed against

the accused persons involving offences for which, punishment of three

years or more of imprisonment had been prescribed; and the previous

record made out that the accused persons had committed offences of

very serious nature under IPC and related special enactments. The

Additional Commissioner of Police recorded his satisfaction while granting

approval in the following terms: -

“Previous preventive actions taken against the above

mentioned accused failed to show desired results. According to

the record, it seems that ultimate intention of the accused persons

is to gain pecuniary benefit, establishing supremacy in the locality,

create terror in the minds of the people in order to have pecuniary

gain & other advantages by committing such serious offence. The

preventive actions taken against them on multiple occasions till

date have failed to produce desired results and also after taking

preventive actions on multiple times above named criminals in an

organized way committed serious offences. Hence, it is very much

clear that preventive actions taken against them failed to produce

desired results.

I am prima facie satisfied that every other time above

mentioned accused commit the offence with new offender thereby

creates crime syndicate and there is enough material evidence

available and record to give prior approval for investigation under

the provisions of section 3(1)(ii), 3(2) & 3(4) of M.C.O.C. Act, 1999

against the above mentioned accused as per authority vested in

me under section 23(1) (A) of the M.C.O.C. Act 1999.”

3.4. On the invocation of MCOCA in terms of the approval aforesaid,

the application for pre-arrest bail filed by the appellant was rejected by the

Sessions Judge, Nagpur. However, for the appellant having remained out

of reach, a proclamation was issued on 14.10.2020 under Section 82 of

the Code of Criminal Procedure, 19735

read with Section 20(3) of

MCOCA, declaring him as an ‘absconder’.

3.5. On 05.11.2020, the Additional Director General of Police and

Commissioner of Police, Nagpur City, examined the proposal of the

Assistant Commissioner of Police (Crime), Crime Branch, Nagpur dated

31.10.2020 for according sanction in terms of Section 23(2) of MCOCA

for prosecution of the accused persons in Crime No. 251 of 2020 for the

offences under IPC, Arms Act as also MCOCA; and proceeded to issue

such sanction as per the proposal. This sanction order dated 05.11.2020

is the bone of contention in the present matter. Its relevant contents,

particularly in relation to the appellant, could be usefully noticed as

under:-

“…It is also revealed that preventive actions have been taken

against the Team Leader and accused No. 5 Abhishek u/s 110 of

the Cr. P.C. at Sitaburdi Police station. It is also revealed that the

Team leader continues to commit the heinous offences involving

different members of his crime syndicate mainly for pecuniary

benefit and other advantage.

5 For short, ‘CrPC’.

The Team leader Roshan Sheikh has committed total 9 offences,

out of which, he has committed 4 offences jointly with accused No.

5 Abhishek, out of which charge sheets have been filed in the court

in 3 cases and one present offence is under investigation…

It is thus revealed that in total 4 cases charge sheets have been

filed in the court against the Team Leader, accused No. 5 Abhishek,

accused no. 4 Irfan Khan jointly. Thus in total 4 cases charge sheet

have been filed jointly in respect of their crime syndicate and court

has also taken the cognizance. The Chart showing charge sheets

jointly filed in respect of their crime syndicate is annexed herewith

as Annexure-B.

*** *** ***

The Accused No. 5 Abhishek has committed total 7 offences, out of

which, he has committed 3 offences jointly with Team Leader i.e.

crime No. 482/15 of Nandanwan P.S., Crime No. 196/16 Sitaburdi P.

S., and crime No. 83/17 Sitaburdi and one offence jointly with their

present crime syndicate. The accused no. 5 has committed

remaining 2 offences U/s 307 of IPC of Burdi P.S. with other

different members of their crime syndicate and one offence under

section 4/25 of Arms Act of Ambazari P. S. with other different

members of their crime syndicate and charge sheets have been

filed in all above cases against the accused No. 5. The accused No.

5 had obtained Anticipatory Bail on registration of present FIR and

after application of the MCOCA he is absconding. The Chart

showing total 7 offences committed by the accused No. 5 is

annexed herewith as Chart- F.

*** *** ***

It is further revealed that the Preventive action also has been taken

against Team Leader and accused No. 5 Abhishek, but in vain.

Offences under Arms Act are also found registered against the

Team leader and accused No. 5 and 6 but could not deter them

from committing such offences for pecuniary benefit. It is thus

appears that there is fulfillment of the essential ingredients of the

section 2 (d) and (e) of MCOCA.

EVIDENCE COLLECTED IN PRESENT OFFENCE: -

1. It is revealed that the Team Leader and accused No. 3 Sallim Kaji

have given Confession u/s 18 of MCOCA and disclosed modus

adopted for committing such serious offences punishable under

above said provisions for pecuniary benefit and for other

advantage.

2. It reveals that the accused No. 3 has disclosed in his Confession

about how and in what manner all other members of present crime

syndicate are involved in the present crime and what is exact role of

each member and also the modus opted by the Team leader in

committing such heinous offences, by deceiving various victims for

pecuniary benefits.

3. The Team leader also has disclosed all his illegal acts, names of

the victims, instances of extortion and modus of blackmailing

adopted by him for extortion for pecuniary benefits. The I. O. has

recorded statements of all such victims as evidence relating to the

illegal heinous acts of the Team leader. In all total 24 statements of

witnesses have been recorded by the I.O.

*** *** ***

I am satisfied that the accused No. 1 to 6 are members of an

“Organized crime syndicate” and have jointly & singly committed

serious and violent offences for pecuniary benefit. I am satisfied that

the Team leader Roshan Sheikh and above named other coaccused No. 2 to 6 in the present crime No.251/2020 of Sadar P.S.,

are involved in “Continuing Unlawful Activity”, defined in section 2

(1) (d) and (e) of MCOCA i. e. they are indulging in use of violence,

threats of violence, intimidation to gain pecuniary benefit or undue

economic or other advantage for themselves or any other person,

by committing cognizable offences, punishable with imprisonment of

3 years or more, singly or jointly, and also undertaken as members

of syndicate, in respect of which more than one charge sheets have

been filed in competent Court.

*** *** ***”

3.6. In view of the above, the sanctioning authority recorded its

satisfaction that all the essential ingredients of Sections 2(1)(d) and 2(1)

(e) of MCOCA were fulfilled and hence, proceeded to grant sanction in

terms of Section 23(2) of MCOCA for prosecution of the six accused

persons including the appellant for the aforesaid offences, inclusive of the

offences under MCOCA.

3.7. After the sanction aforesaid, the police filed the charge-sheet on

07.11.2020 in the said Crime No. 251 of 2020. This led the appellant to

file Writ Petition No. 667 of 2020 in the High Court, questioning the

sanction order dated 05.11.2020.

4. As noticed from the contents of the impugned sanction order

dated 05.11.2020, the previous involvement of the appellant in other

criminal cases with at least three of them jointly with the alleged team

leader, had been the part of consideration in the sanctioning authority

ultimately issuing sanction for prosecution in relation to the offences

under MCOCA alongwith the other offences in Crime No. 251 of 2020.

The involvement of the appellant in other cases had gone into

consideration of the High Court too. As shall be noticed hereafter, the

nature of other cases and the results of a couple of them forms a part of

the submissions in support of this appeal. It would, therefore, be

appropriate to take note of the cases in which the appellant is, or had

been, involved. The particulars and status of these cases with the nature

of offences and the names of accused persons are as follows: -

Serial number 1

Police Station: Sitabuldi

Crime No. & Date: 3283/2012, dated 15.07.2012

Accused persons: 1. Abhishek Singh 2. Keval Patel

Offences: Sections 4/25 of Arms Act and 135 of Maharashtra

Police Act

Status: Pending before JMFC, Nagpur.

Serial number 2

Police Station: Sitabuldi

Crime No. & Date: 13/2012, dated 11.01.2012

Accused persons: 1. Abhishek Singh 2. Harsh Modi

Offences: Sections 307, 34 IPC

Status: The appellant Abhishek and co-accused were

acquitted by the Sessions Court on 09.05.2017.

