Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 223 (BOM)

Istiyak Khan Iqubal Khan v. State of Maharashtra

2014-01-28

A.S.CHANDURKAR, B.R.GAVAI

body2014
JUDGMENT :- B. R. GAVAI, J. :- Heard. 2. Rule. Rule returnable forthwith. By consent of the parties, the petition is taken up for hearing finally. 3. The Petitioner has approached this Court praying for setting aside the order of conviction dated 16th May, 2007 and for release of the petitioner from the said case. 4. The facts, in brief, giving rise to the present petition are as under: The petitioner along with 12 others was prosecuted for the offence punishable under Section 3(1) (ii) and 3(4) of The Maharashtra Control of Organised Crime Act, 1999 ("MCOC Act" for short). One of them was discharged and two being juveniles, their trial was separated. As such only eight accused underwent the trial. The present petitioner after framing of the charges pleaded guilty. At the conclusion of the trial, the learned trial Judge found that the prosecution has utterly failed to prove the case against the other seven accused. It was specifically found that the prosecution has failed to bring on record sufficient evidence to establish that the provisions of MCOC Act were attracted. As such, other seven accused came to be acquitted. In this back ground, the petitioner has approached this court. 5. Taking into consideration the important aspect, we had requested Mr. A.S. Mardikar, Advocate to act as amicus curiae in the matter. 6. Heard Shri R.K. Tiwari, learned counsel for the petitioner, Shri M.K. Pathan, learned APP and Shri A.S. Mardikar, learned amicus curiae. 7. Shri Tiwari, learned counsel for the petitioner submits that this is a fit case wherein this Court while exercising the power under Section 482 of Cr.P.C. should set aside the conviction of the present petitioner for the offences under the provisions of MCOC Act. The learned counsel submits that the petitioner had pleaded guilty since he was informed that if he does not plead guilty, his entire family members would be booked in the said case. It is submitted that when the trial Judge does not find the case as put forth by the prosecution sufficient enough to invoke the provisions of MCOC Act and acquits the other accused, conviction of the present petitioner would be unsustainable in law. It is submitted that only because the accused has pleaded guilty in certain circumstances cannot be a ground for his continuation behind the bar. It is submitted that only because the accused has pleaded guilty in certain circumstances cannot be a ground for his continuation behind the bar. The learned counsel relies on the following Judgments: i) Pepsi Foods Limited and another vs. Special Judicial Magistrate and others, (1998 (1) B.Cr.C.(SC) 320 : [1998 ALL MR (Cri) 144 (S.C.)] ii) Topandas vs. The State of Bombay, AIR 1956 Supreme Court, 33. iii) State of Maharashtra vs. Sharad Keshav & others, 1967 Cri. L.J. 165. iv) Niranjan Lall Arya vs. State, AIR 1954 Calcutta 82. v) U.R. Ramaswami, 1954 AIR (Madras) 1020 vi) Murarji Raghunath Gujarati vs. Emperor, AIR 1919 Bombay 160. 8. Shri Pathan, learned APP on the contrary submits that the petitioner having admitted the guilt of committing offence cannot be permitted to turn around and invoke the extraordinary jurisdiction of this Court. The learned APP, therefore, submits that the present petition deserves to be dismissed. 9. Shri A.S.Mardikar, learned amicus curiae as well assisted us. 10. The facts are not in dispute. The learned trial Judge by his judgment dated 7.7.2010 has specifically found that the prosecution has utterly failed to bring evidence on record so as to convict the accused for the offences under the provisions of MCOC Act and acquitted seven accused but has convicted the present petitioner on the basis of his plea of guilt. 11. The question for consideration, therefore, would be as to whether when the prosecution fails to bring the evidence on record to establish commission of the offence under the provisions of MCOC Act, whether the conviction of the present petitioner only on the plea of guilt would be sustainable or not. 12. The Apex Court in the case of Topandas (supra) was considering the question as to whether when the other accused have been acquitted for the offence under Section 120-A, conviction of a single person can be maintained or not. The Apex Court observed thus: "8. The King v. Plummer (1902) 2 K.B.339 which is cited in support of this proposition was a case in which, on a trial of indictment charging three persons jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted. It was held that the judgment passed against one who had pleaded guilty was bad and could not stand. It was held that the judgment passed against one who had pleaded guilty was bad and could not stand. Lord Justice Wright observed at page 343: "There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the only alleged co-conspirators, no judgment could have been passed on the appellant, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him: see Harrison v. Errington (Popham, 202), where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict" and said to be "like to the case in 11 Hen. 