Sirajkhan Rahimkhan Jatmalek vs State Of Gujarat
2023 Latest Caselaw 2820 Guj

     R/CR.MA/11828/2021                                  ORDER DATED: 10/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 11828 of 2021

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                          SIRAJKHAN RAHIMKHAN JATMALEK
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR DIPEN K DAVE(3296) for the Applicant(s) No. 1
MR HARDIK SONI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 10/04/2023

                                   ORAL ORDER

1. By way of present application under Section 439 of the Code of Criminal Procedure, the applicant has prayed for regular bail in connection with the FIR being 11211016200542 of 2020 registered at Dhangadhra Taluka Police Station, District Surendranagar for the offences punishable under Sections 3(1)

(i), 3(1)(ii), 3(2), 3(4) of the Gujarat Control of Terrorism and Organized Crime Act (GCTOC), 2015 (hereinafter referred to as 'the Act' for short).

2. Heard Mr. Dipen Dave learned advocate for the applicant and Mr. Hardik Soni learned APP for the respondent - State.

3. Mr. Dipen Dave learned advocate for the applicant made the following submissions:

[i] That co-accused namely Bilkisbanu (Bilkisbano) Hanifkhan @ Kalo Munno Amirkhan Jatmalek has been

R/CR.MA/11828/2021 ORDER DATED: 10/04/2023

enlarged on bail by the Hon'ble Apex Court vide order dated 17.03.2023 passed in Special Leave to Appeal (Crl.) No. 398 of 2023 though she being main accused person and therefore, on the ground of parity, present applicant is required to be enlarged on bail.

[ii] That though, out of 33 offences, which have been taken into consideration while registering the FIR under the Act, there are 11 offences after the Act came into force on 01.12.2019 and out of 11 offences registered against present applicant, most of the offences are for theft, and therefore, the theft would not come within the definition of an organized crime, and therefore the applicant is required to be enlarged on bail.

4. Mr. Hardik Soni, learned APP, by relying upon Para - 50 and 51 of the decision in the case of the State of Gujarat Vs. Sandip Omprakash Gupta reported in 2023 GLH (1) Page 44 and submitted that as per Para - 50 and 51 of the aforesaid decision of the Supreme Court any offences, howsoever, big or small it may be would constitute continuing unlawful activity and as there are 11 offences against the present applicant after the Act came into force i.e. on 01.12.2019 including one offence under Section 307 of the IPC, and therefore, the applicant may not be enlarged on bail. Learned APP further submitted that as far as the order passed by the Hon'ble Supreme Court in the case of Bilkishbanu is concerned, the same is in respect of a lady accused and there the contention

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in respect of continuous unlawful activity was not raised and therefore, the case of the present applicant would stand on a different footing as compared to the case of Bilkisbanu. It is further submitted that when the applicant was enlarged on temporary bail, he remained absconded. It is further submitted that in all, 153 cases registered against the entire syndicate and 33 case are registered against the present present applicant and therefore, prayed for dismissal of this application.

5. I have heard learned advocate for the applicant and learned APP for the respondent - State and and considered their submissions. Considering the fact that there are 11 offences registered against the present applicant after the Act came into force on 01.12.2019, and therefore, case of the present application is required to be considered in light of the observations made by the Hon'ble Supreme Court in case of State of Gujarat Vs. Sandip Omprakash Gupta (Supra). Para 50 and 51 are reproduced as under:

"50. There is a vast difference between the act or activity, which is being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. For the purpose of organised crime, there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two chargesheets are found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years.

Indisputably, the period of ten years may relate to the period prior to 01.12.2019 or thereafter. In other words, it provides that the activities, which were offences under the law in force at the relevant time and in respect of which two chargesheets have been filed and the Court has taken cognizance thereof, during the period of

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preceding ten years, then it will be considered as continuing unlawful activity on 01.12.2019 or thereafter. It nowhere by itself declares any activity to be an offence under the said 2015 Act prior to 01.12.2019. It also does not convert any activity done prior to 01.12.2019 to be an offence under the said 2015 Act. It merely considers two chargesheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said 2015 Act.

51. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions of the Act, the same would indicate that the offence of 'organised crime' could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. We say so keeping in mind the following:

(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) resply 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.

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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."

6. It is an undisputed fact that there are 11 offences including one offence under Section 307 of the IPC registered against present applicant after the Act came into force i.e. 01.12.2019, and therefore, the same would fall into continuous unlawful activity by present applicant. Further, this Court has also considered that fact that when the applicant was enlarged on

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temporary bail, he remained absconded. Further, this Court has also considered the order passed by the Hon'ble Court in case of Bilkisbanu and as this Court finds that whether in case of Bilkisbanu, there was continuous unlawful activity or not, that is not coming out from the material on record, and therefore, in absence of any material to indicate that present applicant is similarly situated considering the judgment of State of Gujarat Vs. Sandip Omprakash Gupta (Supra), I do not see any reason to grant the bail. Accordingly, present application is dismissed.

(NIRZAR S. DESAI,J) *F.S.KAZI....