Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1969-1970 OF 2010
Prasad Shrikant Purohit ...Appellant
VERSUS
State of Maharashtra & Anr. ...Respondent
With
Criminal Appeal No.1971 of 2010
Criminal Appeal Nos.1994-98 of 2010
Criminal Appeal No.58 of 2011
Criminal Appeal No. 636 of 2015 @ SLP (Crl.) No.8132 of 2010
Criminal Appeal Nos. 639-40 of 2015 @ SLP (Crl.) Nos.9370-71 of 2011
SLP (Crl.) 9303 of 2011
SLP (Crl.) No.9369 of 2011
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
Leave granted in SLP (Crl.) No.8132 of 2010 and SLP (Crl.) Nos.9370-71 of
2011.
As in all the above appeals the issue that arises for consideration is the
applicability of the Maharashtra Control of Organized Crime Act, 1999
(hereinafter called "MCOCA"), all these appeals are disposed of by this
common judgment.
Criminal Appeal Nos.1969-70/2010 have been preferred by Lt. Col. Prasad
Shrikant Purohit challenging the judgment in Criminal Appeal No.867 of 2009
which was disposed of by the common order passed by the Division Bench of
the Bombay High Court in Criminal Appeal Nos.866, 867, 868, 869 and 1024 of
2009 dated 19.07.2010. By the said order the Division Bench reversed the
order of the Special Judge dated 31.7.2009 passed in Special Case No.1 of
2009 wherein he held that the charges against the accused in C.R.No.18 of
2008 registered with Anti-Terrorist Squad, Mumbai (hereinafter referred to
as "ATS") under the MCOCA do not survive and were discharged from the case.
The Special Court by invoking Section 11 of the MCOCA directed the case to
be tried by the regular Court. The Division Bench while allowing the
Criminal Appeal Nos.866 to 869 of 2009 set aside the order of the Special
Judge 31.07.2009 in Special Case No.1 of 2009 as well as orders passed in
Bail Application Nos.40 to 42 of 2008, restored those applications to the
file in MCOCA Special Case No. 01 of 2009 for being decided on merits by
Special Judge himself. In Criminal Appeal No.1024 of 2009 while allowing
the said appeal, Bail Application No.41 of 2008 was directed to be restored
in MCOCA Special Case No. 01 of 2009 for being heard and decided on merits.
The appellant-Lt. Col. Prasad Shrikant Purohit is the first respondent in
Criminal Appeal No.867 of 2009.
The appeals arising out of SLP (Crl.) No.9370-71/2011 have also been
preferred by the very same appellant, namely, Lt. Col. Prasad Shrikant
Purohit challenging the common order passed in Criminal Bail Application
No.333 of 2011 with Criminal Application No.464 of 2011 along with Criminal
Application No.556 of 2011 dated 9th November 2011 by the learned Single
Judge of the Bombay High Court. By the said order the learned Judge allowed
the Criminal Application No.556 of 2011 filed by Ajay Ekanath Rahirkar by
granting him bail by imposing certain conditions. In the case of appellant
herein, the challenge made in Criminal Application No.464 of 2011 was the
order of the Special Judge after the order of remand passed by the Division
Bench dated 19.07.2010. The Special Judge by the order dated 30.12.2010
rejected the appellant's application for bail. The learned Single Judge
after detailed discussion, dismissed the Criminal Bail Application No.333
of 2011 as well as Criminal Application No.464 of 2011 by the order
impugned in these appeals.
The appeal arising out of SLP(Crl.) No.8132/2010 has been filed by one
Pragyasinh Chandrapalsinh Thakur challenging the common order dated
19.07.2010 passed by the Division Bench of the Bombay High Court in
Criminal Appeal No.866 of 2009 which is identical to the case of the
appellant in Criminal Appeal Nos.1969-70 of 2010.
Criminal Appeal No.1971 of 2010 is preferred by one Rakesh Dattaray Dhawade
challenging the order dated 19.07.2010 passed by the Division Bench of the
Bombay High Court in Criminal Appeal No.868 of 2009.
The appeal arising out of SLP (Crl.) No.9303/2011 is preferred by one
Sudhakar Dhar Dwivedi and Ramesh Shivji Upadhyay challenging the order
dated 20.10.2011 of the learned Single Judge of the Bombay High Court. By
the said judgment, the learned Single Judge declined to interfere with the
order of Special Judge in Misc. Application No.98/2011 permitting police
custody to the first respondent, namely, National Investigation Agency
(NIA) for 8 days from 22.07.2011 up to 30.07.2011. In fact, the said case
was originally investigated by ATS and final report was submitted on
30.01.2009 and supplementary charge-sheet vide MCOCA No.8/2011 was filed on
21.4.2011. Thereafter by order dated 1.4.2011 of the Ministry of Home
Affairs, Government of India, investigation was transferred to NIA and an
FIR was registered as Crime No.5/2011 by police station NIA on 13.4.2011.
Thereafter NIA sought for police custody which was granted by order passed
in Misc. Application No.98/2011 dated 19.07.2011. The said SLP is not
argued before us and, therefore, the same is delinked from this batch of
cases and the same shall be heard separately.
We heard arguments of Mr. U.R. Lalit, learned senior counsel who appeared
before us for the appellants in Criminal Appeal Nos.1969-70/2010 as well as
Criminal Appeal Nos.1994-98/2010, Mr. Triloki Nath Razdan, learned counsel
for the appellant in appeal arising out of SLP (Crl.) No.9303/2011, Mr.
Basava Prabhu S. Patil, learned senior counsel in the appeal arising out of
SLP (Crl.) No.8132/2010 and Mr. Vikas Mehta, learned counsel in Criminal
Appeal No.1971 of 2010.
Mr. U.R. Lalit, learned senior counsel in his submissions referred to the
brief facts which led to the initiation of the proceedings against the
appellants under the provisions of MCOCA. As the narration goes, there was
a bomb blast at the place called Malegaon in Mumbai on 29.9.2008. With
reference to the said occurrence, FIR No.130/2008 was registered in the
Azad Nagar police station in Malegaon on 30.9.2008. On 26.10.2008, the said
FIR was transferred and registered as C.R. No. 18/2008 and the
investigation was taken over by ATS. Thereafter the appellant in Criminal
Appeal No. 1971/2010, namely, one Rakesh Dattaray Dhawade was arrested by
ATS on 02.11.2008. Subsequent to his arrest, the appellant in Crl. Appeal
Nos. 1969-1970/2010 was arrested on 05.11.2008. On 20.11.2008, approval was
given as per Section 23(1) (a) of MCOCA by DIG, ATS for recording of
information about the commission of an offence and for applying the
provisions of Section 3(1)(i),3(2) and 3(4) of MCOCA against all the
accused in C.R. No. 18/2008.
Be that as it may, earlier on 21.11.2003, there was a bomb explosion at
Mohmedia Masjid, Nanalpeth, Parbhani which was registered as C.R. No.161 of
2003/Parbhani. There was another bomb explosion at Kaderia Masjid, Jalna
during Friday Namaz which was registered as C.R.No. 194 of 2004/Jalna.
In the case pertaining to Parbhani, the charge-sheet was filed on
07.09.2006 against A1-Sanjay Choudhary for the offences punishable under
Sections 302, 307, 324, 337, 338, 285, 286 and 295 read with 34, IPC and
Sections 3, 4, 6 of the Explosives Act and Section 25(1) and (3) of the
Arms Act. The case was registered as RCC No.467/2006. A supplementary
chargesheet-I was filed in Parbhani case against four accused for the above
referred to offences as well as Sections 120-B & 153-A read with 34 of IPC
on 29.9.2006.
In Jalna case, charge-sheet was filed against A-1 for the offences
punishable under Sections 307, 436, 324, 323, 120-B, 153-A read with 34 of
IPC and Sections 3, 4, 6 of Explosives Act on 30.9.2006. In Jalna case, two
supplementary charge-sheets were filed on 7.1.2008 against four additional
accused and against five accused on 14.1.2008. On 13.11.2008, supplementary
charge-sheet-2 was filed against the appellant in Crl. Appeal No.1971 of
2010-Rakesh Dattaray Dhawade in Parbhani Case and a supplementary charge-
sheet-3 was filed against him in Jalna Case on 15.11.2008. Thereafter, on
20.11.2008, charge-sheet in Malegaon Blast Case was filed by ATS against
the appellants herein under the MCOCA. On 15.01.2009, sanction under
Section 23(2) of MCOCA was also granted.
In the above stated background, Mr. U.R. Lalit, learned senior counsel made
as many as five submissions to contend that MCOCA was not attracted as
against the appellants and, therefore, the orders impugned are liable to be
set aside.
Mr. U.R. Lalit, learned senior counsel prefaced his submissions by stating
that appellants were all proceeded against based on the footing that they
were members of an organization called "Abhinav Bharat" which was
registered in 2007 and that they were now being prosecuted under the
provisions of MCOCA. The learned senior counsel submitted that in order to
prosecute the appellants under the MCOCA, the definition of "continuing
unlawful activity", "organized crime" and "organized crime syndicate" as
defined under Section 2(1)(d),(e) and (f) of MCOCA should be satisfied. The
learned senior counsel while referring to the above definitions submitted
that the prosecuting agency were relying upon the Parbhani case and Jalna
case which occurred in 2003 and 2004 and which were organized by RSS and
Bajrang Dal with which neither Abhinav Bharat nor the appellants were in
anyway connected and, therefore, the definition of "continuing unlawful
activity" or "organized crime" as well as "organized crime syndicate" was
not fully established.
The next submission of Mr. U.R. Lalit, learned senior counsel was that in
order to attract Section 2(1)(d) for an offence to be a 'continuing
unlawful activity' within a period of preceding ten years from the date of
the third occurrence, two prior cases falling under the said Section should
have been filed and taken cognizance of and that the date with reference to
which the preceding ten years is to be counted is the date of third
occurrence. The learned senior counsel, therefore, submitted that the
Malegaon bomb blast occurred on 29.09.2008, the arrest of Rakesh Dattaray
Dhawade was on 02.11.2008, supplementary charge-sheet against him was filed
in Parbhani case on 13.11.2008 and in Jalna case on 15.11.2008 and in
Parbhani, the case was committed to Sessions Court only on 29.4.2009 i.e.
not within the preceding 10 years of the occurrence in Malegaon and,
therefore, the definition of Section 2(1) (d) was not satisfied. Even with
reference to Jalna, the learned senior counsel submitted that the Express
Order of cognizance was taken only on 28.11.2008 i.e. after the occurrence
in Malegaon, namely, 29.09.2008. Therefore, the requirement of preceding
ten years in order to bring the earlier two occurrences in Parbhani and
Jalna within the definition of 2(1)(d) as continuing unlawful activities
was not made out. The learned senior counsel in this context submitted that
the conclusion of the Division Bench that cognizance is always with
reference to the offence and not the offender, is not the correct legal
position. The learned senior counsel after referring to Sections
173(2)(i)(a), 190(1)(b) and 178 of the Code of Criminal Procedure (Cr.P.C.)
submitted that a close reading of the above Sections shows that the
cognizance will be with reference to the offender and not the offence. The
learned senior counsel, therefore, submitted that in the case of Jalna the
Express Order of cognizance was taken on 28.11.2008 after the supplementary
charge-sheet dated 15.11.2008 against Rakesh Dattaray Dhawade, which was
long after the date of occurrence of Malegaon, namely, 29.09.2008, and,
therefore, the requirement of two earlier cases as stipulated under Section
2(1)(d) was not satisfied. The learned senior counsel relied upon the
decisions in Ajit Kumar Palit v. State of West Bengal - AIR 1963 SC 765 and
Dilawar Singh v. Parvinder Singh @ Iqbal Singh & Anr. - 2005 (12) SCC 709
in support of his submissions.
Mr. U.R. Lalit, learned senior counsel then contended that the event of
cognizance being taken as defined under Section 2(1) (d) can only be with
reference to 'competent court' and in the case of Parbhani and Jalna as the
offences were under Sections 302, 307/308 etc., Sessions Court was the
competent court and not the Chief Judicial Magistrate. The learned senior
counsel pointed out that in the case of Parbhani, the committal order was
passed only on 29.04.2009 i.e. long after the Malegaon case occurrence,
namely, 29.09.2008. Therefore, the requirement of two earlier cases which
were taken cognizance of by the competent court cannot be held to have been
satisfied. In support of the said submission, learned senior counsel relied
upon Fakhruddin Ahmad v. State of Uttaranchal and Anr. - (2008) 17 SCC 157.