Serial number 3

Police Station: Nandanvan

Crime No. & Date: 482/2015, dated 20.12.2015

Accused persons: 1. Shashank Chaudhari, 2. Roshan Sheikh, 3.

Pankaj Dharwal, 4. Abhishek Singh 5. Divyam

Samrit, 6. Harsh Modi

Offences: Sections 143, 147, 148, 149, 294, 324, 325 IPC

Status: This was a cross-case with Crime No. 481 of 2015

and the parties having arrived at settlement, the

High Court, by its order dated 13.04.2016,

quashed the proceedings.

Serial number 4

Police Station: Sitabuldi

Crime No. & Date: 196/2016, dated 06.05.2016

Accused persons: 1. Sameer Sharma, 2. Kammu @ Kamlesh Yadav,

3. Abhishek Singh 4. Roshan Sheikh, 5. Jaiprakash

@Vinod @ Pande Shukla

Offences: Sections 143, 147, 148, 149, 294, 323, 326, 324

IPC.

Status: Charge-sheet has been filed and the case is said

to be pending.

Serial number 5

Police Station: Sitabuldi

Crime No. & Date: 517/2016, dated 18.11.2016

Accused persons: 1. Sameer Sharma, 2. Abhishek Singh 3. Shrikant

Wanwe 4. Shubham Jaiswal 5. Rakesh Samrutwar

6. Vishnu Tripathi 7. Rajlannan Pande 8.

Ramashankar Mishra 9. Mohd. Wasim

Offences: Sections 143, 147, 148, 149, 307 IPC and 3/25

Arms Act.

Status: Charge-sheet has been filed and the case is said

to be pending.

Serial number 6

Police Station: Sitabuldi

Crime No. & Date: 83/2017, dated 08.03.2017

Accused persons: 1. Roshan Sheikh, 2. Sunil Kuril, 3. Kamlesh

Yadav, 4. Divyam Samit, 5. Rudram Samrit, 6.

Abhishek Singh

Offences: Sections 143, 147, 148, 149, 323, 294 and 506

IPC.

Status: Charge-sheet has been filed and the case is said

to be pending.

Serial number 7

Police Station: Sadar

Crime No. & Date: 251/2020, dated 08.05.2020

Accused persons: 1. Roshan Sheikh, 2. Sohil Khan, 3. Salim Kazi, 4.

Irfan Khan, 5. Abhishek Singh, 6. Ankit Pali

Offences: Sections 363, 364A, 384, 386, 387, 397, 504, 506

IPC, 4/25 Arms Act, and 3(1)(ii), 3(2) and 3(4)

MCOCA.

Status: It is the present case where charge-sheet has

been filed.

5. Having taken note of the relevant background aspects, we may

now refer to the submissions made before, and considerations of, the

High Court.

5.1. In challenge to the sanction order dated 05.11.2020, it was urged

on behalf of the appellant before the High Court that the sanctioning

authority had not recorded specific satisfaction about the existence of

‘organised crime syndicate’ in terms of Section 2(1)(f) of MCOCA; and

mere satisfaction about the alleged existence of the ingredients of Section

2(1)(d), which defines ‘continuing unlawful activity’ and Section 2(1)(e),

which defines ‘organised crime’, was not sufficient for according sanction.

In other words, the contention had been that there was no question of

granting sanction in terms of Section 23(2) of MCOCA, for the vital

predicate, being the existence of ‘organised crime syndicate’, as defined

by Section 2(1)(f) of MCOCA, having not been fulfilled.

5.2. The High Court took note of the background aspects, including the

facts pertaining to the appellant and his involvement in various other

cases, some of them in league with the team leader Roshan Sheikh and

other persons. The High Court also examined the contents of sanction

order dated 05.11.2020 and, after finding no legal flaw or shortcoming

therein, proceeded to dismiss the writ petition while, of course, making it

clear that any observations occurring in the order would not influence or

prejudice the trial or pre-empt any legitimate defence of the appellant.

The High Court, inter alia, observed, held and concluded as follows: -

“13. It is only after the record of satisfaction in the aforesaid terms

that the sanctioning authority, in terms of Section 23 (2) of the said

Act, has proceeded to record further satisfaction in terms of focus

by Mr. Mishra, learned Senior Advocate and quoted at para no. 5

of this order. Even the quotation makes it clear that satisfaction

about the existence of the essential ingredients is "in view of the

forgoing observations". The satisfaction is not restricted to the

ingredients of Section 2(d) and 2(e) of the said Act but to the

ingredients of the said Act in general though, particular reference

may have been made in the above-quoted portion to Section 2(d)

and 2(e) of the said Act.

14. Therefore, based upon the reading of only the above-quoted

portion, it will not be proper to hold that the sanctioning authority

has either not applied its mind and failed to record any satisfaction

about the existence of "organized crime syndicate" as defined

under Section 2(f) of the said Act or satisfaction that these

accused persons including the petitioner herein are a part of or are

the members of this organized crime syndicate. The impugned

sanction order is to be read in its entirety and based on some

truncated portion, no contention can be advanced or at least

sustained about any alleged non-application of mind by the

sanctioning authority to the requirements of Section 2(1) of the

said Act. Besides, the contention raised by Mr. Mishra, learned

Senior Advocate not only over focusses on the above-quoted

portion but tends to completely ignore the specific satisfaction

recorded in the impugned sanction order about not only the

existence of an organized crime syndicate in terms of Section 2(f)

of the said Act but, also that the accused persons including the

petitioner are members of such syndicate and further, have singly

or jointly committed serious and violent offenses for pecuniary and

other benefits. Therefore, we are satisfied that the impugned

sanction order warrants no interference on the ground now urged

before us.

15. At the request of Mr. Mishra, learned Senior Advocate,

however, we clarify that observations in this order are only prima

facie and nothing in this order is even remotely intended to either

influence or prejudice the trial and merits or to preempt any

legitimate defenses that the petitioner may have in the course of

such trial.

16. This petition is therefore dismissed. The rule is discharged.

There shall be no order as to costs.”

6. Assailing the judgment and order of the High Court as also the

sanction order dated 05.11.2020, the learned senior counsel for the

appellant has taken us through the scheme of the Maharashtra Control of

Organised Crime Act, 1999, as also the record of the case and has put

forth a variety of submissions for consideration, which could be

summarised as follows:

6.1. Learned senior counsel, with reference to various provisions of

MCOCA, has made the opening submissions that this enactment is of

drastic consequences where not only minimum period of sentence is

provided under Section 3, several measures of extraordinary nature have

been provided, like interception of communications (Section 14); special

rules of evidence overriding ordinary rules as contained in CrPC and the

Indian Evidence Act, 18726

, with converse burden of proof on the accused

(Section 17); use of confessions made to the police officer (Section 18);

forfeiture and attachment of property (Section 20) and modified

application of CrPC with several protections being overridden. The

learned counsel would submit that looking to the drastic and serious

consequences, this Court has clearly provided that the provisions of

MCOCA have to be strictly construed by the Courts; and the authorities

concerned must strictly adhere to the same. The learned counsel has

referred to the decision in the case of State of Maharashtra & Ors. v.

Lalit Somdatta Nagpal & Anr.: (2007) 4 SCC 171, particularly paragraph

62 thereof.

6.2. The learned senior counsel has further submitted that by virtue of

Section 2(1)(d) read with Sections 2(1)(e) and 2(1)(f) of MCOCA, to

invoke its provisions, a minimum of two charge-sheets are required to

have been filed with twin allegations, i.e., of a) violence and b) the object

being of gaining pecuniary benefit or other similar benefit. The learned

counsel would submit that in view of these twin requirements, the

prosecution cannot rely upon the cases where the allegations only relate

to violence but not to the object of gaining pecuniary or other benefit. The

learned counsel has particularly referred paragraph 24 of the decision of

this Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of

Maharashtra & Anr.: (2005) 5 SCC 294.

