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2019 DIGILAW 876 (BOM)

Suryakant @ Suresh v. State of Maharashtra

2019-03-29

MANGESH S.PATIL, T.V.NALAWADE

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JUDGMENT : 1. The appeal is filed to challenge the order made by the learned Special Judge appointed under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'the Act' for short). The application was filed under section 11 of the Act for discharge and the application is rejected. Both the sides are heard. 2. Charge-sheet is filed by Osmanpura Police Station, Aurangabad in C.R. No. 257/2015 for offences punishable under sections 3(1)(ii), 3(2), 3(4) of the Act and offence of dacoity. The order made by the learned Judge of the Special Court dated 16.10.2018 shows that in the past also, similar application was moved, but on 6.2.2018 it was rejected, but the said order was not challenged and new application was filed for discharge. Both the sides are heard. 3. The relevant record is produced and it shows that while granting sanction, entire record of criminal activities of the members of the syndicate of Gorakh Raghuath Khalekar were considered. As against Gorakh, as many as 15 crimes were registered and charge-sheets were filed from the year 2011 to 2012. As against his associate, Rajendra Kalse as many as 11 charge-sheets were filed. Most of the offences for which charge-sheets were filed, were involving theft, robbery, dacoity. As against present appellant, Suryakant Mule as many as 14 crimes were registered on the date of consideration from the period 2006-2015, 11 charge-sheets were filed and cases were pending and they were mostly for the offences of theft in house, theft and dacoity. The particulars show that the present appellant and Rajendra Kalse were together in C.R. No. 12/2017 registered with Ambejogai Rural Police Station. They were together in C.R. No. 18/2010 registered in the same police station. They were together in C.R. No.99/2015 registered in Murud Police Station. They were together in C.R. No. 148/2011 registered in Ambejogai Police Station. 4. The learned counsel for appellant submitted that in previous case which was filed against the present appellant viz. MCOC Case No. 26/2012, most of the aforesaid crimes were mentioned when sanction was granted for using the provisions of the Act, but the present appellant came to be acquitted for the main offence and for the offences punishable under the Act. The learned counsel for appellant submitted that in previous case which was filed against the present appellant viz. MCOC Case No. 26/2012, most of the aforesaid crimes were mentioned when sanction was granted for using the provisions of the Act, but the present appellant came to be acquitted for the main offence and for the offences punishable under the Act. He submitted that in view of the provision of Article 20(2) of the Constitution of India and section 300 of Criminal Procedure Code, present appellant again cannot be tried for offence punishable under the provisions of the Act. 5. The aforesaid submission is not acceptable as after commission of the offences mentioned in the sanction order, the petitioner was found involved in C.R.No. 257/2015 and in that case, as many as seven accused are shown, who include the present appellant and Rajendra Kalse. The material collected shows that one gold and four silver ornaments came to be recovered on the basis of statement given under section 27 of the Evidence Act by the appellant and these ornaments are identified by the first informant. The incident of dacoity had taken place on 15.10.2015 and the recovery came to be made on 29.12.2015. Further, there is material to show that in the house where the offence was committed, finger prints of offenders were found and when finger prints of the present appellant and those finger prints were compared, they matched. Thus, it cannot be said that there is no material at all against the present appellant in the present case. 6. The learned counsel for appellant submitted that even if there is material of aforesaid nature, it cannot be said that the appellant is member of 'organised crime syndicate' as defined in section 2 (f) of the Act and the offence involved is 'organised crime' as defined in section 2(e) of the Act. This submission is not at all acceptable in view of the relevant facts already mentioned. On this point, the learned APP placed reliance on the observations made by this Court in the case [Govind Sakharam Ubhe Vs. State of Maharashtra, (2009) AllMR(Cri) 1903]. The relevant observations are at paragraph No. 39 and they are as under :- "39. This submission is not at all acceptable in view of the relevant facts already mentioned. On this point, the learned APP placed reliance on the observations made by this Court in the case [Govind Sakharam Ubhe Vs. State of Maharashtra, (2009) AllMR(Cri) 1903]. The relevant observations are at paragraph No. 39 and they are as under :- "39. The submission on behalf of the appellant is that even though all the four accused namely, A, B, C and D may be members of the organized crime syndicate since against each of the accused not more than one charge-sheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provisions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndicate, in our opinion, Section 2 (1)(d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one charge-sheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge-sheet is qua the unlawful activities of the organized crime syndicate." The cases of Apex Court were referred by this Court and after that the aforesaid observations are made. In view of the aforesaid circumstances, this Court holds that it is not possible to discharge the present appellant from the case even for the offences punishable under the Act. In the result, the appeal stands dismissed.