4, c.2, conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire." 9. Lord Justice Bruce at page 347 quoted with approval the statement in the Chitty's Criminal Law, 2nd ed., Vol. III, page 1141 :- "And it is held that if all the defendants mentioned in the indictment, except one, are acquitted and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him." 10. The following observations made by Lord Justice Bruce are apposite in the context before us:- "The point of the passage turns upon the circumstance that the defendants are included in the same indictment, and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with one another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face. The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy." 11. This position has also been accepted in India. In Gulab Singh v. The Emperor A.I.R. 1916 All. 141 Justice Knox followed the case of The King v. Plummer, supra, and held that "it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for the purpose of conspiracy" and that "there could not be a conspiracy of one". 12. To similar effect was the judgment in King Emperor v. Osman Sardar MNU/WB/0193/1923:AIR 1924 Cal 809 where Chief Justice Sanderson observed that "the gist of an offence under Section 120-B was an alleged agreement between the two accused and when the jury found that one of them was not a party to the agreement and acquitted him of that charge, it followed as a matter of course that the other accused could not be convicted of that charge. The assent of both of them was necessary to constitute the agreement which was the basis of the charge. 13. Ratanlal in his Law of Crimes, 18th ed;, page 270, has summarised the position as it emerges from the above two cases in the manner following:- "Where, therefore, three persons were charged with having entered into a conspiracy, and two of them were acquitted, the third person could not be convicted of conspiracy whether the conviction be upon the verdict of a jury or upon his own confession". 14. The position in law is, therefore, clear that on the charge as it was framed against the accused Nos. 1, 2, 3 and 4 in this case, the accused No. 1 could not be convicted of the offence under section 120-B of the Indian Penal Code when his alleged coconspirators accused 2, 3 and 4 were acquitted of that offence. 15. In our opinion, therefore, the conviction of the accused No.1 of the charge under section 120-B of the Indian Penal Code was clearly illegal. The appeal of the accused No.1 will, therefore, be allowed to the extent that his conviction under section 120-B of the Indian Penal Code and the sentence of rigorous imprisonment of 18 months awarded to him as the result thereof would be quashed. The appeal of the accused No.1 will, therefore, be allowed to the extent that his conviction under section 120-B of the Indian Penal Code and the sentence of rigorous imprisonment of 18 months awarded to him as the result thereof would be quashed. We are not concerned here with the conviction of the accused No.1 of the offences under section 471 read with section 465 and also his conviction for each of the three offences under section 420 of the Indian Penal Code and the concurrent sentences of rigorous imprisonment for one year in respect of each of them passed by the lower Courts upon him in regard to the same. These convictions and sentences will of course stand". It can, thus, clearly be seen that the Apex Court found that for convicting a accused for an offence under section 120-B of IPC it was necessary that there should be more than one person and it is not possible to convict only one person for the offence under section 120-B. 13. Under the MCOC Act even a person, who is not directly involved in the commission of the offence, can be booked and convicted even if it is proved that he is a member of the Organised Crime Syndicate. The definition as per clause (f) of Section 2 of MOCO Act is as under:- 2(f): "Organized 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". 14. It can, thus, be seen that if an offence under the MCOC Act is to be proved, one of the essential ingredients would be to establish that there exists an Organized Crime Syndicate, which may consist of a group of two or more persons. No doubt that, if it is established that the Organized Crime Syndicate exists, then even a singular act of such Organized Crime Syndicate may invite penal consequences. However, it will be essential to establish that the Organized Crime Syndicate exists and the crime is committed by the member, singular or in group, as a member of the said crime syndicate. However, in the present case, the prosecution has failed to establish that there exists an Organized Crime Syndicate. However, it will be essential to establish that the Organized Crime Syndicate exists and the crime is committed by the member, singular or in group, as a member of the said crime syndicate. However, in the present case, the prosecution has failed to establish that there exists an Organized Crime Syndicate. In the absence of a finding of existence of Organized Crime Syndicate, in our view, a single person cannot be said to have committed offence under the MCOC Act. At the cost of repetition, if the prosecution fails to establish the existence of crime syndicate, then there cannot be an offence by a single person as a member of the said Organized Crime Syndicate. 