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2024 DIGILAW 2106 (ALL)

Jitesh Jha v. State Of UP

2024-09-21

ARUN KUMAR SINGH DESHWAL, VIVEK KUMAR BIRLA

body2024
JUDGMENT : 1. In the bunch of above cases, two petitions filed by filed by petitioner, Sandeep Shukla, being Criminal Misc. Writ Petition No. 14622 of 2024 (Sandeep Shukla vs. State of U.P. and others) and 14651 of 2024 (Sandeep Shukla vs. State of U.P. and others) are requested to be dismissed as withdrawn as the petitioner has been arrested. Accordingly, Criminal Misc. Writ Petition Nos. 14622 of 2024 and 14651 of 2024 stand dismissed as withdrawn. 2. Learned A.G.A. points out that the petitioner Kamla Ariel and three other accused, in Criminal Misc. Writ Petition Nos. 14502 of 2024 (Kamla Ariel and others vs. State of U.P. and others), 14691 of 2024 (Kamla Ariel and others vs. State of U.P. and others), have already been arrested. None appears for them and also no prayer for adjournment has been made on their behalf. However, for the last few weeks notice is being placed on the notice board that all passed over and date fixed matters shall be taken up in the first call. Accordingly, Criminal Misc. Writ Petition Nos. 14502 of 2024 and 14691 of 2024 stand dismissed for want of prosecution. 3. We now proceed to consider the arguments raised by the counsel for the petitioners Criminal Misc. Writ Petition Nos. 13813 of 2024 (Jitesh Jha and others vs. State of U.P. and others), 13744 of 2024 (Harendra Kumar Masih vs. State of U.P. and others), 13814 of 2024 (Jitesh Jha and others vs. State of U.P. and others) and 13746 of 2024 (Harendra Kumar Masih vs. State of U.P. and others). 4. Heard Sri Vinod Singh, learned counsel for the petitioners in the leading petition as well as the connected petition filed by petitioner Jitesh Jha and others; Sri Arvind Srivastava, learned counsel for the petitioners in the connected petitions filed by petitioner Harendra Kumar Masih and; Sri Manish Goyal, learned A.A.G. assisted by Sri Pankaj Saxena, learned A.G.A. for the State. 5. Criminal Misc. Writ Petition Nos. 13813 of 2024 (Jitesh Jha and others vs. State of U.P. and others) and 13744 of 2024 (Harendra Kumar Masih vs. State of U.P. and others) have been filed seeking quashing of the impugned F.I.R. dated 28.7.2024 registered as Case Crime No. 156 of 2024, under Sections 329(4), 61(2), 111(2)(b), 111(3) Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as "B.N.S."). 13813 of 2024 (Jitesh Jha and others vs. State of U.P. and others) and 13744 of 2024 (Harendra Kumar Masih vs. State of U.P. and others) have been filed seeking quashing of the impugned F.I.R. dated 28.7.2024 registered as Case Crime No. 156 of 2024, under Sections 329(4), 61(2), 111(2)(b), 111(3) Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as "B.N.S."). and Section 3/5 of Prevention of Damage to Public Property Act, P.S. Kotwali, District Kanpur Nagar. 6. The impugned F.I.R. in Case Crime No. 156 of 2024 has been lodged by the area Lekhpal with the allegations that the nazul land with regard to Plot Nos. 69, 69A, 69B, situated in his area, is State property and the accused persons including petitioners tried to take forceful possession of Plot Nos. 69A and 69B whose lease has already been expired. 7. The first information report being Case Crime No. 157 of 2024 was lodged by one Samuwal Gurudev Singh against twelve specifically named accused along with 20-25 unknown persons with the allegations that on 28.7.2024 when the informant went to Church for prayer in the meanwhie at about 9:30 PM the colleague of co-accused Harendra Kumar Masih including the petitioner came to the school, namely, Mary A Merriman School and they have broken lock of the door and entered into the property of the informant and they have also broken the lock of the door of his room and looted valuable articles and also broken the household articles and they also misbehave with the wife of the informant and demanded Rs. 5 lacs as Goonda Tax and thereafter police personnel reached on the spot and saved them. 8. The State has filed short counter affidavit in Criminal Misc. Writ Petition No. 13744 of 2024 and the parties agreed that the affidavit in one case would suffice. In the aforesaid affidavit it is clearly stated that during course of investigation in Case Crime No. 156 of 2024 Sections 111(2) Kha, 111(3), 61(2) of B.N.S. were added. It is also mentioned in the aforesaid affidavit that in Case Crime No. 157 of 2024 during course of investigation Sections 111(2)Kha, 111(3) of B.N.S. were added. Subsequently, on 14.8.2024 Section 317(3) of B.N.S. was also added. 9. It is also mentioned in the aforesaid affidavit that in Case Crime No. 157 of 2024 during course of investigation Sections 111(2)Kha, 111(3) of B.N.S. were added. Subsequently, on 14.8.2024 Section 317(3) of B.N.S. was also added. 9. Before we proceed further we find that in the short counter affidavit it was highlighted that the accused Harendra Kumar Masih has criminal history of 12 cases and out of which charge-sheets have been submitted in four cases and in two cases cognizance has also been taken by the Chief Judicial Magistrate, Jhansi on 16.10.2019 in Case Crime No. 296 of 2019, under Sections 120-B, 34, 467, 468, 471 IPC, Police Station Nawabad, District Jhansi and on 26.8.2019 cognizance has also been taken by the Chief Judicial Magistrate, Jhansi in Case Crime No. 297 of 2019, under Sections 120-B, 34, 465, 467, 468, 471 IPC, Police Station Nawabad, District Jhansi. 