6 Hereinafter also referred to as ‘the Evidence Act’.

6.3. With reference to the facts of the present case, learned senior

counsel for the appellant has strongly contended that even as per the

stand of the respondents, the allegations concerning pecuniary benefit

occur only in the present case of Crime No. 251 of 2020 and not in other

cases. Therefore, according to the learned counsel, the threshold

requirement of involvement of the appellant in two or more cases

involving the object of gaining pecuniary or similar benefit being not

existing, even if those cases are taken on their face value, the provisions

of MCOCA are inapplicable to the present case.

6.4. With reference to the contents of the sanction order and the stand

of the respondents, the learned senior counsel has submitted that the

cases forming the basis of the sanction order did not relate to any

pecuniary benefit nor any such consideration had occurred in the order

impugned but, in the concluding part, the sanctioning authority had

mechanically used the expressions ‘to gain pecuniary benefit or undue

economic or other advantage’. According to the learned counsel, the use

of alternative, i.e., “or” has no basis whatsoever and thus, the order

impugned remains baseless where the propositions of the sanctioning

authority do not meet with the threshold requirements of Section 2(1)(f) of

MCOCA. The learned counsel has referred to the decision in the case of

Jagannath Misra v. State of Orissa: (1966) 3 SCR 134 and has

submitted that mere use of the expressions of the statute without proper

application to the facts is not countenanced, particularly in the matters

where the question of liberty of a person is involved. Thus, according to

the learned counsel, there being no such element of ‘other advantage’

and these words having been used in an arbitrary and formal manner, the

prosecution is not entitled to rely upon the same. It has also been

contended that, in fact, the plea of ‘other advantage’, as taken before this

Court, is rather an afterthought and is of an attempt at improvement over

the reasons recorded in the sanction order, which is entirely

impermissible in view of the decision of this Court in the case of

Mohindhr Singh Gill & Anr. v. Chief Election Commissioner, New

Delhi & Ors.: (1978) 1 SCC 405.

6.5. In other limb of submissions, the learned senior counsel has

particularly referred to the cases pertaining to Crime Nos. 13 of 2012 and

482 of 2015 and has submitted that these cases could not have been

considered at all for the reason that in the case relating to Crime No. 13

of 2012, the appellant was, in fact, acquitted by the Trial Court whereas in

the case relating to Crime No. 482 of 2015, the proceedings were

quashed by the High Court. It has been submitted that the order

impugned ought to have given specific reasons for placing reliance on

such cases despite acquittal and quashing. Therefore, again, learned

counsel would submit that the order issuing sanction deserves to be set

aside.

6.6. Learned senior counsel has further submitted that the sanctioning

authority has placed reliance on the confessions recorded under Section

18 of MCOCA and this could not have been done as self-serving

exercise. In any case, according to the learned counsel, without meeting

the threshold requirement of two charge-sheeted cases with the

allegations applicable to MCOCA, no number of confessions in one case

could be taken as sufficient. The learned counsel has submitted that any

order having drastic consequences like those of application of MCOCA, if

proceeding on the basis of irrelevant material, while ignoring the relevant

considerations, cannot be approved and has referred to the decision of

this Court in the case of Khaja Bilal Ahmed v. State of Telangana &

Ors.: (2020) 13 SCC 632. The learned counsel would submit that when

the irrelevant material is excluded in the present case, the sanction order

falls to the ground and deserves to be set aside.

6.7. As regards the allegations of the respondents that the appellant

was an absconder, it has been submitted that the appellant had no

intention to abscond or not to face the judicial process and he has always

been available in Nagpur; and had travelled to Delhi to swear the affidavit

before this Court. It has been contended that the appellant, like in other

cases in the past, would fully cooperate with the investigation and with the

Trial Court but the arbitrary, illegal and mala fide invocation of the drastic

provisions of MCOCA, severely impinging the fundamental rights of the

appellant, could not stand validated by the alleged absconsion of the

appellant; and the State was only trying to create false prejudice and to

justify its arbitrary and illegal sanctioning order.

7. Learned counsel for the respondent-State has countered the

submissions made on behalf of the appellant and, after a detailed

reference to the fact-sheet has, inter alia, contended as follows:

7.1. The learned counsel for the State has, in the first place,

emphatically argued that the appellant is not entitled for any relief from

this Court under Article 136 of the Constitution of India in view of the fact

that he has been declared an absconder under Section 82 CrPC read

with Section 20(3) MCOCA. Learned counsel would submit that all the

submissions concerning personal liberty with the application of MCOCA

deserve to be rejected when the appellant himself has chosen not to

submit to the law.

7.2. Moving on to the conditions prescribed for invocation of MCOCA,

the learned counsel has referred to the aforesaid three cases in Crime

No. 482 of 2015 (Police Station Nandanwan), Crime No. 196 of 2016

(Police Station Sitabuldi) and Crime No. 83 of 2017 (Police Station

Sitabuldi) and has submitted that the charge-sheets have been filed in all

these matters and, therefore, the essential condition of more than one

charge-sheet, in terms of Section 2(1)(e), has been duly met. Learned

counsel would further contend that the facts about one of the crime cases

having been quashed and another ending in acquittal, are not material

considerations for deciding the question as to whether the appellant was

indulging in ‘continued unlawful activity’ in terms of Section 2(1)(d) of

MCOCA.

7.2.1. In regard to the case ending in acquittal, learned counsel for the

State has also pointed out the facts that therein, one witness turned

hostile and other witnesses did not come forward; and has submitted that

in fact, MCOCA seeks to curb such a menace where the offenders get a

reprieve because of the witnesses not standing with the prosecution.

This, according to the learned counsel, is sufficient to show that MCOCA

has rightly been invoked in the present case.

7.3. The learned counsel for the State has further contended that the

arguments about the appellant not being involved in the crime referable

for invocation of MCOCA are not correct and the suggested interpretation

on behalf of the appellant of the expression ‘other advantage’ is also not

correct. The learned counsel for the respondent-State has referred to the

decision of the Full Bench of the Bombay High Court in the case of State

of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr.: (2011)

SCC OnLine Bombay 1049 to submit that therein, the Bombay High

Court has held that crimes of bodily offence could be the crimes

committed with an intention to establish supremacy and which could lead

to gains other than pecuniary benefit or advantage.

7.4. The learned counsel has also referred to the decision of this Court

in the case of State of Maharashtra v. Kamal Ahmed Mohammed Vakil

Ansari & Ors.: 2013 (12) SCC 17 to submit that the confessional

statement could definitely be considered when granting sanction under

Section 23(2) of MCOCA. Learned counsel would submit that the

confessional statements of the gang leader and other co-accused person

directly disclose the role of the appellant as an active member of the

‘organised crime syndicate’. Thus, in the present case, the confessional

statements are limited to the confessor and to the co-accused; and their

use in the sanction order cannot be faulted at. Learned counsel has also

submitted that there is no prohibition in MCOCA in using the confessional

statements while according sanction and, in any case, they could be

pressed into service by the sanctioning authority when forming a prime

facie view of the matter and examining the question of according

sanction. The learned counsel has also added that the question of

reliability of confessional statement cannot be adjudged at the stage of

granting sanction and could only be decided during trial when the

witnesses are examined.

7.5. The learned counsel has submitted that when the material placed

before the sanctioning authority reveals presence of credible information

regarding commission of an offence or organised crime, the same could

always be relied upon; and has referred to the decision of this Court in the

case of Kavitha Lankesh v. State of Karnataka & Ors.: (2021) SCC

OnLine 956.

7.6. In yet another limb of submissions, learned counsel for the State

would argue that the validity of the sanction could always be determined

by the Trial Court during the course of trial where the sanctioning

authority could be examined with an opportunity of cross-examination to

the accused. Learned counsel has relied upon the decision of this Court

in the case of Vinod G. Asrani v. State of Maharashtra: (2007) 3 SCC

633 and has contended that for this opportunity being available to the

appellant during trial, no interference in the sanctioning order is called for.

8. We have given anxious consideration to the rival submissions and

have examined the material placed on record with reference to the law

applicable.

9. While dealing with the rival submissions, pertinent it is to take note

of the Statement of Objects and Reasons as also the Preamble of the

Maharashtra Control of Organised Crime Act, 1999 and the relevant

provisions under reference.

