C.V. Bhadang, J.
1. Heard. Admit. Taken up for final disposal with the consent of the learned Counsel for the parties.
2. This appeal is filed by the original accused Narendra Singh @ Dallu Sardar challenging the order dated 10.1.2014 passed by the learned Special Court in Special Criminal Case No.5/2013. By the impugned order, the learned Special Judge has dismissed the application Exh.28 filed by the appellant/accused for discharge from the offence u/s 3 of the Maharashtra Control of Organised Crime Act, 1999 (âMCOC Act for short).
3. The facts necessary for the disposal of the appeal may be stated thus:
That, now deceased Suraj Yadav was a property dealer at Nagpur and had established a name in the business. According to the prosecution, the appellant is also dealing in property business and is running a Organised Crime Syndicate within the meaning of the act, along with his associates. The appellant was not happy with the influence of the deceased in the business and wanted to establish a supremacy over the deceased. This is said to be the motive behind the incident which occurred on 18.11.2012.
4. According to the complainant Rajesh Yadav, who is the brother of the deceased, a plot situated at Zingabai Takli, Nagpur was belonging to one Munna Yadav, brother-in-law of the deceased and complainant. The deceased was looking after the said plot and for that purpose had posted one Dau watchman. The watchman along with his wife was staying at the plot.
A day before the incident i.e. 17.11.2012, the deceased along with his friends had gone to Yavatmal. At about 6.30 pm, the wife of the watchman Dau called the deceased on his mobile, informing that some eight to ten persons had come to the plot in Scorpio vehicle and were claiming rights over the said plot. According to the complainant, the wife of the watchman handed over the mobile to one of the persons, who gave his name as Dallu Sardar (the appellant). The appellant informed the deceased that he has purchased the plot, when the deceased said to the appellant that he will have a talk after he returns from Yavatmal. It is alleged that the appellant abused and threatened the deceased saying that he is a resident of Sujata Nagar. The deceased and his friends returned to Nagpur in the night at about 1.00 a.m. The following a day i.e. on 18.11.2012 the appellant again called the deceased at about 1.00 to 1.30 pm and the deceased disconnected the call, after informing that he would come to give information about the plot. It is said that thereafter the deceased along with his friend Anand went to the Mental Hospital square where the appellant and others were present. The deceased apprised the appellant that the plot is belonging to Munna Yadav. Thereafter, the deceased returned to his house. Later in the day at about 3.30 to 3.45 pm, the deceased along with his family members including his sister Sau. Kanchan Amol Yadav and one Anand Kolhatkar were at the house of the deceased. When the complainant went to the bathroom, he heard some commotion and came out, when he saw that the appellant along with his associates were assaulting the deceased. The appellant assaulted the deceased by a sword on his neck. The associates of the appellant were holding weapons such as 'knife' and all of them assaulted the deceased, on account of which, the deceased sustained injuries. After the assault, the appellant and others escaped from the spot in the Scorpio vehicle bearing no. MH-12-DY 9147. Some of them fled on their motorcycles. The deceased was carried to the Madan Hospital, where he was declared dead. On the basis of a complaint lodged by Rajesh Ashok Yadav, an offence came to be registered with Police Station, Panchpaoli, Nagpur. On completion of the investigation, the appellant and nine others have been chargesheeted before the learned Special Judge in Special Criminal Case No.5/2013.
5. The appellant filed the application Exh.28 u/s 227 of the Code of Criminal Procedure ('Cr. P.C.' for short) for discharge from the offence u/s 3 of the Act which has been rejected by the learned Special Judge by the impugned order. The appellant has therefore come up in appeal u/s 12 of the Act.
6. We have heard Shri S.P. Dharmadhikari, learned Senior Counsel for the appellant along with Advocate Shri D.V. Chauhan and Shri S.S. Doifode, learned Assistant Public Prosecutor for the respondent-State. We have also heard Shri Anil S. Mardikar, learned Senior Counsel for the intervenor-original complainant Rajesh Ashok Yadav. With the assistance of the learned counsels for the parties, we have perused the record and impugned order.
