advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, July 26, 2015

commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act. 9. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes No.37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crimes Case No.1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court. 10. In the light of what we have said above, it is not necessary for us to go into the question whether the competent authority had duly and properly applied its mind while granting permission to the registration of the information under MCOCA or sanctioning the prosecution of the respondents under Section 3(2) of the Act. It is also unnecessary for us to examine whether the expression “any other advantage” appearing in Section 2(e) can be read ejusdem generis which aspect is left open to be decided in an appropriate case. 11. These appeals accordingly fail and are hereby dismissed.


                                       REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NOs.458-460 OF 2009


State of Maharashtra                         …Appellant

Versus
Shiva @ Shivaji Ramaji
Sonawane & Ors. etc.                         …Respondents

                                    WITH

                     CRIMINAL APPEAL NOs.461-464 OF 2009


State of Maharashtra etc.                         …Appellants

Versus
Mehmood Khan Yakub Khan
Pathan etc. etc.                             …Respondents



                               J U D G M E N T
T.S. THAKUR, J.
1.    High Court of Bombay has, by  a  common  order  dated  18th  November,
2008, impugned in these appeals, set aside  orders  passed  by  the  Special
Court under Maharashtra Control of Organised Crime Act, 1999  and  acquitted
the respondents of the charges framed against  them.   The  High  Court  has
relying upon several earlier pronouncements on the subject, held  that  mere
proof of filing of charge sheets in the past was  not  enough  to  hold  the
persons accused in such charge sheets  to  be  guilty  of  the  offences  of
committing organised crime punishable under Section  3  of  MCOCA  for  such
charge sheets satisfy but one of the requirements under the said  Act.  What
is according to the High Court  equally  important  is  to  prove  that  the
accused were guilty of committing the offence of organised crime  by  reason
of their continuing unlawful activities. The High Court  further  held  that
any such  unlawful  activity  should  be  by  use  of  threat  of  violence,
intimidation, coercion  or  other  unlawful  means  with  the  objective  of
“gaining pecuniary or other advantages”, and that the  provisions  of  MCOCA
can be invoked only by strictly complying with the provisions of Section  23
of the Act. The competent authority  was,  declared  the  High  Court,  duty
bound  to  apply  its  mind  to  the  attendant   facts   while   permitting
registration of an FIR under MCOCA or  granting  sanction  for  prosecution.
The High Court held that the competent authority, in the case at  hand,  had
not applied its mind properly which rendered the registration of  the  cases
and the  filing  of  the  charge  sheets  against  the  respondents  legally
unsustainable. The High Court further held that  the  respondents  were,  in
the facts of the cases before it, not shown to have  committed  any  offence
for pecuniary, economic or similar other advantage  which  was  one  of  the
requirements to be  satisfied  before  they  could  be  held  guilty  of  an
organised crime. The orders of conviction recorded  by  the  Special  Court,
and the sentences awarded to the respondents  were  on  those  findings  set
aside.

2.    We have heard learned counsel for the parties at considerable  length.
We have also been taken through the record including the  judgments  of  the
trial court and that passed by the High Court. The factual matrix  in  which
the respondents were prosecuted and found  guilty  for  offences  punishable
under MCOCA, have been set out at great length by the Trial Court  and  even
by the High  Court.  Recapitulation  of  the  same  all  over  again  would,
therefore, serve no useful purpose.  All that need be mentioned is that  the
respondent Shiva @ Shivaji Sonwane, accused in Special  Criminal  Case  No.1
of 2001 and Mehmood Khan Pathan,  accused  in  Special  Case  No.2  of  2001
started off as partners in crimes which they  committed  with  the  help  of
other gangsters in  the  industrial  town  of  Khaparkheda  situate  on  the
outskirts of the city of Nagpur. The gang, in due course,  appears  to  have
split into two, one each led by Shivaji  Ramaji  Sonwane  and  Mehmood  Khan
Pathan.

3.    The prosecution case is that the two gangs have over ten  years  prior
to the enactment of MCOCA been involved  in  commission  of  several  crimes
which constitutes “continuing  unlawful  activity”  within  the  meaning  of
Section 2(d) of MCOCA. This, according to the prosecution, was evident  from
the fact that a very large number of charge sheets had  been  filed  against
them in which the competent jurisdictional Courts had taken  cognizance.  To
be precise, as many as 42 charge-sheets had been filed against the gang  led
by Shiva Sonwane, whereas 30 similar charge-sheets  were  presented  against
the rival gang led by Mehmood Khan Pathan. What led  to  the  invocation  of
MCOCA in Criminal Case No.1 of 2002 against the gang led  by  Shiva  Sonwane
is an incident that took place on 16th March, 2001 at about 9.15  a.m.  when
Shiva Sonwane is alleged to have gone to the shop of one Rameshwar  Bawankar
in which one Sunil Bante PW-8/I was  working  as  an  employee.  Respondent-
Shiva and his companion gangsters are alleged to have beaten up Sunil  Bante
and set the shop on fire resulting in a loss  of  1.5  lacs  to  the  owner.
Crime No.37 of 2001 for several offences punishable under the  Indian  Penal
Code and the Arms Act was registered with the  police  station  Khaparkheda,
in connection with the incident.