9.1. The Statement of Objects and Reasons for this enactment reads

as under: -

“STATEMENT OF OBJECTS AND REASONS

Organised crime has been for quite some years now come up as a

very serious threat to our society. It knows no national boundaries

and is fueled by illegal wealth generated by contract, killing,

extortion, smuggling in contrabands, illegal trade in narcotics

kidnappings for ransom, collection of protection money and money

laundering, etc. The illegal wealth and black money generated by

the organised crime being very huge, it has had serious adverse

effect on our economy. It was seen that the organised criminal

syndicates made a common cause with terrorist gangs and foster

narco terrorism which extend beyond the national boundaries.

There was reason to believe that organised criminal gangs have

been operating in the State and thus, there was immediate need to

curb their activities.

It was also noticed that the organized criminals have been making

extensive use of wire and oral communications in their criminal

activities. The interception of such communications to obtain

evidence of the commission of crimes or to prevent their

commission would be an indispensable aid to law enforcement

and the administration of justice.

2. The existing legal framework i. e. the penal and procedural laws

and the adjudicatory system were found to be rather inadequate to

curb or control the menace of organised crime. Government,

therefore, decided to enact a special law with stringent and

deterrent provisions including in certain circumstances power to

intercept wire, electronic or oral communication to control the

menace of the organised crime.

It is the purpose of this Act to achieve there objects.”

9.2. Relevant part of the Preamble of MCOCA, that substituted its

predecessor Ordinance, reads as under: -

“An Act to make Special Provisions for Prevention and Control

of Organised Crime and for coping with, Criminal Activity by

Organized Crime Syndicate or Gang, and for matters connected

therewith or incidental thereto.”

9.3. The relevant definitions and meanings assigned to the

expressions “continuing unlawful activity”, “organised crime” and

“organised crime syndicate”, respectively in clauses (d), (e) and (f) of

Section 2(1) read as under: -

“2. Definitions. (1) In this Act, unless the context otherwise

requires, -

*** *** ***

(d) “continuing unlawful activity” means an activity prohibited by

law for the time being in force, which is a cognizable offence

punishable with imprisonment of three years or more, undertaken

either singly or jointly, as a member of an organised crime

syndicate or on behalf of such syndicate in respect of which more

than one charge-sheets have been filed before a competent Court

within the preceding period of ten years and that Court has taken

cognizance of such offence;

(e) “organised crime” 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;

(f) “organised crime syndicate” means a group of two or more

persons who, acting either singly of collectively, as a syndicate or

gang indulge in activities of organised crime.”

9.4. Different punishments for organised crime with respect to the

nature of offence and the nature of involvement of the offender are

specified in Section 3 of MCOCA, which reads as under: -

“3. Punishment for organised crime. - (1) Whoever commits an

offence of organised crime shall, -

(i) if such offence has resulted in the death of any

person, be punishable with death or imprisonment for life

and shall also be liable to a fine, subject to a minimum fine

of rupees one lac;

(ii) in any other case, be punishable 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 a fine, subject to a minimum fine of

rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets

or knowingly facilitates the commission of an organised crime or

any act preparatory to organised crime, shall be punishable with

imprisonment for a term which shall be not less than five years but

which may extend to imprisonment for life and shall also be liable

to a fine, subject to a minimum fine of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour or

conceal, any member of an organised crime syndicate shall be

punishable with imprisonment for a term which shall not be less

than five years but which may extent to imprisonment for life, and

shall also be liable to a fine, subject to a minimum fine of rupees

five lacs.

(4) Any person who is a member of an organised crime syndicate

shall be punishable 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 a fine, subject to a minimum fine of

rupees five lacs.

(5) Whoever holds any property derived or obtained from

commission of an organised crime or which has been acquired

through the organised crime syndicate funds shall be punishable

with a term which shall not be less than three years but which may

extend to imprisonment for life and shall also be liable to fine,

subject to a minimum fine of rupees two lacs.”

9.5. The approval for investigation and sanction for prosecution have

been granted in terms of Section 23 of MCOCA, which reads as under: -

23. Cognizance of, and investigation into, an offence. - (1)

Notwithstanding anything contained in the Code, -

(a) no information about the commission of an offence of

organised crime under this Act, shall be recorded by a police officer

without the prior approval of the police officer not below the rank of

the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this

Act shall be carried out by a police officer below the rank of the

Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any offence

under this Act without the previous sanction of the police officer

not below the rank of Additional Director General of Police.”

10. As noticed, learned counsel for the State has emphatically argued

in the very first place that the appellant has been declared as an

‘absconder’ in terms of Section 82 CrPC and Section 20(3) MCOCA and

hence, his case deserves no consideration. The appellant’s answer to this

plea of the respondent has been that he had no intention to abscond or

not to face the judicial process; and that the illegal and mala fide

invocation of MCOCA, impinging upon his fundamental rights, could not

stand validated by the alleged absconsion. Though we cannot ignore the

submissions on behalf of the State altogether in this regard; and it

remains seriously questionable if the appellant deserves indulgence

under Article 136 of the Constitution of India but, in totality of the

circumstances, where notices had been issued to the respondents, we

have considered it proper to first examine the matter on merits; and to

advert to this aspect of absconsion in the last.

11. A comprehensive look at the objects and reasons for enactment of

MCOCA, its overall purpose signified in its Preamble, and the relevant

definitions in Section 2 as also the punishments provided in Section 3,

leave nothing to doubt that this enactment is for making special provisions

for dealing with the menace of organised crime causing serious threat to

the society. No doubt, the enactment makes stringent provisions with

several extraordinary measures but, the peculiar nature of the mischief

sought to be tackled, i.e., of organised crime, has obviously led to such

extraordinary measures, particularly when the existing legal framework

was found to be rather inadequate to control the menace.

12. A long deal of arguments has been advanced before us on behalf

of the appellant that looking to the drastic and serious consequences, the

provisions have to be strictly construed and the authorities are bound to

strictly adhere to the same. The question is as to what are the

connotations of ‘strict construction’ by the Courts and ‘strict adherence’ by

the authorities in the context of an enactment like MCOCA? For

determination of this question, apposite it shall be to refer to the cited

decisions and the applicable legal principles.

12.1. The case of Lalit Somdatta Nagpal (supra) was one involving

questions relating to the application of MCOCA in respect of the offences

alleged to have been committed under Sections 3 and 7 of the Essential

Commodities Act, 1955. Having particular regard to the enactment of

Essential Commodities (Special Provisions) Act, 1981, which was to

remain in force for 15 years only and therein, the power to impose

punishment was limited upto 2 years, this Court held that even when

power of the Court to impose punishment was limited to 2 years, the

offence continued to remain punishable upto a maximum period of 7

years, so as to attract the provisions of MCOCA. Having said that and

having disapproved the views of the High Court, this Court, of course,

agreed with the other submissions on behalf of the respondents as

regards strict interpretation of the provisions and strict observance by the

authorities while observing as under: -

“62. However, we are in agreement with the submission that

having regard to the stringent provisions of MCOCA, its provisions

will have to be very strictly interpreted and the authorities

concerned would have to be bound down to the strict observance

of the said provisions. There can be no doubt that the provisions

of MCOCA have been enacted to deal with organised criminal

activity in relation to offences which are likely to create terror and

to endanger and unsettle the economy of the country for which

stringent measures have been adopted. The provisions

of MCOCA seek to deprive a citizen of his right to freedom at the

very initial stage of the investigation, making it extremely difficult

for him to obtain bail. Other provisions relating to the admission of

evidence relating to the electronic media have also been provided

for. In such a situation it is to be seen whether the investigation

from its very inception has been conducted strictly in accordance

with the provisions of the Act.”