7. It is submitted by Shri Dharmadhikari, learned Senior Counsel for the appellant that the appellant is shown to have been previously prosecuted in three cases being Crime No.456/2003 with Panchpaoli Police Station, Crime No.79/2007 with Police Station, Jaripatka and Crime No.3110/2011 with Police Station, Jaripatka. It is submitted that none of the co-accused in the present case are the accused in the aforesaid three crimes. Similarly, according to the prosecution, the co-accused have been chargesheeted in different offences, in respect of which, the prosecution is placing reliance on 27 chargesheets. It is submitted that the appellant is not an accused in any of these cases. The submission is that, in such circumstances, there is no organised crime syndicate allegedly run by the appellant which is borne out of the record. It is submitted that the existence of an organised crime syndicate, within the meaning of the act, would be a sine qua non for attracting the provisions of the Act and in the absence of any material to that effect, the appellant cannot be prosecuted for the offence u/s 3 of the said Act.
8. It is submitted that none of these 27 chargesheets, in which the co-accused are facing prosecution, are filed on record and even otherwise only 9 out of the 27 cases, involve offence punishable with imprisonment of three years or more. The learned senior counsel has referred to the definition of a âcontinuing unlawful activityâ, âorganized crimeâ and âorganised crime syndicateâ respectively u/s 2 (d) (e) (f) of the Act, in order to submit that the prosecution case, as is borne out of the chargesheet would not answer the requirement of this section, so as to attract the provisions of the Act. The learned counsel would submit that the filing of the previous chargesheet for the perusal of the Special Court is necessary and merely mentioning the gist of the earlier chargesheet would not be sufficient. It is submitted that the said gist can at the best would be an inference or the assessment drawn by the investigating officer which is not decisive. It is for the Special Court to look into the nature of the allegations and the offence in respect of which the previous chargesheets are filed, in order to find out, whether the provisions of Section 2 (d) (e) (f) of the MCOC Act are attracted. It is submitted that in the absence of the said requirement which is very basis of the charge of indulging into organised crime by or on behalf of organised crime syndicate cannot be sustained.
9. Learned Senior counsel has placed reliance on the decision of the Honble Apex court in the case of RanjitSingh Sharma .vs. State of Maharashtra, reported in AIR 2005 SC 2277 in order to submit that the expression âany unlawful means as referred to u/s 2 (1) (e) of the MCOC Act cannot be widely construed as including any or other unlawful means. It is submitted that such an act has to have a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. It is submitted that an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated under the said Act. Reliance is then placed on the Division Bench decision of this Court in the case of State of Maharashtra .vs. Jagan Gagansingh Nepali @ Jagya and another, reported in 2011 ALL MR (Cri) 2961 in order to submit that mere allegations about filing of more than one chargesheets, in respect of offence/s with imprisonment of three years or more, is not sufficient. It is submitted that it would be necessary that such chargesheets contain allegation that the alleged offence was committed either singly or jointly as a member of the organised crime syndicate or on behalf of such syndicate. It is submitted that in none of the chargesheets any such averment is made and as such, the provisions of the Act would not stand attracted. The learned counsel also placed reliance on a full bench decision of this Court in the case of State of Maharashtra .vs. Jagan Gagansingh Nepali @ Jagya and another, 2011 ALL MR (Cri) 2961 in support of the submission that the prosecution is obliged to establish the prior existence of an organised crime syndicate indulging in continuing unlawful activity.
10. Lastly, a submission for a necessity to make a reference to larger bench has also been pressed into service in view of later decision of this court in Criminal Appeal No.25/2014 [Sachin Bansilal Ghaiwal .vs. State of Maharashtra (through Crime Branch, Pune) with Criminal Appeal No.1115/2013 [Umesh Mohan Kirve vs. The State of Maharashtra (through Dattawadi Police Station, Pune], dated 16.7.2014 by Division Bench of this court at the principal seat. It is submitted that the ratio, as laid down in the case of State of Maharashtra .vs. Rahul Ramchandra Taru, reported in 2011 ALL MR (Cri) 2100 has been displaced by the later decision in the case of Sachin (supra). It is, therefore, submitted that faced with such a situation, this court may refer the issue and the matter to the larger bench.
11. Shri S.S. Doifode, learned APP, after arguing the matter for sometime, had sought time to ascertain from the record of the case before the Special Court, as to whether, physically all the previous chargesheets have been produced on the record. On the subsequent date, the learned A.P.P. has made a statement that indeed the previous chargesheets have been produced before the learned Special Judge and this aspect has not been disputed by the learned senior counsel for the appellant.
