Vijaykumar @ Raju S/O. Shyamlal Dube vs State Of Mah. Thr. Pso, Ps Ramnagar, ...
2024 Latest Caselaw 3315 Bom

Bombay High Court

Vijaykumar @ Raju S/O. Shyamlal Dube vs State Of Mah. Thr. Pso, Ps Ramnagar, ... on 5 February, 2024

2024:BHC-NAG:1431


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                                                                                    1

                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                        NAGPUR BENCH, NAGPUR

                       CRIMINAL APPLICATION (BA) NO.1032/2023
                         Vijaykumar @ Raju s/o Shyamlal Dube
                                           ..vs..
              State of Mah., thr.its PSO PS Ramnagar, Gondia, Maharashtra
        ...........................................................................................................................................................................
        Office Notes, Office Memoranda of Coram,
        appearances, Court orders or directions                                               Court's or Judge's Order
        and Registrar's orders
        ...........................................................................................................................................................................
                             Shri M.M.Awode, Counsel for the Applicant.
                             Shri S.S.Hulke, Additional Public Prosecutor for the State.

                             CORAM : URMILA JOSHI-PHALKE, J.

CLOSED ON : 30/01/2024 PRONOUNCED ON : 05/02/2024

1. Heard.

2. By this application under Section 439 of the Code of

Criminal Procedure, the applicant seeks bail in connection with

Crime No.320/2020 registered with the non-applicant/police

station for offences punishable under Sections 307, 364-A, 326,

397, and 120-B of the Indian Penal Code read with Sections 4

and 25 of the Arms Act and under Section 3(1)(ii), 3(2), and 3(4)

of the Maharashtra Control of Organised Crime Act, 1999

(MCOC Act).

3. Complainant Amar Surjeetsingh Gandhi, lodged a

report with Ramnagar Police Station, Gondia on 10.10.2020. As

per the report, he runs a school and co-accused Amit Pande was

working as clerk in the school on contract basis prior three

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years of lodging of the report and, thereafter, he left the job.

Said co-accused Amit Pande contacted the complainant to

employ him on the said post or alternatively he be

compensated Rs.10.00 lacs. However, the job was not given to

him and, therefore, he demanded the amount, but the

complainant refused to pay the amount. In September 2020,

the complainant received a phone call of the applicant and was

asked to pay the money to co-accused Amit Pande and also

threatened him. On 9.10.2020, at about 6:00 pm, the

complainant had been to Super Market wherein 5-6 persons

entered and assaulted the complainant by iron rods and fist

blows. The accused also abducted the complainant and taken

to the house of the applicant and confined him in one room.

Due to the assault, the complainant sustained fracture injuries.

A brother of the complainant came to know about the said

incident and, thereafter, the complainant was rescued and was

taken to the hospital. On the basis of the said report, the police

registered the crime against the applicant.

4. During investigation, it revealed to the investigating

officer that the applicant formed a gang and is continuously

involved in unlawful criminal activities and organized crime

syndicate. More than one chargesheet is filed against him and

other members of the organize crime syndicate for which

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punishment more than 3 years is provided and, therefore, the

investigating officer obtained approval under Section 23(1) of

the MCOC Act.

5. Learned counsel Shri M.M.Awode for the applicant,

submitted that provisions of the MCOC Act are not applicable

against the applicant as on the date of the First Information

Report, no charegesheets were filed against the applicant for

which punishment of three years is provided. He further

submitted that as per Crime Chart, three offences were

registered against the applicant and out of the said offences, in

Crime No.353/2017 the applicant is acquitted. For evoking

provisions of the MCOC Act, the prosecution has to establish

that activities of the applicant are prohibited by law and such

activities are cognizable offences punishable with imprisonment

of three years or more and such activities are undertaken either

singly or jointly as member of organized crime syndicate. The

co-accused is already released on bail as offence under the

MCOC Act is not made out and, therefore, rigor of section 21(4)

will not come into play. As such, the applicant be released on

bail.