12.1.1. In relation to the particular fact situation concerning the individual

accused persons, this Court found that the sanction had been granted

with complete non-application of mind and hence, disapproved the same

in the following words: -

“67. In the instant case, though sanction had been given by the

Special Inspector General of Police, Kolhapur Range, on 31-8-

2004, granting permission under Section 23(1)(a) of MCOCA, 1999

to apply its provisions to the alleged offences said to have been

committed by Anil Nagpal, Lalit Nagpal and Vijay Nagpal, such

sanction reveals complete non-application of mind as the same

appears to have been given upon consideration of an enactment

which is non est. Even if the subsequent approval order of 22-8-

2005 is to be taken into consideration, the organised crime

referred to in the said order is with regard to the alleged violation

of sales tax and excise laws, which, in our view, was not intended

to be the basis for application of the provisions of MCOCA, 1999. To

apply the provisions of MCOCA something more in the nature of

coercive acts and violence is required to be spelt out so as to bring

the unlawful activity complained of within the definition of

“organised crime” in Section 2(1)(e) of MCOCA.

68. In our view, both the sanctions which formed the very basis of

the investigation have been given mechanically and are vitiated

and cannot be sustained. In taking recourse to the provisions

of MCOCA, 1999, which has the effect of curtailing the liberty of an

individual and keeping him virtually incarcerated, a great

responsibility has been cast on the authorities in ensuring that the

provisions of the Act are strictly adhered to and followed, which

unfortunately does not appear to have been done in the instant

case.”

12.2. In the case of Ranjitsing Brahmajeetsing Sharma (supra),

during the tenure of the appellant as Commissioner of Police, Pune, fake

stamp papers worth Rs. 2.91 lakhs were seized, whereupon an FIR for

offences under Sections 120-B, 255, 249, 260, 263(a) and (b), 478, 472

and 474 read with Section 34 IPC was registered. Prior to that, one Abdul

Karim Ladsa Telgi was arrested and proceeded against for the alleged

offences of printing counterfeits stamps and forgery. The provisions of

MCOCA were invoked against the said Telgi and therein, the role of the

appellant was said to be of rendering help and support to the organised

crime syndicate while functioning as the Commissioner of Police at

different places. Therein, this Court was essentially concerned with the

operation of Section 24 of MCOCA, providing for punishment of public

servants failing in discharge of their duties. Taking an overall view of the

matter with reference to its facts, this Court formed the prima facie

opinion that the High Court might not have been entirely correct in coming

to the conclusion that the appellant committed an offence under Sections

3(2) as well as 24 of MCOCA and thus, the interim bail granted to the

appellant was continued.

12.2.1. In the said case, this Court referred to the objects and reasons for

the enactment and the connotations of the expression “any unlawful

means” in the following words: -

“24. The Statement of Objects and Reasons clearly states as to

why the said Act had to be enacted. Thus, it will be safe to

presume that the expression “any unlawful means” must refer to

any such act which has a direct nexus with the commission of a

crime which MCOCA seeks to prevent or control. In other words,

an offence falling within the definition of organised crime and

committed by an organised crime syndicate is the offence

contemplated by the Statement of Objects and Reasons. There

are offences and offences under the Penal Code, 1860 and other

penal statutes providing for punishment of three years or more and

in relation to such offences more than one charge-sheet may be

filed. As we have indicated hereinbefore, only because a person

cheats or commits a criminal breach of trust, more than once, the

same by itself may not be sufficient to attract the provisions of

MCOCA. Furthermore, mens rea is a necessary ingredient for

commission of a crime under MCOCA.”

12.3. It is, thus, not in doubt that the provisions of MCOCA need to be

strictly construed and for their application, an unlawful activity has to fall

within the periphery of organised crime. However, the question still

remains as to the import of the requirement of ‘strict construction’ of the

stringent provisions? A brief reference to the fundamental legal principles

in that regard shall be apposite.

12.4. In the Principles of Statutory Interpretation by Justice G.P. Singh7

the rule of construction applicable to a penal statute has, inter alia, been

stated in the following terms: -

7 14th Edition p. 978.

“STORY, J. in agreeing to the rule in its "true and sober sense"

stated the same as follows: "Penal statutes are not to be enlarged

by implication or extended to cases not obviously within their

words and purport. But where the words are general, and include

various classes of persons, I know of no authority, which would

justify the court in restricting them to one class, or in giving them

the narrowest interpretation, where the mischief to be redressed

by the statute is equally applicable to all of them. And where a

word is used in a statute, which has various known significations, I

know of no rule, that requires the court to adopt one in preference

to another, simply because it is more restrained, if the objects of

the statute equally apply to the largest and broadest sense of the

word."

12.5. The meaning and import of the expression “strict construction”

have also been explained in Advanced Law Lexicon by P. Ramanatha

Aiyar8

, as follows: -

“Strict construction. “Strict construction of a statute is that which

refuses to expand the law by implications or equitable

considerations, but confines its operation to cases which are

clearly within the letter of the statute, as well as within its spirit or

reason, not so as to defeat the manifest purpose of the

Legislature, but so as to resolve all reasonable doubts against the

applicability of the statue to the particular case. WILLIAM M. LIFE et.

al., Brief Making and the Use of Law Books, 343 (3d ed. 1914).

“Strict interpretation is an equivocal expression, for it means either

literal or narrow. When a provision is ambiguous, one of its

meanings may be wider than the other, and the strict (i.e. narrow)

sense is not necessarily the strict (i.e. literal) sense.” JOHN

SALMOND, Jurisprudence 171 n(t) (GLANVILLE L. WILLIAMS ed., 10th

ed., 1947).

“STRICT CONSTRUCTION” is that which refuses to expand the law by

implications or equitable considerations, and confines its operation

to cases which are clearly within the letter of the statute, as well as

within its spirit or reason. When the sense of the law is manifest,

and leads to nothing absurd, there can be no reason not to adopt

it. Statutes exercising the power of taxation in any of its forms, or

delegating the power to political sub-divisions, are to be strictly

construed.”

12.6. So far as the applicability of the rule of strict construction qua

MCOCA is concerned, it being a special penal statute, this much is clear

that no one is to be made subject to this law by implication or by

8 5

th Edition p. 4956.

presumption; and all doubts concerning its application would, ordinarily,

be resolved in favour of the accused. However, the rule of strict

construction cannot be applied in an impracticable manner so as to

render the statute itself nugatory. In other words, the rule of strict

construction of a penal statute or a special penal statute is not intended to

put all the provisions in such a tight iron cast that they become practically

unworkable, and thereby, the entire purpose of the law is defeated. At this

juncture, we may profitably refer to a decision of this Court in the case of

Balram Kumawat v. Union of India & Ors.: (2003) 7 SCC 628, that the

purpose of law is not to allow the offender to sneak out of the meshes of

law. This Court said, inter alia, as under: -

“23. Furthermore, even in relation to a penal statute any narrow

and pedantic, literal and lexical construction may not always be

given effect to. The law would have to be interpreted having

regard to the subject-matter of the offence and the object of the

law it seeks to achieve. The purpose of the law is not to allow the

offender to sneak out of the meshes of law. Criminal jurisprudence

does not say so.”

Therein, this Court, after reference to a large number of decisions,

ultimately exposited as follows: -

“36. These decisions are authorities for the proposition that the

rule of strict construction of a regulatory/penal statute may not be

adhered to, if thereby the plain intention of Parliament to combat

crimes of special nature would be defeated.”

12.7. As regards application of MCOCA, what is required to be seen is

as to whether the basic and threshold requirements, as per combined

reading of clauses (d), (e) and (f) of Section 2(1) thereof, are fulfilled. 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 a

particular passage in the sanction order would not take away the

substance of the matter. In other words, strict adherence by the

authorities concerned to the requirements of MCOCA also cannot be

stretched beyond common sense and practical requirements in terms of

the letter and spirit of the statute.

12.8. In the case of Kavitha Lankesh (supra), this Court has exposited

on the fundamentals for invocation of similar provisions of Karnataka

Control of Organised Crime Act, 2000, inter alia, in the following words: -

“21. What is crucial in this provision is the factum of recording of

offence of organized crime and not of recording of a crime against

an offender as such. Further, the right question to be posed at this

stage is : whether prior approval accorded by the competent

authority under Section 24(1)(a) is valid? In that, whether there

was discernible information about commission of an offence of

organized crime by known and unknown persons as being

members of the organized crime syndicate? Resultantly, what

needed to be enquired into by the appropriate authority (in the

present case, Commissioner of Police) is : whether the factum of

commission of offence of organized crime by an organized crime

syndicate can be culled out from the material placed before him for

grant of prior approval? That alone is the question to be enquired

into even by the Court at this stage. It is cardinal to observe that

only after registration of FIR, investigation for the concerned

offence would proceed — in which the details about the specific

role and the identity of the persons involved in such offence can

be unravelled and referred to in the chargesheet to be filed before

the competent Court.

