Bombay High Court
Darasing @ Maruti Vakilya And ... vs The State Of Maharashtra on 3 August, 2021
Bench: Mangesh S. Patil
929.Crl.Apeal.901.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.901 OF 2018
WITH
APPLN/430/2021 IN APPEL/901/2018
1. Darasing @ Maruti Vakilya, Bhosale,
Age : 49 years, Occu.: Labour,
R/o. Dhamangaon Tq. Ashti
District Beed.
2. Ramesh @ Rajjya Madhav @ Dhuraji Kale,
Age : 43 years, Occu.: Labour,
R/o. Brahmangaon, Tq. Ashti
District Beed.
3. Bandya @ Baan Nilgirya @ Utam Bhosale,
Age : 41 years,
R/o. Walunj, Tq. Gangapur
District Aurangabad.
4. Habib @ Habbya Panmalya Bhosale
Age : 41 years, Occ : Labour
R/o. Sablkhed Tq. Ashti
District Beed.
5. Garmanya Khubjat Chavan,
Age : 48 years, Occ: Labour
R/o Shori, Tq. Ashti
District Beed.
6. Raju @ Adnyan @ Ashok @ Killya Bhosale,
Age : 36 years Occ: Labour
R/o. Dhamangaon, Tq. Ashti District Beed.
7. Umbrya Dhansha Bhosale
Age : 48 years, Occ: Labour
R/o Shorti Tq. Ashti
District Beed.
8. Rasalya Diggya Bhosale,
Age : 41 years, Occ : Labour
R/o. Chikhli, Tq. Ashti District Beed.
9. Santosh @ Hari Suryabhan @
Discharge Kale, Age : 36 years,
Occ: Labour, R/o. Hiwre Pimparkhed,
Tq. Ashti District Beed.
10. Suresh @ Tirsha @ Tintasha
Chintaman @ Chinchwanya Kale
Age : 32 years, Occ : Labour
R/o Shori, Tq. Ashti District Beed.
1/11
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929.Crl.Apeal.901.18.odt
11. Hanumant Naksha Bhosale
Age : 36 years, Occ: Labour
R/o Hire Pimparkhed
Tq. Ashti District Beed.
12. Chiku @ Chikkya @ Vivrya
Sarmalya Bhosale,
Age : 35 years R/o. Walunj
Tq. Gangapur District Aurangabad ... APPELLANTS
VERSUS
The State of Maharashtra RESPONDENTS
...
Advocate for Appellants : Mr. N.S. Ghanekar
APP for Respondent/State : Mr. R.B. Bagul
...
CORAM : MANGESH S. PATIL, J.
Reserved on : 29.07.2021
Pronounced on : 03.08.2021
JUDGMENT :
This is an appeal under Section 12 of the Maharashtra Control
of Organized Crime Act, 1999 (hereinafter the MCOC Act) being aggrieved
and dissatisfied by judgment and order returned by the learned Special
Judge, MCOC, Aurangabad convicting the appellants under Section 3(1)(ii)
and Section 3(4) of the MCOC Act and sentencing them to suffer rigorous
imprisonment for 12 years under Section 3(1)(ii) and rigorous
imprisonment for 10 years under Section 3(4) and in addition imposing a
fine of Rs.5,00,000/- on each, count in default sentencing them to further
rigorous imprisonment of two years on each count.
2. The facts which lead to the Appeal may be summarized as
under:
929.Crl.Apeal.901.18.odt
In the night intervening 16.01.2001 and 17.01.2001 the
appellants committed dacoity in village Kothewadi Tq. Pathardi, District
Ahmednagar and even committed rape on few women for which Crime
No.08/2001 was registered for the offences punishable under Section 395,
342, 376(2)(g), 354, 506(2) of the Indian Penal Code. During the
investigation of that crime it transpired that the appellants were involved in
organized crime wherein charge sheets were filed and the courts had taken
cognizance. Accordingly the approval was sought under Section 23 and the
present crime was registered. The prosecution examined in all 11 witnesses
mostly on the point and concerning the earlier crimes. By the impugned
judgment the appellants have been convicted and sentenced as mentioned
herein above.