4.    So also MCOCA was invoked against  respondents  Mehmood  Khan  Pathan,
Sanjay Girhe and Samad Pathan on the basis  and  in  connection  with  Crime
Case No.38 of 2001 registered at police  station  Khaparkheda  for  offences
punishable under the I.P.C. and the  Arms  Act.  Interestingly,  this  crime
(Criminal Case No.38 of 2001) was registered on a complaint  made  by  Shiva
Sonwane the rival gangster in which the latter alleged that on  16th  March,
2001 the accused had barged into the complainant’s house,  demanded  a  gold
chain, beat up the complainant’s father and set the house on fire.

5.     The  prosecution  version  is  that   PW-13/1,   PI   Abdul   Razzak,
Investigating Officer in Crime No.37 of  2001,  had  on  the  basis  of  his
investigation come to the conclusion that Shiva had formed and  was  heading
an organised crime  syndicate.   He,  therefore,  prepared  a  proposal  for
invocation of the provisions of MCOCA in connection  with  Crime  No.37/2001
and requested for permission to  record  information  and  register  a  case
under Sections 3(1)(ii) and 3(4) of MCOCA. The  proposal  was  forwarded  to
the Special Inspector General of Police examined at the  trial  as  PW-15/1.
The  proposal  was  upon  consideration,  accepted   and   registration   of
information under MCOCA in terms of Section 23 of  the  Act  permitted.  The
information relating to the  commission  of  the  offence  under  MCOCA  was
accordingly registered against Shiva Sonwane and his  gang  on  21st  March,
2001 which eventually is presented to this Court as Crime Case No.1 of  2001
under MCOCA.
6.    In Crime Case No.2 of 2001 also under  MCOCA  a  similar  version  has
been put forth by the prosecution.  The  proposal  for  invoking  MCOCA  was
moved even in that case by PI Abdul Razzak resulting in  grant  of  approval
for invocation and registration of information under Section  3(i)(ii)  read
with Section 3(4) of MCOCA.  According  to  the  prosecution,  investigation
into the cases was entrusted to Deputy Superintendent of Police examined  as
PW-16 in Criminal Case No.1 of 2001 and  PW-20  in  Criminal  Case  No.2  of
2001. According to this witness, investigation in both the  cases  was  made
over to him on 21st March, 2001 when Shiva  was  in  jail.  The  custody  of
accused Shiva was secured by him in terms of a production  warrant  on  28th
March, 2001 and his house searched  on  10th  April,  2001  leading  to  the
seizure of a sword. As  regards  respondent  Mehmood  Khan  Pathan,  he  was
arrested on 8th  May,  2001  and  his  house  searched  on  30th  May,  2001
resulting in the recovery of a  sword  and  a  ‘Hattimar’  knife  which  was
seized. After completion of investigation in both  the  crimes,  the  Deputy
Superintendent of police filed two separate and  independent  charge  sheets
one each against  the  two  gangs  for  offences  punishable  under  Section
3(i)(ii) of the MCOCA and Section 4 read with Section 25 of the Arms Act.

7.    The significant feature of the two cases is that for Crimes  No.37  of
2001 and 38 of 2001 the respondents were separately tried and  acquitted  on
18th January, 2008 in the case of Shiva and on 28th February,  2006  in  the
case of Mehmood Khan Pathan. In the  said  charge  sheets,  the  respondents
were accused of committing offences only under the IPC  and  the  Arms  Act.
For the offences punishable under  MCOCA  separate  and  independent  charge
sheets were filed against the accused persons in which they  were  convicted
by the Trial Court which conviction  was  reversed  by  the  High  Court  as
noticed earlier.

