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2013 DIGILAW 1566 (BOM)

Sk. Mehmood Sk. Mehboob v. State of Maharashtra

2013-08-08

M.L.TAHALIYANI

body2013
JUDGMENT M.L. Tahaliyani, J. 1. Heard learned counsel for the parties. The applicants are accused in Special MCOCA Case No. 3 of 2011 pending in the Court of Special Judge, Amravati appointed under the Provisions of the MCOC Act. The applicant in Application No. 467 of 2013 is accused No. 1, Applicant in Application 475 of 2013 is accused No. 3 and applicant in Application No. 113 of 2013 is accused No. 4. The applicants will be hereinafter referred to as 'accused Nos. 1, 3 and 4'. 2. In all six accused have been chargesheeted for the offences punishable under Sections3(1)(ii), 3(4) and 3(5) and 4 of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'the Act'). Section 3 of the Act provides punishment for commission of organised crime. Section 3(4) provides for punishment for being a member of organized crime syndicate. Section 3(5) punishes holding any property derived or obtained from commission of an organised crime and Section 4 punishes holding of unaccountable wealth being member of organized crime syndicate. 3. Learned counsel Mr. Daga, Mr. Samundre and Mr. Bhangde appeared for accused Nos. 1, 3 and 4 respectively. 4. It is submitted on behalf of the applicants that the applicants have not committed any offence under the Act. The prime contention in the bail applications, on behalf of the applicants, is that there is no substantive offence in the chargesheet and that the applicants could not have been chargesheeted for the offences punishable under the Act unless there was substantive offence which is allegedly committed in continuity with the previous chargesheets pending against accused Nos. 1, 3 and 4. It is admitted position that in the present chargesheet the respondents have not filed chargesheet for any substantive offence. The chargesheet is purely based on the earlier chargesheets filed against accused Nos. 1, 3, 4 and other accused. It is admitted position that more than two chargesheets of the nature mentioned in the Act are pending against accused Nos. 1, 3 and 4. 5. The question which comes up for determination in the present applications is as to whether the chargesheet under the Act can be filed only on the basis of pending chargesheets without there being any substantive offence against the accused. Before I proceed to answer this question, few facts are necessary to be stated for clarity of the order. 6. 5. The question which comes up for determination in the present applications is as to whether the chargesheet under the Act can be filed only on the basis of pending chargesheets without there being any substantive offence against the accused. Before I proceed to answer this question, few facts are necessary to be stated for clarity of the order. 6. As already stated, it is admitted position that more than two chargesheets have been filed against accused Nos. 1, 3 and 4 during the period of ten years prior to the date of filing of the present chargesheet. The last offence in the series of offences mentioned in the chargesheet is Crime No. 33 of 2010 of Akot Feil Police Station, registered on 10th April, 2010. The charges against the accused Nos. 1, 3, 4 and others are for the offences punishable under Sections 147, 148, 120-B and 302 read with Section 149 of the Indian Penal Code. In all there are fourteen accused in the said chargesheet, including accused in the present chargesheet. The chargesheet has been filed in the Court Sessions at Akola on 7th July, 2010. Accused Nos. 1, 3, 4 and other in the said chargesheet have been released on bail. It may be noted here that they were released on bail before recording of the present first information report. 7. The present first information report No. 3080/2011 has been registered at Akot Feil Police Station, Akola for the offences under the Act, on the basis of complaint filed by Mr. Kishore Sirsat, Police Inspector of Akot Feil Police Station. A proposal was submitted to the competent authority on 18th July, 2011 for invoking provisions of the Act. An approval was granted by the competent authority i.e. Inspector General of Police, Amravati Range on 19th July, 2011 and the offence was registered on 26th July, 2011. Accused Nos. 1, 3, 4 and other accused were arrested on various dates after registration of the offence. All the accused, including accused Nos. 1, 3 and 4 are in custody in the present chargesheet. As already stated, they are on bail in Crime No. 33 of 2010 of Akot Feil Police Station. The present chargesheet is filed in the Court of Special Judge, Amravati as there is no Special Judge at Akola to try the offences under the Act. 8. 