10. It was also pointed out that co-accused Avanish Dixit also has criminal history of 13 cases, wherein in one case charge-sheet has been submitted cognizance whereof has also been taken by the court concerned. Co-accused Ali Abbas has criminal history of 3 cases and out of which charge-sheet has been submitted in one case cognizance whereof has also been taken. Mohit Bajpayee has criminal history of 6 cases and out of which charge-sheet has been submitted in one case cognizance whereof has also been taken by the court concerned. 11. It was also pointed out that non-bailable warrants have been obtained from the court of Chief Metropolitan Magistrate, Kanpur Nagar on 16.8.2024 against all the named accused persons in Case Crime No. 156 of 2024 as well as in Case Crime No. 157 of 2024. It was also pointed out that on 10.8.2024 reward of Rs. 25,000/- was initially announced against the accused persons, which was subsequently enhanced to Rs. 50,000/- vide order dated 27.8.2024. It has also been stated that out of four accused persons, namely, Avanish Dixit, Rahul Verma, Sandeep Shukla and Vinset Vikram @ Vicky Charls have been arrested in the present case. 12. Criminal Misc. Writ Petition Nos. 25,000/- was initially announced against the accused persons, which was subsequently enhanced to Rs. 50,000/- vide order dated 27.8.2024. It has also been stated that out of four accused persons, namely, Avanish Dixit, Rahul Verma, Sandeep Shukla and Vinset Vikram @ Vicky Charls have been arrested in the present case. 12. Criminal Misc. Writ Petition Nos. 1381 of 2024 (Jitesh Jha and others vs. State of U.P. and others) and 13746 of 2024 (Harendra Kumar Masih vs. State of U.P. and others) have been filed seeking quashing of the impugned F.I.R. dated 28.7.2024 registered as Case Crime No. 157 of 2024, under Sections 191(2), 127(2), 324(4), 310(2), 61(2), 352, 351(2), 308(5), 329(3), 74, 111(2)(b), 111(3) B.N.S., P.S. Kotwali, District Kanpur Nagar. 13. Sri Arvind Srivastava, learned counsel for the petitioner (Harendra Kumar Masih) in the connected petition, by drawing attention to the provisions of Section 111 B.N.S., submits that no such offence is made out. The charge sheets that have been filed for unlawful activities as defined in Explanation- (ii) to Section 111 of the B.N.S. would not be covered and cannot be taken into consideration as the same have been filed prior to enforcement of the provision of Section 111 B.N.S. and the Section being penal in nature can only have prospective effect. It is further submitted that a bare reading of the F.I.R. would reflect that initially the F.I.R. was filed under Section 329(4) B.N.S. and Section 3, 5 Prevention of Damage to Public Property Act and there is a civil litigation pending in respect of the aforesaid property being O.S. No. 687 of 2024 (Samual Gurudev vs. International Fellowship U.S.A. @ Interserve U.S.A. and others) wherein the petitioner Harendra Kumar Masih is one of the defendants and as such no offence, as alleged, is made out. 14. It is submitted by learned counsel for the petitioners that the subsequently added sections 61(2), 111(2)(b) and 111(3) B.N.S. are also not made out and there is no material to support that the petitioners are part of any organized crime syndicate or gang as defined in Explanation-(i) to the Section 111 B.N.S. It is submitted that the petitioners are not involved in the continuing unlawful activities, therefore, no offence as alleged has been made out against them. 15. 15. Sri Vinod Singh, learned counsel for the petitioners has adopted arguments advanced by Sri Arvind Srivastava and further submitted that the petitioners are not involved in the continuing of unlawful activities, therefore, no offence as alleged is made out against the petitioners. 16. Per contra, Sri Manish Goyal, learned A.A.G. assisted by Sri Pankaj Saxena, learned A.G.A. for the State, at the very outset submitted that a bare glance over the F.I.R. would clearly disclose that the lease in respect of the najul land in question has expired long back, therefore, the land is now vested in State and bare reading of the F.I.R. clearly reflects that cognizable offence is made out. It was next submitted that during the course of investigation Sections 61(2), 111(2)(b) and 111(3) B.N.S. were added and some of the accused, as noted above, have already been arrested in the present case. It is also pointed out that it is not in dispute that against Harendra Kumar Masih two charge sheets have been submitted of which cognizance had already been taken by the competent court on 16.10.2019 and 26.8.2019, therefore, requirement of “continuing unlawful activities” as defined in Explanation (ii) to Section 111(1) of B.N.S. is clearly fulfilled. It was further pointed out that several civil disputes claiming rights in respect of the State land in question are pending between the private parties, wherein the State has not even been impleaded as defendant and in any case, the same have no relevance in the present case wherein attempt to grab the State land has been made which is clearly reflected from perusal of the impugned first information reports. 17. Learned A.A.G. reiterated that accused Harendra Kumar Masih is carrying a reward of Rs.50,000/- on his head and he is declared absconder. He further pointed out that in fact, he has left the country and, therefore, a lookout circular has also been issued by the Bureau of Immigration (India), Ministry of Home Affairs, Gov. of India on 9.9.2024 and hence, he is not entitled for any relief. Moreover, he has a criminal history of 12 cases, therefore, it is clear that all the accused persons are engaged in organized crime. 