12. Insofar as the rest of the submissions are concerned, it is submitted that the previous chargesheet, in which the appellant is facing the prosecution coupled with the chargesheets filed against co-accused, would be sufficient to prima facie infer at this stage about the existence of organised crime syndicate led by the appellant. The learned A.P.P. submitted that there is material on record to show that there was a tag of war between the appellant and the deceased over supremacy in the land dealing business and thus a clear motive is borne out of record. It is submitted that as such the act of the appellant in eliminating the deceased would clearly answer the definition of continuing unlawful activity within the meaning of Section 2 (1) (d) of the Act and considering the previous offences against the appellant as also against the co-accused would clearly established the existence of organised crime syndicate. The learned A.P.P. has taken us to the individual allegations in the various chargesheets in order to demonstrate that a case of indulging into organised crime by or on behalf of organised crime syndicate, is prima facie made out, at this stage. It is submitted that on the basis of decision of this court reported in the case of (judgment of Honble Justice Shri V.G. Palshikar and S.A. Bobde) that the previous conviction or acquittal is not material. The learned A.P.P. has placed reliance on the following decisions in support of his various submissions:
[1] Anil Murlidhar Deshmukh .vs. State of Maharashtra, 2006 ALL MR (Cri) 531.
[2] Gulab Jethanand Khemnani .vs. State of Maharashtra, 2007 (2) Mh.L.J. (Cri) 538.
[3] Mohd. Farooq Abdul Gafur and another .vs. State of Maharashtra, (2011) 3 SCC (Cri) 867.
[4] Ganesh Nivrutti Marne .vs. State of Maharashtra, 2010 (3) Mh.L.J. (Cri) 197.
[5] Moin Vairuddin Qureshi .vs. State of Maharashtra, 2009 (2) Mh.L.J. (Cri.) 322.
[6] Shoraj Singh Ahlawat and others .vs. State of U.P. and another, 2013 Cri.L.J. 331.
[7] State of Maharashtra .vs. Jagan Gagansingh Nepali @ Jagya and another, 2011 ALL MR (Cri) 2961.
[8] Govind Sakharam Ubhe .vrs. State of Maharashtra 2009 (3) Mh.L.J. (Cri.) 131.
13. Insofar as the submission regarding the necessity to make a reference to the larger bench is concerned, it is submitted that the same would not be necessary.
14. The learned A.P.P. submitted that the case of Ramchandra Taru (supra) turned on its own facts and this has been so held in the later decision in the case of Sachin (supra). It is submitted that as held by the Division Bench in the case of Sachin (supra), the legal position has been correctly stated in the case of Govind (supra) and as such in the absence of any conflict between the case of Ram Taru (supra) and Sachin Gour (supra), there is no necessity to make a reference to the larger bench. It is submitted that it is the membership of organised crime syndicate which makes a person liable under the MCOC Act which is evident from Section 3 of the Act. It is submitted that therefore the earlier chargesheets which are envisaged within the period of preceding 10 years, are in respect of an organised crime committed by an organised crime syndicate and these chargesheets can be taken into consideration against the member of the said organized crime syndicate for the purpose of application of said act, even if, the said person is not involved in one or more of any such cases. It is submitted that the organised crime committed by such a member will be a part of continuing unlawful activity of the organized crime syndicate. It is then submitted that at the stage of framing of charge, the court is not obliged to make a detailed and roving inquiry into the material and even if a strong suspicion is raised, it would be sufficient to refuse to discharge the accused. It is submitted that the learned Special Court has correctly appreciated the factual situation and legal propositions arising out of the application of the act and the impugned order does not call for any interference.
15. The learned senior counsel Shri Mardikar appearing for the original complainant has again referred to the provisions of Section 2(1) (d) (e) (f) of the Act, as also a statutory presumption arising u/s 22 (2) of the Act in order to submit that the material is sufficient to frame the charge and consequently to refuse discharge from the offence under the provisions of MCOC Act.
16. The learned counsel Shri Chauhan, in reply, has submitted that there is no material in this case to show that the appellant was operating an organized crime syndicate. It is submitted that in all reported cases on which reliance is placed, the existence of a gang/organized crime syndicate was not in dispute. The learned counsel again reiterated necessity to make a reference to a larger bench. It is also submitted that the presumption u/s 22 of the Act would not apply at this stage. Insofar as the previous offence against the appellant in Crime No.50/2012 and 43/2005, which has been relied upon by the learned APP, it is submitted that the appellant is not an accused therein. It is submitted that even otherwise, there is nothing to show that these crimes were committed by or on behalf of organized crime syndicate and at the best the allegations would show that they were committed at the spur of the moment and in individual capacity. It is therefore submitted that the impugned order needs interference.
