Bombay High Court
Vijay S/O Ratan Nagdeve vs The State Of Mah. Thr. Pso ... on 25 February, 2021
Bench: Z.A. Haq, Amit B. Borkar
1 APL8.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.8 OF 2020
Vijay s/o Ratan Nagdeve,
Aged about : 26 years,
Occ : Private, R/o House
No.164/A/406, Kamgar
Colony, Subhash Nagar,
Hingna Road, Nagpur. ... APPLICANT
// V E R S U S //
1. The State of Maharashtra,
Through Police Station Officer,
Sitabuldi Police Station,
Nagpur.
2. The State of Maharashtra,
Through Assistant Commissioner of
Police, Sitabuldi Division,
Nagpur City, Nagpur.
3. Sunil s/o Tilakchand Meshram,
Aged about : 30 years,
R/o Thutera, Ward No.8,
Tah. Kelwad, Dist. Seoni,
Madhya Pradesh. ... NON-APPLICANTS
-------------------------------------------------------------------------------------------
Shri U. P. Dable, Advocate for applicant.
Shri T. A. Mirza, Additional Public Prosecutor for Non-applicant Nos.1
and 2.
CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.
DATED : 25/02/2021.
JUDGMENT : (PER AMIT B. BORKAR, J.)
1. By this application under Section 482 of the Code of
Criminal Procedure, the applicant has challenged order dated 1.4.2009
2 APL8.2019.odt
bearing No. ADDL.CP/S/N/Region/M.C.O.C.A/Sanction/189/19 of
invocation of Section 3 of the Maharashtra Control of Organised Crime
Act, 1999 (for short, "MCOC Act") in Crime no.283/2018 registered
with the non-applicant no.1 and also filing of the charge-sheet
no.46/2020 dated 17.4.2020.
2. Crime No.283/2018 was registered against the applicant
under Section 393 read with Section 34 of the Indian Penal Code. The
Police Inspector, Police Station Sitabuldi, Nagpur sent a proposal and
documents for addition of Section 3 (1) (ii) and Section 3 (2) and
Section 3 (4) of the MCOC Act.
3. The Additional Commissioner of Police, Nagpur City, after
considering recommendation against another accused namely Mr.
Kailash Suresh Bharadwaj, granted sanction after recording
satisfaction that the applicant along with other accused created
syndicate and there is enough material available on record to grant
prior approval to the investigation under the provisions of MCOC Act.
The applicant has challenged the order dated 1.4.2019 by filing
present application. This Court, on 13.1.2020 recorded statement of
the Advocate for the applicant that the applicant does not want to
press prayer clauses (ii), (iii) and (iv) of the application, issued notice
to the non-applicants and in the meantime, it was directed that though
the investigation may continue, the prosecution shall not file charge-
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sheet against the applicant without leave of the Court.
4. The non-applicants, on 13.4.2020, filed an application
seeking permission to file charge-sheet against the applicant and this
Court by order dated 15.4.2020 granted permission to the non-
applicants to file charge-sheet, subject to out-come of the present
application.
5. On 27.1.2020, the non-applicant no.1 filed reply staing that
the non-applicant no.3 lodged complaint with the non-applicant no.1 -
Police Station on 5.9.2018 stating that while he was going to his home,
the applicant assaulted him, saying "Terepass Jo bhi rupaye hai, wah
hame de de" . The complainant resisted them but, the accused checked
pockets of shirt and pant of the complainant. At that time, the police
officials of patrolling duty reached the spot and apprehended the
applicant alongwith others. Therefore, offence came to be registered
against the applicant under Section 393 read with Section 34 of the
Indian Penal Code. It is stated that during the course of investigation,
it was revealed that the applicant is involved in similar offences and,
therefore, the Investigating Agency invoked provisions of MCOC Act
against the applicant. The non-applicant no.1, in the reply submitted
the details of offences in which the applicant and other members of his
syndicates are involved, which are as under:
4 APL8.2019.odt
Sr Police Crime No. 1 2 3 4 5 6 Present
No Station Position
.
