Abhishek vs State of Maharashtra & Ors.

Maharashtra Control of Organised Crime Act, 1999 – ss. 2(1)(d), 2(1)(e), 3(1)(ii), 3(2), 3(4) & 23(2) – Object of – This enactment is for making special provisions for dealing with the menace of organised crime causing serious threat to the society – No doubt, the enactment makes stringent provisions with several extraordinary measures but, the peculiar nature of the mischief sought to be tackled, i.e., of organised crime, has obviously led to such extraordinary measures, particularly when the existing legal framework was found to be rather inadequate to control the menace.

Dismissing the appeal, the Court

HELD: 1. A comprehensive look at the objects and reasons for enactment of Maharashtra Control of Organised Crime Act, 1999 (MCOCA), its overall purpose signified in its Preamble, and the relevant definitions in Section 2 as also the punishments provided in Section 3, leave nothing to doubt that this enactment is for making special provisions for dealing with the menace of organised crime causing serious threat to the society. No doubt, the enactment makes stringent provisions with several extraordinary measures but, the peculiar nature of the mischief sought to be tackled, i.e., of organised crime, has obviously led to such extraordinary measures, particularly when the existing legal framework was found to be rather inadequate to control the menace. [Para 11][1151-G-H; 1152-A]

2. The provisions of MCOCA need to be strictly construed and for their application, an unlawful activity has to fall within the periphery of organised crime. However, the question still remains as to the import of the requirement of ‘strict construction’ of the stringent provisions? A brief reference to the fundamental legal principles in that regard shall be apposite. So far as the applicability of the rule of strict construction qua MCOCA is concerned, it being a special penal statute, this much is clear that no one is to be made subject to this law by implication or by presumption; and all doubts concerning its application would, ordinarily, be resolved in favour of the accused. However, the rule of strict construction cannot be applied in an impracticable manner so as to render the statute itself nugatory. In other words, the rule of strict construction of a penal statute or a special penal statute is not intended to put all the provisions in such a tight iron cast that they become practically unworkable, and thereby, the entire purpose of the law is defeated. As regards application of MCOCA, what is required to be seen is as to whether the basic and threshold requirements, as per combined reading of clauses (d), (e) and (f) of Section 2(1) thereof, are fulfilled. If they are not so fulfilled, mere use of the expressions of the statute in the sanction order would be of no effect but, on the other hand, if the requirements are fulfilled, mere want of any expression or word in a particular passage in the sanction order would not take away the substance of the matter. In other words, strict adherence by the authorities concerned to the requirements of MCOCA also cannot be stretched beyond common sense and practical requirements in terms of the letter and spirit of the statute. [Paras 12.3, 12.6 and 12.7][1154-G-H; 1156-B-D; G-H; 1157-A-B]

3. A bare look at clause (e) of Section 2(1) of MCOCA makes it clear that ‘organised crime’ means any unlawful activity by an individual singly or jointly, either as a member of organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means. The suggestions on behalf of the appellant to limit the activity only to the use of violence is obviously incorrect when it omits to mention the wide-ranging activities contemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat or violence or intimidation or coercion or other unlawful means. Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate. Threat of violence or even intimidation or even coercion would fall within the mischief. This apart, use of other unlawful means would also fall within the same mischief. The second part of the requirement of the nature of activity, i.e., its objective, has also not been projected correctly on behalf of the appellant. The requirement of law is not limited to pecuniary benefits but it could also be of ‘gaining undue economic or other advantage’. The frame of the proposition that the object ought to be gaining pecuniary benefit or other ‘similar’ benefit is not correct as it misses out the specific phraseology of the enactment which refers to undue economic or other advantage apart from pecuniary benefit. The Full Bench of the High Court in Jagan Gagansingh Nepali @ Jagya has rightly said that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself. As noticed above, the purpose of this enactment is to be kept in view while interpreting any expression therein and in the name of strict construction, its spirit and object cannot be whittled down. [Paras 14.1, 14.2 and 14.4][1158-H; 1159-A-E; 1161-G-H; 1162-A]