The learned senior counsel then contended that in order to attract the
provisions of MCOCA, in all the three cases, the same gang must have been
involved. Elaborating his submission, the learned senior counsel contended
that Rakesh Dattaray Dhawade who has been added as A-7 in Malegaon case was
arrested on 02.11.2008 and his arrest was shown in Parbhani and in Jalna on
13.11.2008 and 15.11.2008 as directed by the Additional Police Commissioner
of ATS and even going by the statement of A-7, he procured some materials
and gave them to one principal accused in Parbhani and Jalna, namely, Devle
and going by the said statement, there is no scope to link the appellant
with the cases which related to Parbhani and Jalna and, therefore, the
requirement of involvement of the same gang in all the three cases was not
satisfied. The learned senior counsel submitted that in any event, the
appellants were not concerned with Parbhani and Jalna, that they were not
even aware of A-7's involvement in those two occurrences, as they were not
members of those gangs which were involved in Parbhani and Jalna and,
therefore, the invocation of MCOCA was not made out. The learned senior
counsel further contended that it was all the more reason to hold that
cognizance should be with reference to the offender and not the offence
which has to be mandatorily satisfied.
The learned senior counsel lastly submitted that going by the definition of
'organized crime' under Section 2(1) (e), there must have been a pecuniary
gain accompanied by the act of violence, that the appellant had not taken
any money from anybody and when such pecuniary advantage should have been
present in all the three cases, it cannot be held that the case against the
appellant would come under the definition of 'organized crime'. According
to learned senior counsel, in the case of Parbhani and Jalna, only violence
was the basis and promoting insurgency was not even the case of prosecution
which may have a semblance of application in Malegaon case and certainly
not in Parbhani and Jalna. The learned senior counsel, therefore, contended
that the application of MCOCA as against the appellants was wholly
inappropriate and consequently, the order of the Division Bench and the
subsequent order of the Special Court in declining to grant bail was liable
to be set aside. The learned senior counsel submitted that the appellants
made out a case to show that there were reasonable grounds for believing
that he was not guilty of such offence under MCOCA and as provided under
Section 21(4)(b) of MCOCA and should have been granted bail. The learned
senior counsel further submitted that the appellant in Criminal Appeal
Nos.1969-70 of 2010 as well as in SLP (Crl.) Nos.9370-71 of 2011 has been
in jail for more than six years and he is entitled for grant of bail.
Mr. Triloki Nath Razdan, learned counsel appearing for the appellants in
the appeal arising out of SLP (Crl.) No.9303/2011 while adopting the
arguments of Mr. U.R. Lalit, learned senior counsel for the appellant in
Crl.A.No.1969-70/2010 contended that the Objects and Reasons of MCOCA shows
that the very purport of the enactment was to curb the accumulation of
illegal wealth, that in order to attract the provisions of MCOCA,
involvement in organized crime by an organized crime syndicate in all the
three cases must be satisfied. By referring to the sanction order dated
15.01.2009, learned counsel submitted that when the arrest of Rakesh
Dattaray Dhawade was in the month of November, 2008, the requirement of
Section 2(1) (d) relating to two previous cases of continuing unlawful
activity was not satisfied. In other words, according to learned counsel,
as the requirement of continuing unlawful activity in respect of an
organized crime by the organized crime syndicate was not shown, MCOCA was
not attracted. The learned counsel relied upon in Central Bank of India v.
State of Kerala and others - (2009) 4 SCC 94 and Ranjitsing Brahamjeetsing
Sharma v. State of Maharashtra & Anr. - (2005) 5 SCC 294.
Mr. Patil, learned senior counsel appearing for the appellant in SLP (Crl.)
No.8132/2010 referred to the impugned judgment of the Division Bench, in
particular, paragraph 18 and submitted that the question which was posed
for consideration by the Division Bench was limited to the extent of
examining the issue of taking cognizance of the offences by the Chief
Judicial Magistrate at Parbhani and its counterpart at Jalna. Sofaras the
appellant in the present appeal was concerned, learned senior counsel
submitted that she became a Sanyasin after performing appropriate Hindu
religious rites and prayers on 30.01.2007, that she was residing in an
ashram at Jabalpur, Madhya Pradesh and that she owned a two wheeler LML-
Freedom which she sold out to one Sunil Joshi of Madhya Pradesh way back in
October, 2004 for a sale consideration of Rs.24,000/- and she also signed
the necessary transfer application Forms in October, 2004 itself and that
thereafter she had no control over the said vehicle. The learned senior
counsel submitted that inspite of her disclosing the above facts, the
officials of ATS applied third degree methods upon her and insisted that
the said vehicle was involved in Malegaon blast occurrence and, therefore,
she was also involved in the said occurrence. The learned senior counsel
submitted that she was implicated in the Malegaon case while she is
innocent simply because the vehicle bearing registration No.MH-15-P-4572,
which she owned, was stated to have been involved in the Malegaon blast.
The learned senior counsel then submitted that if the Objects and Reasons
is read for interpreting Section 3, a strict application of the Act should
be made, in which event, in order to invoke the provisions of MCOCA Section
2(1)(d), (e) and (f) should be satisfied. It was contended that for
implicating a person it is to be mandatorily shown that he was involved in
a 'continuing unlawful activity' as a member of crime syndicate or on
behalf of it on two earlier occasions, that the appellant was not involved
in either the Parbhani case or in Jalna case and, therefore, the invocation
of MCOCA against the appellant was not maintainable. The learned senior
counsel also submitted that having regard to the relevant dates with
reference to the committal order in Jalna case, namely, 11.8.2008, the
subsequent charge-sheet against A-7 on 15.11.2008 on which date the case
was registered afresh as RCC No.648/2008 and on 28.11.2008 when committal
order was passed, the sanction order in Malegaon case being 20.11.2008,
there was no scope to hold that there were two earlier cases falling within
the definition of continuing unlawful activity as defined under Section
2(1)(d) of the Act. The learned senior counsel, therefore, contended that
the order of the trial Court dated 31.07.2009 discharging all the accused
was justified and the Division Bench ought not to have interfered with the
said order.
The learned senior counsel also submitted that the Division Bench having
noted that the offence under Section 153A, IPC was not laid after getting
prior sanction as required under Section 196 Cr.P.C. even as against A-7
Rakesh Dattaray Dhawade, there was no valid cognizance taken by the trial
Court in respect of the earlier cases of Parbhani and Jalna. The learned
Senior Counsel, therefore, contended that in the absence of the 'continuing
unlawful activity' as defined under Section 2(1)(d) of an 'organized crime'
by 'organized crime syndicate' shown, application of MCOCA was not
justified. As far as the preceding 10 years as prescribed under Section
2(1)(d) is concerned, learned senior counsel submitted that Section 2(1)(d)
specifically refers to 'activity' for calculating the preceding 10 years
and, therefore, 29.09.2008 would be the relevant date and calculated on
that basis the claim of the prosecution that there were two earlier cases
as stipulated under Section 2 (1)(d) was not satisfied. In support of this
submission, learned senior counsel relied upon the decisions of this Court
reported as Mahipal Singh v. Central Bureau of Investigation & Anr. - 2014
(11) SCC 282, State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr. -
(2007) 4 SCC 171, State of Maharashtra v. Bharat Shanti Lal Shah and Ors. -
2008 (13) SCC 5 and Tolaram Relumal & Anr. v. The State of Bombay - AIR
1954 SC 496.
Mr. Vikas Mehta, learned counsel appearing for the appellant in Criminal
Appeal No.1971/2010, namely, Rakesh Dattaray Dhawade after making reference
to the judgment in Mahipal Singh (supra) contended that prior to the
registration of FIR No.130 of 2008 on 30.09.2008 in the Malegaon blast
case, the appellant was not involved in any 'continuing unlawful activity'.
According to him, if a strict interpretation is to be placed on the
definition of 'continuing unlawful activity' as stated in the said decision
of this Court, the appellant having been not involved in the commission of
any offence prior to registration of FIR No.130/2008 either singly or
jointly as a member of an 'organized crime syndicate, invocation of MCOCA
was not justified. The learned counsel then contended that in order to
invoke MCOCA all the three definitions of Section 2 (1) (d), (e) and (f)
should be satisfied in which event it should be by the same gang in all the
three cases. The learned counsel then contended that since strict
interpretation is to be made as directed by this Court while upholding the
validity of the Act, it should be construed only in that manner. The
learned counsel by relying upon the decisions in Ranjitsing Brahamjeetsing
Sharma (supra), Lalit Somdatta Nagpal (supra) and Mahipal Singh (supra)
contended that the requirement of satisfaction of 'continuing unlawful
activity' of an 'organized crime' by an 'organized crime syndicate' insofar
as it related to the appellant was not made out and the application of the
MCOCA was not justified. Mr. S.S. Shamshery, learned counsel appearing for
the appellant in Criminal Appeal No.58/2011 submitted that he is adopting
the arguments of Mr. U.R. Lalit, learned senior counsel for appellant in
Criminal Appeal No.1969-70 of 2010 and the judgment of the Division Bench
is liable to be set aside.
As against the above submissions made on behalf of the appellants, Mr. Anil
Singh, learned ASG for the respondent State submitted that the Division
Bench after formulating the question in paragraph 18 ascertained the
relevant dates when cognizance was taken in Parbhani case and in Jalna case
by the Committal Court and in both the cases cognizance was taken as early
as on 07.09.2006 in Parbhani and on 30.9.2006 in Jalna which were borne out
by records and, therefore, the Division Bench was justified in setting
aside the order of the Special Court. In support of his submission that
taking a fresh cognizance is not a requirement of law in a case where
cognizance is already taken in respect of the same offence, reliance was
placed upon R.R. Chari v. State of Uttar Pradesh - AIR 1951 SC 207,
Raghubans Dubey v. State of Bihar - AIR 1967 SC 1167, Darshan Singh Ram
Kishan v. State of Maharashtra - AIR 1971 SC 2372, State of West Bengal v.
Salap Service Station & Ors. - 1994 (3) Suppl. SCC 318, CREF Finance
Limited v. Shree Shanthi Homes (P) Ltd. and another - 2005 (7) SCC 467,
State of Karnataka v. Pastor P. Raju - 2006 (6) SCC 728, S.K. Sinha, Chief
Enforcement Officer v. Videocon International Ltd. & Ors. - (2008) 2 SCC
492, Fakhruddin Ahmad (supra) and Sarah Mathew v. Institute of Cardio
Vascular Diseases By its Director Dr. K.M. Cherian & Ors.- (2014) 2 SCC 62.
According to learned ASG, in respect of an offence under MCOCA, for
invoking its provisions, cognizance of the offence taken as provided under
Section 190 Cr.P.C. was sufficient. The learned ASG then submitted that in
order to ascertain a 'continuing unlawful activity' as defined under
Section 2 (1) (d) of the MCOCA what is required is commission of such an
offence as a member of either 'organized crime syndicate' or on behalf of
'organized crime syndicate' would mean any 'organized crime syndicate' and
not the same 'organized crime syndicate'. As far as the contention
relating to two earlier cases in the preceding 10 years, the learned ASG
submitted that in the Malegaon case, the occurrence was on 29.09.2008 and
in the preceding 10 years i.e. on 07.09.2006 cognizance was taken in the
Parbhani case and in Jalna case cognizance was taken on 30.09.2006 and,
therefore, the same was sufficient to hold that the appellants were
involved in a 'continuing unlawful activity' and thereby satisfied the
requirement of 2 (1) (d) (e) and (f) of MCOCA. The learned ASG sought to
distinguish the case in Mahipal Singh (supra). The learned ASG by relying
upon Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors. -
2010 (5) SCC 246 submitted that insurgency is a grave disturbance of public
order and, therefore, the question of pecuniary advantage was not needed
where promotion of insurgency formed the basis for prosecuting the
appellants under MCOCA. On 'other advantage', learned ASG relied upon State
of Maharashtra v. Jagan Gagansingh Nepali @ Jagya -2011 (5) Mh.L.J. 386.
Mr. Mariaarputham, learned senior counsel appearing for the State of
Maharashtra and NIA after referring to the accusations against the accused
submitted that going by the allegations and the gravity of the offence,
they are not entitled for bail. The learned senior counsel also submitted
that apart from offences under the MCOCA, the appellants are also proceeded
under the Unlawful Activities (Prevention) Act, 1967, in particular,
offences under Sections 13, 15, 16, 17, 18, 18B, 20, 23 etc. and the
maximum penalty for offences under Sections 15 to 23 is the death penalty
and that under Section 43D(5) for grant of bail, severe restrictions have
been imposed and, therefore, both because the question raised about the
implications of MCOCA, as well as, having regard to the offences for which
the appellants are proceeded against, they are not entitled for grant of
bail. The learned senior counsel then contended that in order to
constitute an offence as an 'organized crime' under Section 2 (1)(e) of
MCOCA, it is not necessary that for the commission of such aggressive
offences, there should be allegation of pecuniary advantage also.