Kailas Manoj Sanjay Vijay Vikki Om
Suresh Suresh Kulsing Ratan Ramdar Prakash
Bhardwaj Bhardwaj Bhardwaj Nagdive Ghorpade
1 Pratap 179/18, √ √ √ √ √ √ Pending
Nagar 143,147,294,506(
b), 427 IPC
2 Sitabuldi 283/18, √ .. .. √ .. .. Under
393, 34 of IPC` Investigtati
on
3 Pratap 117/17, .. .. .. √ .. .. Pending
Nagar 376 of IPC r/w. 4,
8 of POCSO
4 Sonegaon 231/15, √ √ √ .. .. .. Pending
302, 201, 34 of
IPC
5 Pratap 99/15, √ √ √ .. .. .. Pending
Nagar 324, 34 of IPC
6 Pratap 363/12, √ √ .. .. .. .. Acquitted
Nagar 392, 34 of IPC
Sr. Police Station Crime No. Sections Court case no. Result
No.
1 Pratap Nagar 66/17, dated 107, 116(3) of Cr.P.C. 117/17 Case is closed, as the result of the
08.07.2017 Sessions Court in Revision
Application is pending and period of
6 months is over.
2 Pratap Nagar 30/18, dated 110 (e)(G) of Cr.P.C. 35/18 Warrant are issued
23.07.2018
6. With the assistance of learned Advocate for the applicant
and learned APP for the non-applicant, we have carefully scrutinized
the contents of the order dated 1.4.2019 and material produced by the
prosecution in the form of charge-sheet.
7. The learned Advocate for the applicant submitted that
insofar as the applicant is concerned, the requirement of more than
one charge-sheet in the last 10 years to bring the alleged activity of the
applicant within Section 2(d) of MCOC Act is not fulfilled against the
applicant. He submitted that in relation to the First Information
5 APL8.2019.odt
Report No.117/2020 registered with Pratap Nagar Police Station, the
offence is under Section 376 of the Indian Penal Code and the Charge-
sheet is filed on 2.3.2019. He submitted that in relation to the First
Information Report no.179/2018 for the offence punishable under
Section 506-B of the Indian Penal Code has been registered with
Pratap nagar Police Station and the charge-sheet is filed on 22.3.2019.
He submitted that present First Information Report No.283/2018 is in
relation to incident of dated 5.9.2018 for offence under Section 393 of
the Indian Penal Code and the Charge-sheet is filed on 17.4.2020. He
submitted that the offence under Section 376 of the Indian Penal Code,
which is registered under First Information Report no.117/2017
cannot be said to be organized crime for syndicate, as it will not be
covered under definition of Section 2 (e) of the MCOC Act. He further
submitted that the requirement of filing of charge-sheet has to be in
relation to the accused and filing of charge-sheet in relation to other
members of syndicate cannot be taken into consideration for invoking
provisions of MCOC Act against the applicant. In support of his
submissions, he relied upon the judgment of the Apex Court in
Mahipal Singh Vs. Central Bureau of Investigation and another
reported (2014) 11 SCC 282 and the judgment in the case of Govind
Sakharam Ubhe Vs. The State of Maharashtra reported in 2009 SCC
Online Bom 770; Prasad Shrikant Purohit Vs. State of Maharashtra
and another reported in (2015) 7 SCC 440 and the judgment in the
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case of Deepak Madhavrao Mankar Vs State of Maharashtra reported
in (2019) SCC Online Bom 8036.
8. Shri T.A.Mirza, learned Additional Public Prosecutor for the
non-applicants submitted that charge-sheets filed against other
members of syndicate can also be considered for applying the
provisions of MCOC Act. He submitted that the Division Bench of this
Court in the case of Govind Sakharam (supra) has categorically held
that the charge-sheet against other members can also be taken into
consideration while applying the provisions of MCOC Act.
9. At this stage, it is relevant to note the definition of
continuing unlawful activity, which has been defined under Section 2
(1)(d) of MCOC Act which reads as under:
2 (1)(d)
"2. Definitions-
(1) In this Act, unless the context otherwise requires,-
(a) "abet", with its grammatical variations and congnate expressions, includes,-
(i) the communication or association with any person with the actual knowledge or
having reason to believe that such person is engaged in assisting in any manner, an
organised crime syndicate; (ii) the passing on or publication of, without any lawful
authority, any information likely lo assist the organised crime syndicate and the
passing on or publication of or distribution of any document or matter obtained
from the organised crime syndicate; and
(iii) the rendering of any assistance, whether financial or otherwise, to the
organised crime Syndicate;
(b) ....
(c) .....
(d) "continuing unlawful activity" 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
7 APL8.2019.odt
crime syndicate or on behalf of such, syndicate in respect of which more than one
charge-sheets have been field before a competent Court within the preceding period
of ten years and that Court has taken cognizance of such offence".
