Bombay High Court: The instant appeal was filed by the appellants under Section 12, Maharashtra Control of Organised Crimes Act, 1999 (“MCOCA”), impugning the order of the Special Judge, Civil and Sessions Court, Greater Bombay, (“Trial Court”), wherein their application for dropping the charges under the MCOCA and for transferring the case to the Court of Additional Sessions Judge had been rejected. The appellants had been convicted under various provisions of the Penal Code, 1860 (“IPC”), MCOCA, and the Maharashtra Police Act, 1951. The Division Bench comprising of A.S. Gadkari* and Shyam C. Chandak, JJ., upheld the Trial Court’s order, finding the appellants indicted with the organised crime syndicate, and there the MCOCA provisions could not be dropped qua them.
Background
The father of the informant (“father”) in the instant case operated a sand/cement shop and used to take small construction contracts in their locality. Accused 1, a competing contractor, did not get a contract and therefore, begrudged, threatened the father. The informant received a phone call on the night of the offence asking him to step out of his house, whereafter he was threatened with knife about having taken the contract meant for Accused 1, by the accused persons. The informant and his parents were assaulted by the accused persons, wherein the father suffered knife wounds.
The neighbours who tried to intervene were also threatened by the accused persons. While the informant took his parents for medical treatment for the injuries sustained during this event, his wife informed him that the accused had barged into their house and had stolen a television set and damaged the furniture.
Therefore, crime was registered for offences punishable under Sections 143, 144, 148, 149, 307, 323, 324, 380, 427, 451, 452, and 504 of IPC.
During investigation, it was revealed that the crime was committed by an organised crime syndicate (“syndicate”) headed by Accused 1, along with his five members with a motive of gaining pecuniary and other advantages. It was further revealed that more than two charge–sheets had been filed against their syndicate in the preceding 10 years before the competent court, which had taken the cognizance of the same. Therefore, the police proposed to the competent authority for the application of the provisions of the MCOCA to the present crime, the approval for which had been granted under Section 23(1) of the MCOCA. Thereafter, charge–sheet was filed against all the 9 accused persons under the afore-stated provisions of the IPC, along with Sections 3(1)(ii), 3(2), 3(4) of the MCOCA, and Sections 37(1)(a) and 135 of the Maharashtra Police Act, 1951.
Court’s Analysis and Judgment
The Court found it apparent that the syndicate headed by Accused 1 was indulged into committing crimes for pecuniary benefit, by taking construction work from the residents of the locality through threats. The Court noted that the appellants were present and actively participating in the crime, as revealed through the prosecution evidence and corroborated by CCTV footage.
The appellants had contended that for the provisions of the MCOCA to apply, two crimes are required to have been registered against the appellants and the other accused. The Court clarified that such is not the law’s mandate, as the necessity of two crimes registered in the preceding 10 years should have been registered against the syndicate and not against each and every member of the syndicate.
The Court referred to the case of Govind Sakharam Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770, wherein, the instant Court had clarified the holistic meaning of “continuing unlawful activity” and held that the charge under MCOCA ropes in a person who as a member of the syndicate commits organised crime either individually or jointly. Therefore, if within a period preceding 10 years, one chargesheet has been filed in respect of an organised crime committed by the members of a syndicate, the said chargesheet can be taken against the member of the said syndicate for the purpose of application of the MCOCA against them, even if they are involved in one case, because the crime committed by them will be a part of the continuing unlawful activity of the syndicate. The link with the ‘organised crime syndicate’ (as defined under Section 1(f) of the MCOCA) is the crux of the term ‘continuing unlawful activity’. If the link is not established, that person cannot be roped in under the charges of the MCOCA.
In the light of the aforementioned facts and evidence, the Court noted that there was sufficient evidence on record, showing the indictment of the appellants in the crime committed by the syndicate headed by Accused 1, and therefore held that the charges under MCOCA against them could not be dropped.
Hence, the Court upheld the Trial Court’s order, dismissing the appeal.
[Nilesh Anand Pawar v. State of Maharashtra, 2024 SCC OnLine Bom 1621, decided on 11-06-2024]
*Judgment authored by: Justice A.S. Gadkari
Advocates who appeared in this case:
For the Appellants: Nitin A Sejpal, Advocate
For the Respondent: AA Takalkar, APP
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