17. At the outset, it may be mentioned that although initially submission was advanced on behalf of the appellant that previous chargesheets against the co-accused have not been produced before the Special Court, on verification of the record, it was not in dispute that the previous chargesheets have been physically produced before the Special Court and therefore, the submission on that count does not survive for consideration. In these circumstances, it is not necessary for us to consider whether the reproduction of the gist of the earlier offences in the chargesheet would be sufficient or not.
18. The material ground of challenge on behalf of the appellant is that an offence under Section 3 of the MCOC Act presupposes existence of organised crime syndicate. It is submitted that the material produced on record does not show existence of such organised crime syndicate of which the present appellant is a member, much less a leader. Reliance in this regard is placed on the provisions of Section 2 (d) (e) and (f) of the MCOC Act, which define the continuing unlawful activity, the organised crime and the organised crime syndicate. It is submitted that if requirement of these sections is taken into consideration, the material produced does not prima facie indicate that the appellant having indulged into continuing unlawful activity or organised crime either as a member or on behalf of any organised crime syndicate. The submission precisely is that the appellant is not accused in any of the chargesheets filed against the co-accused and even so far as the previous offences against the present appellant are concerned, they would not be sufficient to attract the provisions of the Act.
19. It may be worthwhile to reproduce the provisions of Section 2 (d) (e) and (f) of the Maharashtra Control of Organised Crime Act.
âSection 2 (d) : âcontinuing unlawful activityâ 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 organised crime syndicate or on behalf of such syndicate in respect of which more than one chargesheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence ;
(e) âorganisedcrimeâ 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) âSpecial Courtâ means the Special court constituted under section 5.â
20. The provisions of Section 2 (e) of the MCOC Act in particular fell for consideration of full Bench of this Court in the case of State of Maharashtra...Versus...Jagan Gagansingh Nepali @ Jagya and another, reported in 2011 ALL MR (Cri) 2961. The reference to the larger Bench arose on account of difference of opinion between two Division Benches of this Court. The Division Bench in the case of GaneshNivrutti Marne...Versus...State of Maharashtra, reported in 2010 (2) Bom. C.R. (Cri) 586 had taken a view that the term âother advantageâ as per Section 2 (e) of the MCOC Act, cannot be read 'ejusdemgeneris', with 'pecuniary benefits' and 'undue economic advantage'.
In the case of SherbahadurAkram Khan and others...Versus...State of Maharashtra, reported in 2007 ALL MR (Cri) 1 and Madans/o Ramkisan Gangwani...Versus...State of Maharashtra, reported in 2009 ALL MR (Cri) 1447 it was held that 'other advantage' as used in Section 2 (e) of the MCOC Act has to be read 'ejusdemgeneris' with words 'pecuniary benefits and undue economic advantage'. The Full Bench after taking survey of various decisions holding the field, ultimately held that the term âother advantageâ cannot be read 'ejusdemgeneris' with words 'pecuniary benefits' and 'undue economic advantage'. On behalf of the appellant, reliance was placed on the following observations in the case of Jagan(supra) in paragraph no.38 of the judgment, which reads as under:
â38. It is difficult to accept the contention that if the wider meaning is given to the provision of section 2 (e), provisions of MCOCA would be invoked even for petty offences. In case of SherbahadurAkram Khan Vs. State of Maharashtra (cited supra), some of the offences resulted from the quarrel at public water tap. In the said matter, as in many of the cases, the accused had assaulted the injured with a fist blow. By no stretch of imagination, such an activity could be construed to be the one for which MCOCA could be invoked. If there are some altercations between two businessmen within four corners of shop and, as a result of which one of them slaps the other, by no stretch of imagination it can be said to be an offence for which MCOCA is to be invoked. Similarly, a dispute between two brothers on some property issue and even assault and that too by a deadly weapon would not come in the ambit of MCOCA. The legislative intent is clear, that MCOCA is for curbing the organised crime. Unless there is prima facie material, firstly, to establish that there is an organised crime syndicate and, secondly, that organised crime has been committed by any member of the organised crime syndicate or any person on behalf of such syndicate, the provisions of MCOCA cannot be invoked. In the earlier paragraph we have discussed in detail as to what are the ingredients so as to constitute an offence of âorganised crimeâ. The prosecution will, therefore, have to firstly establish that there is an organised crime syndicate. It will have to satisfy that there exist the ingredients of âcontinuing unlawful activityâ. It will thereafter have to satisfy that the ingredients of the âorganized crimeâ as spelt out by us hereinbefore exist, prior to invoking the provisions of MCOCA. We are, therefore, unable to accept the contention that if the wider meaning is given, the MCOCA can be invoked even for sundry offences. As held by the Apex Court in the case of Ranjitsingh Brahmajeetsing Sharma (supra), merely because the person who cheats or commits a criminal breach of trust more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. By the same analogy, if a person commits murder more than once, would not by itself be sufficient to attract the provisions of MCOCA. At the cost of repetition, we make it clear that unless all the ingredients to constitute the offence punishable under MCOCA are available, it will not be permissible to invoke the provisions of MCOCA.â
As noticed earlier, the basic question before the Full Bench was as to the interpretation to be placed on the term âother advantageâ as appearing in Section 2 (e) of the MCOC Act. However, as has been held in paragraph no.38, there cannot be any dispute with the proposition that the existence of 'organised crime syndicate' would be prerequisite and sine qua non for attracting the provisions of the said Act. As noticed by the Full Bench, the following ingredients will be necessary.