According to learned senior counsel, insofar as, promotion of insurgency is
concerned, even without any allegation of pecuniary gain, the said act by
itself would constitute an 'organized crime'. The learned senior counsel,
therefore, contended that even in the absence of any allegation of
pecuniary gain, the offence alleged would fall under the category of
'organized crime'. The learned senior counsel further contended that in any
event there were materials to show that the appellant in Criminal Appeal
1969-70/2010 as well as the appellant in Criminal Appeal No.1971/2010 had
pecuniary advantage. The learned senior counsel then contended that
cognizance of the offence was taken by the Magistrate based on the charge-
sheet and when once there was application of judicial mind with a view to
proceed with the matter, the requirement of cognizance was fulfilled.
Insofar as the offences pertaining to Parbhani and Jalna were concerned,
the learned senior counsel contended that they were all IPC offences and,
therefore, taking cognizance of those offences need not be tested on the
anvil of the provisions of MCOCA. The learned senior counsel placed
reliance upon the decisions in Gopal Marwari & Ors. v. Emperor -AIR 1943
Patna 245 which was affirmed by this Court in R.R. Chari (supra). He also
placed reliance upon Darshan Singh Ram Kishan (supra), State of West Bengal
& Anr. v. Mohd. Khalid & Ors.- (1995) 1 SCC 684, CREF Finance Limited
(supra), Pastor P. Raju (supra), Mona Panwar v. High Court of Judicature at
Allahabad Through its Registrar & Ors. - (2011) 3 SCC 496 and Sarah Mathew
(supra).
On the submission relating to competent Court, learned senior counsel
submitted that in Parbhani and Jalna reference needs to be made only to
Sections 190, 200, 201, 202 read with Section 4 Cr.P.C. and when on a
complaint filed by the prosecution, the CJM having taken cognizance, the
same was sufficient for the fulfillment of requirement of the 'continuing
unlawful activity' as defined under Section 2 (1) (d) of the MCOCA.
According to learned senior counsel, for the purpose of taking cognizance
under the above provisions, the presence of the accused was not necessary.
As far as the relevant date is concerned, according to learned senior
counsel, even if the date of occurrence of Malegaon blast, namely,
29.9.2008 is taken as the relevant date, the committal Court having taken
cognizance by receipt of the charge-sheet dated 07.09.2006 in respect of
Parbhani and on 30.09.2006 in the case of Jalna and the committal order was
on 12.02.2007 in Jalna, the cognizance was well before 29.09.2008 and,
therefore, there was nothing lacking for the purpose of invoking the
provisions of MCOCA. The learned senior counsel further contended that as
long as all the three incidents were committed by a group of persons and
one common individual was involved in all the three incidents, that would
attract invocation of MCOCA.
Mr. Tushar Mehta, learned ASG also appearing for NIA submitted that in the
event of granting bail, having regard to the nature of offence alleged to
have been indulged in by the appellants, severe conditions should be
imposed and that the agency is entitled for custodial interrogation and
also the presence of the accused at the time of trial should be ensured.
By way of reply Mr. U.R. Lalit, learned senior counsel submitted that the
prosecution has not shown involvement of 'Abhinav Bharat' in the Parbhani
case or Jalna case in which event if 'Abhinav Bharat' is to be excluded,
the linking of the appellants by making reference to Abhinav Bharat will
also entitle them to contend that MCOCA cannot be invoked. The learned
senior counsel submitted that since MCOCA has been invoked for the purpose
of ascertaining the cognizance of the offence, reference to Section 2(1)(d)
would alone be made and not under Section 190 Cr.P.C. The learned senior
counsel further contended that cognizance by the competent Court in the
facts and the nature of offence alleged in Parbhani and Jalna would only
mean the Sessions Court under Section 209 Cr.P.C. and, therefore, there is
a serious doubt as to the application of MCOCA. The learned senior counsel,
therefore, contended that such doubt should be held in favour of the
appellants under Section 21(4)(b) of MCOCA and the appellants should be
granted bail.
Mr. Patil, learned senior counsel for the appellant in appeal arising out
of SLP(Crl.) No.8132/2010 submitted that when the case of the said
appellant is considered with reference to additional charge-sheet,
appellant being a lady suffering from cancer and her implication was
because of sale of her two wheeler four years before the occurrence,
applying the decision in Salap Service Station (supra), she is entitled for
the grant of bail.
Having noted the submissions of respective counsel, at the outset, we want
to note the specific challenges made in these appeals. As far as the
appellant in Criminal Appeal No.1969-70 of 2010 is concerned, he along with
the other appellants is aggrieved by the common judgment of the Division
Bench of the Bombay High Court in Crl.A. Nos.866, 867, 868, 869 and 1024 of
2009 dated 19.07.2010. By the said judgment, the Division Bench set aside
the order of the Special Judge dated 31.07.2009 in Special Case No.1/2009.
While setting aside the said order of the Special Judge, the Division Bench
directed the Special Judge to consider the bail applications in Bail
Application Nos.40-42 of 2008 and pass orders on merits. In fact, the
Special Judge in his order dated 31.07.2009 took the view that MCOCA was
not applicable to Special Case No.1/2009 and consequently by invoking
Section 11 of MCOCA, directed the case to be tried by the regular Court.
Therefore, when we examine the correctness of the judgment of the Division
Bench dated 19.07.2010 in Crl. A Nos.866/2009 and connected appeals, if the
said judgment is to be upheld, the consequence would be to the
consideration of the bail applications under Section 21 of the MCOCA.
It is relevant to note that after the order of the Division Bench dated
19.7.2010, the Special Judge dealt with the Bail Applications Nos. 40-42 of
2008 and dismissed all the applications. Thereafter, those orders were the
subject matter of challenge in Criminal Bail Application No.333/2011 with
Criminal Application No.464/2011 insofar as the appellant in Criminal
Appeal No.1969-70/2010 is concerned. One other appellant namely, Ajay
Eknath Rahirkar filed Criminal Application No.556/2011 which was allowed by
the Bombay High Court and he was granted bail by imposing certain
conditions. As far as Criminal Application No.333/2011 was concerned, the
said application was rejected and the main Criminal Application No.464/2011
was disposed of by the High Court.
The appellant in Criminal Appeal No.1971 of 2010 was one of the respondents
in Criminal Appeal No.868 of 2009 which was disposed of by the Division
Bench of the Bombay High Court by its order dated 19.07.2010 along with the
connected appeals preferred by the State of Maharashtra through ATS which
is the prosecuting agency in respect of the Special Case No.1 of 2009 on
the file of the Special Judge under MCOCA. The said appellant was also
aggrieved by the order of the Division Bench referred to above in having
set aside the order of the Special Judge dated 31.07.2009. The appellant
in the appeal arising out of SLP (Crl.) No.8132/2010 is also similarly
placed like that of the appellants in Criminal Appeal Nos.1969-70/2010 and
Criminal Appeal No.1971/2010.
Having thus noted the grievances of the appellants in the above referred to
appeals as against the order of the Division Bench dated 19.07.2010 as well
as the subsequent order of the learned Single Judge in having declined to
grant bail by confirming the order of the Special Court in Bail Application
No.42 of 2008, from the above referred to details gathered from the appeal
papers as well as the orders impugned in these appeals the scope for
consideration in these appeals pertains to the questions:-
Whether the common order of the Division Bench dated 19.07.2010 in having
set aside the order of the Special Judge in Special Case No.1 of 2009
discharging the appellants from the said case on the ground that MCOCA was
not applicable to the said case and consequently the case was to be tried
by the Regular Court under Section 11 of MCOCA calls for interference?
If answer to question No. (a) is in the negative, whether for the purpose
of grant of bail under Section 21(4)(b) of MCOCA, can it be held that the
application of the said Act is not made out against the appellants and
consequently the rejection of bail by the trial Court and as confirmed by
the learned Single Judge of the Bombay High Court is justified?
Having thus ascertained the scope involved in these appeals by virtue of
the orders impugned herein, when we consider the submissions of learned
counsel for the appellants, we find that the sum and substance of the
submissions can be summarized as under:
"That the definition of 'continuing unlawful activity', 'organized crime'
or 'organized crime syndicate' as defined under Section 2(1)(d)(e) and (f)
of MCOCA was not cumulatively satisfied in order to proceed with the
Special Case No.1 of 2009 for the alleged commission of offence of
organized crime under Section 3 of MCOCA."
In order to find an answer to the said question a detailed reference to
some of the provisions of MCOCA, its Objects and Reasons and some other
provisions of the Cr.P.C. are required to be noted. The prime provisions
which are relevant under MCOCA are Sections 2(1) (d), (e) & (f), 3, 21 (4)
(b), 23 (1) & (2) of MCOCA. As far as the Cr.P.C. is concerned, reference
will have to be made to Sections 4, 173(2) & (8), 190, 191, 192, 193, 200,
201 and 209. In order to appreciate the said provisions the same are
extracted as under:
"The Maharashtra Control of Organized Crime Act, 1999
Section 2 (1)(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 organized 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) "organized crime" means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organized 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 or collectively, as a syndicate or gang indulge in
activities of organized crime;
3. Punishment for organized crime. - (1) Whoever commits an offence of
organized 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 organized crime or any act
preparatory to organized 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 organized 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.
(4) A person who is a member of an organized 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
organized crime or which has been acquired through the organized 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.
21.(4)(b) Where the Public Prosecutor opposes the application, the Court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence
while on bail.
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 organized 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."
Code of Criminal Procedure, 1973
4. Trial of offences under the Indian Penal Code and other laws.- (1) All
offences under the Indian Penal Code (45 of 1860) shall be investigated,
inquired into, tried, and otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into,
tried, and otherwise dealt with according to the same provisions, but
subject to any enactment for the time being in force regulating the manner
or place of investigating, inquiring into, trying or otherwise dealing with
such offences.
173. Report of police officer on completion of investigation:
Xxx
(i) As soon as it is completed, the officer in charge of the police station
shall forward to a Magistrate empowered to take cognizance of the offence
on a police report, a report in the form prescribed by the State
Government, stating -
the names of the parties;
the nature of the information;
the names of the persons who appear to be acquainted with the circumstances
of the case;
whether any offence appears to have been committed and, if so, by whom;
whether the accused has been arrested;
whether he has been released on his bond and, if so, whether with or
without sureties;
whether he has been forwarded in custody under Section 170;
whether the report of medical examination of the woman has been attached
where investigation relates to an offence under Section 376, 376A, 376B,
376C, Section 376D or Section 376E of the Indian Penal Code (45 of 1860)
(ii) the officer shall also communicate, in such manner as may be
prescribed by the State Government, the action taken by him, to the person,
if any, by whom the information relating to the commission of offence was
first given.
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-section (2)
has been forwarded to the Magistrate and, whereupon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the provisions of sub-
section (2) to (6) shall, as far as may be, apply in relation to such
report or reports as they apply in relation to a report forwarded under sub-
section (2).
190. Cognizance of offences by Magistrates.-(1) Subject to the provisions
of this Chapter, any Magistrate of the first class, and any Magistrate of
the second class specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence,
(b) upon a police report of such facts, and
(c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the
second class to take cognizance under sub-section (1) of such offences as
are within his competence to inquire into or try.
(a) upon receiving a complaint of facts which constitutes such offence:
(b) upon a police report of such facts:
(c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.
191. Transfer on application of the accused.- When a Magistrate takes
cognizance of an offence under clause (c) of sub-section (1) of section
190, the accused shall, before any evidence is taken, be informed that he
is entitled to have the case inquired into or tried by another Magistrate,
and if the accused or any of the accused, if there be more than one,
objects to further proceedings before the Magistrate taking cognizance, the
case shall be transferred to such other Magistrate as may be specified by
the Chief Judicial Magistrate in this behalf.
192. Making over of cases to Magistrates.-(1) Any Chief Judicial Magistrate
may, after taking cognizance of an offence, make over the case for inquiry
or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the
Chief Judicial Magistrate may, after taking cognizance of an offence, make
over the case for inquiry or trial to such other competent Magistrate as
the Chief Judicial Magistrate may, by general or special order, specify,
and thereupon such Magistrate may hold the inquiry or trial.
193. Cognizance of offences by Courts of Session.- Except as otherwise
expressly provided by this Code or by any other law for the time being in
force, no Court of Session shall take cognizance of any offence as a Court
of original jurisdiction unless the case has been committed to it by a
Magistrate under this Code.
200. Examination of complainant.- A Magistrate taking cognizance of an
offence on complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need
not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his
official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under section 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the complainant and
the witnesses, the latter Magistrate need not re-examined them.
201. Procedure by Magistrate not competent to take cognizance of the case.-
(1) If the complaint is made to a Magistrate who is not competent to take
cognizance of the offence, he shall.-
(a) if the complaint is in writing, return it for presentation to the
proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the
proper Court.
209. Commitment of case to Court of Session when offence is triable
exclusively by it.-when in a case instituted on a police report or
otherwise, the accused appears or is brought before the Magistrate and it
appears to the Magistrate that the offence is triable exclusively by the
Court of Session, he shall-
(a) commit, after complying with the provisions of Section 207 or
Section 208, as the case may be, the case to the Court of Sessions, and
subject to the provisions of this Code relating to bail, remand the accused
to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand
the accused to custody, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and
articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the
Court of Session.
