Supreme Court: The bench of SA Nazeer and JB Pardiwala*, JJ has held that the dictum as laid by this Court in State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, (2015) 14 SCC 272 is the correct exposition of law and does not require any relook.
Dealing with a matter under the Gujarat Control of Terrorism and Organised Crime Act, 2015, the Court was posed with the question as to whether the requirement of ‘continuing unlawful activity’, as defined under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019.
In the case at hand, the last offence was registered against the respondent-accused in 2019 and the chargesheet in regard to the said FIR was filed on 21.01.2019 i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore, there is no FIR registered against the respondent-accused after the 2015 Act came into force w.e.f. 01.12.2019. However, an FIR was registered on 27.11.2020 against the respondent accused herein and thirteen other co-accused for the offence punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) of the 2015 Act.
The Gujarat High Court granted bail to the respondent-accused, essentially relying on Shiva alias Shivaji Ramaji Sonawane case. The High Court took notice of the fact that the 2015 Act came into force w.e.f. 01.12.2019 in the State of Gujarat and no FIR had been registered against the respondent-accused for any substantive offence after 01.12.2019. It was observed that the five FIRs, which were registered in the past for different offences under the Penal Code (IPC) cannot be construed as a ‘continuing unlawful activity’ of the respondent-accused so as to prosecute him under the provisions of the 2015 Act.
Dictum in Shiva alias Shivaji Ramaji Sonawane case
Thus, in Shiva alias Shivaji Ramaji Sonawane (surpa), this Court took the view that there are two essential ingredients to constitute an offence under MCOCA. Firstly, the registration of cases, filing of chargesheets and taking of cognizance by the competent court in relation to the offences alleged to have been committed by the accused in the past and secondly, continuation of unlawful activities. In other words, it is only if an organised crime is committed by the accused after the promulgation of the MCOCA that he may, on the basis of the previous chargesheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the MCOCA.
Argument against treating Shiva alias Shivaji Ramaji Sonawane as the last word
When the matter reached before the Supreme Court, Solicitor General Tushar Mehta argued that decision in Shiva alias Shivaji Ramaji Sonawane requires a relook, as the said dictum frustrates the very object of enacting the 2015 Act as the definition of the term ‘continuing unlawful activity’ indicates that it does not refer to any ‘continuing unlawful activity’ to be committed only after the promulgation of the 2015 Act. Further, the said term means 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 phrase ‘within the preceding period of ten years’ by itself indicates that the ‘continuing unlawful activity’ may be such activity, which could be said to have been committed prior to the enactment of the 2015 Act.
He further argued that if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane is to be treated as the final word so far as the law is concerned, then the first case under the 2015 Act can be registered, only after two cases of the nature described in the 2015 Act, had been registered against the person or against an organised syndicate after 01.12.2019. If such an interpretation is accepted then the State will have to wait and helplessly watch the organised crime taking place till it is the third time a person or a syndicate is found involved in the offence after the 2015 Act came into operation w.e.f. 01.12.2019 in the State of Gujarat. He submitted that the ‘continuing unlawful activity’ could have taken place ten years prior to the registration of the new case. In such circumstances, the intention of the Legislature could not have been other than giving immediate effect to the 2015 Act by taking note of all the offences or chargesheets registered within ten years prior to the commencement of the 2015 Act.
Supreme Court’s Analysis
The Court took note of the fact that in Shiva alias Shivaji Ramaji Sonawane, the accused persons stood acquitted in connection with two of the crimes and considering the same, the Court took the view that the accused persons could not be said to have committed the alleged crime after the promulgation of MCOCA, as the allegations could not be proved against them. However, the Supreme Court, in no uncertain terms, observed that what is important is the commission of an offence by the accused that would constitute ‘continuing unlawful activity’ and the unlawful activities could be said to have continued only if the accused are found to have indulged in an organised crime after the promulgation of the MCOCA.
The Court explained that neither the definition of the term ‘organised crime’ nor of the term ‘continuing unlawful activity’ nor any other provision therein declares any activity performed prior to the enactment of the MCOCA to be an offence under the 1999 Act nor the provision relating to punishment relates to any offence prior to the date of enforcement of the 1999 Act, i.e., 24.02.1999. However, by referring to the expression ‘preceding period of ten years’ in Section 2(1)(d), which is a definition clause of the term ‘continuing unlawful activity’ inference is sought to be drawn that in fact, it takes into its ambit the acts done prior to the enforcement of the 1999 Act as being an offence under the 1999 Act. The same analogy will apply to the 2015 Act.
Explaining that 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, the Court observed,
“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 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.”
The Court, hence, concluded 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.
The Court, however, clarified that Shiva alias Shivaji Ramaji Sonawane 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.
Hence, with respect to the 2015 Act as well, if a person ceases to indulge in any unlawful act after coming into force of 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.
[State of Gujarat v. Sandip Omprakash Gupta, 2022 SCC OnLine SC 1727 ,decided on 15.12.2022]