â(i) that there has to be a continuing unlawful activity ;
(ii) that such an activity will have to be by an individual, singly or jointly ;
(iii) that such an activity is either by a member of an organised crime syndicate or on behalf of such syndicate ;
(iv) that there has to be use of violence or threat of violence or intimidation or coercion or other unlawful means ;
(v) that such an activity has to be with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for the person who undertakes such an activity or any other person or promoting insurgency.â
The ingredients of continuing unlawful activities would be :
â(i) that such an activity should be prohibited by law for the time being in force ;
(ii) that such an activity is a cognizable offence punishable with imprisonment of three years or more ;
(iii) that such an activity is undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate ;
(iv) that in respect of such an activity more than one chargesheet must have been filed before a competent Court ;
(v) that the chargesheets must have been filed within a preceding period of ten years ; and
(vi) that the Courts have taken cognizance of such offences.â
21. Before proceeding to consider the rival submissions it may be mentioned at the outset that at the stage of consideration of application for discharge under Section 227 of the Code of Criminal Procedure, the Court is not expected to embark upon roving enquiry or detail appreciation of the material and the evidence on record, which can only be done at the trial. In the case of GovindSakharam Ubhe...Versus...State of Maharashtra, reported in 2009 (3) Mh.L.J. (Cri.) 131 there was a challenge to the dismissal of application for discharge from the provisions of MCOC Act, as in the present case. The Division Bench while deciding the said appeal had considered the decision of the Honble Supreme Court in the case of Union of Indiaâ¦Versusâ¦Prafulla Kumar Samal, reported in AIR 1979 SC 366 reiterating the well established principles with a rider that at the stage of Section 227 of the Code of Criminal Procedure, the Court has power to sift and weigh the evidence to find out whether there is prima facie case against the accused. However, if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court has further observed that the Judge cannot act as a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities appearing in the case and so on. It has been clarified that this however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. The Division Bench, after considering the subsequent decisions of the Honble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengalâ¦Versusâ¦Anil Bhunja and others, reported in AIR 1980 SC 52, Niranjan Singh Karam Singh Punjabiâ¦Versusâ¦Jitendra Bijja and others, reported in AIR 1990 SC 1962, State of Maharashtra and ors., â¦Versusâ¦Som Nath Thapa and ors., reported in (1996) 4 SCC 659, State of Maharashtraâ¦Versus⦠Priya Sharan Maharaj and ors ., reported in AIR 1997 SC 2041, State of Karnatakaâ¦Versusâ¦L. Muniswamy and ors., reported in (1977) 2 SCC 699 and R.P. Kapurâ¦Versusâ¦The State of Punjab, reported in AIR 1960 SC 866, summarized the principles in paragraph no.25 as under:
â25. The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of section 227 of the Code, the Court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The Court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Courts enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the Court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of section 227 or section 228, the scales as to the guilt or innocence of the accused are even then the Court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then the Court will proceed to frame the charge. But if two views are possible and the Court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the Court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the Court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the Court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage.â
22. In the present case, it is not in dispute that the appellant is facing prosecutions in respect of following offences.
â(1) Crime No.456/2003, Police Station Panchpaoli, under Sections 143, 147, 148, 149, 452, 427 and 395 of Indian Penal Code.
(2) Crime No.79/2007, Police Station Jaripatka, under Sections 377, 392, 367 r/w Section 34 of Indian Penal Code.
(3) Crime No.3110/2011, Police Station Jaripatka, under Sections 294 and 506 of Indian Penal Code.