In the first instance, it will be profitable to examine the scheme of MCOCA
by making a cursory glance to the Objects and Reasons and thereafter to
make an intensive reading of the above referred to provisions. When we
peruse the Objects and Reasons, it discloses that organized crime has been
posing very serious threat to our society for quite some years and it was
also noted that organized crime syndicates had a common cause with
terrorist gangs. In the Objects and Reasons, the foremost consideration was
the serious threat to the society by those who were indulging in organized
crimes in the recent years apart from organized crime criminals operating
hand in glove with terrorist gangs. It is common knowledge that for the
terrorist gangs, the sole object is to create panic in the minds of peace
loving members of the society and in that process attempt to achieve some
hidden agenda which cannot be easily identified, but certainly will not be
in the general interest or well being of the society. Those who prefer to
act in such clandestine manner and activities will formulate their own mind-
set and ill-will towards others and attempt to achieve their objectives by
indulging in unlawful hazardous criminal activities unmindful of the
serious consequences and in majority of such cases it results in severe
loss of life of innocent people apart from extensive damage to the
properties of public at large. It was further found that the existing
legal framework, that is the penal and procedural laws and the adjudicatory
system, were found to be inadequate to curb or control the menace of
'organized crime'. The Objects and Reasons also states that such 'organized
crimes' were filled by illegal wealth generated by contract killing,
extrusion, smuggling in contraband, illegal trade in narcotics, kidnapping
for ransom, collection of protection money, money laundering etc. Keeping
the above serious repercussions referred to in the Objects and Reasons,
when we examine Section 2(1)(d)(e)&(f), which defines 'continuing unlawful
activity', 'organized crime' or 'organized crime syndicate', we find that
the three definitions are closely interlinked.
The definition of 'continuing unlawful activity' under Section 2(1)(d)
mainly refers to an activity prohibited by law. The said activity should be
a cognizable offence, punishable with imprisonment of three years or more.
The commission of such offence should have been undertaken either by an
individual singly or by joining with others either as a member of an
'organized crime syndicate' or even if as an individual or by joining hands
with others even if not as a member of a 'organized crime syndicate' such
commission of an offence should have been on behalf of such syndicate. It
further states that in order to come within the definition of 'continuing
unlawful activity' there should have been more than one charge-sheet filed
before a competent Court within the preceding period of 10 years and that
the said Court should have taken cognizance of such offence.
Before getting into the nuances of the said definition of 'continuing
unlawful activity', it will be worthwhile to get a broad idea of the
definition of 'organized crime' under Section 2(1)(e) and 'organized crime
syndicate' under Section 2(1)(f). An 'organized crime' should be any
'continuing unlawful activity' either by an individual singly or jointly,
either as a member of an 'organized crime syndicate' or on behalf of such
syndicate. The main ingredient of the said definition is that such
'continuing unlawful activity' should have been indulged in by use of
violence or threat of violence or intimidation or coercion or other
unlawful means. Further such violence and other activity should have been
indulged in with an objective of gaining pecuniary benefits or gaining
undue economic or other advantage for himself or for any other person or
for promoting insurgency. Therefore, an 'organized crime' by nature of
violent action indulged in by an individual singly or jointly either as a
member of an 'organized crime syndicate' or on behalf of such syndicate
should have been either with an object for making pecuniary gains or undue
economic or other advantage or for promoting insurgency. If the object was
for making pecuniary gains it can be either for himself or for any other
person. But we notice for promoting insurgency, there is no such
requirement of any personal interest or the interest of any other person or
body. The mere indulgence in a violent activity etc. either for pecuniary
gain or other advantage or for promoting insurgency as an individual,
either singly or jointly as a member of 'organized crime syndicate' or on
behalf of a such syndicate would be sufficient for bringing the said
activity within the four corners of the definition of 'organized crime'.
An 'organized crime syndicate' is a group of two or more persons who by
acting singly or collectively as a syndicate or gang indulge in activities
of 'organized crime'.
By conspectus reading of the above three definitions, if in the preceding
10 years from the date of third continuing unlawful activity if more than
one charge-sheet has been filed before a competent Court which had taken
cognizance of such offence which would result in imposition of a punishment
of three years or more, undertaken by a person individually or jointly
either as a member of an 'organized crime syndicate' or on its behalf, such
crime if falls within the definition of 'organized crime', the invocation
of MCOCA would be the resultant position.
Keeping the above broad prescription as the outcome of the definition of
Section 2(1)(d)(e)&(f) in mind, when we refer to Section 3, we find that it
is a penal provision under which, the various punishments for the
commission of 'organized crime' have been set out and such punishment can
be up to life imprisonment and even death, apart from fine subject to
minimum of Rupees one lakh to maximum of Rupees five lakhs. The
imprisonment ranges from five years to life imprisonment and can also
result in imposition of death penalty. Section 17 prescribes Special Rules
of evidence notwithstanding anything contrary contained in Cr.P.C. or the
Indian Evidence Act for the purposes of trial and punishment for offences
under MCOCA. Section 18 of the Act is again a non-obstante clause which
states that irrespective of any provision in the Code or in the Indian
Evidence Act, and subject to the provisions of said Section, a confession
made by a person before a police officer not below the rank of
Superintendent of Police and recorded by such police officer either in
writing or in any mechanical devices like cassettes, tapes or sound tracks
from which sounds or images can be reproduced shall be admissible in the
trial of such person or co-accused abettor or conspirator provided they are
charged and tried in the same case together with the accused. Section 20 is
yet another provision under MCOCA which prescribes that where a person is
convicted of any of the offence punishable under MCOCA, the Special Court
may in addition to awarding any punishment, by order in writing declare
that any property, movable or immovable or both, belonging to the accused
and specified in the order shall stand forfeited to the State Government
free from all encumbrances etc. Under Section 21, which again is a non-
obstante clause, the provisions of the Act notwithstanding anything
contained in the Code or any other law shall be deemed to be a cognizable
offence within the meaning of clause (c) of Section 2 of the Code and
"cognizable case" as defined in that clause should be constructed
accordingly.
Under Section 21(4) notwithstanding anything contained in the Code, no
person accused of an offence punishable under MCOCA, when he is in custody,
should be released on bail on his own bond unless under sub-clause (b) of
sub-section (4) even when the Public Prosecutor opposes the application for
bail, the Court is satisfied that there are reasonable grounds for
believing that the said accused is not guilty of such offence and that he
is not likely to commit any offence while on bail.
Under Section 22 there is a rebuttable presumption of commission of
organized crime punishable under Section 3 unless the contrary is proved.
Under Section 23 a safeguard is provided to the effect that under Section
23(1)(a) no information about the commission of an offence of organized
crime under MCOCA should be recorded by a police officer without the prior
approval of a police officer not below the rank of Deputy Inspector General
of Police. Further under Section 23(1)(b) no investigation of an offence
under MCOCA shall be carried out by a police officer below the rank of
Deputy Superintendent of Police. Under sub-Section (2) of Section 23, no
Special Court should take cognizance of any offence under MCOCA without the
previous sanction of the police officer not below the rank of Additional
Director General of Police.
Reference to the above provisions thus discloses that the Act is very
stringent in its operation when it comes to the question of dealing with an
'organized crime' committed by an 'organized crime syndicate' in respect of
a 'continuing unlawful activity'. With the above salient features of the
provisions of MCOCA in mind, when we consider the various submissions of
the learned counsel, the main submissions of the learned counsel for the
appellants were five-fold.
The first submission was that the present appellants were all alleged to
have been involved in a bomb blast which occurred on 29.09.2008 at a place
called 'Malegaon'. According to the prosecuting agency, the appellants were
either member of an organization called 'Abhinav Bharat' which was
registered in the year 2007 or the commission of the offence was jointly
with the members of the said organization for and on its behalf. The
contention in the foremost was that in order to rope in the appellants on
the above footing, the requirement of Section 2(1)(d), namely, 'continuing
unlawful activity' must have been satisfied. In order to demonstrate such
compliance, it was contended on behalf of the prosecuting agency that there
were two earlier occurrences of bomb blasts one in Parbhani on 21.11.2003
and another at Jalna on 27.08.2004, that on those two earlier occurrences A-
7, namely, Rakesh Dattaray Dhawade was involved who is also a member of the
present gang and consequently the definition of 'continuing unlawful
activity' is satisfied.
The learned counsel for the appellants on the other hand contended that A-7
was not a member of the so-called 'Abhinav Bharat', that 'Abhinav Bharat'
as an organization was not indisputably involved in the two earlier
occurrences in the year 2003 and 2004, therefore, when such clear
demarcation existed as between the appellants, the so-called members of
Abhinav Bharat and the earlier occurrences of 2003 and 2004, as well as,
the exclusion of A-7 as member of 'Abhinav Bharat' there was no scope to
invoke MCOCA.
We are, in the first instance, concerned with the appellant's challenge to
the order of the Division Bench dated 19.07.2010 wherein the sole question
considered pertains to the application of MCOCA based on the definition of
'continuing unlawful activity' under Section 2(1)(d) for the purpose of
grant of bail under Section 21(4)(b) of MCOCA. To recapitulate the
background of this litigation, it was the order of discharge passed by the
Special Judge in Special Case No.1 of 2009 dated 31.07.2009 on the footing
that cognizance of two earlier cases within preceding 10 years from the
date of third occurrence dated 29.09.2008 was not satisfied and based on
the said conclusion the Special Judge passed the order of discharge and
also simultaneously passed an order under Section 11 for the transfer of
the Special Case No.1 of 2009 to the Regular Court which went before the
Division Bench at the instance of the State and the prosecuting agency.
The Division Bench while dealing with the said conclusion of the Special
Court took a contrary view holding that the Special Judge misdirected
himself by stating that the cognizance was with reference to the offender
and not the offence which led to the passing of such an illegal order dated
31.07.2009. The Division Bench took the view that going by the provisions
contained in Section 2(1)(d) read along with Sections 190 and 173(3) of the
Cr.P.C., as well as the settled principles in the various decisions of this
Court, the cognizance of offence was taken as early as on 07.09.2006 in the
Parbhani case and 30.09.2006 in the Jalna case, which were within the
preceding 10 years from the date of the occurrence of Malegaon case,
namely, 29.09.2008 and therefore, the order of discharge passed by the
Special Judge was not sustainable and valid in law.
Having recapitulated the background to the above extent when we examine the
contentions raised, it must be stated that the conclusion of the Division
Bench as regards the cognizance aspect cannot be held to be totally
erroneous when it struck down the order of the Special Judge dated
31.07.2009. Keeping aside for the present the various other submissions and
considering the opening submission of the counsel while assailing the order
of Division Bench wherein we confine to the question relating to taking
cognizance of the offence as set out apparently in Section 2(1)(d) of
MCOCA. In that perception, on the opening submission of the learned counsel
for the appellants we too have no hesitation to hold that the cognizance of
the offence as stated to have been rightly taken into account in respect of
Parbhani and Jalna based on the charge-sheets dated 07.09.2006 and
30.09.2006 respectively was perfectly in order to apply the definition of
'continuing unlawful activity' for the purpose of invoking MCOCA with
reference to Malegaon occurrence. We, however, wish to examine in detail
the justification for our above conclusion when we deal with the other
contentions where submissions were made in extenso with particular
reference to the involvement of A-7 in the alleged occurrences of Parbhani
and Jalna, more particularly with reference to the date of supplementary
charge-sheet, arrest made and the arrest made with reference to Malegaon
occurrence and the alleged nexus as between the appellants and A-7 in order
to find out whether application of MCOCA could still be held to be validly
made by the prosecuting agency. For the present by reaching our conclusion
as above on the first submission, we proceed to deal with the next
submission of learned counsel for the appellants.
The submission of the learned counsel for the appellants was that under
Section 2(1)(d), in order to construe a 'continuing unlawful activity' two
earlier charge-sheets in the preceding 10 years should exist and that such
charge-sheets should have been taken cognizance by the competent court
within the said period of 10 years and it must have been accomplished. It
was also contended that for ascertaining the said position, the date of the
third occurrence should be the relevant date for counting the preceding 10
years. Insofar as that claim is concerned, it can be straight away accepted
that since Section 2(1)(d) uses the expression 'an activity' in the very
opening set of expressions, which is prohibited by law, the date of such
activity, namely, the third one can be taken as the relevant date for the
purpose of finding out the two earlier charge-sheets in the preceding 10
years, in which event in the present case, the preceding 10 years will have
to be counted from 29.09.2008 which was the date when the third occurrence
of Malegaon bomb blast took place.
