Case BriefsSupreme Court

Supreme Court: In a significant case relating to an organized crime syndicate allegedly involved in funding underworld dons, the Division Bench of Dr Dhananjaya Y Chandrachud* and Surya Kant, JJ., upheld the impugned order of the Bombay High Court declining to quash FIRs against the accused persons.

The Court held that the stipulation under Section 18 of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) that only the confessions made to a police officer, not below the rank of Superintendent of Police (SP) are admissible in evidence will not make the confessions made to Addl. SP inadmissible. The Court said,

“The expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority.”

Mumbai Matka

The prosecution alleged that the appellants are members of an organized crime syndicate which has engaged in a systematic course of activities for cheating members of the public by conducting the ‘Mumbai Matka1‘. The prosecution case was that what appeared to be a case of gambling at the outset, was an organized crime syndicate involved in funding underworld dons/criminal gangs by the proceeds from the Matka business.

Invocation of MCOCA

The Assistant SP, Kolhapur and a team of police personnel raided a gambling den controlled by one Salim Mulla. Consequently, an FIR was filed for offences punishable under Sections 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the Penal Code 1860, Sections 4 and 5 of the Maharashtra Prevention of Gambling Act 1887, Section 65(e) of the Maharashtra Prohibition Act 1949 and Sections 37 and 135 of the Bombay Police Act 1951.

Later on, with the approval of the competent authority Sections 3(1)(ii), 3(2), 3(4), and 3(5) the MCOCA was added to the FIR as the Investigating Officer opinioned that the accused were members of an organized crime syndicate.

Aggrieved thereby, the appellants approached the Bombay High Court with a petition for quashing the FIR, which was dismissed by the Court.

Issues

Assailing the impugned order of the High Court, the appellants raised the following questions:

a. Whether a confession recorded by an Addl. SP admissible under Section 18 MCOCA; and

b. Whether the provisions of MCOCA have been validly invoked.

Analysis and Findings

a. Whether confession made before Addl. SP are valid under Section 18 MCOCA

Section 18 MCOCA stipulates that the confessions made to — a police officer not below the rank of Superintendent of Police are admissible in evidence. The Section begins with a non-obstante clause overriding the Evidence Act because Section 25 of the Evidence Act stipulates that no confession made to a police officer shall be proved as against a person accused of an offence.

Relying on para 25 (2) of the Police Manual, the appellants contended that Addl. SP is not in the same rank as the SP; therefore, the confession made before the Addl. SP would not be admissible.

The Court opined that the reliance on para 25(2) of the Police Manual was misconceived because MCOCA is a special Act enacted with an overriding provision in Section 25. The tenability of the submission that an Addl. SP does not fit the description of an officer not below the rank of SP cannot be determined by reading into the MCOCA provisions for authorization contained either in the Police Manual (para 25(2) as noticed above) or in another statute (Section 8(2) of the Police Act). The answer to the challenge must turn on the interpretation of the provisions of Section 18(1) MCOCA itself.

Observing that Section 18(1) MCOCA uses the expression “rank” which cannot be conflated or equated with a designation or post, the Court opined that the true question should be whether the rank of the SP comprehends within it an Addl. SP?

The Court noted that a DCP is competent to record confessions under the MCOCA. Observing that if an SP or Addl. SP is transferred to the area of a Commissionerate, he/she is posted as a DCP and is competent to record the confession under the MCOCA, the Court opined that there is therefore no basis to conclude that an Addl. SP does not fulfil the description specified in Section 18(1) MCOCA as being — a police officer not below the rank of the Superintendent of Police. The Court further remarked,

“The authority which attaches to the post of a DCP to record a confession under Section 18(1) is not diluted when the posting is in a district either as an Addl. SP or, as the case may be, as an SP.”

The Court referred to Nyadar Singh v. Union of India, (1988) 4 SCC 170, wherein the Supreme Court observed that the expression “rank” in “reduction in rank” for purposes of Article 311(2) has an obvious reference to the stratification of the posts or grades or categories in the official hierarchy. It does not refer to the mere seniority of the government servant in the same class or grade or category.

