Karkardooma Court: In a sessions case filed by the State against four persons for committing offences punishable under Sections 3(2) and 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (‘MCOCA’), a Single Bench of Pulastya Pramachala, ASJ. found that the prosecution did not satisfy the necessary legal ingredients to invoke and prosecute the accused persons for committing organized crime and thus, acquitted the accused persons of all the charges levelled against them.
Background
The Additional Session Judge (‘ASJ’), on 29-07-2013, passed an order on the application filed under Section 9 of MCOCA read with Section 3191 of Code of Criminal Procedure, 1973 (‘CrPC’) for taking cognizance of offence punishable under Section 3(2)(4) of MCOCA against the respondents in the present matter who were alleged to be involved in organized crime and continuing unlawful activities.
Through the aforesaid order, the ASJ directed the SHO of Seelampur Police Station to register a First Information Report (‘FIR’) and also directed that the investigation would be carried by ACP, Sub Division as per Section 23(1)(b) of MCOCA.
The said order was challenged by the deceased accused under Section 12 of MCOCA before the Delhi High Court through a criminal appeal which was dismissed vide order dated 09-01-2015.
The SHO sent a proposal along with list of cases pertaining to previous involvement of the accused persons to the ACP of North-East District, Delhi to take action under Section 3 of MCOCA against them. Thereafter, the ACP issued a notice granting approval to the SHO for investigating the case against the accused persons under MCOCA. Resultantly, an FIR was registered and the investigation was assigned to the then ACP of Seelampur.
During the course of investigation, two ACPs were transferred and thereafter it was found that two out of the four accused persons were listed as desperate criminals of bundle ‘A’ of the Seelampur Police Station and that a number of cases were registered against the other co-accused persons. The Investigating Officer (‘IO’) interrogated and formally arrested two accused persons in Tihar jail with prior approval of the Special Judge.
After completion of investigation, sanction was accorded and on 18-04-2015, a charge-sheet was filed against the accused persons for offences punishable under Sections 3(2) and 3(4) of MCOCA. Subsequently, the fourth accused who was reported to be absconding was arrested in this case on 21-06-2016 and the first supplementary charge sheet was filed against him.
Analysis and Decision
The Court perused Clauses ‘d’, ‘e’, and ‘f’ of Section 2(1) and Section 3 of MCOCA. It was said that for the existence of an organized crime syndicate, commission of organized crime is a sine qua non and an act alleged to be an organized crime has to necessarily fall within the definition of ‘continuing unlawful activity’ under Section 2(d).
The Court said that what had to be seen in this case was whether there existed a group or gang which indulged into continued unlawful activity and such unlawful activity was fulfilling the parameters of purposes and means of commission of crime as per Section 2(e) of MCOCA.
The Court perused various case laws and said that Section 3(1) made it clear that there has to be at least commission of an offence as part of continued unlawful activity and falling into the category of organized crime, so as to trigger the prosecution of an accused person under MCOCA.
The Court noted that the prosecution did not allege a substantial offence that was found to be an organized crime in continuity of past offences. It was also noted that the case had its roots in the application moved by prosecution-witness 33 in the 2009 case of State v. Mohd. Afjal and that the IO, in the chargesheet, referred to the FIR in the said matter.
The Court noted that support had been taken from the decision in the matter of State v. Mohd. Afjal since Mohd. Afjal was a family member of the accused persons in the present matter. It was said that the charge sheet depicted the accused persons in the present matter and Mohd. Afjal had been part of the same crime syndicate.
The Court stated that the period of the last 10 years has to be counted from the third instance of organized crime but both the charge sheets in this case were completely silent regarding this. It was said that only giving a list of numerous past cases does not help much in a case of MCOCA, unless it shows continued instances of organized crime.
The Court said that the sanction for registration of FIR in this matter was accorded without caring to see if there was enough information given in the proposal to satisfy the requisite conditions to invoke MCOCA. Thus, the Court said that this sanction was accorded without due application of mind.
The Court said that because this case was registered on the basis of an invalid sanction and was lacking the requisite conditions to invoke MCOCA, there could not be any question of a valid confessional statement. It was also said that confessional evidences can be best used when there are other independent evidences to prove the facts, which form subject matter of the confession.
The Court said that the prosecution had not satisfied the necessary legal ingredients to invoke and prosecute the accused persons for committing organized crime. It was also said that the property has to be one that has been acquired out of proceeds of organized crime and this fact must be proved and mere allegations for the same could not be sufficient.
Lastly, the Court said that in absence of proof, there could not be a case for offence under Sections 3(2) to 3(5) of MCOCA and acquitted the accused persons of all the charges that had been levelled against them.
[State v. Mohd. Iqbal Gazi, 2024 SCC OnLine Dis Crt (Del) 27, Decided on 15-10-2024]
Appearances:
Counsel for accused Jamal@Ranjha – Adv. Akshay Bhandari
Buy Code of Criminal Procedure, 1973 HERE
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