(4) Crime No.276/2012, Police Station Panchpaoli, under Sections 143, 144, 147, 148, 149, 302, 307, 504, 323 and 452 of Indian Penal Code, under Sections 3 and 4 read with Section 25 of the Arms Act and under Section 135 of the Bombay Police Act.â
The learned Special Judge in paragraph no.8 of the impugned order has found that the chargesheet and the material produced prima facie show that the appellant is running crime syndicate. It would be worthwhile to reproduce the observations in paragraph no.8 of the impugned order as under:
â8. I have carefully gone through the charge sheet and I find that all the above ingredients are satisfied in the present case. Statements of witnesses show that accused Dallu Sardar is running a crime syndicate. It is true that Dallu Sardar has not committed earlier offences with co-accused, but mere fact that he has committed present offence with newly enrolled members would not relieve him from the rigor of MCOC Act. Even if a person commits crime singly as a member of the gang or on behalf of the gang he is liable under the Act. If he commits offence through or with the assistance of newly enrolled member/s, still he and newly enrolled members are liable under the Act. There is no escape for him only because he has changed members for commission of crimes. He will not loose his character as a member of the gang. Similarity of more than two members for commission of unlawful activities is not the requirement of the Act. If that is the requirement, then the gang leader may go on changing members for commission of each offence so as to defeat the provisions MCOC Act. In order to curb this mischief or ill design of gang members the legislature in its wisdom defined the terms, âOrganised Crime Syndicateâ, âOrganised Crimeâ, âContinuing unlawful activitiesâ by employing the words âacting either singly or collectively, âeither as a member of an organised crime syndicate or on behalf of such syndicateâ, âsuch syndicate in respect of which more than one chargesheets have been filedâ etc. In the present case, existence of organised crime syndicate and membership of accused Dallu Sardar is evident from the fact that he had committed such offences with other accused which MCOC Act seeks to prevent.â
The learned Special Judge has further found that the offences at serial nos.1, 2 and 4 above, registered against the appellant and his associates, fall in the category of the offences which the MCOC Act, seeks to prevent or control. It has been found that all these offences involve violence as well as pecuniary gain.
23. It has also been found that the statements of witnesses A.18, A.19 and A.20 show that the deceased and the appellant were dealing in the business of real estate and the appellant was threatening the deceased that he should not deal in the property in which the appellant was dealing. The learned Special Judge has found that the statements further show that the appellant intended to establish his supremacy in the business over the deceased. Thus, it has been found that the statements of the witnesses âunequivocallyâ show that the appellant is running organised crime syndicate.
24. The details of the offences registered against the co-accused are as under:
â1. GOLDI MULTANI (A2) :
| Sr.No. | Police Station | No. | Section |
| 1. | Sadar | 96/09 | 395 (Decoity for mobile) |
| 2. | Panchpaoli | 79/10 324 | (Hurty by knife) (pool) |
| 3. | Panchpaoli | 50/12 | 399 IPC, 135 BP preparation to commit dacoity. |
| Sr.No. | Police Station | No. | Section |
| 1. | Panchpaoli | 3309/10 | 294, 506B, 34 IPC * |
| 2. | Panchpaoli | 299/11 | 323, 324, 226, 307,294, 506B, 34 IPC |
| Â | Â | Â | (110g) of Cr.P.C. |
| Sr.No. | Police Station | No. | Section |
| 1. | Jaripatka | 33/12 | 452, 336, 294, 506B, 342 for election ticket. * |
| 2. | Panchpaoli | 50/12 | 399 IPC 25 Arms Act 135 Bombay Police Act |
4. MEHAROZ BABLOO SARDAR HUSSAIN (A5) :
| Sr.No. | Police Station | No. | Section |
| 1. | Jaripatka | 43/2005 | 147, 148, 149, 307 IPC 110 Cr.P.C. |
| Sr.No. | Police Station | No. | Section |
| 1. | Jaripatka | 43/2005 | 147, 148, 149, 307 IPC |
| 2. | Panchpaoli | 211/11 | 325, 504, 34 IPC, 107, 110 * |
| Sr.No. | Police Station | No. | Section |
| 1. | Yashodara | 140/11 | 395, 324, 323, 504 IPC * |