18. of India on 9.9.2024 and hence, he is not entitled for any relief. Moreover, he has a criminal history of 12 cases, therefore, it is clear that all the accused persons are engaged in organized crime. 18. Learned A.A.G., has placed reliance upon the judgement of the Apex Court in the case of State of Gujarat vs. Sandip Omprakash Gupta; 2022 SCC OnLine SC 1727 and by drawing attention to paragraphs No. 22, 23, 24, 26, 27, 28, 29, 30, 52, 53, 54, 55, 56, 57 of the aforesaid judgement, he submits that the pari materia provision of Gujarat Control of Terrorism and Organized Crime Act, 2015 have been considered by the Hon’ble Apex Court and it was specifically observed in paragraph No. 56 that during the period of preceding ten years the activities which were offences under the law in force at the relevant time and in respect of which two charge sheets 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 1.12.2019 (the date on which the aforesaid Act was brought into force) or thereafter. Paragraph Nos. 22, 23, 24, 26, 27, 28, 29, 30, 52, 53, 54, 55, 56, 57 of the State of Gujarat vs. Sandip Omprakash Gupta (supra) are quoted as under:- "22. The Gujarat Control of Terrorism Act, 2015, as its long title indicates, is 'an Act to make special provisions for the prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates and for the matters connected therewith or incidental there to'. The Gujarat Control of Terrorism Act, 2015, as its long title indicates, is 'an Act to make special provisions for the prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates and for the matters connected therewith or incidental there to'. The statement of objects and reasons contains the reasons, which constitute the foundation for the legislature to step in: First, organised crime which is in existence for some years poses a serious threat to society; Secondly, organised crime is not confined by national boundaries; Thirdly, organised crime is fuelled by illegal wealth generated by contract killing, extortion, smuggling and contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, and other activities; Fourthly, the illegal wealth and black money generated by organised crime pose adverse effects on the economy; Fifthly, organised crime syndicates make common cause with terrorists fostering narcoterrorism which extends beyond national boundaries; Sixthly, the existing legal framework in terms of penal and procedural laws and the adjudicatory system were found inadequate to curb and control organised crime; and Seventhly, the special law was enacted with 'stringent and deterrent provisions' including in certain circumstances, the power to intercept wire, electronic or oral communication. 23. In understanding the ambit of the enactment, emphasis must be given to three definitions: a. Organised crime (Section 2(1)(e));1 b. Organised crime syndicate (Section 2(1)(f));2 and c. Continuing unlawful activity (Section 2(1)(c).3 24. The expression 'organised crime' is defined with reference to a continuing unlawful activity. The definition is exhaustive since it is prefaced by the word 'means'. The ingredients of an organised crime are: a. The existence of a continuing unlawful activity; b. Engagement in the above activity by an individual; c. The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate; d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency. 25. The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activity and an organised crime syndicate. Hence, it becomes necessary to understand the ambit of both those expressions. 25. The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activity and an organised crime syndicate. Hence, it becomes necessary to understand the ambit of both those expressions. The ingredients of a continuing unlawful activity are: a. The activity must be prohibited by law for the time being in force; b. The activity must be a cognizable act punishable with imprisonment of three years or more; c. The activity may be undertaken either singly or jointly as a member of an organised crime syndicate or on behalf of such a syndicate; d. More than one charge-sheet should have been filed in respect of the activity before a competent court within the preceding period of ten years; and e. The court should have taken cognizance of the offence. 26. The elements of the definition of 'organised crime syndicate' are: a. A group of two or more persons; b. Who act singly or collectively, as a syndicate or gang; and c. Indulge in activities of organised crime. 27. Section 2(1)(c) while defining 'continuing unlawful activity' and Section 2(1)(e) while defining 'organised crime', both contain the expression 'as a member of an organised crime syndicate or on behalf of such syndicate'. While defining an organised crime syndicate, Section 2(1)(f) refers to 'activities of organised crime'. 28. Section 3 provides for the punishment for organised crime.4 Sub-section (1) of Section 3 covers 'whoever commits an offence of organised crime'. Subsection (2) covers whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime. Sub-section (3) covers whoever harbours or conceals or attempts to harbour or conceal any member of an organised crime syndicate. Sub-section (4) covers any person who is a member of an organised crime syndicate. Sub-section (5) covers whoever holds any property derived or obtained from the commission of an organised crime or which has been acquired through the funds of an organised crime syndicate. Section 4 punishes the possession of unaccountable wealth on behalf of a member of an organised crime syndicate. 