3. The learned advocate Mr. Ghanekar vehemently submitted that
bearing in mind the fact that Section 3 of the MCOC Act prescribes for
punishment for 'organized crime' as defined under Section 2(1)(e) and not
for being involved in 'continuing unlawful activity' as defined under Section
2(1)(d), the appellants could not have been convicted under that provision
without being charged for any substantive offence. He would submit that
though continuing unlawful activity is an ingredient for constituting an
organized crime, in order to constitute an organized crime, the offender
must be involved in some crime of the kind described in the definition of
organized crime. He would therefore submit that mere proof regarding
involvement of the appellants in continuing unlawful activity was not
929.Crl.Apeal.901.18.odt
sufficient to convict them. He would submit that admittedly, the appellants
have not been charged for any substantive offence in the present crime and
have been convicted merely for engaging in continuing unlawful activity
during previous years.
4. The learned advocate would point out that the witnesses
examined by the prosecution are mostly relating to the previous crimes
registered against the appellants and do not make out any new substantive
offence. He would further submit that the appellants have been duly tried
for the previous crimes and consequently could not have been again tried for
commission of those crimes. He would submit that even though the
appellants have been involved in several crimes, they have been duly tried
for all those crimes and irrespective of the decisions, all these previous
crimes would merely demonstrate as to how they have been engaged in
continuing unlawful activity as defined under Section 2 (1)(d). However,
over and above, the prosecution will have to establish that they have
engaged in organized crime as defined under Section 2(1)(e) which is
punishable under Section 3.
5. In support of his submission the learned advocate Mr. Ghanekar
would place reliance on the Division Bench decision of this Court in
Criminal Appeal No.308/2002, Madan S/o. Ramkisan Gangwani Vs. State of
Maharashtra and connected Appeals dated 26.03.2009 and Single Bench
Decision of this Court in Criminal Appeal No.184/2015, Pundlik S/o. Ukla
Pawar and Ors. Vs. State of Maharashtra with connected Appeals dated
929.Crl.Apeal.901.18.odt
14.07.2020.
6. Per contra, the learned APP would submit that there is enough
evidence to demonstrate as to how the appellants have been engaged in
continuing unlawful activity. They were involved in number of cases. As is
held in the case of Bharat Shantilal Shah Vs. State of Maharashtra ; 2003
ALL MR (Cri) 1061 conviction or otherwise is inconsequential. There is no
error or illegality committed by the trial court appreciating the evidence and
concluding that appellants have engaged in organized crimes.
7. The learned APP would also refer to the decision of this Court
in the case of Govind Sakharam Ubhe Vs. State of Maharashtra ; 2009 ALL
MR (Cri) 1903 and the order passed in Kishor S/o. Changdev Dandwate Vs.
The State of Maharashtra ; Criminal Appeal No.222/2019 and Suryakant @
Suresh S/o. Shriram Mule Vs. The State of Maharashtra and Anr. ; Criminal
Appeal No.34/2019.
8. I have considered the rival submissions and perused the record.
There is no dispute about the fact that as the matter stands, the appellants
have been charged, tried and convicted only for the offences punishable
under Section 3(1)(ii) and 3(4) of the MCOC Act and have not been
simultaneously charged and tried for any substantive crime. The issue
therefore which arises for determination and which in fact is no longer res
integra is as to if a person can be convicted for the offence of organized
crime without there being a substantive offence. A similar argument was
canvassed before the Division Bench in the case of Madan Ramkisan
929.Crl.Apeal.901.18.odt
Gangwani (supra). Referring to the separate views taken by the esteemed
members of the Division Bench sitting single on earlier occasion. The
Division Bench referred to the following observations from the case of
Bharat Shantilal Shah (supra):
"19. Dealing with the next definition in section 2(1)(d) of
'continuing unlawful activity' it was submitted that it suffers
from violation of Article 14 as it treats unequals as equals. It
makes an activity continuing unlawful activity if more than one
charges of cognizable offence punishable with imprisonment of
three years or more are filed in competent Court, it does not
touch an activity as continuing unlawful activity if undertaken
by a person who is known to be a criminal but more than one
charge-sheets have not been filed against him. A person
charged ten times of an offence though acquitted on every
occasion may yet be roped in as a person engaged in continuing
unlawful activity. Whereas a person who is convicted for an
offence for three years punishment cannot be touched by this
definition if he is not charged with more than two of such
offences. The definition therefore treats as equal persons who
are hopelessly unequal ... The arguments appear to be
attractive at the first blush, but deeper scrutiny reveals the
hollowness of the argument.