With reference to Malegaon bomb blast, A-7 is the key person to be noted as
it was with reference to his involvement in the earlier two bomb blast
cases, namely, Parbhani and Jalna the whole case of the prosecution for
invoking MCOCA was developed. Even while examining the various other
submissions, we want to once again reiterate that our present endeavour is
for examining the correctness of the order of the Division Bench which
stems from the first order of the Special Judge dated 31.07.2009 by which
the appellants were discharged and the consequential order under Section 11
transferring the case to the Regular Court. It must also be stated that our
endeavour in this respect is also for the purpose of finding an answer to
the prescription contained in Section 21(4)(b) of MCOCA.
Therefore, what all to be examined is whether cognizance of the earlier two
offences as mentioned in the definition of Section 2(1)(d) was duly taken
within the preceding period of 10 years. Having stated in uncontroverted
terms that 29.09.2008 is the relevant date, namely the date of third
occurrence (i.e.) Malegaon bomb blast, when we go back, the question is
whether in respect of the bomb blast in Parbhani on 21.11.2003 and similar
bomb blast in Jalna on 27.08.2004 the charge-sheets were filed and
cognizance was taken by the competent court within the said period of
preceding 10 years. There is no controversy as to the date of occurrence of
the above two bomb blasts. There is also no dispute that the very first
charge-sheet in Parbhani as against A-1 was filed on 07.09.2006 before the
Chief Judicial Magistrate. Similarly, the filing of the first charge-sheet
on 30.09.2006 in Jalna case is also not in dispute. The contention put
forward is that the supplementary charge-sheet in respect of A-7 in
Parbhani case was filed only on 13.11.2008 and on 15.11.2008 in Jalna case
and if those two dates with regard to A-7 are taken as the relevant dates,
then the requirement of two earlier cases as stipulated under Section
2(1)(d) preceding 10 years period was not satisfied, inasmuch as, the date
of third occurrence was 29.09.2008 and the date of charge-sheets as against
the A-7 were subsequent to that date and not earlier. The said crucial
factor is required to be determined to decide the contention raised on
behalf of the appellants. In this context reliance was placed upon the
decisions in Ajit Kumar Palit (supra) and Dilawar Singh (supra) on behalf
of the appellants. That apart, reference was also made to Section
173(2)(i)(a) and 173(8) to contend that cognizance referred to in context
of MCOCA would only relate to the offender and not to the offence as
prescribed under Section 190(1)(b).
As against the above submissions Mr. Anil Singh, learned ASG appearing for
respondent-State and Mr. Mariarputham, learned Senior Counsel appearing for
the State of Maharashtra and NIA contended that the relevant dates are the
first charge-sheet filed in Parbhani case on 07.09.2006 and in Jalna case
on 30.09.2006. Reliance was placed upon the decisions in R.R. Chari
(supra), Raghbans Dubey (supra), Darshan Singh Ram Kishan (supra), Salap
Service Station (supra), CREF Finance Limited (supra), Pastor P. Raju
(supra), Videocon International Ltd. (supra) and Fakhruddin Ahmad (supra)
in support of the submission. Reliance was also placed upon Section 190
Cr.P.C. to contend that cognizance of offence is relevant and not the
offender and, therefore, the initial date of cognizance taken by the Chief
Judicial Magistrate on the above dates in respect of Parbhani and Jalna
will hold good for invoking MCOCA.
It was also contended that cognizance is an act which a Court when first
apply its judicial mind with a view to proceed with the matter and,
therefore, when in Parbhani and Jalna by virtue of Section 190 read along
with Section 173 based on the report of the police when the first charge-
sheet was filed on 07.09.2006 and 30.09.2006 respectively in Parbhani and
Jalna, the requirement of taking cognizance by the Competent Court in
respect of offences under the Indian Penal Code which alone was relevant in
respect of the two earlier cases was satisfied and nothing more was
required to be shown. Further reliance was placed upon R.R. Chari (supra),
Darshan Singh Ram Kishan (supra), Mohd. Khalid (supra), Mona Panwar (supra)
and Sarah Mathew (supra) in support of the above submissions.
Keeping the respective submissions of the learned counsel in mind when we
examine the said issue, in the first instance we wish to refer to relevant
provisions touching upon this issue, namely, Section 2(1)(d) of MCOCA and
Section 173(2) and (8) as well as Sections 190 and 193 of Criminal
Procedure Code. When we refer to Section 2(1)(d) of MCOCA the definition of
'continuing unlawful activity' is defined to mean an activity prohibited by
law and that it should be a cognizable offence punishable with imprisonment
of three years or more. For the purpose of ascertaining the issue relating
to cognizance, the other part of the said definition which requires to be
noted is that more than one charge-sheet should have been filed before a
Competent Court within the preceding period of 10 years and that Court
should have taken cognizance of such offence. The offence should alleged to
have been committed either singly or jointly as a member of an organized
crime syndicate or on its behalf. In so far as the offences are concerned,
if the offence would attract a punishment of three years or more that would
suffice for falling within the said definition. The charge-sheet should
have been filed before a Competent Court with reference to such offence
against the offenders.
One of the contentions raised and which was countered by the respondents
was that such two earlier offences should also satisfy the other
requirements stipulated under MCOCA, namely, as a member of an organized
crime syndicate or on behalf of an organized crime syndicate either singly
or jointly. A strict interpretation of Section 2(1)(d) would definitely
mean the fulfillment of such requirement since the definition specifically
reads to the effect 'undertaken either singly or jointly as a member of an
organized crime syndicate or on behalf of such syndicate'. Therefore, even
if the earlier offences were not initiated under the provisions of MCOCA
such initiations should have been capable of being brought within the
provisions of MCOCA, namely, as part of an activity of an organized crime
syndicate either by its own members either singly or jointly or though not
as a member but such participation should have been on behalf of an
'organized crime syndicate'. As far as filing of the charge-sheet is
concerned what all it refers to is such filing before a Competent Court and
that Court should have taken cognizance of such offence.
A minute reference to the said Section, therefore, shows that in the event
of the fulfillment of the rest of the requirements, namely, the nature of
offence providing for punishment of three years and more, the involvement
of the offender as required under the said definition, when it comes to the
question of filing of the charge-sheet, the requirement of such filing
should be before a competent court within a period preceding 10 years and
that such court has taken cognizance of such offence. Significantly, when
it comes to the question of fulfillment of the requirement of cognizance
what is prescribed is the cognizance of such offence and not the offender.
As far as the court is concerned, here again the specific reference used is
'competent court' and not 'Sessions Court'. Therefore, keeping aside the
rest of the requirements to be fulfilled under Section 2(1)(d) for the
present, when we consider the requirement of filing of the charge-sheet
before the Competent Court and such Court taking cognizance of such
offence, it can be stated without any scope of controversy that two earlier
cases which would attract a punishment of more than three years and
prohibited by law, undertaken singly or jointly as a member of an organized
crime syndicate or on its behalf, if more than one charge-sheet is filed in
respect of such offence before the Competent Court and the said Court had
taken cognizance of such offence, the definition of "continuing unlawful
activity" would be satisfied.
Keeping the said prescription of the definition of "continuing unlawful
activity" under Section 2(1)(d) in mind when we examine the question as to
taking of cognizance and the Competent Court before whom more than one
charge-sheet to be filed, there is no other provision under MCOCA which
deals with or prescribes any stipulation for fulfillment of the said
requirement. We have to, therefore, necessarily fall back upon the
provisions contained in the Criminal Procedure Code. For that purpose
reference to Sections 173, 190 and 193 have to be noted. Under Section
173(2)(i), it is stipulated that as soon as the investigation is completed,
the officer in-charge of the Police Station should forward to the
Magistrate who is empowered to take cognizance of the offence on a police
report in the form prescribed by the State Government, which should contain
among other things the names of the parties, the nature of information, the
names of the persons who appear to be acquainted with the circumstances of
the case and various other details.
When we read the said Section 173(2)(i) along with Section 190 of Cr.P.C.,
it can be seen that any Magistrate of the first class or any Magistrate of
the second class specially empowered as provided under sub-section (2) of
the said Section may take cognizance of any offence upon a police report of
such facts. Therefore, reading Section 173(2)(i) along with Section
190(1)(b), a duty is cast upon the officer in-charge of the police station
mandatorily to forward to the Magistrate who is empowered to take
cognizance of the offence on a police report. Under Section 190(1)(b) any
Magistrate of the first class and for that matter any Magistrate of second
class who is empowered by the Chief Judicial Magistrate for taking
cognizance under sub-Section (1) can take cognizance of any offence based
on filing of a police report furnished with the facts as stipulated under
Section 173(2)(i) (a to h). A conjoint reading of Section 173(2)(i) and
Section 190(1)(b), therefore, makes the position crystal clear that taking
of cognizance of any offence by a Magistrate of the First Class or the
Second Class subject to empowerment created under sub-Section (2) of
Section 190 can take cognizance upon a police report. It can be emphasized
here that under Section 190 (1) (b) where the Police Report as stated in
Section 173(2) (i) is filed before a Magistrate under Section 190(1) (b),
irrespective of the nature of offence, the said Magistrate has been
invested with all the powers to take cognizance by applying his judicial
mind. To be more precise, once the Police Report is filed before a
judicial Magistrate as prescribed under Section 190(1) (b), who has been
invested with the judicial authority to take cognizance of any offence in
the first instance, the requirement of taking cognizance gets fulfilled at
that very moment. Further the very fact that proceedings pertaining to
Parbhani and Jalna were pending before the Magistrate where such
proceedings were initiated by the filing of the police report till the
occurrence in Malegaon took place itself was sufficient to demonstrate that
judicial mind was very much applied to the proceedings based on the police
report consequent upon cognizance taken.
Keeping the said prescription of law in mind, when we apply the requirement
as stipulated under Section 2(1)(d) of MCOCA, without straining any further
on this question, it can be safely held that the requirement of filing of
the charge-sheet in two earlier cases before the competent court in respect
of an offence stipulated under Section 2(1)(d) can be held to be satisfied
once cognizance is taken by a Judicial Magistrate of first class or for
that matter an empowered second class Magistrate, in the event of filing of
a police report as prescribed under Section 173(2)(i) by virtue of the
power vested under Section 190(1)(b) of Cr.P.C. If the ingredients of the
above requirements are fulfilled it will have to be held, that that part of
the requirement under Section 2(1)(d), namely, the competent court taking
cognizance of the offence as stipulated under Section 2(1)(d) in respect of
two earlier cases will get fulfilled.
Once we steer clear of the said legal position, to emphasize further, we
also wish to refer to Section 193 Cr.P.C. the caption of which specifically
states "Cognizance of offences by Courts of Session". The said Section is
negatively couched and states that except as otherwise expressly provided
by this Code or by any other law for the time being in force, no Court of
Session shall take cognizance of any offence as a Court of Original
Jurisdiction unless the case has been committed to it by a Magistrate under
this Code. For our purpose of ascertaining the requirement of competent
court and cognizance stipulated under Section 2(1)(d) of MCOCA, we find
that under Section 193, the Court of Session can take hold of the case as a
Court of Original Jurisdiction only after committal order is passed to it
by a Magistrate under the provisions of Cr.P.C., whereas under Section
190(1)(b), the power of a Magistrate has been pithily stated to mean that
he can take cognizance of any offence subject to the fulfillment of the
requirements (a), (b) and (c) and no further.
We are now pitted with the question as to whether the taking of cognizance
of the offence by the Competent Court under Section 2(1)(d) of MCOCA is
referable only to the Court of Sessions or even to a Magistrate of first
class under Section 190. In this context, when we read Section 2(1)(d)
along with 190 and 193 in the absence of any specific stipulation either
under Section 2(1)(d) of MCOCA or any other provision under the said Act in
the ordinary course of interpretation it can be validly stated that on
fulfillment of Section 190, when a Judicial Magistrate of first class or an
empowered second class Magistrate, takes cognizance of any offence that
would fulfill the requirement of Section 2(1)(d) relating to competent
court. We have noted under MCOCA that beyond what has been stipulated under
Section 2(1)(d) there is no other provision dealing with the matter
relating to a Competent Court for the purpose of taking cognizance. When
under the provisions of Cr.P.C., Judicial Magistrate of first class has
been empowered to take cognizance of any offence based on a Police Report,
we fail to see any hurdle to state that on taking cognizance in that
manner, the said court should be held to be the competent court for
satisfying the requirement of Section 2(1)(d) of MCOCA. In this respect, we
will have to bear in mind that the implication of MCOCA would come into
play only after the third occurrence takes place and only after that it
will have to be seen whether on the earlier two such occasions involvement
of someone jointly or singly, either as a member of an 'organized crime
syndicate' or on its behalf indulged in a crime in respect of which a
charge-sheet has already been filed before the Competent Court which Court
had taken cognizance of such offence.
Therefore, we are able to state the legal position without any ambiguity to
the effect that in the event of a Judicial first class Magistrate or an
empowered second class Magistrate having taken cognizance of an offence
based on a police report as stipulated under Section 173(2)(i), such
cognizance of an offence would fulfill the requirement of that part of the
definition under Section 2(1)(d) of MCOCA. Once we are able to ascertain
the said legal position by way of strict interpretation, without any
ambiguity, we also wish to refer to various decisions relied upon by either
party to note whether there is any scope of contradiction with reference to
said legal position.