6. In support of his contentions, learned counsel for

the applicant placed reliance on following decisions:

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1. Mohd.Iliyas Mohamad Bilal Kapadiya vs. State of Gujarat, reported in (2022)13 SCC 817;

2. Prafulla s/o Uddhav Shende vs. State of Mah., reported in 2009 ALL MR (Cri) 870, and

3. Order passed by this court in Criminal Application (BA) No.641/2021 on 18.11.2021.

7. Learned Additional Public Prosecutor Shri S.S.Hulke

for the State strongly opposed the application on the ground

that several offences are registered against the applicant and

organized crime syndicate and in view of rigor under Section

21(4) of the MCOC Act, the application deserves to be rejected.

He further submitted that while granting approval, authority

has considered criminal records of the applicant and, thereafter,

approval was granted. As such, the application deserves to be

rejected.

8. In support of his contentions, learned Additional

Public Prosecutor for the State placed reliance on the decision

of this court in the case of Govind Sakharam Ubhe vs. State

of Maharashtra, reported in 2009(3) Mh.L.J. (Cri.) 131.

9. Before going into the controversy involved in the

present application, it is necessary to see certain provisions of

the MCOC Act and its preamble. The preamble states that it is

an Act to make special provisions for prevention and control of,

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and for coping with the criminal activity by organized crime

syndicate or gang, and for matters connected therewith and

incidental thereto. The MCOC Act, states the preamble, makes

special provisions for prevention and control of, for coping with,

criminal activity by organized crime syndicate or gang.

Essentially, therefore, the MCOC Act targets the unlawful

activities of the organized crime syndicate. The objects and

statements of the MCOC Act show that organized crime has for

quite some years come up as a very serious threat to the

society. It knows no national boundaries and is fueled by illegal

wealth generated by contract, killing, extortion, smuggling in

contrabands, illegal trade in narcotics kidnappings for ransom,

collection of protection money and money laundering, etc. The

illegal wealth and black money generated by the organized

crime being very huge, it has had serious adverse effect on our

economy. It was seen that the organized criminal syndicates

made a common cause with terrorist gangs and foster terrorism

which extend beyond the national boundaries. There was

reason to believe that organized criminal gangs have been

operating in the State and, thus, there was immediate need to

curb their activities.

10. The legislatures felt that the existing legal

framework i. e. the penal and procedural laws and the

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adjudicatory system was found to be rather inadequate to curb

or control the menace of organised crime. Government,

therefore, decided to enact a special law with stringent and

deterrent provisions including in certain circumstances power to

intercept wire, electronic or oral communication to control the

menace of the organised crime. It is the purpose of this Act to

achieve its objects.

11. Section 2(1)(f) of the MCOC Act defines "organized

crime syndicate' to mean a group of two or more persons who,

acting singly or collectively, as a syndicate or gang indulged in

activities of organized crime.

12. Section 2(1)(e) of the MCOC Act defines "organised

crime" means any continuing unlawful activity by an individual,

singly or jointly, either as a member of an organised 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.

13. The definition of continuing unlawful activity within

meaning of Section 2(1)(d) states an activity prohibited by law

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for the time being in force, which is a cognizable offence

punishable with imprisonment of three or more, undertaken

either singly or jointly, as a member of organized crime

syndicate or on behalf of such syndicate in respect of which

more than one chargesheet has been filed before a competent

court within the preceding the period of ten years and that

court has taken cognizance of such offence.

14. 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, and e) in respect of

which more than one charge- sheet have been filed before a

competent court. Therefore, the MCOC Act contemplates a

situation where a group of persons as members of organized

crime syndicate indulge in organized crime. That is, they

indulge in use of violence, threats of violence, intimidation, etc.

to gain pecuniary benefit or undue economic or other

advantage for themselves or any other person. These activities

as per the definition of organized crime are continuing unlawful

activity prohibited by law.

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15. This Court in the case of Govind Sakharam Ubhe

vs. State of Maharashtra supra in paragraph No.37 defines

"continuing unlawful activity". This court observed that the

members of the crime syndicate operate either singly or jointly

in commission of organized crime. They operate in different

modules. A person may be a part of the module which jointly

undertakes an organized crime or he may singly as a member

of the organized crime syndicate or on behalf of such syndicate

undertake an organized crime. In both the situations, the MCOC

Act can be applied. It is the membership of organized crime

syndicate which makes a person liable under the MCOC Act.