Hence, the Court held that the expression “rank” must be understood as a class or category which encompasses multiple posts and that the posts of SP, Addl. SP, and DCP all fall within the same rank as they exercise similar functions and powers and operate within similar spheres of authority. The Court clarified that every person within a particular rank will not be of the same seniority. Officers of the same rank may have been in service for a different number of years. At times, this may even bear on the post to which they are appointed but their rank remains undisturbed. A difference in the seniority of a particular officer is not the same as a difference in their ranks.

b. Conditions for invocation of the MCOCA

Approval Order under Section 23(1)(a) MCOCA

The appellants contended that the provisions of the MCOCA had not been validly invoked since some of the appellants had not been named in the FIR and/or in the order granting approval under Section 23(1)(a) MCOCA.

Considering that often, limited information is available to the investigating authorities at the time of recording information about the commission of an offence; and the involvement of persons other than those named initially might come to light during the course of investigation by the police, the Court said that the very purpose of an investigation is to determine whether a crime has been committed and if so, to shed light on the details of the crime including the identity of the perpetrators. The Court expressed,

Section 23(1)(a) MCOCA speaks of recording information about the commission of an offence of organized crime, and not of recording information about the offender.”

Therefore, the Court held that the approval order under Section 23(1)(a) MCOCA is with respect to the offence and not with respect to the offender and it need not name every accused person at the outset.

Whether Gambling an Organized Crime

Rejecting the contention of the appellants that gambling is punishable with a maximum sentence of 2 years and does not, therefore, fall within the scope of MCOCA (which requires the commission of a crime punishable with imprisonment of 3 years or more), hence the allegation of engaging in illegal gambling would not sustain invocation of the penal provisions of Section 3(2) MCOCA.

Section 2(1)(e) MCOCA indicates that persons are said to commit an organized crime when they are involved in continuing unlawful activity which means a prohibited activity which is a cognizable offence punishable with imprisonment of at least three years.

The Court noted that the accused of abetting the commission of organized crime need not themselves be charged with committing a cognizable offence punishable with imprisonment of at least three years. They need only be abetting those who are guilty of committing a cognizable offence punishable with imprisonment of at least three years, which offence amounts to an organized crime. The definition of “abet” in Section 2(1)(a) MCOCA would be applicable in such cases. The Court observed,

“Although gambling may not, by itself, constitute an organized crime, it may be the route through which the accused are abetting the commission of organized crime.”

Hence, the Court opined that the questions of whether the appellants were in fact abetting organized crime and whether offences under the IPC would attract MCOCA are to be determined at the stage of the trial.

Requirement of More than One Charge-sheet

Rejecting another contention of the appellants was that in the preceding ten years, more than one charge-sheet has not been filed in respect of each of them, the Court held that such submission did not hold water as it is settled law that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate. Rather, charge-sheets with respect to the organized crime syndicate are sufficient to fulfil the condition in Section 2(1)(d) MCOCA.

Conclusion

In the backdrop of above analysis, the Court held that the appeals were without any merit. Accordingly, the appeals were dismissed with the following directions that the appellants will be at liberty to approach the High Court for release on bail; and the evidentiary value of confessions alleged to have been made by the appellants shall be considered by the Trial Court and the mere validation of their being recorded by an officer in the rank of Superintendent of Police shall not be construed as the approval of the contents or voluntary nature of the alleged confessions by the Supreme Court.

[Zakir Abdul Mirajkar v. State of Maharashtra, 2022 SCC OnLine SC 1092, decided on 24-08-2022]

*Judgment by: Justice Dhananjaya Y Chandrachud


Advocates who appeared in this case :

Senior Counsels Amit Desai, Siddharth Luthra, Abad Ponda, V. Giri, Pradeep Rai, and ANS Nadkarni, Advocates, for the Appellants;

Senior Counsel Raja Thakare, Advocate, for the State.