*** *** ***

27. At the stage of granting prior approval under Section 24(1)(a)

of the 2000 Act, therefore, the competent authority is not required

to wade through the material placed by the Investigating Agency

before him along with the proposal for grant of prior approval to

ascertain the specific role of each accused. The competent

authority has to focus essentially on the factum whether the

information/material reveals the commission of a crime which is an

organized crime committed by the organized crime syndicate. In

that, the prior approval is qua offence and not the offender as

such. As long as the incidents referred to in earlier crimes are

committed by a group of persons and one common individual was

involved in all the incidents, the offence under the 2000 Act can be

invoked…”

13. Having taken note of the relevant principles, we may proceed with

their application to the present case.

14. The main plank of the case argued on behalf of the appellant has

been that the threshold requirement of his involvement in two or more

cases, involving the object of gaining pecuniary or similar benefits is not

existing and, therefore, even if the referred cases are taken on their face

value, the provisions of MCOCA are not applicable. While examining this

line of arguments, we are constrained to observe that the submissions on

behalf of the appellant are rather premised on an incorrectly framed

question which has, obviously, led to incorrectly framed contentions. The

wrong premise of the contentions of the appellant could be noticed from

the very opening paragraph in the written submissions which reads as

under: -

“1.The only issue that arises for the kind consideration of this

Hon’ble Court in the present matter is:

“Whether the minimum threshold laid down in Section 2(d) of the

Act viz. minimum two charge-sheeted cases with allegations of

violence for pecuniary benefit has been fulfilled in the present

matter?”

Yet further, it has been submitted in paragraph 3 about the

essential ingredients to invoke MCOCA as under: -

“3.By virtue of Section 2(d) read with Sections 2(e) and 2(f) of the

Act, to invoke the provisions of MCOCA two chargesheets are

required to have been filed with the following allegations:

a. Violence; and

b. The object of gaining pecuniary benefit or other similar benefit.”

Neither the question aforesaid is correct nor the suggested

ingredients are in conformity with the plain provisions of the statute.

14.1. A bare look at clause (e) of Section 2(1) of MCOCA makes it clear

that ‘organised crime’ means any unlawful activity by an individual singly

or jointly, either as a member of 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. The suggestions on behalf of the

appellant to limit the activity only to the use of violence is obviously

incorrect when it omits to mention the wide-ranging activities

contemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat or

violence or intimidation or coercion or other unlawful means. Actual use

of violence is not always a sine qua non for an activity falling within the

mischief of organised crime, when undertaken by an individual singly or

jointly as part of organised crime syndicate or on behalf of such

syndicate. Threat of violence or even intimidation or even coercion would

fall within the mischief. This apart, use of other unlawful means would

also fall within the same mischief.

14.2. The second part of the requirement of the nature of activity, i.e., its

objective, has also not been projected correctly on behalf of the appellant.

The requirement of law is not limited to pecuniary benefits but it could

also be of ‘gaining undue economic or other advantage’. The frame of the

proposition that the object ought to be gaining pecuniary benefit or other

‘similar’ benefit is not correct as it misses out the specific phraseology of

the enactment which refers to undue economic or other advantage apart

from pecuniary benefit.

14.3. This aspect has gone into consideration of the Full Bench of

Bombay High Court in the case of Jagan Gagansingh Nepali @ Jagya

(supra), wherein the Court examined precisely the connotations of the

expression “other advantage” occurring in Section 2(1)(d) of the Act. The

question formulated had been as under: -

“2. The question, therefore, that we are called upon to answer is

“as to whether the term “other advantage” has to be read

as ejusdem generis with the words “gaining pecuniary benefits, or

gaining undue economic advantage” or whether the said term

“other advantage” is required to be given a wider meaning””.

14.3.1. The Full Bench of the Bombay High Court gave the answer to the

question formulated as under: -

“42. For the reasons aforesaid, we answer the issue that the term

“other advantage” cannot be read as ejusdem generis with the

words “pecuniary benefits” and “undue economic”.

14.3.2. While giving answer aforesaid, the High Court took note of the

principles applicable and exposited, inter alia, as under: -

“31. Applying these principles, it can be seen that the existing legal

framework i.e. the penal and procedural laws and the adjudicatory

system were found to be inadequate to curb or control the menace

of organised crime. It was found that the organised crime had

become a serious threat to the society beyond national boundaries

and is fuelled by the illegal wealth achieved by contract, killing,

extortion, smuggling in contrabands, illegal trade in narcotics,

kidnapping for ransom, collection of protection money and money

laundering etc. It was found that the illegal wealth and black

money generated by the organised crime being very huge, it had

serious adverse effect on the economy. It was further seen that the

organised criminal syndicates made a common cause with terrorist

gangs and foster narco terrorism which extend beyond the

national boundaries. It was further found that the organised

criminals have been making extensive use of wire and oral

communications in their criminal activities. In this background, it

was found necessary to enact a special law with stringent and

deterrent provisions including in certain circumstances power to

intercept wire, electronic or oral communication to control the

menace of the organised crime.

32. The Preface would show that it was also found that the

criminal activities like murders of tycoons related to film industry as

well by builders, extortion of money from businessmen, abduction

etc. showed that criminal gangs are active in the State. It can,

thus, be seen that it was hoped that with the passing of this law,

unlawful elements spreading terrorism in the society can be

controlled to a great extent and it will go a long way in minimizing

the feeling of fear spread in the society.

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

the 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 undue economic advantages. The

mischief which is sought to be cured by enactment of MCOCA is to

curb and control menace of organised 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.

35. For appreciating this issue, it would also be relevant to refer to

sub-section (4) of section 3 of MCOCA. It can be seen that the

said provision also provides for punishment only by virtue of a

person being a member of the organised crime syndicate. If the

contention advanced by the respondents is to be accepted, subsection (4) of section 3 will be rendered redundant. We are also of

the considered view that there could be various “unlawful

continuing activities” by a member of “organised crime syndicate”

or by any person on behalf of such a syndicate which can be for

the advantages other than economic or pecuniary...”

14.4. We have no hesitation in endorsing the views of Full Bench

decision of Bombay High Court in the case of Jagan Gagansingh Nepali

@ Jagya (supra). Looking to the object and purpose of this enactment,

the expression ‘other advantage’ cannot be read in a restrictive manner

and is required to be given its full effect. The High Court has rightly said

that there could be advantage to a person committing a crime which may

not be directly leading to pecuniary advantage or benefit but could be of

getting a strong hold or supremacy in the society or even in the syndicate

itself. As noticed above, the purpose of this enactment is to be kept in

view while interpreting any expression therein and in the name of strict

construction, its spirit and object cannot be whittled down.

15. A chart has been placed before us on behalf of the appellant in

relation to the aforesaid seven cases with certain comments. As regards

the case at Serial No. 1, it is submitted that no pecuniary benefit or undue

economic gain was alleged in the matter where it was alleged that during

house search, the police found a sword from the house of Keval Patel

and the appellant was staying there as a tenant. As regards the case at

Serial No. 2, it is submitted that the allegation against the appellant had

been of giving blow with knife to the complainant due to previous enmity

and quarrel on account of friendship with a girl. Again, it is submitted that

none of the members of the alleged crime syndicate are accused persons

and no pecuniary benefit or other advantage is alleged. The said case

resulted in acquittal with one witness turning hostile and other witnesses

not turning up. As regards the case at Serial No. 3, it is contended that

this was the first joint offence with the accused Roshan Sheikh and in

fact, it had been the matter of cross FIRs; and the same were quashed by

the High Court on 13.04.2016. It is submitted that it had been a matter of

clash between two groups of people and no elements of pecuniary benefit

or undue economic gain or other advantage was alleged. As regards the

case at Serial No. 4, it is submitted that the incident took place in a bar

because of some argument between the waiter and the customer and no

such element of pecuniary benefit or undue economic gain or other

advantage is shown. As regards the case at Serial No. 5, it is submitted

that this has also been a matter of counter FIRs where first FIR was

lodged by Sameer Sharma and the appellant is an eye-witness therein;

and no pecuniary benefit or undue economic gain or other advantage to

the accused is shown in this crime. As regards the case at serial No. 6, it

is submitted that the charge-sheet does not disclose any act committed

by any syndicate, or any crime for pecuniary gain; that during

investigation, offences under Section 3/25 of Arms Act was deleted; and

taking this case also into account was not correct.