| Sr.No. | Police Station | No. | Section |
| 1. | Yashodara | 08 | 376 (Acquittal) |
| 2. | Yashodara | 10 | 324, 225, 34 (Acquittal) |
| 3. | Yashodara | 12 | 294, 506B (Acquittal) |
9. PINTU CHAWARE (A10) :
| Sr.No. | Police Station | No. | Section |
| 1. | Jaripatka | 2001 | 324 IPC * |
| 2. | Jaripatka | 12 | 324 IPC * |
| 3. | Jaripatka | 2006 | 324 IPC * |
| Sr.No. | Police Station | No. | Section |
| NO OFFENCE REGISTERED AGAINST THIS ACCUSED | |||
| Sr.No. | Police Station | No. | Section |
| NO OFFENCE REGISTERED AGAINST THIS ACCUSED | |||
| Sr.No. | Police Station | No. | Section |
| 1. | Jaripatka | 12 | 294, 506 IPC * |
| 2. | Kalmana | Â | 143, 147, 149, 363, 365, 374 IPC |
| Sr.No. | Police Station | No. | Section |
| 1. | Ajni | 08 | 302, 34 (Acquittal) |
| 2. | Ajni | 09 | 147, 148, 149 IPC * |
| Sr.No. | Police Station | No. | Section |
| 1. | Gittikhadan | Â | 294, 323, 506B, 34 IPC * |
| Sr.No. | Police Station | No. | Section |
| 1. | Lakadganj | 143/03 | 294, 34 IPC * |
| 2. | Lakadganj | 2010 | 294, 34 IPC* |
| 3. | Lakadganj | 2010 | 294, 34 IPC * |
| 4. | Lakadganj | 2012 | 307, 323 IPC |
| 5. | Lakadganj | 2012 | 399 of I.P.C. 4, 25 Arms Act |
25. According to the learned Senior Counsel for the appellant, he had a cement house in his favour in the form of decision of this Court in the case of State of Maharashtraâ¦Versusâ¦Rahul Ramchandra Taru, reported in 2011 ALL MR (Cri) 2100. It is submitted that this was demolished when this Court, in the case of Sachin Ghaiwal, decided on 16.7.2014 has held that the requirement of more than one chargesheet is qua unlawful activities of the organized crime syndicate and not qua the individual member thereof. It is submitted that the view as taken in the case of Sachin Ghaiwal runs counter to the decision in the case of Rahul Ramchandra Taru (Supra) and this would require reference to the Larger Bench.
26. On considering the rival submissions, we tend to disagree. In the case of Rahul Taru (supra) the incident occurred on 14.10.2006 within the jurisdiction of Police Station Kothrud in which it was alleged that one Sachin Pote and his associates had attacked the deceased Sandeep Mohol while later was proceeding in his Scorpio Jeep. The accused had used firearms and other deadly weapons. During the course of investigation, it was revealed that the accused were members of organised crime syndicate and therefore, the provisions of MCOC Act were invoked against them. Accused Rahul Taru had sought discharge from the offences punishable under Sections 3 (i), 3 (ii), 3 (iii) and 3 (iv) of the MCOCA which was rejected and the said order was challenged in appeal. It was ultimately held in paragraph no.8 that one or more chargesheets containing allegations that the alleged offence was committed either singly or jointly as a member of the organized crime syndicate or on behalf of such syndicate, is sine qua non for invoking stringent provisions of MCOCA. It was further held that mere filing of more than one chargesheets within the preceding period of ten years, alleging commission of cognizable offence punishable with imprisonment of three years or more, is not enough.
27. In the case of Sachin Ghaiwal, the Division Bench, after considering the case of Rahul Taru, held that the finding recorded therein has to be confined to the facts of the said case. It was held that consideration of the expression âcontinuing unlawful activity was strictly with reference to the facts of said case, rather than interpreting the provisions of Section 2 (d) of the MCOC Act. Thus, it may be seen that the Division Bench in Sachin Ghaiwal's case has considered the earlier decision and found that the observations in the case of Rahul Taru have to be confined to the facts as arising therein. The Division Bench has further held that the correct legal position in this regard is stated in the case of GovindSakharam Ubheâ¦Versusâ¦State of Maharashtra, reported in 2009 (3) Mh.L.J. (Cri.)131 in which it has been held that the requirement of more than one chargesheet is qua unlawful activities of the organized crime syndicate and not qua individual member thereof. The following observations in paragraph no.31 in the case of Sachin Ghaiwal are to the point.