*Kamini Sharma, Editorial Assistant has put this report together.


1. Where those wishing to gamble bet on numbers/playing cards, at the end of the cycle, the results are to be declared based on a random draw of numbers/playing cards, and those who correctly guess the winning digits/playing cards win while the others lose.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising B.R. Gavai and Hima Kohli, JJ., (Vacation Bench) reversed the order of the Gujarat High Court, by which the applicant was denied the benefit of bail under the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act). The Court held that existence of more than one charge sheet against the accused is essential for invoking the provisions of GCTOC Act.

Issues Involved

The applicant contended that for invoking the provisions of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC Act) which is analogous to the Maharashtra Control of Organized Crime Act, 1999 (MCOCA), two requirements have to be satisfied, i.e. the activity undertaken is either singly or jointly as a member of an organized crime syndicate or on behalf of such a crime syndicate and that in respect of such an activity, more than one charge-sheet must have been filed in the preceding period of last 10 years.

However, the applicant claimed that in the instant case, the second requirement was not satisfied since the Chart indicating all the crimes registered against the applicant revealed that only FIR 64 of 2021 dated 26-07-2021 was in respect of an activity committed by two members of the syndicate.

Further, to strengthen his case, the applicant submitted that he had already been released on bail in respect of other FIRs and it was only on account of him being implicated in FIR 64 of 2021 under the GCTOC Act, that he was deprived of his liberty.

On the contrary, the State submitted that all the offences alleged in the FIRs which were given in the Chart, were directly or indirectly committed for the benefit of the crime syndicate of which the applicant is a member.

Analysis and Findings

The Court noted that only one offence, i.e., FIR 64 of 2021 was there which had been committed by seven accused out of which two were the members of the syndicate and in respect to offences at Serial Nos. 1 to 4 in the Chart, no members of the syndicate were arrayed as accused.

Considering the provisions of the GCTOC Act, the Court held that the following conditions will have to be fulfilled for invoking the provisions of the GCTOC Act:

  • Such activity should be prohibited by law for the time being in force;
  • Such an activity is a cognizable offence punishable with imprisonment of three years or more;
  • Such activity is undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate;
  • In respect of such activity more than one charge sheet must have been filed before a competent Court; and
  • The charge sheet must have been filed within a preceding period of ten years; and
  • The Courts have taken cognizance of such offences.

However, in the instant case, only one charge sheet was filed in respect of activity which could be said to have been undertaken by the applicant as a member of an organised crime syndicate on behalf of such syndicate.

Conclusion

In the backdrop of above, and considering the factum that the applicant had already been granted bail in respect of crime registered at Serial Nos. 1 to 5, the Court allowed the instant petition. Accordingly, the applicant was directed to be released on bail with the directions to report to the investigating officer every Monday between 10.00 a.m. to 1.00 p.m and not to attempt to influence the witnesses or tamper with the records.[Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 SCC OnLine SC 713, decided on 30-05-2022]


Appearance by:

For Petitioner(s): Mr. Mukul Rohatgi, Adv.

Ms. Diksha Rai, AOR

Mr. Ankit Agarwal, Adv.

For Respondent(s): Ms. Deepanwita Priyanka, AOR


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and Sanjiv Khanna, JJ has set aside the Bombay High Court order releasing a man allegedly involved in organized crime with International Gangster Chota Shakil and has held that the High Court ought not to have released the accused on bail by way of interim relief.

Factual Background

An FIR was registered under Sections 384, 386, 387 read with Section 34 of the IPC against three named accused persons namely Iqbal Ibrahim Kaskar, Israr Jamil Sayyed and Mumtaz Ejaj Shaikh @ Raju.