15. The Division Bench of this Court in the case of Murarji Raghunath Gujarati (supra) has held that the admission of the facts allegedly is not necessarily means of an admission of the offence. It will be appropriate to refer to the following observations. "We have merely to decide whether the present applicant is guilty of the offence of cheating and, in my opinion, it is not a matter even of the slightest doubt-I hold that it is perfectly clear that he never committed the offence of cheating in this matter at all. I think our order should be that the conviction is set aside and that the fine if paid should be refunded. 16. It can, thus, be clearly seen that though the accused had admitted the fact alleged, the court held that said admission does not necessary amount an admission of offence and is entitled to a acquittal if the case is not made out. Similar view has been taken by the Division Bench of the Madhya Pradesh High Court in the case of State of M.P. vs. Mustaq Hussain Azad and others reported in AIR 1965 Madhya Pradesh, 137. 17. The Calcutta High Court in the case of Niranjan Lall Arya vs. State, reported in AIR 1954 Calcutta 82 has held that when an accused pleads guilty under mistaken view of law and when no office is proved against him, the plea does not bar his acquittal. 18. In view of these backgrounds, we will have to consider as to whether this is an appropriate case for invoking jurisdiction under section 482 of Cr. P.C., or not. 18. In view of these backgrounds, we will have to consider as to whether this is an appropriate case for invoking jurisdiction under section 482 of Cr. P.C., or not. It will be relevant to refer to the following observation of the Apex Court in the case of Pepsi Foods Ltd. And another vs. Special Judicial Magistrate and other, [1998 ALL MR (Cri) 144 (S.C.)] (supra). "22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provision of Article 226. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provision of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to." The Apex Court has held that the powers under Section 482 are to be exercised to prevent abuse of process of any court or otherwise to secure the ends of justice. 19. It will also be appropriate to refer to the observations made by the Apex Court in the case of Superintendent and Remembrancer of Legal Affairs West Bengal v. Mohan Singh and others, reported in (1975) 3 Supreme Court Cases, 706 which are as under:- "The earlier application which was rejected by the high Court was an application under Section 561 A of the code of Criminal Procedure to quash the proceedings and the high Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceedings at that stage. But, thereafter, the criminal case dragged on for a period of about one and a half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561 A to quash the proceeding. It is difficult to see how in these circumstances, it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561 A preserves the inherent power of the high Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of respondents Nos. The High Court was in the circumstances entitled to entertain the subsequent application of respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse• of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the high Court proceeded to consider the subsequent application of respondents Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561 A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the high Court. Even on merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondents Nos. 1 and 2." It can, thus, clearly be seen that the Apex Court has held that in spite of rejection of earlier application under section 561A (renumbered Section 482), the subsequent application was tenable under the same provisions. We find that the present case is a rarest of the rare case wherein though the other accused have been acquitted on the ground that the prosecution has failed to prove the case under the provision of MCOC Act, it is only the present petitioner who is undergoing sentence on account of mistaken plea of guilt. 20. One more thing that needs to be noted is that though the petitioner has already undergone sentence of more than five years for which he is sentenced for offence under MCOC Act, he is undergoing further sentence since he has not paid fine of Rs.10 lacs. 21. 20. One more thing that needs to be noted is that though the petitioner has already undergone sentence of more than five years for which he is sentenced for offence under MCOC Act, he is undergoing further sentence since he has not paid fine of Rs.10 lacs. 21. In that view, we find that the present case is a fit case wherein we should exercise powers under section 482 of Cr.P.C. In setting aside the conviction of the petitioner. 22. The petition is allowed in terms of prayer clause (b). If the petitioner has undergone the sentence with respect to other cases and if his custody is not required in any other case, is directed to be set at liberty forthwith. Petition allowed.