Mr. Lalit, learned counsel in the course of his submissions relied upon
Ajit Kumar Palit v. State of West Bengal and another - AIR 1963 SC 765. In
the said decision with reference to the expression 'cognizance' a three-
Judge Bench of this Court has explained what is really meant by the said
expression in the following words in paragraph 19:
"......The word "cognizance" has no esoteric or mystic significance in
criminal law or procedure. It merely means-become aware of and when used
with reference to a court or Judge, to take notice of judicially. It was
stated in Gopal Marwari v. Emperor, AIR 1943 PAT 245 (SB) by the learned
Judges of the Patna High Court in a passage quoted with approval by this
Court in R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312 at page 320:
(AIR 1951 SC 207 at page 210) that the word "cognizance" was used in the
Code to indicate the point when the Magistrate or Judge takes judicial
notice of an offence and that it was a word of indefinite import, and is
not perhaps always used in exactly the same sense. As observed in Emperor
v. Sourindra Mohan Chuekorbutty, ILR 37 CAL 412 at page 416, "taking
cognizance does not involve any formal action; or indeed action of any
kind, but occurs as soon as a Magistrate, as such, applies his mind to the
suspected commission of an offence". Where the statute proscribes the
materials on which alone the judicial mind shall operate before any step is
taken, obviously the statutory requirement must be fulfilled......"
(Emphasis added)
In the above extracted portion the reference made to the earlier judgment
in R.R. Chari's case reported in R.R. Chari (supra) at page 210 that the
word 'cognizance' was used in the Court to indicate the point when the
Magistrate or Judge takes judicial notice of an offence throws sufficient
light to state that at that very moment when a Magistrate takes judicial
notice of an offence, the requirement of cognizance of such offence will
get fulfilled. Therefore, the said decision also fully supports our
conclusion on the question of taking cognizance by the competent Court.
Reliance was then placed upon the decision in Dilawar Singh (supra) in
particular paragraph 8. The said paragraph 8 reads as under:
"8. The contention raised by learned counsel for the respondent that a
court takes cognizance of an offence and not of an offender holds good when
a Magistrate takes cognizance of an offence under Section 190 CrPC. The
observations made by this Court in Raghubans Dubey v. State of Bihar were
also made in that context. The Prevention of Corruption Act is a special
statute and as the preamble shows, this Act has been enacted to consolidate
and amend the law relating to the prevention of corruption and for matters
connected therewith. Here, the principle expressed in the maxim generalia
specialibus non derogant would apply which means that if a special
provision has been made on a certain matter, that matter is excluded from
the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P., State
of Bihar v. Dr. Yogendra Singh and Maharashtra State Board of Secondary and
Higher Secondary Education v. Paritosh Bhupeshkumar Sheth.) Therefore, the
provisions of Section 19 of the Act will have an overriding effect over the
general provisions contained in Section 190 or 319 CrPC. A Special Judge
while trying an offence under the Prevention of Corruption Act, 1988,
cannot summon another person and proceed against him in the purported
exercise of power under Section 319 CrPC if no sanction has been granted by
the appropriate authority for prosecution of such a person as the existence
of a sanction is sine qua non for taking cognizance of the offence qua that
person."
(Emphasis added)
By relying upon the said part of the decision it was contended that taking
'cognizance of an offence' cannot be the universal rule and that under
special circumstances such cognizance of offence would be qua that person,
namely, the offender. It is true that in the said decision while dealing
with the requirement of sanction under Section 19 of the Prevention of
Corruption Act with reference to an offence under Section 13(2) of the said
Act, this Court did say that in the absence of a sanction under Section 19
the taking of cognizance of the offence qua that person cannot be held to
have been made out. When we apply the said decision, it must be stated that
it was laid in the context of an offence under Section 13(2) of the
Prevention of Corruption Act which Act specifically stipulates the
requirement of prior sanction under Section 19 for proceeding against a
public servant by way of a sanction and, therefore, it was held that
Section 19 of the Act will have an overriding effect over the general
provisions contained in Section 190 or 319 of Cr.P.C. For the fulfillment
of the requirement to be complied with under Section 2(1)(d) of MCOCA, for
ascertaining a 'continuing unlawful activity' in the absence of any such
restriction as stipulated under Section 19 of the Prevention of Corruption
Act under the provisions of MCOCA we have found that Section 190 will have
every effect insofar as taking of cognizance by a competent Court is
concerned as stipulated under Section 2(1)(d) and, therefore, as held by us
on compliance of the said requirement under Section 190, namely, cognizance
of the offence by the competent Magistrate, that part of the requirement
under Section 2(1)(d) will get automatically fulfilled.
Reliance was then placed upon the decision in Fakhruddin Ahmad (supra), in
particular paragraph 17. The said paragraph 17 reads as under:
"17. Nevertheless, it is well settled that before a Magistrate can be said
to have taken cognizance of an offence, it is imperative that he must have
taken notice of the accusations and applied his mind to the allegations
made in the complaint or in the police report or the information received
from a source other than a police report, as the case may be, and the
material filed therewith. It needs little emphasis that it is only when the
Magistrate applies his mind and is satisfied that the allegations, if
proved, would constitute an offence and decides to initiate proceedings
against the alleged offender, that it can be positively stated that he has
taken cognizance of the offence. Cognizance is in regard to the offence and
not the offender."
(emphasis added)
Even here this Court has stated in uncontroverted terms that once the
Magistrate applies his mind to the offence alleged and decides to initiate
proceedings against the alleged offender, it can be stated that he has
taken cognizance of the offence and by way of reiteration. It is further
stated that cognizance is in regard to the offence and not the offender.
This decision, therefore, reinforces the position that cognizance is mainly
of the offence and not the offender.
In R.R. Chari (supra), in paragraph 8, this Court made it clear that the
word 'cognizance' is used by the Court to indicate the point when the
Magistrate or a Judge first takes judicial notice of an offence. Therefore,
primarily cognizance of an offence takes place when a Judicial Magistrate
applies his mind and takes judicial notice of the offence. In fact that is
what has been even statutorily stipulated under Section 190(1) of Cr.P.C.
In Darshan Singh Ram Kishan (supra), in paragraph 8, with particular
reference to Section 190, this Court has held as under:
"8. As provided by Section 190 of the Code of Criminal Procedure, a
Magistrate may take cognizance of an offence either, (a) upon receiving a
complaint, or (b) upon a police report, or (c) upon information received
from a person other than a police officer or even upon his own information
or suspicion that such an offence has been committed. As has often been
held, taking cognizance does not involve any formal action or indeed action
of any kind but occurs as soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance, therefore, takes place at a
point when a Magistrate first takes judicial notice of an offence. This is
the position whether the Magistrate takes cognizance of an offence on a
complaint, or on a police report, or upon information of a person other
than a police officer. Therefore, when a Magistrate takes cognizance of an
offence upon a police report, prima facie he does so of the offence or
offences disclosed in such report."
(emphasis added)
The above passage referred to in the said decision makes the position
explicitly clear that cognizance would take place at a point when a
Magistrate first takes judicial notice of the offence either on a complaint
or on a police report or upon information of a person other than the police
officer. Taking judicial notice is nothing but pursuing the report of the
police officer, proceeding further on that report by opening the file and
thereafter taking further steps to ensure the presence of the accused and
all other consequential steps including at a later stage depending upon the
nature of offence alleged to pass necessary order of committal to Court of
Sessions.
In Salap Service Station (supra), the question as to what is the
implication of a supplementary report filed by the investigating agency
under Section 173(8) Cr.P.C. was considered. While dealing with the same,
it has been stated as under in paragraph 2:
2.....It may be mentioned here that in the supplementary charge-sheet
allegations are to the effect that there was violation of Direction 12 of
the Control Order. The question of taking cognizance does not arise at this
stage since cognizance has already been taken on the basis of the main
charge-sheet. What all Section 173(8) lays down is that the investigating
agency can carry on further investigation in respect of the offence after a
report under sub-section (2) has been filed. The further investigation may
also disclose some fresh offences but connected with the transaction which
is the subject-matter of the earlier report..............The purpose of sub-
section (8) of Section 173 CrPC is to enable the investigating agency to
gather further evidence and that cannot be frustrated. If the materials
incorporated in the supplementary charge-sheet do not make out any offence,
the question of framing any other charge on the basis of that may not arise
but in case the court frames a charge it is open to the accused persons to
seek discharge in respect of that offence also as they have done already in
respect of the offence disclosed in the main charge-sheet. The rejection of
the report outright at that stage in our view is not correct."
(emphasis added)
The above statement of law with particular reference to Section 173(8)
Cr.P.C. makes the position much more clear to the effect that the filing of
the supplementary charge-sheet does not and will not amount to taking
cognizance by the Court afresh against whomsoever again with reference to
the very same offence. What all it states is that by virtue of the
supplementary charge-sheet further offence may also be alleged and charge
to that effect may be filed. In fact, going by Section 173(8) it can be
stated like in our case by way of supplementary charge-sheet some more
accused may also be added to the offence with reference to which cognizance
is already taken by the Judicial Magistrate. While cognizance is already
taken of the main offence against the accused already arrayed, the
supplementary charge-sheet may provide scope for taking cognizance of
additional charges or against more accused with reference to the offence
already taken cognizance of and the only scope would be for the added
offender to seek for discharge after the filing of the supplementary charge-
sheet against the said offender.
In CREF Finance Limited (supra) paragraph 10 is relevant wherein this Court
has held as under:
10......Cognizance is taken of the offence and not of the offender and,
therefore, once the court on perusal of the complaint is satisfied that the
complaint discloses the commission of an offence and there is no reason to
reject the complaint at that stage, and proceeds further in the matter, it
must be held to have taken cognizance of the offence. One should not
confuse taking of cognizance with issuance of process. Cognizance is taken
at the initial stage when the Magistrate peruses the complaint with a view
to ascertain whether the commission of any offence is disclosed......"
(emphasis added)
The said statement of law reinforces the legal position that cognizance is
always of the offence and not the offender and once the Magistrate applies
his judicial mind with reference to the commission of an offence the
cognizance is taken at that very moment.
To the very same effect is the judgment in Pastor P. Raju (supra).
Paragraph 13 is relevant for our purpose, which reads as under:
"13. It is necessary to mention here that taking cognizance of an offence
is not the same thing as issuance of process. Cognizance is taken at the
initial stage when the Magistrate applies his judicial mind to the facts
mentioned in a complaint or to a police report or upon information received
from any other person that an offence has been committed. The issuance of
process is at a subsequent stage when after considering the material placed
before it the court decides to proceed against the offenders against whom a
prima facie case is made out."
(emphasis added)
The above principle has been reiterated again in Videocon International
Ltd. (supra) in paragraph 19. Paragraph 19 can be usefully extracted, which
reads as under:
"19. The expression "cognizance" has not been defined in the Code. But the
word (cognizance) is of indefinite import. It has no esoteric or mystic
significance in criminal law. It merely means "become aware of" and when
used with reference to a court or a Judge, it connotes "to take notice of
judicially". It indicates the point when a court or a Magistrate takes
judicial notice of an offence with a view to initiating proceedings in
respect of such offence said to have been committed by someone."
(emphasis added)
In Mona Panwar (supra) at paragraph 19 what is meant by 'taking cognizance'
has been explained as under:
"19. The phrase "taking cognizance of" means cognizance of an offence and
not of the offender. Taking cognizance does not involve any formal action
or indeed action of any kind but occurs as soon as a Magistrate applies his
mind to the suspected commission of an offence. Cognizance, therefore,
takes place at a point when a Magistrate first takes judicial notice of an
offence. This is the position whether the Magistrate takes cognizance of an
offence on a complaint or on a police report or upon information of a
person other than a police officer. Before the Magistrate can be said to
have taken cognizance of an offence under Section 190(1)(b) of the Code, he
must have not only applied his mind to the contents of the complaint
presented before him, but must have done so for the purpose of proceeding
under Section 200 and the provisions following that section. However, when
the Magistrate had applied his mind only for ordering an investigation
under Section 156(3) of the Code or issued a warrant for the purposes of
investigation, he cannot be said to have taken cognizance of an offence."
(emphasis added)
The above statement of law makes the position amply clear that cognizance
is of an offence and not of the offender, that it does not involve any
formal action and as soon as the Magistrate applies his judicial mind to
the suspected commission of offence, cognizance takes place.
Again in a recent decision of this Court in Sarah Mathew (supra) in
paragraph 34, the position has been reiterated as under:
"34. Thus, a Magistrate takes cognizance when he applies his mind or takes
judicial notice of an offence with a view to initiating proceedings in
respect of offence which is said to have been committed. This is the
special connotation acquired by the term "cognizance" and it has to be
given the same meaning wherever it appears in Chapter XXXVI. It bears
repetition to state that taking cognizance is entirely an act of the
Magistrate. Taking cognizance may be delayed because of several reasons. It
may be delayed because of systemic reasons. It may be delayed because of
the Magistrate's personal reasons."