During the course of the investigation, it was found that there is organized crime by international gangster Shakil Babu Mohiddin Shaikh @ Chhota Shakil and Iqbal Ibrahim Kaskar and it was also found that from time to time, Pankaj Jagshi Gangar, the respondent herein, was paying the amount to such organized crime syndicate and other gangs which they used to use the said amount for taking help of other members by paying amount to them. It was also found that Gangar is running the Matka business in Borivali, Mumbai, after prior sanction the provisions of Maharashtra Control of Organised Crime Act (MCOCA) came to be applied.

After investigation a charge sheet was submitted under the provisions of the IPC as well as under the MCOCA. Gangar filed the bail application before the Special Judge, which was rejected by a detailed and reasoned judgment and order dated 26.03.2018.

Gangar, hence, approached the High Court. However, when the High Court was not inclined to grant any relief, the counsel on instructions withdrew the said bail application. Immediately on withdrawal of the aforesaid bail application, Gangar filed the writ petition before the Division Bench of the High Court.

The Division Bench released the accused on bail that too by way of interim relief, which otherwise the accused could not get before the Single Judge.

Ruling

The Court noticed that the allegations against Gangar were very serious in nature and that after investigation a charge sheet has been filed against the accused for the offences under the IPC as well as under the MCOCA.

The Court, at the outset, held that the Division Bench ought not to have released the accused on bail by way of interim relief as the same is against the law laid down by the Supreme Court.

[See Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra2021 SCC OnLine SC 315

Read: “No coercive measures to be taken”| Can High Courts pass such blanket orders while refusing to quash investigation? Here’s the law laid down by the Supreme Court]

The Court noted that while releasing the accused on bail that too by way of interim relief the High Court has not at all considered the seriousness of the offences alleged against the accused.

“After the investigation it has been found that the respondent – accused is running the Matka business; is providing funds to the Chhota Shakil and his gangs; that the accused is arranging funds for the expenses of purchasing weapons, information and he is active member of organized crime syndicate.”

Further, by the impugned order, the High Court had observed that the sanction to invoke the provisions of the MCOCA is bad in law as there is no evidence on record. Therefore, even the High Court has not at all considered the allegations with respect to other offences under the IPC. Even such an observation at the interim relief stage on the sanction to prosecute/invoke the provisions of MCOCA was not warranted.

The Court, hence, observed that

“Virtually the High Court has acquitted the accused for the offence under the MCOCA at the interim relief stage and has granted the final relief at the interim stage exonerating the respondent from   MCOCA, which is wholly impermissible. “

The Court also highlighted the fact that the present is a glaring example of forum shopping by the accused which cannot be approved at all and that on this ground also, the accused was not entitled to be released on bail and the impugned order passed by the High Court releasing the accused on bail deserves to be quashed and set aside.

The Court, hence, directed the accused to surrender immediately and to face the trial. If he does not surrender immediately, his presence is to be secured by issuing non-bailable warrant.

[State of Maharashtra v. Pankaj Jagshi Gangar, 2021 SCC OnLine SC 1172, decided on 03.12.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Op EdsOP. ED.

“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.[1]

Countries across the world acknowledge the crucial role of criminal machinery in maintaining law and order. Lawlessness mutilates the foundation of a country and disintegrates the innate feeling of security, which every citizen of a country must enjoy in order to live a productive life. Existence of effective criminal law and justice system, therefore, becomes imperative for a society, State and its citizens to thrive and prosper. States are considered as a protector of its citizens and an integral organ to ensure law and order. Such objects are ultimately sought to be achieved, inter alia, by means of an effective penal machinery and criminal justice system.

The  Supreme Court in Adu Ram v. Mukna[2], while recognising the importance of penal laws, observed, “[s]ecurity of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law.”

 Further, as per the Supreme  Court[3], “[t]he contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences.”

There is no dearth of penal statutes in India dealing with several kinds of offences. Besides the commonly known  Penal Code, 1860, special enactments in form of the Prevention of Corruption Act, 1988; the Narcotic Drugs and Psychotropic Substances Act, 1985, etc., exist in statute books, dealing with a wide range of offences.