8.    It was in the above backdrop that the High Court held  that  once  the
respondents had been acquitted for the offence punishable under the IPC  and
Arms Act in Crimes No.37 and 38  of  2001  and  once  the  Trial  Court  had
recorded an acquittal even for the offence punishable under Section  4  read
with Section 25 of the Arms Act in MCOCA Crimes No.1 and 2 of 2002 all  that
remained  incriminating  was  the  filing  of  charge  sheets  against   the
respondents in the past and taking of  cognizance  by  the  competent  court
over a period of ten years prior to  the  enforcement  of  the  MCOCA.   The
filing of charge sheets or taking of the cognizance in  the  same  did  not,
declared the High Court, by itself constitute an  offence  punishable  under
Section 3 of the MCOCA. That is because the involvement  of  respondents  in
previous offences was just about one requirement but by no  means  the  only
requirement which the prosecution has to  satisfy  to  secure  a  conviction
under MCOCA.  What was equally, if not, more important  was  the  commission
of an offence by the respondents that would constitute “continuing  unlawful
activity”. So long as that requirement failed, as was the  position  in  the
instant case, there was no question  of  convicting  the  respondents  under
Section 3 of the MCOCA.  That reasoning does not,  in  our  opinion,  suffer
from any infirmity.  The very fact that more  than  one  charge  sheets  had
been filed against the respondents alleging offences  punishable  with  more
than three years imprisonment is not enough. As rightly pointed out  by  the
High Court commission of offences prior to the enactment of MCOCA  does  not
by itself constitute an offence under MCOCA. Registration of  cases,  filing
of charge sheets  and  taking  of  cognizance  by  the  competent  court  in
relation to the offence alleged to have been committed  by  the  respondents
in the past is but one of the requirements for invocation of  Section  3  of
the MCOCA. Continuation of unlawful activities is  the  second  and  equally
important requirement  that  ought  to  be  satisfied.  It  is  only  if  an
organised crime is committed by the accused after the promulgation of  MCOCA
that he may, seen in the  light  of  the  previous  charge  sheets  and  the
cognizance taken by the competent  court,  be  said  to  have  committed  an
offence under Section 3 of the Act.

9.    In the case at hand, the offences which the  respondents  are  alleged
to have committed after the promulgation of MCOCA were  not  proved  against
them. The acquittal of the respondents  in  Crimes  No.37  and  38  of  2001
signified that they were not involved in  the  commission  of  the  offences
with which they were charged. Not only that the respondents  were  acquitted
of the charge under the Arms Act even in Crimes Case No.1  and  2  of  2002.
No appeal against that acquittal had been filed by the State.  This  implied
that the prosecution had failed to prove the second ingredient required  for
completion of an offence under MCOCA.  The High Court was, therefore,  right
in holding that Section 3 of the MCOCA could not  be  invoked  only  on  the
basis of the previous charge sheets for Section 3 would come into play  only
if the respondents were proved to have committed an offence for gain or  any
pecuniary  benefit  or  undue  economic  or  other   advantage   after   the
promulgation of MCOCA. Such being the case,  the  High  Court  was,  in  our
opinion, justified in allowing  the  appeal  and  setting  aside  the  order
passed by the Trial Court.

10.   In the light of what we have said above, it is not  necessary  for  us
to go into the  question  whether  the  competent  authority  had  duly  and
properly applied its mind while granting permission to the  registration  of
the  information  under  MCOCA  or  sanctioning  the  prosecution   of   the
respondents under Section 3(2) of the Act. It is also unnecessary for us  to
examine whether the expression “any other advantage”  appearing  in  Section
2(e) can be read ejusdem generis which aspect is left open to be decided  in
an appropriate case.

11.   These appeals accordingly fail and are hereby dismissed.

                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)



                                                        ………………………………….…..…J.
                                                              (R. BANUMATHI)
New Delhi;
24th July, 2015
ITEM NO.1E-For Judgment       COURT NO.2          SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  458-460/2009

STATE OF MAHARASHTRA                               Appellant(s)

                                VERSUS

SHIVA @SHIVAJI RAMAJI SONAWANE & ORS.              Respondent(s)

WITH
Crl.A. No. 461-464/2009

Date : 24/07/2015 These appeals were called on for pronouncement of
JUDGMENT today.

For Appellant(s)     Mr. Nishant Ramakantrao Katneshwarkar,Adv.

                     Mr. Ravindra Keshavrao Adsure,Adv.

For Respondent(s)    Dr. J. P. Dhanda,Adv.
                        Mr. N.A. Usmani, Adv.
                        Mrs. Raj Rani Dhanda, Adv.

                     Mr. Irshad Ahmad,Adv.


            Hon'ble Mr. Justice T.S. Thakur pronounced the judgment  of  the
Bench comprising His Lordship and Hon'ble Mrs. Justice R. Banumathi.
            The appeals are dismissed in  terms  of  the  Signed  Reportable
Judgment.

      (VINOD KR.JHA)                         (VEENA KHERA)
       COURT MASTER                                COURT MASTER

          (Signed Reportable judgment is placed on the file)


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.