15.1. The common thread of “violence” or “threat of violence” or

“unlawful means” running through all of these cases is not a matter

requiring any analysis, for the same being apparent on the face of record.

Significantly, the aforesaid had not been the cases involving the appellant

singularly; and more significantly, the alleged team leader Roshan Sheikh

is the co-accused in at least three previous cases. This is apart from the

recurrence of other co-accused persons in one case or the other. It has

rightly been pointed out on behalf of the respondent-State that in order to

attract MCOCA, every previous case need not be of the object of gaining

pecuniary benefit alone. The cases in question, apart from involving the

offences against human body and property, also include variety of other

offences including those of rioting while armed with deadly weapons;

causing insult to provoke breach of peace; and criminal intimidation. They

also include the offence under the Arms Act. In all the referred cases, use

of violence has specifically been alleged.

15.2. The crime chart aforesaid, the nature of activities and the persons

involved leave nothing to doubt that the involvement of the appellant in

such crimes and unlawful activities which are aimed at gaining pecuniary

advantages or of gaining supremacy and thereby, leading to other

unwarranted advantages is clearly made out.

16. The criticism of the impugned sanction order dated 05.11.2020,

that it had been of mere repetition of the expression of statute, is also

difficult to be accepted. The High Court, in the impugned order, has rightly

observed that the said order is required to be viewed in its totality, and its

substance cannot be ignored by isolated reference to a particular line or

expression. We have reproduced the relevant contents of the order dated

05.11.2020 particularly those concerning the present appellant; and we

have not an iota of doubt that firstly, the approving authority, and then, the

sanctioning authority, were conscious of the requirement of law and

indeed examined the matter only with reference to such requirement; and

issued the orders in question only after arriving at the requisite

satisfaction. It has rightly been pointed out on behalf of the respondent

that in such matters, the competent authority has to focus essentially on

the factum whether the material in question reveals the commission of

crime, which is an organised crime, committed by the organised crime

syndicate.

16.1. In view of above, reference to the decision of this Court in

Jagannath Misra (supra), which essentially related to a matter of

preventive detention, hardly makes out any case for interference. The

question of arriving at satisfaction has been dealt with by this Court in the

following: -

“Now we have pointed out that the order of detention in this

case refers to six out of eight possible grounds on which a person

can be detained under Section 3(2)(15). Of these eight grounds

under Section 3(2)(15) one refers to foreigners i.e., of being of

hostile origin. Therefore in the present case the order really

mentions six out of seven possible grounds which can apply to an

Indian whose detention is ordered under Section 3(2)(15). We do

not say that it is not possible to detain a citizen on six out of seven

possible grounds under Section 3(2)(15); but if that is done it is

necessary that the authority detaining a citizen should be satisfied

about each one of the grounds that the detention is necessary

thereon. But if it appears that though the order of detention

mentions a large number of grounds the authority concerned did

not apply its mind to all those grounds before passing the order,

there can in our opinion be no doubt in such a case that the order

was passed without applying the mind of the authority concerned

to the real necessity of detention. In the present case as we have

already pointed out six grounds out of possible seven grounds on

which a citizen can be detained have been mentioned in the order;

but in the affidavit of the Minister we find mention of only two of

those grounds, namely, safety of India (which may be assumed to

be the same as public safety) and the maintenance of public order.

In these circumstances there can be little doubt that the authority

concerned did not apply its mind properly before the order in

question was passed in the present case. Such discrepancy

between the grounds mentioned in the order and the grounds

stated in the affidavit of the authority concerned can only show an

amount of casualness in passing the order of detention against the

provisions of Section 44 of the Act. This casualness also shows

that the mind of the authority concerned was really not applied to

the question of detention of the petitioner in the present case. In

this view of the matter we are of opinion that the petitioner is

entitled to release as the order by which he was detained is no

order under the Rules for it was passed without the application of

the mind of the authority concerned.

There is another aspect of the order which leads to the same

conclusion and unmistakably shows casualness in the making of

the order. Where a number of grounds are the basis of a detention

order, we would expect the various grounds to be joined by the

conjunctive “and” and the use of the disjunctive “or” in such a case

makes no sense. In the present order however we find that the

disjunctive “or” has been used, showing that the order is more or

less a copy of Section 3(2)(15) without any application of the mind

of the authority concerned to the grounds which apply in the

present case.”

16.2. In the said case, where there was discrepancy in the detention

order and the affidavit of the Minister as regard the grounds of detention,

this Court found that the authority concerned did not apply its mind

properly. In the present case, on the contrary, the meticulously drawn

sanction order dated 05.11.2020 leaves nothing to doubt that the

sanctioning authority had indeed applied its mind to all the material and

relevant aspects. Therefore, this contention on behalf of the appellant

must fail.

17. A long deal of arguments on behalf of appellant before us had also

been about the sanctioning authority purportedly taking the irrelevant

factors into account and for that matter, acquittal in relation to Crime No.

13 of 2012 and of quashing the proceedings in Crime No. 482 of 2015

have been referred. In our view, this line of arguments also remains bereft

of substance.

17.1. The threshold requirement in terms of clause (d) of MCOCA is that

of the activity/activities undertaken by the accused persons either singly

or jointly, as a member of an organized crime syndicate, which involves a

cognizable offence punishable with imprisonment of 3 years or more and

in respect of which, more than one charge-sheets have been filed before

the competent Court within 10 years and cognizance had been taken.

17.2. Crime No. 13 of 2012 was registered on 11.01.2012 and involved

two accused persons including the appellant and related to the offence

under Section 307 IPC read with Section 34 IPC. Thus, the prescribed

period and nature of offence with reference to prescribed punishment

were met. Cognizance had also been taken in the said case and that is

how it went to trial. The prosecution therein could examine only one

person as the alleged eye-witness but, he turned hostile and did not

support the case of the prosecution. The prosecution failed to examine

the other witnesses including the complainant and the injured and even

the non-bailable warrant issued in their relation were returned unserved

with the report that they were not traceable. Thus, the prosecution failed

to substantiate the charges. We shall comment on the said nature of

acquittal a little later but, relevant it is to observe for the present purpose

that the said case answers to all the requirements of clause (d) of Section

2(1) of MCOCA.

17.3. As regards the other case, being Crime No. 482 of 2015 dated

20.12.2015, the offences had been of Sections 143, 147, 148, 149, 294,

324, 325 IPC. The co-accused person of the previously referred Crime

No. 13 of 2012 was the co-accused person in this case too, apart from

the other co-accused persons, including Roshan Sheikh, said to be the

team leader. The said case also answers to all the requirements of clause

(d) of Section 2(1) of MCOCA. In the said case, there had been a cross

FIR in Crime No. 481 of 2015 and it appears that there was a settlement

for which, the High Court, by its order dated 13.04.2016, considered it

appropriate to quash the proceedings. We would refer to the implications

of such quashing of proceedings also a little later. Suffice it to notice for

the present purpose that the said case too answers to all the

requirements of clause (d) of Section 2(1) of MCOCA.

17.4. There is no dispute to the fact that at least two more cases, being

of Crime No. 196 of 2016 and of Crime No. 83 of 2017, both of Sitabuldi

Police Station, are also pending wherein charge-sheets have been filed

and they include varying offences, including those of Sections 148 and

326 IPC, clearly meeting with all the essential requirements. In both these

cases, the appellant is an accused person alongwith a few common coaccused persons, including the alleged team leader Roshan Sheikh. It is

not the case of the appellant that cognizance had not been taken in those

cases.