This is evident from section 3(4) of the MCOC Act which states

that any person who is a member of an organized crime

syndicate shall be punished with imprisonment for a term which

shall not be less than five years but which may extend to

imprisonment for life and shall also be liable to fine, subject to a

minimum of fine of Rs.5 lacks. It is further held that what is

important is the nexus or the link of the person with organized

crime syndicate. The link with the 'organized crime syndicate' is

the crux of the term `continuing unlawful activity'. If this link is

not established, that person cannot be roped in.

By giving hypothetical examples, it is held that

what is contemplated under Section 2(1)(d) of the MCOC Act is

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that activities prohibited by law for the time being in force

which are punishable as described therein have been

undertaken either singly or jointly as a member of organized

crime syndicate and in respect of which more than one charge-

sheets have been filed. Stress is on the unlawful activities

committed by the organized crime syndicate. Requirement of

one or more charge-sheet is qua the unlawful activities of the

organized crime syndicate.

16. In the light of the above well settled legal position

and provisions enumerated therein, if facts of the present case

and the material collected during the investigation are

considered, it reveals that the entire incident happened in

Super Market. The CCTV footage panchanama also shows that

the applicant along with other co-accused came in the Super

Market and were witnessed in the CCTV footage dragging the

complainant out of the Super Market and assaulting him by iron

rods and fist and kick blows. The statement of the complainant

also shows that he was assaulted by the applicant in the Super

Market. During the investigation, the statement of one Prince

Gandhi was recorded, who is brother of the complainant, who

came to know that his brother was abducted by the applicant

and confined in a room in the house and, therefore, he

approached the applicant and the applicant took him in the said

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room wherein his brother was kept and he was also assaulted.

17. Thus, prima facie material shows involvement of

the applicant in the alleged offence.

18. During the investigation, the investigating officer

obtained approval of higher officer for evoking provisions of the

MCOC Act. The authority has considered that more than one

chargesheet is filed against the applicant and other members of

organized crime syndicate. The Crime Chart shows that in all

three offences are registered against the applicant with

Ramnagar Police Station vide Crime No.160/2017 under

Sections 4 and 25 of the Arms Act; Crime No.234/2017 under

394, 397, 386, and 506B of the Indian Penal Code from which

the applicant is acquitted, Crime No.329/2019 under Sections

307, 324, 452, 294, 143, 144, 146, 147, 148, and 149 of the

Indian Penal Code and under Sections 4 and 25 of the Arms Act

and the present crime is registered as the aforesaid.

19. Thus, on the date of lodging of the First Information

Report, two offences were registered against the applicant vide

Crime No.160/2017 and Crime No.329/2019 in which

chargesheets are filed and cognizance by the competent court

is taken for which punishment of more than three years is

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provided.

20. Perusal of investigation papers shows that the

applicant has committed offences like dacoity and extortion for

gaining economic or pecuniary benefits and other advantages

for himself or for any other person.

21. Thus, in view of the definition of Continuing

Unlawful Activity within the meaning of Section 2(1)(d), the

applicant is involved in the activity prohibited by law for the

time being in force, which is a cognizable offence punishable

with imprisonment of three or more, undertaken either singly or

jointly, as a member of organized crime syndicate or on behalf

of such syndicate in respect of which more than one

chargesheet has been filed before a competent court within the

preceding the period of ten years and that court has taken

cognizance of such offence.

22. Thus, prima facie involvement of the applicant is

revealed in unlawful activities. While granting approval under

provisions of the MCOC Act, the competent authority had

considered various crime details registered against gang

leaders and other members and granted approval.

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23. As observed by this court in the case of Govind

Sakharam Ubhe vs. State of Maharashtra supra having

hypothetical examples, what is contemplated under Section

2(1)(d) of the MCOC Act is that activities prohibited by law for

the time being in force which are punishable as described

therein have been undertaken either singly or jointly as a

member of organized crime syndicate and in respect of which

more than one chargesheet has been filed. Stress is on the

unlawful activities committed by the organized crime syndicate.

Requirement of one or more charge-sheet is qua the unlawful

activities of the organized crime syndicate.