Therefore, having regard to the overwhelming decisions of this Court in
having repeatedly expressed what is meant by cognizance and in majority of
the decisions by making specific reference to Section 190, we are clear
that the interpretation has to be to the cognizance of the offence to be
taken note of by the Judicial Magistrate as prescribed under Section 190
and if it takes place that would satisfy and fulfill the requirement of
cognizance of offence by the filing of more than one charge-sheet before
the Competent Court as stipulated in Section 2(1)(d) of MCOCA.
Having considered the scope of the definition of "continuing unlawful
activity" as defined under Section 2(1)(d) with reference to the competent
court and the cognizance of more than one earlier case, when we apply the
said principles to the facts of this case, as noted in the initial part of
this judgment, the two earlier cases were the bomb blast in Parbhani and
Jalna. In Parbhani, the occurrence was on 21.11.2003 and in Jalna it was on
27.08.2004. In the Parbhani case, the first charge-sheet was filed as early
as on 07.09.2006 before the Chief Judicial Magistrate and in Jalna it was
filed on 30.09.2006 before the concerned Chief Judicial Magistrate and in
both the cases, cognizance was taken and the proceedings before the
respective Magistrates concerned were continued. Therefore, having regard
to our conclusion that the cognizance taken by the Judicial Magistrate
under Section 190(1) of Cr.P.C. based on the police report under Section
173(2)(i) of Cr.P.C. the same would fulfill the requirement of 'cognizance'
as well as, the 'competent court'. It will have to be, therefore, held
that to that extent, the definition under Section 2(1)(d) relating to
"continuing unlawful activity" in respect of more than one case of an
offence punishable for more than three years is fully satisfied. Once we
come to the said conclusion, we do not find any substance in the third
submission of the appellants that cognizance by competent court would only
mean cognizance of such offences which can be dealt with only by the
Sessions Court and not by a Judicial Magistrate. Therefore, the said
submission that the cognizance was taken by Sessions Court much later after
its committal (i.e.) in the case of Parbhani only on 29.04.2009 that is
after the bomb blast in Malegaon and thereby the definition of 'continuing
unlawful activity' in respect of more than one case under Section 2(1)(d)
is not satisfied cannot be accepted. The said submission, therefore,
deserves to be rejected.
The next submission made on behalf of the appellants was that in order to
constitute the earlier two offences to fall within the definition of
'continuing unlawful activity' for invoking the provisions of MCOCA after
the third occurrence, the involvement of the accused must have been by the
same gang. In other words, even if it were to be held that a member of an
'organized crime syndicate' singly or jointly participated or on behalf of
an 'organized crime syndicate' with reference to such participation taken
place, what is to be ensured is that in all the three cases the same gang,
namely, the 'organized crime syndicate' must have been involved. Based on
the said contention it was submitted that in the case on hand after A-7 was
arrested on 02.11.2008 he was produced in Parbhani case on 11.11.2008 and
supplementary charge-sheet was filed against him on 13.11.2008 and in Jalna
case a supplementary charge-sheet was filed on 15.11.2008 while none of the
other accused had any role to play either in Parbhani or in Jalna, nor was
the so-called 'Abhinav Bharat' was involved in either Parbhani or Jalna
occurrences. The contention was that though A-7 was implicated both in
Parbhani and Jalna such implication was not in pursuance of his role as a
member of an 'organized crime syndicate' pertaining to Malegaon bomb blast
nor was the position that the gang involved in Malegaon blast was also
responsible for the bomb blast in Parbhani and Jalna. It is, therefore,
contended that even as regards to A-7 he only alleged to have gathered
certain materials and procured at the request of one Devle who was the
prime accused in Parbhani and Jalna. It was contended that even as per the
counter affidavit of the second respondent herein there was no nexus shown
for the involvement of any of the accused in the Malegaon bomb blast case
to do anything with Parbhani or Jalna bomb blast either individually or
jointly as a member of gang or on behalf of the gang.
In this context, reliance was placed upon the decision in Lalit Somdatta
Nagpal & Anr. (supra). A similar contention was raised before this Court in
that case to the effect that isolated incidents spread over a period of 10
years involving different types of offences would not attract the
provisions of MCOCA and that such activity must be such as to have a link
from the first to the last offence alleged to have been undertaken in an
organized manner by an organized crime syndicate. The contention was that
continuing unlawful activity would necessarily mean continuous engagement
in unlawful activity where there would be a live link between all the
different offences alleged. The said contention was refuted on behalf of
the State in the said case by contending that no live link need exist
between the different cases for the application of MCOCA and that such
nexus theory was not contemplated by the legislature. While dealing with
the said contention, this Court in the facts of that case held as under in
paragraph 63:
"63. As has been repeatedly emphasised on behalf of all the parties, the
offence under MCOCA must comprise continuing unlawful activity relating to
organised crime undertaken by an individual singly or jointly, either as a
member of the organised crime syndicate or on behalf of such syndicate by
use of coercive or other unlawful means with the objective of gaining
pecuniary benefits or gaining undue economic or other advantage for himself
or for any other person or for promoting insurgency. In the instant case,
both Lalit Somdatta Nagpal and Anil Somdatta Nagpal have been shown to have
been involved in several cases of a similar nature which are pending trial
or are under investigation. As far as Kapil Nagpal is concerned, his
involvement has been shown only in respect of CR No. 25 of 2003 of Rasayani
Police Station, Raigad, under Sections 468, 420 and 34 of the Penal Code
and Sections 3, 7, 9 and 10 of the Essential Commodities Act. In our view,
the facts as disclosed justified the application of the provisions of MCOCA
to Lalit Nagpal and Anil Nagpal. However, the said ingredients are not
available as far as Kapil Nagpal is concerned, since he has not been shown
to be involved in any continuing unlawful activity. Furthermore, in the
approval that was given by the Special Inspector General of Police,
Kolhapur Range, granting approval to the Deputy Commissioner of Police
(Enforcement), Crime Branch, CID, Mumbai to commence investigation under
Section 23(1) of MCOCA, Kapil Nagpal has not been mentioned. It is only at
a later stage with the registering of CR No. 25 of 2003 of Rasayani Police
Station, Raigad, that Kapil Nagpal was roped in with Lalit Nagpal and
Somdatta Nagpal and permission was granted to apply the provisions of MCOCA
to him as well by order dated 22-8-2005."
(underlining is ours)
When we refer to the said line of reasoning stated therein, we find that in
the case of one accused, namely, one Kapil Nagpal, since he was not shown
to be involved in any of the earlier cases, his case required to be dealt
with differently and he cannot be said to have been involved in any
continuing unlawful activity. We do not find any other specific reason for
excluding him.
In this context a three Judge Bench decision of this Court, which throws
much light on this issue is Ranjitsing Brahamjeetsing Sharma (supra).
Paragraphs 31, 36 and 37 are relevant for our purpose which read as under.
"31. The High Court does not say that the appellant has abetted Telgi or
had conspired with him. The findings of the High Court as against the
appellant are attributable to allegations of abetting Kamat and Mulani.
Both Kamat and Mulani were public servants. They may or may not have any
direct role to play as regards commission of an organised crime but unless
a [pic]nexus with an accused who is a member of the organised crime
syndicate or an offence in the nature of organised crime is established,
only by showing some alleged indulgence to Kamat or Mulani, the appellant
cannot be said to have conspired or abetted commission of an organised
crime. Prima facie, therefore, we are of the view that Section 3(2) of
MCOCA is not attracted in the instant case.
36. Does this statute require that before a person is released on bail, the
court, albeit prima facie, must come to the conclusion that he is not
guilty of such offence? Is it necessary for the court to record such a
finding? Would there be any machinery available to the court to ascertain
that once the accused is enlarged on bail, he would not commit any offence
whatsoever?
37. Such findings are required to be recorded only for the purpose of
arriving at an objective finding on the basis of materials on record only
for grant of bail and for no other purpose."
(emphasis added)
A reading of paragraph 31 shows that in order to invoke MCOCA even if a
person may or may not have any direct role to play as regards the
commission of an organized crime, if a nexus either with an accused who is
a member of an 'organized crime syndicate' or with the offence in the
nature of an 'organized crime' is established that would attract the
invocation of Section 3(2) of MCOCA. Therefore, even if one may not have
any direct role to play relating to the commission of an 'organized crime',
but when the nexus of such person with an accused who is a member of the
'organized crime syndicate' or such nexus is related to the offence in the
nature of 'organized crime' is established by showing his involvement with
the accused or the offence in the nature of such 'organized crime', that by
itself would attract the provisions of MCOCA. The said statement of law by
this Court, therefore, makes the position clear as to in what circumstances
MCOCA can be applied in respect of a person depending upon his involvement
in an organized crime in the manner set out in the said paragraph. In
paragraphs 36 and 37, it was made further clear that such an analysis to be
made to ascertain the invocation of MCOCA against a person need not
necessarily go to the extent for holding a person guilty of such offence
and that even a finding to that extent need not be recorded. But such
findings have to be necessarily recorded for the purpose of arriving at an
objective finding on the basis of materials on record only for the limited
purpose of grant of bail and not for any other purpose. Such a requirement
is, therefore, imminent under Section 21(4)(b) of MCOCA.
Having regard to the said legal position with reference to the requirement
to be fulfilled in respect of an 'organized crime' with particular
reference to the past two instances and the present one in order to find
out as to whether a person was involved in a 'continuing unlawful
activity', when we refer to the facts before us, in the case on hand
insofar as A-7 Rakesh Dattaray Dhawade is concerned, he has been charge-
sheeted in Parbhani, Jalna as well as, the Malegaon bomb blast. The
materials available on record disclose that he furnished certain materials
at the asking of the prime accused involved in Parbhani and Jalna, which
also related to bomb blasts in both the places. Going by the charge-sheet
filed against A-7 in Malegaon his direct involvement has been alleged. A
conspectus consideration of the above facts discloses that insofar as A-7
was concerned, he had a nexus with the member of an 'organized crime
syndicate' and also had every nexus with the offence in the nature of an
'organized crime' of the two earlier cases, namely, Parbhani and Jalna and
also direct involvement in the present bomb blast at Malegaon. In such
circumstances, there is no difficulty in coming to a definite conclusion
that insofar as, A-7 is concerned, his activity and involvement in all the
three occurrences, namely, Parbhani, Jalna and Malegaon disclose nexus with
the crime and also with the other accused involved in the crime and thereby
the satisfaction of the definition of 'continuing unlawful activity' of an
'organized crime' on behalf of an 'organized crime syndicate' is
satisfactorily shown. In such circumstances, by virtue of Section 21 (4)
of MCOCA he is not entitled for the grant of bail and that he does not fall
within the excepted category stipulated in sub-clause (a) or (b) of the
said sub-Section (4) of Section 21.
Having stated the said position relating to A-7, when we come to the case
of others, there is no dispute that in respect of other appellants, their
involvement is with reference to the present occurrence, namely, Malegaon
bomb blast. Admittedly they are not proceeded against for the offence
relating to Parbhani and Jalna. But still at the present juncture, with
the materials available on record as on date, we are not in a position to
ascertain as to the involvement of the appellants either by way of their
nexus with any accused who is a member of an 'organized crime syndicate' or
such nexus with the offence of an 'organized crime' which pertains to
Parbhani and Jalna. We cannot also rule out the possibility of the evidence
based on the investigation by the prosecuting agency to come out with
reliable materials in support of such nexus to be shown with an accused or
with the crime in respect of the earlier two cases, namely, Parbhani and
Jalna. We cannot, therefore, declare to the extent as was done by the
Special Judge in the order dated 31.07.2009 to straightway reach at a
conclusion to the effect that MCOCA was not attracted and, therefore, they
should be discharged.
But, for the purpose of the requirement under Section 21(4) (b) having
regard to the absence of any material as on date to disclose any nexus with
the accused of an 'organized crime syndicate' or with the offence in the
nature of an 'organized crime', in Parbhani and Jalna as of now we can
state that in respect of appellants other than A-7 i.e. appellant in
Criminal Appeal No.1971/2010, their application for bail can be considered
by the Special Court. Therefore, on this issue, namely, in all cases same
gang must be involved, our answer is to the above limited extent based on
the earlier statement of law as declared in Ranjitsing Brahamjeetsing
Sharma (supra) in paragraph 31.
With that when we come to the next submission, namely, that in order to
characterize the past occurrence as well as the present occurrence as an
'organized crime' falling under section 2 (1) (e) of MCOCA, in each of such
occurrence, violence should have played a key role and that such violence
etc. should have been for pecuniary gain. The submission was made on
behalf of the appellants that there was no material to show that any of the
appellants had any pecuniary advantage from anybody. The contention was
that all the attributes of Section 2(1)(e), namely, an 'organized crime'
must be present in all the three cases. It was further contended that in
the occurrence relating to Parbhani and Jalna, there was no allegation of
pecuniary advantage and they were all just mere cases of violence. It was,
also contended that 'promoting insurgency' was also not the specific case
of the prosecution in all the three cases, even assuming it may arise in
Malegaon blast, the same was not present in Parbhani or Jalna.