25. In our opinion, there is no violation of Article 14 by this definition. If
we read the definition again, what has been defined as continuing
unlawful activity is a member of organized crime syndicate in respect
of which any activity prohibited by law and done repeatedly i.e. more
than once for which charge-sheet has been filed in the Court of
competent jurisdiction in the past ten years. The purpose of definition
is to define what continuing unlawful activity is and it is for the
purposes of defining what is continued unlawful activity that those
charges are to be taken into consideration. Mere taking into
consideration of such charges cannot result in discrimination of the
kind alleged by Shri Manohar. The activity must be continuing
unlawful activity and to define it with clarity it is provided that any
person who in the past was charge-sheeted for more than one charge
of such activity or crime the cognizance of which has been taken and
imprisonment for which is more than three years should be taken into
account. The fact of the person having been charge-sheeted in such
cognizable offences in the past makes the unlawful activity,
continuing unlawful activity. This section only defines what the
activity is. It does not itself provide for any punishment for that
activity. Had punishment been provided the submission that it treats
while punishing unequals as equals may carry weightage. That being
929.Crl.Apeal.901.18.odt
not the case in the challenge to section 2(1)(d) of the Act we see no
vagueness or violation of Article 14 by the definition. We find that the
provision treats all those covered by it in a like manner and does not
suffer from the vice of class legislation.
27. We also do not find substance in the challenge that the equality
clause in the Constitution is violated because the definition
ropes in anyone charged more than once, irrespective of
whether the charge resulted in an acquittal or conviction. The
circumstances that followed the charge are not material. The
provision only defines what is continued unlawful activities and
refers to whether a person has been charged over a period of ten
years for the purpose of seeing whether the person is charged
for the first time or has been charged often. The circumstance of
conviction or acquittal that followed the charge are not
material. The limited purpose is to see antecedents of the
person. Not to convict." (emphasis supplied)
The Division Bench concluded in paragraph Nos.105 to
108 as under :
"105. Since in the present case, the question raised is about the
definition of "organised crime", in view of these observations of the
Supreme Court, it may be permissible to conclude that the findings
of this Court in Bharat Shah's case in this regard which have been
quoted earlier would have to be followed.
106. This Court had specifically held that had punishment been
provided for continuing unlawful activity, the submission that
while punishing, it treats unequals as equals may carry
weight. The Court upheld the validity of the provision
defining "continuing unlawful activity" only because the Act
did not provide any punishment for that activity. In para 27 it
was made clear that the limited purpose of continuing
unlawful activity was to see antecedents of the person and
not the convict.
107. It was contended that the observations in Bharat Shah's case by this
Court have to be read in context of the fact that Section 2 is a definition
clause which just defines the offence and, therefore, could not have
prescribed punishment, which Section 3 prescribes. It is truly said
that Section 2 merely defines, not only the offence of "organised crime"
but also other terms used in the Act. What is material is the definition of
offence of "organised crime" and not the definitions of other terms
included in Section 2. Had the term "continuing unlawful activity" been
synonymous with "organised crime", it would not have been necessary
929.Crl.Apeal.901.18.odt
for the Legislature to include two definitions. It would have been
sufficient to provide for only one definition of continuing unlawful
activity and make that activity punishable. The definitions in clauses (d)
and (e) clearly show that one of the components of organised crime is
continuing unlawful activity and, therefore, organised crime is something
more than mere continuing unlawful activity.
108. Thus the fact of more than one chargesheet having been filed in
competent Court in preceding period of ten years and such Court having
taken cognizance of such offence, is merely one of the ingredients of the
offence of organised crime. Therefore, it cannot be contended that the
offence of organised crime is completed by collection of previous
criminal activities. (emphasis supplied)
Again in paragraph No.109 the observations of the Division
Bench in the case of Jaisingh Ashrfilal Yadav and Ors Vs. State of
Maharashtra and Anr.; 2003 ALL MR (Cri) 1506 where quoted with a
conclusion that even these observations would substantiate the submission
that for establishing offence of organized crime something more than mere
continuing unlawful activity is necessary. It is pertinent to note that even
the observation and conclusion of a Single Judge in the case of Dinesh
Mahadev Bhondwe Vs. State of Maharashtra; 2007 (2) Mh.L.J. (Cri) 718 to
the contrary was held to be incorrect.