10. The plain reading of Section 2 (1) (d) of the MCOC Act
makes it clear that it is necessary for the prosecution to prove that the
accused is involved in the activities prohibited by law, which are
cognizable offences punishable with imprisonment of three years or
more and in respect of such offences more than one charge-sheets have
been filed against such accused before the Court within the preceding
period of ten years and that Court has taken cognizance of such
offence.
11. Taking into consideration chart produced on record by the
non-applicants, it appears that prior to registration of the First
Information Report no.283/2018, two FIRs bearing Nos. 117/2017
and 179/2018 were registered against the applicant on 7.3.2017 and
18.3.2018. The First Information Report No.117/2017 was registered
for commission of offence under Section 376 of the Indian Penal Code
read with Sections 4 and 8 of POCSO Act. The First Information Report
No.179/2018 was registered for offences punishable under Sections
143, 147, 294, 506-B and 427 of the Indian Penal Code. In relation to
First Information Report No.179/2018, Charge-sheet was filed on
22.3.2019 and in relation to the First Information Report
no.117/2017, Charge-sheet was filed on 2.3.2019. The Division Bench
8 APL8.2019.odt
of this Court in the case of Govind Sakhram Ubhe (supra) in paragraph
nos. 35 and 36 held as under:
"35. It is now necessary to go to the definition of `continuing
unlawful activity'. Section 2 (1) (d) defines `continuing unlawful
activity' to mean 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 organized crime syndicate or on behalf of such syndicate in
respect of which more than one charge- sheet have been filed before a
competent court within the preceding ten years and that court have
taken cognizance of such offence. Thus, for an activity to be a
`continuing unlawful activity' -
a) the activity must be prohibited by law;
b) it must be a cognizable offence punishable with imprisonment of
three years or more;
c) it must be undertaken singly or jointly;
d) it must be undertaken as a member of an organized crime syndicate
or on behalf of such syndicate
e) in respect of which more than one charge-sheet have been filed
before a competent court.
36. The words `in respect of which more than one charge-sheet have
been filed' cannot go with the words `a member of a crime syndicate'
because in that case, these words would have read as `in respect of
whom more than one charge-sheet have been filed'."
12. The Division Bench of this court in paragraph 37 of the said
judgment further observed that if within period of preceding ten years,
one charge-sheet has been filed in respect of organised crime
committed by the members of particular crime syndicate, the said
charge-sheet can be taken against the member of the said crime
syndicate for the purpose of application of the MCOC Act against him
9 APL8.2019.odt
even if he is involved in one case. It is further observed that the
organized crime committed by him will be a part of the continuing
unlawful activity of the organised crime syndicate. It is further
observed that what is important is the nexus or the link of the person
with organised crime syndicate. The link with the `organised crime
syndicate'; is the crux of the term `continuing unlawful activity'. If this
link is not established, that person cannot be roped in.
13. In view of the judgment of the coordinate Bench of this
court, we are of the view that the prosecution must be given
opportunity to lead evidence in support of the case of prosecution
against the applicant to ascertain whether crimes committed by the
applicant were undertaken either singly or jointly as a member of
organised crime syndicate or on behalf of such syndicates. The
prosecution has alleged that the team leader has committed following
offences jointly involving other different members of his syndicate, in
which more than one charge sheets have been filed in respect of their
crime syndicate, which are as under :-
i. Crime No. 231/15, under Sections 302, 201, 34 of IPC of
Sonegaon P.S.(Accused No. 1 and 2 different members)
ii. Crime No. 363/12, under Sections 392 and 34 of IPC, Pratap
Nagar Police Station (Committed by Team leader and his real elder
brother Manoj Suresh Bhardwarj).
10 APL8.2019.odt
iii. Crime No. 99/2015, under Sections 342 and 34 of IPC (Team
leader and 2 other different members of his syndicate).
iv. Crime No. 179/18, under Sections 143, 147, 294, 506-B and 427
of IPC (Committed by Team Leader, accused no. 2 and other 4 different
members of his syndicate).
In all the above 4 cases, charge-sheets have been filed in the
Court and the Court has also taken cognizance. Thus, more than one
charge-sheet have been filed in respect of their crime syndicate. These
are the questions which requires trial. We are, therefore, of the view at
this stage the applicant has failed to make out ground to interfere with
the impugned order dated 1.4.2019. There is no merit in the
application.
The application is, therefore, dismissed.
Cri. Application (APPP) No.41/2020
In view of the disposal of Criminal Application (APL) No.
8/2020, this application for filing certified copy of the order dated
3.1.2018 does not survive. Hence, it is disposed.
JUDGE JUDGE
ambulkar