24. As observed earlier, that the provisions of the MCOC

Act are special provisions for prevention and control of, and for

coping with the criminal activity by organized crime syndicate

or gang, the statements and the objects of the Act to control

illegal activities of the said gangs. Keeping the above objects

and reasons and various principles in mind and statutory

provisions of the MCOC Act, if restrictions for the grant of bail

and the materials placed by the prosecution are considered, the

applicants have not made out the case for grant of bail because

in view of Section 21(4) of the MCOC Act, which bars the court

from releasing accused of offence punishable under the said Act

subject to the conditions prescribed in clauses (a) and (b)

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therein. Sub-section (4) of Section 21 of the MCOC Act

mandates that it is incumbent on the part of the court before

granting bail to any persons accused of an offence punishable

under the MCOC Act and there are reasonable grounds for

believing that he is not guilty of such offence and he is not

likely to commit any offence while on bail. As observed earlier,

that the provisions of the MCOC Act are special provisions for

prevention and control of, and for coping with the criminal

activity by organized crime syndicate or gang, the statements

and the objects of the Act to control illegal activities of the said

gangs. Keeping the above objects and reasons and various

principles in mind and statutory provisions of the MCOC Act, if

restrictions for the grant of bail and the materials placed by the

prosecution are considered, the applicants have not made out

the case for grant of bail because in view of Section 21(4) of the

MCOC Act, which bars the court from releasing accused of

offence punishable under the said Act subject to the conditions

prescribed in clauses (a) and (b) therein. Sub-section (4) of

Section 21 of the MCOC Act mandates that it is incumbent on

the part of the court before granting bail to any persons

accused of an offence punishable under the MCOC Act and

there are reasonable grounds for believing that he is not guilty

of such offence and he is not likely to commit any offence while

on bail. Considering the material, particularly in the light of the

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bar under Section 21(4) of the MCOC Act prima facie case is

made out against the applicant.

25. Considering the material, particularly in the light of

the bar under Section 21(4) of the MCOC Act, prima facie, case

is made out against the applicant.

26. As observed by the Honourable Apex Court in the

case of The State of Maharashtra vs. Vishwanath

Maranna Shetty (Cr.Appeal No.1689/2012 decided by the

Honourable Apex Court on 19.10.2012, while dealing with a

special statute like MCOC Act having regard to the provisions

contained in sub-section (4) of Section 21 of the Act, the court

may have to probe into the matter deeper so as to enable it to

arrive at a finding that the materials collected against the

accused during the investigation may not justify a judgment of

conviction. Similarly, the court will be required to record a

finding as to the possibility of his committing a crime after

grant of bail. What would further be necessary on the part of

the Court is to see the culpability of the accused and his

involvement in the commission of an organized crime either

directly or indirectly. The Court at the time of considering the

application for grant of bail shall consider the question from the

angle as to whether he has possessed of the requisite mens

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rea. It is further observed by the the Honourable Apex Court

that while dealing with application for grant of bail, in addition

to broad principles to be applied in prosecution for the offences

under the Indian Penal Code, the relevant provision in the said

statute, namely, sub-section (4) of Section 21 has to be kept in

mind.

27. Thus, satisfaction contemplated in clauses (a) and

(b) of sub Section (4) of Section 21 of the MCOC Act, regarding

accused being not guilty, has to be based on reasonable

grounds. Though expression reasonable grounds has not been

defined, it requires something more than a prima facie ground.

28. Thus, to grant bail to accused, the court has to

come to conclusion that accused is not guilty of offence on the

basis of reasonable grounds.

29. As observed, the expression "reasonable ground"

has not been defined in the MCOC Act, but it connotes

substantial probable causes for believing that accused is not

guilty of offence he is charged with. The reasonable belief on

the existence of such facts and circumstances as are sufficient

in themselves to justify satisfaction that accused is not guilty of

alleged crime. Thus, recording of satisfaction on these aspects

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is sine qua non for grant of bail.

30. In the light of the above well settled legal position,

at this stage, there is sufficient material on record to hold that

the applicant is guilty of the offences. It is difficult to come to

conclusion that he is not guilty of the offence and, therefore,

the case is not made out for grant of bail.

31. The evidence available on record prima facie

discloses complicity of the applicant to show that he is a

member of organized crime syndicate. As such, the application

deserves to be rejected and the same is rejected.

The application stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 06/02/2024 11:31:29