29. Sub-section (5) covers whoever holds any property derived or obtained from the commission of an organised crime or which has been acquired through the funds of an organised crime syndicate. Section 4 punishes the possession of unaccountable wealth on behalf of a member of an organised crime syndicate. 29. For charging a person of organised crime or being a member of organised crime syndicate, it would be necessary to prove that the persons concerned have indulged in: (i) an activity, (ii) which is prohibited by law, (iii) which is a cognizable offence punishable with imprisonment for three years or more, (iv) undertaken either singly or jointly, (v) as a member of organised crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate, (vi)(a) in respect of similar activities (in the past) more than one charge-sheets have been filed in competent court within the preceding period of ten years, (b) and the court has taken cognizance of such offence. (vii) the activity is undertaken by: (a) violence, or (b) threat of violence, or intimidation or (c) coercion or (d) other unlawful means (viii)(a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or (b) with the object of promoting insurgency. 30. A close analysis of the term, 'organised crime' would indicate that there has to be 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 as singly or jointly as a member of organised crime syndicate or on behalf of such syndicate, in respect of which activity more than one chargesheets have been filed before a competent court within the preceding period of ten years and the Court has taken cognizance of such offence. 52. It is a sound rule of construction that the substantive law should be construed strictly so as to give effect and protection to the substantive rights unless the statute otherwise intends. Strict construction is one which limits the application of the statute by the words used. According to Sutherland, ‘strict construction refuses to extend the import of words used in a statute so as to embrace cases or acts which the words do not clearly describe’. 53. Strict construction is one which limits the application of the statute by the words used. According to Sutherland, ‘strict construction refuses to extend the import of words used in a statute so as to embrace cases or acts which the words do not clearly describe’. 53. The rule as stated by Mahajan C.J. in Tolaram Relumal v. State of Bombay reported in AIR 1954 SC 496 , is that “if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty. It is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature….” In State of Jharkhand v. Ambay Cements reported in (2005) 1 SCC 368 , this Court held that it is a settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. The basic rule of strict construction of a penal statute is that a person cannot be penalised without a clear letter of the law. Presumptions or assumptions have no role in the interpretation of penal statutes. They are to be construed strictly in accordance with the provisions of law. Nothing can be implied. In such cases, the courts are not so much concerned with what might possibly have been intended. Instead, they are concerned with what has actually been said. 54. We are of the view and the same would be in tune with the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) that there would have to be some act or omission which amounts to organised crime after the 2015 Act came into force i.e., 01.12.2019 in respect of which, the accused is sought to be tried for the first time in the special court. 55. 55. We are in agreement with the view taken by the High Court of Judicature at Bombay in the case of Jaisingh (supra) 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. 56. There is a vast difference between the act or activity, which is being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. For the purpose of organised crime, there has to be a continuing unlawful activity. 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. 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 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. 57. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions of the Act, the same would indicate 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. We say so keeping in mind the following: (a) If ‘organised crime’ was synonymous with ‘continuing unlawful activity’, two separate definitions were not necessary. (b) The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of ‘continuing unlawful activity’, but find place only in the definition of ‘organised crime’. (c) What is made punishable under Section 3 is ‘organised crime’ and not ‘continuing unlawful activity’. (d) If ‘organised crime’ were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1) (ii) resply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that ‘if any one of such offence has resulted in the death’, since continuing unlawful activity requires more than one offence. Reference to ‘such offence’ in Section 3(1) implies a specific act or omission. (e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment. (f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere). (g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) 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. If a person ceases to indulge in any unlawful act after 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. The same principle would apply, even in the case of the 2015 Act, with which we are concerned." 