Significant amongst these penal laws are the provisions under the Maharashtra Control of Organised Crime Act, 1999[4] or commonly known as MCOCA. MCOCA is a State legislation, enacted by the State of Maharashtra to combat organised crime and terrorism. Under the ‘Statement of Objects and Reasons’ of the said enactment[5], it was, inter alia, observed, “existing legal framework i.e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organised crime”. Accordingly, realising an imminent need of a special law with stringent and deterrent provisions; MCOCA was enacted in the year 1999. Being a State legislation, applicability of the provisions of the said enactment was initially confined to the State of Maharashtra. However, vide Notification[6] dated 02.01.2002, the Ministry of Home Affairs, Government of India, extended the provisions of MCOCA to the National Capital Territory of Delhi.

MCOCA penalises commission of an offence of organised crime and possession of unaccountable wealth on behalf of member of organised crime syndicate under Sections 3 and 4 thereof, respectively. The terms organised crime and organised crime syndicate[7], in turn, are defined under Sections 2(1)(e) and 2(1)(f) of MCOCA respectively. Under the said enactment organised crime is defined to mean,

“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 of 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.”

The term, ‘continuing unlawful activity’ under Section 2(1)(d) of the said enactment is defined 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. Further, such activity must have been “undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence.”

Therefore, a careful perusal of the provisions of Section 2(1)(d) of MCOCA would demonstrate that the impetus for invocation of the provisions of the said enactment is the continuing unlawful activity undertaken by a person singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and the court has taken cognizance of such offence.

Appreciating that organised crimes pose a serious threat to civil society, courts have time and again embarked on a rigorous exercise to expand the scope and application of provisions of MCOCA. Accordingly, activities/actions involving engagement of individuals and/ or members of organised crime syndicate, with a wide network, in ‘continuing unlawful activity’ for commission of offences such as human trafficking and prostitution[8]; rigging of examination[9]; etc., have been brought within  the ambits of the penal provisions under MCOCA. Simultaneously, several provisions of MCOCA have been subjected to strict scrutiny for their vires, especially in terms of the provisions of Articles 14 and 21 of the Constitution of India (“the Constitution”), before several judicial forums, from time to time. Illustratively, in State of Maharashtra v. Bharat Shanti Lal Shah[10], the Supreme Court, upheld the validity of the provisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 of MCOCA.

Similarly, the High Court of Delhi[11] struck down the challenge to the provisions of Section 3(1)(ii) of MCOCA, on the ground that it prescribes a mandatory imposition of minimum fine, as violative of Articles 14 and 21 of the Constitution. As per the Court,

“[t]o subject convicts under the said Act to minimum fines appears to be completely justified, as the object appears to be to deter such offenders and to denude them of their ill-gotten wealth. The quantum of minimum fine also does not appear to be excessive in today’s context.”

Quite recently, the Supreme Court in State (NCT of Delhi) v. Brijesh Singh[12] dealt with the applicability of the provisions of MCOCA in light of the principles of ‘extra territoriality and territorial nexus’. The moot question before the Division Bench[13] of the Supreme Court in the said case was, ‘Whether the charge-sheets filed in the courts in other States can be considered to establish continuing unlawful activities in a State where the provisions of MCOCA were applicable[14]?’ In turn, the question revolved around the meaning of the words “competent court”, existing in Section 2(1)(d) of MCOCA. In this regard, the Court, at the outset, reiterated that an organised crime is not an activity restricted to a particular State and accordingly, held that a restrictive reading of the words “competent court”, under Section 2(1)(d) of MCOCA, would stultify the object of the Act. As per the Court,

“If members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination be said, that there is no nexus between the charge-sheets filed in courts in States other than Delhi and the offence under MCOCA registered in Delhi… We hold that “competent courts” in the definition of “continuing unlawful activity” is not restricted to courts in Delhi alone.”