To appreciate the said contention, it will be necessary to make a detailed
reference to Section 2(1)(e) of MCOCA. As far as the nature of activity is
concerned, in Section 2(1)(e), it is stated that 'organized crime' means
continuing unlawful activity by use of violence or threat of violence or
intimidation or coercion or other unlawful means with the object of gaining
pecuniary benefits or gaining undue economic or other advantage for himself
or for any other person or for promoting insurgency. If we make a detailed
reference to the said provision, the use of violence etc. should have been
carried out with the object of either gaining pecuniary benefits or for
gaining undue economic or other advantage for oneself or for any other
person or for promoting insurgency. We find that the violent activity need
not necessarily be for pecuniary advantage in all acts of 'continuing
unlawful activity'. Indulging in such violent activity can be for gaining
pecuniary advantage or for gaining any other undue economic or other
advantage or for promoting insurgency. Therefore, at the very outset, we
do not find any scope to interpret Section 2(1)(e), namely, an 'organized
crime' to mean that in order to come within the said expression indulging
in such violent or other activity should always be for pecuniary gain. On
the other hand, we can safely hold that such indulgence in violent activity
can be either for pecuniary gain or for economic advantage or for any other
advantage either for the person who indulged in such activity or for any
other person or for promoting insurgency. In that respect, we find that
expected benefit for indulging in any violent or related activity could be
for any of the above purposes independently and one such purpose may be for
promoting insurgency.
When once we are able to state the definition of 'organized crime' under
Section 2(1) (e) with such clear precision, the other question is what is
meant by 'promoting insurgency'. In fact, the said expression has already
been considered by some of the judgments of this Court, and, therefore, we
can make useful reference to those judgments to understand what is
insurgency and whether there was any act of insurgency prevalent in the
case on hand when the alleged activity of violence etc. alleged against the
appellants. The dictionary meaning of expression 'insurgent' is raising an
active revolt or a revolutionary. Therefore, going by the dictionary
meaning, promoting insurgency would mean creating a revolution and thereby
disturb the peaceful atmosphere. In fact, in the decision of this Court in
Zameer Ahmad Latifur Rehman Sheikh (supra) a reference has been made to
this very expression and has been dealt with in a detailed fashion in
paragraphs 26 to 29. We can usefully refer to the said paragraphs to
understand the expression insurgency. Paragraphs 26 to 29 are as under:
"26. The term "insurgency" has not been defined either under MCOCA or any
other statute. The word "insurgency" does not find mention in UAPA even
after the 2004 and 2008 Amendments. The definition as submitted by Mr Salve
also does not directly or conclusively define the term "insurgency" and
thus reliance cannot be placed upon it. The appellants would contend that
the term refers to rising in active revolt or rebellion. Webster defines it
as a condition of revolt against the Government that does not reach the
proportion of an organised revolution.
27. In Sarbananda Sonowal v. Union of India this Court has held that
insurgency is undoubtedly a serious form of internal disturbance which
causes grave threat to the life of people, creates panic situation and also
hampers the growth and economic prosperity of the State.
28. We feel inclined to adopt the aforesaid definition for the current
proceedings as there does not appear to exist any other satisfactory
source.
29. Although the term "insurgency" defies a precise definition, yet, it
could be understood to mean and cover breakdown of peace and tranquility as
also a grave disturbance of public order so as to endanger the security of
the State and its sovereignty."
[pic](Emphasis added)
It has been more succinctly described in paragraphs 45 to 47 which can also
be usefully referred to:
"45. Now that we have examined under what circumstances a State law can be
said to be encroaching upon the law-making powers of the Central
Government, we may proceed to evaluate the current issue on merits. Let us
once again examine the provision at the core of this matter:
"2. (1)(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;"
After examining this provision at length, we have come to the conclusion
that the definition of "organised crime" contained in Section 2(1)(e) of
MCOCA makes it clear that the phrase "promoting insurgency" is used to
denote a possible driving force for "organised crime". It is evident that
MCOCA does not punish "insurgency" per se, but punishes those who are
guilty of running a crime organisation, one of the motives of which may be
the promotion of insurgency.
46. We may also examine the Statement of Objects and Reasons to support the
conclusion arrived at by us. The relevant portion of the Statement of
Objects and Reasons is extracted hereinbelow:
"1. Organised crime has for quite some years now come up as a very serious
threat to our society. It knows no national boundaries and is fuelled 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
narcoterrorism which extends 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.
2. The existing legal framework i.e. the penal and procedural laws and the
adjudicatory system are found to be rather inadequate to curb or control
the menace of organised crime. The Government has, 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 organised crime."
47. We find no merit in the contention that MCOCA, in any way, deals with
punishing insurgency directly. We are of the considered view that the
legislation only deals with "insurgency" indirectly only to bolster the
[pic]definition of "organised crime". However, even if it be assumed that
"insurgency" has a larger role to play than pointed out by us above in
MCOCA, we are of the considered view that the term "promoting insurgency"
as contemplated under Section 2(1)(e) of MCOCA comes within the concept of
public order."
(Emphasis added)
Therefore, 'insurgency' has been understood to mean raising an active
revolt or rebellion in the common parlance. It is also stated that it could
be understood to mean and cover breakdown of peace and tranquility as also
a grave disturbance of public order so as to endanger the security of the
State and its sovereignty. While making specific reference to Section
2(1)(e), it was pointed out that MCOCA though does not punish insurgency
per se, punishes those who are guilty of running a crime organization and
one of the motive of which may be the promotion of insurgency. Therefore,
it is not necessary that promoting insurgency should always be linked to
pecuniary advantage. Whenever an organized gang indulges in a violent act,
such indulgence in violence or threat of violence or intimidation or
coercion or other unlawful means can be for promoting an insurgency.
In the light of such line of thinking already expressed by this Court with
particular reference to Section 2(1)(e), we do not find any different
meaning to be attributed to the definition of 'organized crime', much less
to the extent to which the appellants seek to interpret the said definition
and state that the indulgence in any violent and related activity for
promoting insurgency, the element of pecuniary advantage should be present.
We, therefore, reject such a contention and hold that indulging in any
violent or other related activity by an organized gang and thereby an
effort to promote insurgency i.e. to damage the peace and tranquility in
the State is made, that by itself would fall within the four corners of the
definition of "organized crime" under Section 2(1)(e).
In the light of our above conclusions on the various submissions, we are
convinced that in respect of the appellant in Criminal Appeal No.1971/2010,
namely, A-7, there is no scope even for the limited purpose of Section
21(4)(b) to hold that application of MCOCA is doubtful. We have held that
the said appellant A-7 had every nexus with all the three crimes, namely,
Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail
under Section 21 would clearly operate against him and there is no scope
for granting any bail. Insofar as the rest of the appellants are
concerned, for the purpose of invoking Section 21(4)(b), namely, to
consider their claim for bail, it can be held that for the present juncture
with the available materials on record, it is not possible to show any
nexus of the appellants who have been proceeded against for their
involvement in Malegaon blast with the two earlier cases, namely, Parbhani
and Jalna. There is considerable doubt about their involvement in Parbhani
and Jalna and, therefore, they are entitled for their bail applications to
be considered on merits.
When once we are able to steer clear of the said position, the other
question to be considered is the grant of bail on its own merits. For which
purpose, the submission of Mr. Mariarputham, learned senior counsel who
appeared for the State of Maharashtra and NIA based on the decision relied
upon by him in State of U.P. Through CBI v. Amarmani Tripathi - 2005 (8)
SCC 21 should be kept in mind, in particular paragraph 18, which reads as
under:
"18. It is well settled that the matters to be considered in an application
for bail are (i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence; (ii) nature and gravity
of the charge; (iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of the accused; (vi)
likelihood of the offence being repeated; (vii) reasonable apprehension of
the witnesses being tampered with; and (viii) danger, of course, of justice
being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and
Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the
accused may tamper with the evidence or witnesses may not be a ground to
refuse bail, if the accused is of such character that his mere presence at
large would intimidate the witnesses or if there is material to show that
he will use his liberty to subvert justice or tamper with the evidence,
then bail will be refused. We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v.
Rajesh Ranjan: (SCC pp. 535-36, para 11)
11. The law in regard to grant or refusal of bail is very well settled. The
court granting bail should exercise its discretion in a judicious manner
and not as a matter of course. Though at the stage of granting bail a
detailed examination of evidence and elaborate documentation of the merit
of the case need not be undertaken, there is a need to indicate in such
orders reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having committed a serious
offence. Any order devoid of such reasons would suffer from non-application
of mind. It is also necessary for the court granting bail to consider among
other circumstances, the following factors also before granting bail; they
are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension
of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)"
Even the other contentions submitted by the learned senior counsel that the
appellants are not entitled for bail, are all matters which the prosecuting
agency will have to place before the Special Court for consideration while
considering the appellants' application for bail. For the same reason, the
various other contentions raised on behalf of the appellant in Criminal
Appeal Nos.1969-70/2010 as well as the appeal arising out of SLP(Crl.)
No.8132 of 2010 by making reference to their personal grievances are all
matters which will have to be placed before the Special Judge for
consideration. We are not expressing any opinion on those aspects and we
leave it for the Special Judge to consider the bail application on merits
and pass appropriate orders.
Accordingly, on question No.(a) in paragraph 35, we hold that the judgment
of the Division Bench in holding that cognizance is of the offence and not
of the offender is perfectly justified and the same does not call for any
interference. Therefore, Criminal Appeal Nos.1969-70 of 2010, Criminal
Appeal No.1971 of 2010, Criminal Appeal Nos.1994-98 of 2010, appeal arising
out of SLP(Crl) No.8132 of 2010 and Criminal Appeal No.58 of 2011 are
dismissed. As far as the order dated 30.12.2010, rejecting bail, passed by
the learned Special Judge, which was also confirmed by the learned Single
Judge of the Bombay High Court by order dated 09.11.2011 in Criminal Bail
Application No.333 of 2011 with Criminal Application No.464 of 2011 of the
appellant in appeals arising out of SLP (Crl.) Nos.9370-71 of 2011, the
said orders are set aside with the observation that there is enough scope
to doubt as to the application of MCOCA under Section 21(4)(b) for the
purpose of grant of bail and consequently the Special Judge is directed to
consider the application for bail on merits keeping in mind the
observations in paragraphs 100 and 101 of this judgment and pass orders.
Consequently, the appeals arising out of SLP(Crl.) Nos.9370-71 of 2011 are
partly allowed. The order impugned in these appeals is set aside and the
application for bail in Bail Application No.42 of 2008 is restored to the
file of the Special Judge for passing orders on merits. Similarly, for the
reasons stated in paragraph 99, we hold that the appellant in appeal
arising out of SLP(Crl.) No.8132 of 2010 is also entitled for the same
relief as is granted to the appellant for consideration for grant of bail
in the appeals arising out of SLP(Crl.) Nos.9370-71 of 2011. We thus answer
question No.(b) of paragraph 35 and the trial Court is, therefore, directed
to apply the same principle and consider the bail application pending or
filed afresh, if so advised, by the appellant in the appeal arising out of
SLP(Crl.) No.8132 of 2010 and pass orders on merits. Consequently, Criminal
Appeal No.1971 of 2010, Criminal Appeal Nos.1994-98 of 2010 and Criminal
Appeal No.58 of 2011 are dismissed.
Since the occurrence is of the year 2008 and nearly seven years have gone
by, it is imperative that the Special Court commence the trial at the
earliest and conclude the same expeditiously. We direct the Prosecuting
Agency to ensure that the necessary evidence i.e. oral, documentary as well
as other form of evidence placed before the Court to enable the Special
Court to commence the trial early and conclude the same expeditiously. It
is stated that no officer has been posted for the Special Court as on date.
We, therefore, request the Chief Justice of the High Court of Bombay to
pass appropriate orders either for posting these cases before a learned
Judge by way of special order or appoint a Presiding Officer exclusively
for deciding these cases in order to ensure speedy trial. We also direct
the Presiding Officer of the Special Court to dispose of the bail
applications expeditiously, preferably within one month from the date of
his/her assumption of Office as Special Judge. The Registry is directed to
transmit the records forthwith.
Since, we have not heard arguments on the question as to the claim of NIA
in seeking custody covered by SLP (Crl.) No.9303 of 2011 and SLP (Crl.)
No.9369 of 2011 the same are delinked and shall be listed in due course.
........................................................J.
[Fakkir Mohamed Ibrahim Kalifulla]
.........................................................J.
[Abhay Manohar Sapre]
New Delhi;
April 15, 2015