Summarizing the conclusion in paragraph No.115 it has been
observed as under:
"115. If the provisions of the Act are read in entirety, in the light of
foregoing discussion, they will show that offence of
"organised crime" is constituted by atleast one instance of
continuation, apart from continuing unlawful activity
evidenced by more than one chargesheets in preceding ten
years : This is so because :
(a) If "organised crime" was synonymous with "continuing
unlawful activity", two separate definitions were not
necessary.
929.Crl.Apeal.901.18.odt
(b) The definitions themselves show that ingredients of use of
violence in such activity with the objective of gaining
pecuniary benefit are not included in definition of
"continuing unlawful activity", but find place only in
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
chargesheet filed, the classification of crime in Section
3(1)(i) and 3(1)(ii) 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) If the offence of organised crime itself is comprised of
previous offences in respect of which chargesheets have
been filed, or in other words such chargesheets are a
component of the offence of organised crime, all such
offences referred to in such chargesheets could be tried at
one trial, and the rider in Section 7 about triability of the
accused under the Code at the same trial would be
redundant.
(f) Entire Section 18 of the Act would become redundant if
"continuing unlawful activity" evidenced by proof of filing
of two chargesheets is equal to organised crime, since
question of recording confessions would not arise. Certified
copies of chargesheets, with certified copy of order thereon
by the Court taking cognizance, would be admissible
without formal proof and if this itself was enough to
constitute offence, no other evidence would be required to
be tendered.
(g) For the same reason, there may be no need to examine any
witnesses and consequently Section 19 would be
redundant.
(h) If proof of filing two chargesheets is enough to establish
offence of organised crime, there may be no occasion to
carry out any investigation, other than collecting copies of
charge sheets. Consequently, it would be unnecessary for
high ranking police officers to wield the power to allow
929.Crl.Apeal.901.18.odt
recording information or to sanction prosecution after such
chargsheets are collected.
9. Recently the learned Judge of this Court in the matter of
Pundlik Ukla Pawar (supra) has taken a similar view albeit without
reference to the Division Bench judgment in the case of Madan Ramkisan
Gangwani (supra).
The decision in the case of Govind Sakharam Ubhe (supra) with
utmost respect does not directly deal with and decide the issue as to if a
person can be tried and convicted for the offences punishable under Section
3 without simultaneously implicating him for some substantive crime. Even
Kishor Changdev Dandwate and Suryakant @ Suresh S/o. Shriram Mule
(supra) do not specifically deal with this issue. Besides in all these three
matters the Division Benches were merely called upon to consider the
request of the accused for discharge. Even the decision in the case of Madan
Ramkisan Gangwani (supra) which is earlier decision has not been cited
before any of the Division Benches which decided the matters in Govind
Sakharam Ubhe, Kishor Changdev Dandwate and Suryakant @ Suresh
Shriram Mule (supra).
10. The upshot of the above discussion is that the appellants were
merely charged and tried for the offence punishable under Section 3(1)(ii)
and 3(4) without any substantive crime. Merely being involved in several
crimes without being involved in any other crime to elevate the continuing
unlawful activity to the case of organized crime as defined under Section
929.Crl.Apeal.901.18.odt
2(1)(e) would not be sufficient. Therefore the appellants could not have
been convicted and sentence only for the offence punishable under Section
3(1)(ii) and 3(4) in the absence of any substantive crime so as to constitute
an organized crime. The learned Judge of the Special Court has not
considered all these aspects and has convicted and sentenced the appellants
merely for being involved in continuing unlawful activity which in itself is
not an offence which is made punishable under the MCOC Act.
11. In view of the above, the Appeal deserves to be allowed and is
accordingly allowed. The impugned judgment and order convicting the
appellants is quashed and set aside. They are acquitted of the offences
punishable under Sections 3(1)(ii) and 3(4) of the MCOC, Act. They may
be set at liberty if not required in any other crime. Fine amount if paid be
refunded.
12. The Criminal Application No.430/2021 is disposed of.
(MANGESH S. PATIL, J.)
habeeb