However, it was cautioned by the Supreme Court that for  prosecution under MCOCA at Delhi[15], based on the charge-sheets filed before the courts in other States, commission of organised crime in Delhi is sine qua non and that,

“[i]n the absence of an organised crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge-sheets filed outside Delhi.”

It was further clarified by the Court that under such circumstances, consideration of charge-sheets filed in other States is not for the purpose of prosecution of accused for an offence committed outside the State in a State to which the provisions of MCOCA are made applicable, rather, their use/reliance was restricted, “merely for the purpose of determining the antecedents of the respondents”. Such an accused, as per the Court, would still be liable to face trial in competent courts where the charge-sheets are filed.

It goes without saying that when crime enlarges its reach, it becomes imperative for criminal justice system to expand with equal vigour. It becomes equally vital for penal provisions to mould themselves to cater to the imminent need of society, so that the rising fangs of crime may be nipped in the bud. It is further universally recognised that with the change of social norms, values and needs, law, too, is required to be modified, amended and re-interpreted to meet the changing needs.

As per the Supreme Court[16], “Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts.”

 Provisions under MCOCA, unquestionably, are a major step in the direction of modernising and recasting penal provision for uprooting the evils of organised crime and to cause deterrence to members/individual engaging in crime syndicates for recurrent offences. Further, it goes without saying that any law, no matter how deterrent, is as efficient as is enforcement and implementation. Seen in this light, the judicial approach in dealing with the offences/offenders under MCOCA, clearly, demonstrates an attitude of impatience towards perpetrators of such offences and those actively associating themselves with such crime syndicates. The decisions of various Courts have further demonstrated that mere technicalities and literal interpretation of legal provisions have been deprecated by the Courts. In fact, the Courts have repeated clarified[17] that the applicability of the provisions under law[18] must depend on the object and purpose of the enactment. Clearly, there is no bending of laws to meet the ulterior designs of offenders; especially the provisions of MCOCA provide no respite to its violators, to perpetrate tyranny. Clearly, abiding by the remarks, once made by Montesquieu, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”


*Managing Associate, L&L Partners Law Offices

[1]Plato

[2](2005) 10 SCC 597

[3]State of M.P. v. Munna Choubey, (2005) 2 SCC 710

[4] Maharashtra Control of Organised Crime Act, 1999

[5] Refer also to State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779

[6]https://www.mha.gov.in/sites/default/files/video_59.PDF

[7] Section 2(1)(f) of MCOCA, “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;”

[8]Kamaljeet Singh v. State, 2008 SCC OnLine Del 110

[9]Mahipal Singh v. CBI, 2012 SCC OnLine Del 2983  [overruled on merits in Mahipal Singh v. CBI, (2014) 11 SCC 282]

[10](2008) 13 SCC 5

[11]Mohd. Irfan v. State of NCT of Delhi, 2018 SCC OnLine Del 13223

[12](2017) 10 SCC 779

[13] Two-Judges Bench comprising of  S.A. Bobde and  L. Nageswara Rao, JJ.

[14] In the instant case, the question/issue related to the fact whether the charge-sheets filed in States outside Delhi could be considered for initiating proceedings against the accused at Delhi, in terms of the provisions of MCOCA?

[15] In the instant case at Delhi. However, same principles apply to States (i.e. Bombay) where the provisions of MCOCA are made applicable

[16]B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313

[17] Supreme Court in State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779

observed, “…it is no more res integra that even a penal provision should be interpreted to advance the object which the legislature had in view [Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684, para 6 ].”

[18] Including that under MCOCA.

Case BriefsSupreme Court

Supreme Court: The bench of SA Bobde and L Nageswara Rao, JJ defined the scope of the words ‘competent Court’ in Section 2(d) of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and held that the meaning of the term is not restricted to Courts in Delhi and charge sheets filed in Courts in other States can be taken into account for the purpose of constituting continuing unlawful activity. It was also held that there cannot be a prosecution under MCOCA without an organised crime being committed within Delhi.