17.5. The submissions about taking irrelevant factors into account with

reference to the said two cases resulting in acquittal and discharge must

fail for the simple reason that for the purpose of clause (d) of Section 2(1)

of MCOCA, the result of a particular matter is not decisive of the question

as to whether the activity in question answers to the description of

‘continuing unlawful activity’ or not. These had not been offences

committed single-handed by the appellant and charge-sheets were

indeed filed therein. The matter of settlement because of cross-cases or a

matter of acquittal because of the witnesses not turning up, could hardly

be of any relevance so far as clause (d) of Section 2(1) of MCOCA is

concerned. Therefore, it cannot be said that any irrelevant matter has

been taken into consideration by the sanctioning authority. The case of

Khaja Bilal Ahmed (supra) as relied upon on behalf of the appellant,

even otherwise, has no direct application for being related to a preventive

detention matter. In any case, there is no quarrel with the proposition

therein that for a detaining authority, it is incumbent that its satisfaction

must not be based on irrelevant or invalid grounds but, we are clearly of

the view that in the present case, the authority cannot be said to have

proceeded on any irrelevant consideration. What is significant and

pertinent for the purpose of Section 2(1)(d) is the involvement of the

person concerned in the referred activity and filing of charge-sheet and

taking of cognizance in the offence as predicated. Acquittal or discharge

is of no significance.

18. As regards the use of confessional statement by the sanctioning

authority, we are unable to find any fault therein. In the first place,

noticeable it is that the confessional statements of the co-accused

persons, including the alleged team leader, have not been used by the

sanctioning authority as the only basis of the sanction order. Those have

been referred as the part of evidence collected in the present offence,

which included various other pieces of evidence, i.e., mobile phones,

vehicles, pen drive, weapons etc. In any case, the value attached to the

confessional statement, while overriding the provisions of CrPC and the

Evidence Act in terms of Section 18 of MCOCA, cannot be gainsaid and

cannot be ignored. This Court has, in the case of Kamal Ahmed

Mohammed Vakil Ansari (supra), observed and held, inter alia, as

under: -

“71. Section 18 of MCOCA through a non obstante clause overrides

the mandate contained in Sections 25 and 26 of the Evidence Act,

by rendering a confession as admissible, even if it is made to a

police officer (not below the rank of Deputy Commissioner of

Police). Therefore, even though Sections 25 and 26 of the

Evidence Act render inadmissible confessional statements made

to a police officer, or while in police custody, Section 18

of MCOCA overrides the said provisions and bestows admissibility

to such confessional statements, as would fall within the purview

of Section 18 of MCOCA.

72. It is however relevant to mention that Section 18

of MCOCA makes such confessional statements admissible only for

“the trial of such person, or co-accused, abettor or conspirator”.

Since Section 18 of MCOCA is an exception to the rule laid down in

Sections 25 and 26 of the Evidence Act, the same will have to be

interpreted strictly, and for the limited purpose contemplated

thereunder. The admissibility of a confessional statement would

clearly be taken as overriding Sections 25 and 26 of the Evidence

Act for purposes of admissibility, but must mandatorily be limited to

the accused confessor himself, and to a co-accused (abettor or

conspirator).”

18.1. The reference in the confessional statements of the two coaccused persons in relation to the appellant is not a factor entirely

irrelevant for the appellant being a co-accused person with them. The

detailed discussion by the sanctioning authority to the substantial pieces

of evidence collected in the matter rather fortifies the conclusion that the

sanctioning authority has meticulously applied its mind to all the relevant

factors and has taken an overall view of the matter before forming the

final opinion in favour of granting the sanction. The contention in that

regard also fails.

18.2. The learned counsel for the State has fairly and rightly indicated,

with reference to the decision of this Court in the case of Vinod G. Asrani

(supra), that the validity of sanction could always be determined by the

Trial Court during the course of trial where sanctioning authority could be

examined and the appellant will have sufficient opportunity to contest the

same, including that of cross-examining the sanctioning authority. In fact,

the High Court has also taken care in its impugned order to make it clear

that the observations were only prima facie and nothing in the order

would influence or prejudice the trial or pre-empt any legitimate defence

of the appellant. In Vinod G. Asrani (supra), this Court has observed and

held as under: -

“9. …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 authorities concerned. Once such approval is obtained, an

investigation is commenced. Those who are subsequently found to

be involved in the commission of the organised crime can very

well be proceeded against once sanction is obtained against them

under Section 23(2) of MCOCA.

10. As to whether any offence has at all been made out against

the petitioner for prosecution under MCOCA, the High Court has

rightly pointed out that the accused will have sufficient opportunity

to contest the same before the Special Court.”

18.3. For what has been discussed hereinabove, this appeal must fail

on merits.

19. Having said so, we deem it appropriate to revert to the two

aspects of the matter which we had partly left for discussion at a later

stage: one being of acquittal and discharge in the respective criminal

cases; and second being the effect of the fact that the appellant has been

declared as an ‘absconder’.

20. As noticed, in the case relating to Crime No. 13 of 2012, the

appellant and the co-accused person were acquitted by the Trial Court for

the only private witnesses examined in the matter turning hostile and all

other witnesses including the complainant and the injured person not

turning up at all. The enactment in question, i.e., MCOCA, essentially

intends to deal with the criminal activities by an organised crime syndicate

or gangs; and protection of witnesses is also one of the avowed

objectives of this enactment. It has rightly been contended on behalf of

the respondents that MCOCA seeks to curb such menace, where a

criminal case cannot be taken to its logical conclusion because of the

witnesses either turning hostile or not turning up at all. The provision for

witness protection, as contained in Section 19 of MCOCA is one of those

steps. Having examined the judgment of the Sessions Court dated

09.05.2017, as placed on record on behalf of the appellant, we could only

say that the very reason of acquittal in the said case rather fortifies the

requirements of invocation of MCOCA against the appellant, of course,

when other requirements of Sections 2(1)(d), (e) and (f) are fulfilled. They

are indeed fulfilled, as noticed above.

21. As regards the implication of proclamation having been issued

against the appellant, we have no hesitation in making it clear that any

person, who is declared as an ‘absconder’ and remains out of reach of

the investigating agency and thereby stands directly at conflict with law,

ordinarily, deserves no concession or indulgence. By way of reference,

we may observe that in relation to the indulgence of pre-arrest bail in

terms of Section 438 CrPC, this Court has repeatedly said that when an

accused is absconding and is declared as proclaimed offender, there is

no question of giving him the benefit of Section 438 CrPC.9

What has

been observed and said in relation to Section 438 CrPC applies with

more vigour to the extraordinary jurisdiction of this Court under Article 136

of the Constitution of India. The submissions on behalf of the appellant

for consideration of his case because of application of stringent provisions

impinging his fundamental rights does not take away the impact of the

blameworthy conduct of the appellant. Any claim towards fundamental

rights also cannot be justifiably made without the person concerned

himself adhering to and submitting to the process of law.

9 For example, Prem Shankar Prasad v. State of Bihar and Anr.: (2021) SCC OnLine SC

955.

22. Thus, challenge to the judgment as passed by the High Court on

16.12.2021, and to the sanctioning order dated 05.11.2020, was required

to be rejected when the appellant had indeed been declared absconder.

However, as observed hereinbefore, we have considered it proper to first

examine the matter on merits because notices had been issued to the

respondents and it had appeared serving the cause of justice to deal with

the matter on merits. As noticed, all the contentions urged on behalf of

the appellant remain baseless and challenge herein ought to fail. Thus,

we need not say any more in the present case as regards the effect of

absconsion.

23. Accordingly, and in view of the above, this appeal fails and is,

therefore, dismissed.

……....……………………. J.

(DINESH MAHESHWARI)

……....……………………. J.

(ANIRUDDHA BOSE)

NEW DELHI;

MAY 20, 2022.

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ABHISHEK VS STATE OF MAHARASHTRA & ORS. CASE

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