19. It would also be relevant to quote Section 2(1) (c), (e), (f) of the Gujarat Control of Terrorism and Organized Crime Act, 2015, which are as under:- "2. (1) In this Act, unless the context otherwise requires,- (a) .... (b) .... The same principle would apply, even in the case of the 2015 Act, with which we are concerned." 19. It would also be relevant to quote Section 2(1) (c), (e), (f) of the Gujarat Control of Terrorism and Organized Crime Act, 2015, which are as under:- "2. (1) In this Act, unless the context otherwise requires,- (a) .... (b) .... (c) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term 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 has taken cognizance of such offence; (e) "organised crime" means any continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, running large scale gambling rackets, human trafficking 'racket for prostitution or ransom 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 or threat of violence or intimidation or coercion or other unlawful means; (f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime" 20. Section 111 of the B.N.S. is also quoted as under:- "Section 111 B.N.S. Organised crime.— (1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes (sic cyber crime), trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime. Explanation.—For the purposes of this sub-section,— (i) "organised crime syndicate" means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity; (ii) "continuing unlawful activity" means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, 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, and includes economic offence; (iii) "economic offence" includes criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and Government stamps, hawala transaction, mass-marketing (sic mass marketing) fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form. (2) Whoever commits organised crime shall,— (a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine which shall not be less than ten lakh rupees; (b) in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees. (3) Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees. (4) Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees. (4) Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees. (5) Whoever, intentionally, harbours or conceals any person who has committed the offence of an organised crime shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees: Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender. (6) Whoever possesses any property derived or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than two lakh rupees. (7) If any person on behalf of a member of an organised crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one lakh rupees." 21. From the perusal of above quoted sections, it is explicit that Section 2(1)(c) of Gujarat Control of Terrorism and Organized Crime Act, 2015 is pari materia to Explanation- (ii) to Section 111(1) of the B.N.S. 22. Submission of learned Additional Advocate General, therefore, is that the Explanation-(ii) to Section 111 of B.N.S. clearly takes care and clearly provides that such penal provision would have a retrospective effect, therefore, filing of four charge-sheets and cognizance of two by the competent court is sufficient compliance to invoke the provisions of Section 111 B.N.S which was made effective on 1.7.2024. 23. 23. In view of the above analysis, this Court holds that for invoking Section 111 B.N.S., charge sheet filed and cognizance taken in two offences as mentioned in Explanation- (ii) to Section 111 B.N.S. within the preceding ten years will also include the period prior to the enforcement of B.N.S. Therefore, Explanation- (ii) to Section 111 B.N.S. would also apply retrospectively i.e. prior to the period of the enforcement of B.N.S. 24. We, therefore, find no substance in the argument of learned counsel for the petitioners that no offence as against them under Section 111 B.N.S. is made out. Moreover, we find that in the present case during the course of investigation Section 61(2) B.N.S. (Section 120-B I.P.C. which has existed prior to enforcement of the B.N.S.) has also been added. We also find that Section 111(1) B.N.S. clearly provides that apart from being a member of syndicate, anybody who acts on behalf of syndicate would also be liable. Section 111(3) B.N.S. further makes it clear that whosoever abets, attempts, conspires or knowingly facilitate commission of the organized crime shall also be punished with punishment as provided. Therefore, we find no substance in the arguments of learned counsel for the petitioners and also a bare perusal of the F.I.R. reflects that cognizable offence is made out. 25. Therefore, in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 and M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and in Special Leave to Appeal (Crl.) No.3262/2021 (Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh) decided on 07.10.2021, no case has been made out for interference with the impugned first information report. 26. These petitions are devoid of merit and are accordingly dismissed.