ABHISHEK VS STATE OF MAHARASHTRA & ORS. CASE

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’.
1
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’.
2
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
3
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’.
4
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.
5
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
6
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
7
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.
8
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
9
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
10
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
11
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’.
12
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
13
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
14
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.
15
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.
16
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
17
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
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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.
19
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.”
20
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: -
21
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,
22
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
23
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
24
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
25
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.
26
“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.
27
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
28
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
29
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.”
30
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
31
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
32
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...”
33
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
34
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
35
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
36
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.
37
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
38
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.
39
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.
40
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.
41
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).”
42
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
43
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
44
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.
45
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.
46

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