The division judge bench of Justice S. Abdul Nazeer and Justice J.B. Padriwala of the apex court in the case of The State of Gujarat Vs Sandip Omprakash Gupta held that there would have to be some act or omission which amounts to organized crime after the Maharashtra Control of Organised Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).
BRIEF FACTS
The factual matrix of the case is that the FIR came to be registered against the respondent accused herein and thirteen other co-accused for the offense punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) reply of the 2015 Act. The respondent was arrested on the same day and the respondent applied for bail before the session court and the same was rejected. Thereafter, the respondent preferred bail application before the high court and the high court granted bail to the respondent-accused, essentially relying on the dictum as laid by this Court in the case of State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane.
The learned counsel appearing on behalf of the appellant has contended that the dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook, as the said dictum frustrates the very object of enacting the 2015 Act. It was also submitted that the five FIRs registered against the respondent-accused prior to the 2015 Act coming into force, were sufficient to bring the case within the ambit of ‘continuing unlawful activity’ as defined under the 2015 Act. the learned counsel argued that the term unlawful activity means that activities prohibited by law in respect of which more than one chargesheets has been filed before a competent court within the preceding period of ten years.
The learned counsel appearing on behalf of the respondent has contended that the high court has committed no error in passing the impugned order. It was further submitted that if the submissions of the counsel appearing on behalf of the appellant is accepted then it would be a violation of Article 20(1) of the Constitution which provides that no person shall be convicted of an offence except for one which is in violation of any law in force at the time of commission of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. It was also submitted that unless there is a substantive offence, mere past chargesheets would not constitute the offence of organised crime.
COURT’S OBSERVATION
The hon’ble court held that
(a) If ‘organised crime’ was synonymous with ‘continuing unlawful activity’, two separate definitions were not necessary.
(b) The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of ‘continuing unlawful activity’, but find place only in the definition of ‘organised crime’.
(c) What is made punishable under Section 3 is ‘organised crime’ and not ‘continuing unlawful activity’.
(d) If ‘organised crime’ were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) reply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that ‘if any one of such offence has resulted in the death’, since continuing unlawful activity requires more than one offence. Reference to ‘such offence’ in Section 3(1) implies a specific act or omission.
(e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment.
(f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).
(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned.
CASE NAME- The State of Gujarat Vs Sandip Omprakash Gupta
CITATION- CRIMINAL APPEAL NO. 2291 OF 2022
(arising out of SLP (CRIMINAL) NO. 6101 OF 2021)
CORUM- Justice S. Abdul Nazeer and Justice J.B. Padriwala
DATE- 15.12.22
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