1, 3 and 4 are in custody in the present chargesheet. As already stated, they are on bail in Crime No. 33 of 2010 of Akot Feil Police Station. The present chargesheet is filed in the Court of Special Judge, Amravati as there is no Special Judge at Akola to try the offences under the Act. 8. The learned counsel for the accused have submitted that this is a dubious method of detaining a person and depriving him of personal liberty by invoking provisions of the Act. It was brought to my notice by the learned counsel for accused Nos. 1, 3 and 4 that the proposal submitted for invoking provisions of the Act and the first information report clearly show that there was no substantive offence in the chargesheet. The chargesheet is purely based on the earlier chargesheets pending against the accused. It is contended by the learned counsel for the accused that the chargesheet filed by the respondents against accused Nos. 1, 3 and 4 and other accused under the provisions of the Act is without substance, inasmuch as basically to prove any of the charges levelled against the accused it is necessary for the respondents to establish that the accused had indulged into continuing unlawful activity as defined under Section 2(d) of the Act. It is submitted that since the charges levelled against the accused do not show that the accused had indulged into continuing unlawful activity, prima-facie no case is made out against either of the accused and therefore, they are entitled for bail. It is submitted by the learned counsel that Section 21(4) of the Act will not be applicable in the present set of facts. The learned counsel has submitted that there must be sufficient material on record to satisfy the Court that there are reasonable grounds to believe that the accused are guilty of any of the offences punishable under the Act. In other words, the Court can release the accused on bail if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences punishable under the Act and that he is not likely to commit any offence while on bail. Primarily, it is necessary for the respondents to show that there are reasonable grounds to believe that accused Nos. Primarily, it is necessary for the respondents to show that there are reasonable grounds to believe that accused Nos. 1, 3 and 4 are guilty of any of the offences for which chargesheet has been filed. 9. Section 3(1)(ii) punishes commission of organized crime. Section 3(4) punishes the person who is member of the organized crime syndicate, 3(5) punishes the person who holds any property derived or obtained from commission of an organized crime and Section 4 punishes the person who possesses unaccountable wealth being member of organized crime syndicate. As such, to prove any of the charges levelled against accused Nos. 1, 3 and 4 it is necessary for the respondents to establish that the accused or somebody else has committed organized crime. To establish commission of organized crime it is necessary for the respondent to establish that the accused Nos. 1, 3 and 4 had indulged into continuing unlawful activities. The 'organized crime' has been defined under Section 2(e) of the Act which runs as under: "2(e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as member of an organized 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 objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;" The 'continuing unlawful activity' has been defined under Section 2(d) of the Act as under: "2(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 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 have taken cognizance of such offence;" As such to establish the charges against accused Nos. 1, 3 and 4 it is necessary for the respondents to prove continuing unlawful activities. 1, 3 and 4 it is necessary for the respondents to prove continuing unlawful activities. To establish the charge of continuing unlawful activity it is necessary for the respondent to establish that: i) the accused has indulged into activities prohibited by law for the time being in force; ii) it is cognizable and punishable with imprisonment for three years or more; iii) it was undertaken singly or jointly by the accused as a member of an organized crime syndicate or on behalf of such syndicate; and iv) that more than one charge-sheets have been filed before the competent Court in respect of such syndicate within the preceding period of ten years and that Court have taken cognizance of such offences. 10. As such, basically, the respondents have to demonstrate that the accused have indulged into activity prohibited by law which is cognizable offence punishable with imprisonment of three years or more. In the present chargesheet, there is no mention of any such activity which is cognizable offence punishable with imprisonment for three years or more. The chargesheet is purely based on the earlier chargesheets pending against the accused Nos. 1, 3, 4 and other accused. The learned counsel have submitted that without there being any substantive offence which can satisfy first part of the definition of continuing unlawful activity there cannot be a charge of commission of organized crime. The learned Additional Public Prosecutor Mr. Doifode has submitted that the last offence alleged to have been committed by the accused is Crime No. 33 of 2010 for the offences punishable under Sections 143, 147, 148 and 302 read with Section 149of the Indian Penal Code and that a chargesheet is pending against accused Nos. 1, 3, and 4 for the said offence in the Court of Sessions at Akola. Mr. Doifode has submitted that the present charge is based on the said offence coupled with earlier chargesheets filed against the accused during preceding period of ten years. 