The Court was hearing the issue relating to conviction of the respondent who was involved in in committing unlawful activities along with other members of a crime syndicate since 1985 in an organized manner, apart from being involved in 20 cases of attempt to murder, murder, extortion, rioting, cheating, forgery and for offences under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. The competent criminal Courts in and outside Delhi had taken cognizance of 8 crimes. Considering the nature of the crimes committed by the respondent, it was deemed proper to invoke MCOCA.

Senior Advocate Siddharth Luthra, appearing for the State of Delhi submitted before the Court that:

“organized crime is a serious threat to the society and that statement of objects and reasons have to be taken into account for interpretation of the provisions of the Act.”

He said that criminal cases in which cognizance was taken by Courts outside Delhi are relevant for the purpose of proceeding against the respondents under MCOCA. He added that organized crime is not restricted to territory within a State and a restrictive reading of the word ‘Competent Court’ would defeat the purpose for which the statute was enacted.

Respondent’s counsel, Senior Advocate UU Lalit, on the other hand, argued that MCOCA operates only within the territorial limits of National Capital Territory of Delhi and said:

“MCOCA is a special legislation which deals with organized crime and unless the essential ingredients of the offences under Sections 3 and 4 are made out, a case under the said statute cannot be registered.”

He further supported his argument by the fact that 6 out of 8 charge sheets filed against the respondents were filed in the State of Uttar Pradesh and had no nexus with the charge sheets filed in Delhi.

Agreeing with the arguments of the State, the Court said:

“Organised crime is not an activity restricted to a particular State which is apparent from a perusal of the Statement of Objects and Reasons. A restrictive reading of the words “competent Court” appearing in Section 2 (1)(d) of MCOCA will stultify the object of the Act.”

The Court further said that if members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination said, that there is no nexus between the charge sheets filed in Courts in States other than Delhi and the offence under MCOCA registered in Delhi.

The Court, however, agreed with the respondents on the argument that an activity of organized crime in Delhi is a sine qua non for registration of a crime under MCOCA. In the absence of an organized crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge sheets filed outside Delhi. Noticing that there was no organised crime committed by the Respondents within the territory of Delhi, the Court held that there was no cause of action for initiation of proceedings under MCOCA in the present case and that the case should be heard by the competent court that has the territorial jurisdiction. [State of NCT of Delhi v. Brijesh Singh,  2017 SCC OnLine SC 1206, decided on 09.10.2017]

Case BriefsHigh Courts

Bombay High Court: While relying upon the Supreme Court decision in Atul Manubhai Parekh v. Central Bureau of Investigation, (2010) 1 SCC 603, the Division Bench of Ranjit More, Anuja Prabhudessai, JJ. has held that a convict is not entitled to get the period of undertrial detention suffered in one case for set-­off against the sentence to be undergone in another case.

The petitioner was sentenced to undergo ten years imprisonment for committing offences punishable under POTA. The period of under-trial detention undergone by him was set-off under Section 428 CrPC. The petitioner was also arrested for committing offences punishable under Maharashtra Control of Organised Crime Act, after he was released on bail in the POTA case. The petitioner, while placing reliance on the Supreme Court decision in State of Maharashtra v. Najakat Alia Mubarak Ali, (2001) 6 SCC 311, contended that the period for which he was under detention in MCOC case was also to be set off as against the imprisonment imposed on him in the POTA case.

The High Court noted that in  Najakat’s case the accused was arrested on the same day in two criminal cases and he remained under concurrent detention for both the cases. The facts of Najakat’s case were therefore distinguishable as the petitioner, in the instant case, was already released on bail in the POTA case when he was undergoing detention in the MCOC case. The Court observed that Section 428, in clear and unambiguous words, provides that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. Therefore, the period undergone by the petitioner in the MCOC case could not be set off as against the sentence imposed in the POTA case. [Saquib Abdul Hamid Nachan v. Superintendent, Central Jail, 2017 SCC OnLine Bom 738, decided on 05.05.2017]