â31. We hereby further respectfully while agreeing with the propositions and interpretation made by the Division Bench of this Court in the cases of (i) Bharat Shantilal Shah v. State of Maharashtra, reported in 2003 All MR (Cri) 1061 (ii) Appaalias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165, (iii) AsifKhan Bashir Khan v. The State of Maharashtra in Criminal Appeal No.749 of 2007 and GovindSakharam Ubhe v. State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 hold that the said four judgments have binding effect. And the ratio laid down by the Division Bench in the case of GovindSakharam Ubhe v. State of Maharashtra reported in 2009 ALL. M.R. (Cri.) 1903 is the correct position of law as far as the interpretation with reference to the expression âcontinuing unlawful activity as has been defined in Section 2 (1) (d) of the MCOC Act.â
28. Section 2(d) defining continuing unlawful activity does not envisage chargesheets in relation to âorganized crimeâ as defined in Section 2(e) of the Act. It also nowhere stipulates that the chargesheets should be against the accused in last chargesheet under this Act or any of his co-accused in such chargesheet. This scheme is itself sufficient to negate the challenge of present appellant. Chargesheets in relation to offences punishable with lesser punishments filed against an accused as part or representative or member of a crime syndicate or against its other members, may be relevant to demonstrate the existence of such a syndicate. Similarly, the existence or involvement of any organized syndicate or fact that accused in chargesheets already filed acted for or were acting at the instance of such a syndicate or co-accused were its part or members or representatives, may itself surface later on i.e. after filing of earlier chargesheets or earlier trial and hence, the said existence or capacity or involvement of or on behalf of the crime syndicate would not find mention in any of such previous chargesheets. Said assertion may, however, figure in the impugned chargesheet to be tried and filed against a person like present accused. In the present matter, the impugned chargesheet expressly refers to those earlier chargesheets and to appellant as gang leader of such a crime syndicate. We feel that in present trial also, the prosecution can show that the earlier chargesheets were against the crimes of a syndicate or co-accused found now associated with him, happen to be part of such a syndicate. If the arguments of appellant are accepted, words deliberately not used in Section 2(d) by the State Legislature are required to be read in to it and a rider deliberately omitted by it, is required to be artificially inserted into it. This is against the settled cannons of interpretation. Section 2(d) does not contemplate any âaccused specificâ ingredient and needs independent interpretation uninfluenced by Section 2 (e). This definition gives primacy to direct or indirect role played by the syndicate and individuals roped in subsequent chargesheet become relevant only because of their connection with earlier crime or accused therein. Section 2(e) is a specie carved out of a larger concept seen in Section 2 (d) by the State Legislature. Thus to control organized commission of crimes, commission of at least two cognizable offences, completion of investigation of the same, cognizance of the chargesheets filed in relation thereto meet requirements of Section 2(d). Section 2 (e) adds one more rider to it.
If mention of fact that such continuing unlawful activity was committed by the accused or his colleagues either singly or jointly, as a member of any organised crime syndicate or on behalf of such syndicate, is held a prerequisite in more than one chargesheet in previous ten years, the purpose of enactment itself would be defeated. Comission of first crime by an individual or few accused together will never show the requisite link or affinity needed to demonstrate either existence or participation of or on behalf of a syndicate. It may surface after more than one such offences are committed or chargesheets are filed. Therefore, only the State Legislature has given wide time frame of 10 years to see that more than one chargesheet of which cognizance is taken by the competent court are filed in relation to such continuing unlawful activity. Earnest will of the State Legislature to prevent organised crimes is also apparent from the words âeither singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicateâ also reveal a very broad field thrown open before the investigating agency. After more than one such chargesheets only the investigating officer/s may get some clue or hint about involvement of a syndicate and not otherwise. Hence, this practical difficulty and legislative resolution thereof also shows absence of any merit in the preliminary objection raised by the appellant.
In this view of the matter and having regard to the decision in the case of Govind Ubhe (Supra) with which we respectfully agree, we do not find any necessity to make a reference to a Larger Bench in this case.
29. In the present case undoubtedly the appellant is facing prosecution in four previous crimes within preceding 10 years and even if we exclude Crime No.3110/2011 under Sections 294 and 506 of Indian Penal Code and for that matter even Crime No.79/2007, Police Station Jaripatka under Sections 377, 397, 367 read with Section 34 of Indian Penal Code, having regard to the previous chargesheets against the appellant and the co-accused and the nature of the offences would prima facie show the existence of organised crime syndicate. In the present case, prima facie, the allegations are relatable to a dispute with regard to the dealing in real estate. The submission on behalf of the appellant that there is some discrepancy as to whether it was the appellant who was intermeddling with the property in which deceased was dealing or otherwise, in our considered view, would not be significant at this stage. The fact remains that there is prima facie material to show the commission of an offence of the nature which the MCOC Act seeks to control or prevent.
30. In that view of the matter, we do not find any reason to interfere with the impugned order. As such, the appeal is hereby dismissed. Needless to mention that the observations herein are essentially for the limited purpose of deciding the prayer for discharge and would not be binding at the trial.