3. The common thread of “violence” or “threat of violence” or “unlawful means” running through all of these cases is not a matter requiring any analysis, for the same being apparent on the face of record. Significantly, the aforesaid had not been the cases involving the appellant singularly; and more significantly, the alleged team leader RS is the co-accused in at least three previous cases. This is apart from the recurrence of other coaccused persons in one case or the other. It has rightly been pointed out on behalf of the respondent-State that in order to attract MCOCA, every previous case need not be of the object of gaining pecuniary benefit alone. The cases in question, apart from involving the offences against human body and property, also include variety of other offences including those of rioting while armed with deadly weapons; causing insult to provoke breach of peace; and criminal intimidation. They also include the offence under the Arms Act. In all the referred cases, use of violence has specifically been alleged. In the crime chart, the nature of activities and the persons involved leave nothing to doubt that the involvement of the appellant in such crimes and unlawful activities which are aimed at gaining pecuniary advantages or of gaining supremacy and thereby, leading to other unwarranted advantages is clearly made out. The criticism of the impugned sanction order dated 05.11.2020, that it had been of mere repetition of the expression of statute, is also difficult to be accepted. The High Court, in the impugned order, has rightly observed that the said order is required to be viewed in its totality, and its substance cannot be ignored by isolated reference to a particular line or expression. This Court has not an iota of doubt that firstly, the approving authority, and then, the sanctioning authority, were conscious of the requirement of law and indeed examined the matter only with reference to such requirement; and issued the orders in question only after arriving at the requisite satisfaction. It has rightly been pointed out on behalf of the respondent that in such matters, the competent authority has to focus essentially on the factum whether the material in question reveals the commission of crime, which is an organised crime, committed by the organised crime syndicate. [Para 15.1, 15.2 and 16][1162-G-H; 1163-AF]

4. The submissions about taking irrelevant factors into account with reference to the said two cases resulting in acquittal and discharge must fail for the simple reason that for the purpose of clause (d) of Section 2(1) of MCOCA, the result of a particular matter is not decisive of the question as to whether the activity in question answers to the description of ‘continuing unlawful activity’ or not. These had not been offences committed singlehanded by the appellant and charge-sheets were indeed filed therein. The matter of settlement because of cross-cases or a matter of acquittal because of the witnesses not turning up, could hardly be of any relevance so far as clause (d) of Section 2(1) of MCOCA is concerned. Therefore, it cannot be said that any irrelevant matter has been taken into consideration by the sanctioning authority. What is significant and pertinent for the purpose of Section 2(1)(d) is the involvement of the person concerned in the referred activity and filing of charge-sheet and taking of cognizance in the offence as predicated. Acquittal or discharge is of no significance. The reference in the confessional statements of the two co- accused persons in relation to the appellant is not a factor entirely irrelevant for the appellant being a co-accused person with them. The detailed discussion by the sanctioning authority to the substantial pieces of evidence collected in the matter rather fortifies the conclusion that the sanctioning authority has meticulously applied its mind to all the relevant factors and has taken an overall view of the matter before forming the final opinion in favour of granting the sanction. The contention in that regard also fails. Thus, challenge to the judgment as passed by the High Court on 16.12.2021, and to the sanctioning order dated 05.11.2020, was required to be rejected when the appellant had indeed been declared absconder. However, as observed hereinbefore, this Court has considered it proper to first examine the matter on merits because notices had been issued to the respondents and it had appeared serving the cause of justice to deal with the matter on merits. As noticed, all the contentions urged on behalf of the appellant remain baseless and challenge herein ought to fail. [Paras 17.5, 18.1 and 22] [1166-F-H; 1167-B; 1168-B-C; 1170-B-D]

State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr.: (2011) SCC OnLine Bombay 1049 –

approved.

Khaja Bilal Ahmed v. State of Telangana & Ors.: (2020)

13 SCC 632 : 2020 (1 ) SCALE 41 – held inapplicable. State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr.: (2007) 4 SCC 171 : [2007] 2 SCR 473;

Ranjitsing Brahmajeetsing Sharma v. State of

Maharashtra & Anr.: (2005) 5 SCC 294 : [2005] 3 SCR 345; Jagannath Misra v. State of Orissa: (1966) 3 SCR 134; Mohindhr Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Ors.: (1978) 1 SCC 405 : [1978] 2 SCR 272; State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari & Ors.: (2013) 12 SCC

17 : [2013] 5 SCR 128; Kavitha Lankesh v. State of Karnataka & Ors.: (2021) SCC OnLine 956; Vinod G. Asrani v. State of Maharashtra: (2007) 3 SCC 633 : [2007] 2 SCR 1023; Balram Kumawat v. Union of India & Ors.: (2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24; Prem Shankar Prasad v. State of Bihar and Anr.: (2021) SCC OnLine SC 955 - referred to.