11. As stated earlier, there is no dispute that more than one chargesheets have been filed against the accused in the preceding period of ten years. The question which arises for determination in the present circumstances is as to whether the respondent can contend that the present chargesheet is in continuity with chargesheet filed pursuant to the investigation of Crime No. 33 of 2010 of Akot Feil Police Station. The question which arises for determination in the present circumstances is as to whether the respondent can contend that the present chargesheet is in continuity with chargesheet filed pursuant to the investigation of Crime No. 33 of 2010 of Akot Feil Police Station. In my considered opinion, the submissions made on behalf of the respondents by the learned Additional Public Prosecutor Mr. Doifide cannot be accepted inasmuch as the chargesheet in the said crime had already been filed and the accused are proposed to be tried in the Court of Sessions at Akola for the said offences. It is thus, obvious that the respondents cannot adduce evidence in the present case to establish the charge of Section 302 read with Section 149 of the Indian Penal Code against the accused for which the accused are already being tried in the Sessions Court Akola. It is not the case of the respondents that they intend to adduce evidence in the present case in respect of the charges levelled against the accused in Sessions Case pending in Akola Court pursuant to investigation of Crime No. 33 of 2010 of Akot Feil Police Station. 12. At this stage, learned Additional Public Prosecutor Mr. Doifode submits that on the application made by the original complainant in Crime No. 33 of 2010 this Court in Criminal Application No. 275 of 2011 had expressed opinion that the Special Judge may take necessary steps for holding joint trial of the cases pending in Akola Sessions Court and the Special case pending before the Special Judge at Amrayati. It is apparent that no such steps have been taken by the Special Judge. In this regard a statement is made by the learned counsel Mr. Daga and Bhangde that the case in Akola Court is still pending and the accused are appearing before the Court on the dates of hearing. 13. As such, briefly stated, in the present chargesheet, to establish the charge against accused Nos. 1, 3, 4 and other accused, the respondents will have to establish that the accused had committed cognizable offence punishable with imprisonment of three years or more and that it was undertaken as a member of organised crime syndicate or on behalf of the said syndicate in respect of which more than one charge-sheets have been filed within preceding period of ten years. Therefore, the basic requirement or in other words, one of the ingredients of the organized crime is that there should be an activity prohibited by law for the time being in force which is cognizable offence punishable with three years imprisonment or more. The respondents have submitted that to fulfill this requirement of the charge, the respondents rely upon the chargesheet filed in the Court of Sessions at Akola. In this regard, it is needless to state that the respondents cannot produce the same witnesses before the Sessions Court, Akola as well as before the Special Judge, Amravati to prove the same charges in two Courts. It is abundantly clear that unless the first requirement of definition of 'continuing unlawful activity' is fulfilled, the proof of rest of the requirements is of no use. The chargesheet in the present case does not even make allegations in respect of the first part of the definition of continuing unlawful activity. 14. If the respondents wanted to add provisions of the Act to the last offence committed by the accused, they could have added those sections after prior approval of the competent authority in Crime No. 33 of 2010. This could have been done even after filing of chargesheet by way of further investigation under Section 173(8) of the Code of Criminal Procedure. Instead of adopting genuine and proper method to investigate the case, the respondents have adopted dubious method of registration of fresh FIR only with a view to deprive the accused of personal liberty. Personal liberty of the accused is infringed by the respondents without adopting due process of law. 15. It is thus, obvious that this Court is not satisfied that there are reasonable grounds for believing that accused Nos. 1, 3 and 4 are guilty of any offence punishable under the Act. As such, in my considered opinion, all the applicants i.e. accused Nos. 1, 3 and 4, are entitled to be released on bail. Hence, I pass the following order. The applicants in B.A. Nos. 467/2013, 475/2013 and 113/2013 shall be released on bail in the sum of rupees ten thousand each with one solvent surety each in the like amount. They shall not leave jurisdiction of the trial Court without prior permission of the trial Court. The applications stand disposed of accordingly.