IMPORTANT POINTS
The definitions of ‘Continuing unlawful activity’, ‘organized crime’ or ‘organized crime syndicate’ occurring in Section 2(1)(d)(e)&(f) are closely interlinked.
Mere indulgence in violent activity etc. either for pecuniary gain or other advantage or for promoting insurgency as an individual, either singly or jointly as a member of ‘organized crime syndicate’ or on behalf of a such syndicate would bring the activity within the definition of ‘organized crime’.
Date of third activity is the relevant date for counting period of ten years for earlier charge sheets.
Taking of cognizance by Magistrate under CrPC and filing of charge sheet before him satisfies the requirement of section 2(1)(d), MCOCA.
Filing of supplementary charge sheet does not and will not amount to taking cognizance afresh.
Indulging in any violent or other related activity by an organized gang to promote insurgency i.e. to damage the peace and tranquility in the State would fall within definition of “organized crime” under Section 2(1)(e).

Headnote:(a) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d)(e)&(f) – ‘Continuing unlawful activity’, ‘organized crime’ or ‘organized crime syndicate’ – The three definitions are closely interlinked. (Para 38)
       (b) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(e) and (f) – ‘Organized crime’ – Ingredients – ‘Continuing unlawful activity’ by use of violence or threat of violence or intimidation or coercion or other unlawful means – For making pecuniary gains or undue economic or other advantage or for promoting insurgency – Mere indulgence in violent activity etc. either for pecuniary gain or other advantage or for promoting insurgency as an individual, either singly or jointly as a member of ‘organized crime syndicate’ or on behalf of a such syndicate – Would bring the activity within the definition of ‘organized crime’. (Para 40)
       (c) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d), (e) and (f) – Applicability of MCOCA – One charge sheet filed before a competent Court in the preceding 10 years from the date of third continuing unlawful activity – Cognizance of such previous proceeding likely to result in imposition of a punishment of three years or more – Such crime is an organised crime – MCOCA applies. (Para 42)
       (d) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d) – Cognizance in respect of Parbhani and Jalna incidents taken on 07.09.2006 and 30.09.2006 – Within ten years of the third incident of Malegaon – Condition of ‘continuing unlawful activity’ satisfied – MCOCA rightly invoked. (Para 50)
       (e) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d) – Counting period of ten years for earlier charge sheets – Relevant date – Date of third activity is the relevant date – Instantly, Malegaon bomb blast took place on 29.09.2008 – Ten years period has to be counted from this date. (Para 51)
       (f) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d) r/w Section 173(2)(i) and 190(1)(b), Code of Criminal Procedure, 1973 – Magistrate taking cognizance u/s 190(1)(b) upon filing of police report u/s 173(2)(i) after application of mind – Thereafter charge sheets filed before the Magistrate – Requirement of filing charge sheet before competent court u/s 2(1)(d) satisfied. (Para 61)
       AIR 1951 SC 207; AIR 1967 SC 1167; AIR 1971 SC 2372; 1994 (3) Suppl. SCC 318; (2005) 7 SCC 467; (2006) 6 SCC 728; (2008) 2 SCC 492; (2008) 17 SCC 157; (1995) 1 SCC 684; (2011) 3 SCC 496; (2014) 2 SCC 62 – Relied upon impliedly
       AIR 1963 SC 765; (2005) 12 SCC 709 – Distinguished impliedly
       (g) Code of Criminal Procedure, 1973 – Section 190 and 193 and 173(2) r/w section 2(1)(d), MCOCA – Taking of cognizance by Magistrate and Sessions Judge – Magistrate is competent to take cognizance subject to requirements of clauses (a), (b) and (c) as court of original jurisdiction – Sessions Judge does not have that competence – He can take cognizance only upon committal by Magistrate – The Magistrate takes cognizance of the offence and not the offender – Filing of supplementary charge sheet does not and will not amount to taking cognizance afresh. (Para 62, 64, 75, 77, 81, 83)
       AIR 1963 SC 765; AIR 1951 SC 207; (2005) 12 SCC 709; (2008) 17 SCC 157; AIR 1971 SC 2372; 1994 (3) Suppl. SCC 318; (2005) 7 SCC 467; (2006) 6 SCC 728; (2008) 2 SCC 492; (2011) 3 SCC 496; (2014) 2 SCC 62 – Relied upon
       (h) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d) – ‘Continuing unlawful activity’ – Magistrate taking cognizance in 2006 – Much earlier than Malegaon blast in 2008 – Taking of cognizance by Sessions judge upon committal later – Immaterial – Requirement of section 2(1)(d) already satisfied. (Para 84)
       (i) Maharashtra Control of Organized Crime Act, 1999 – Section 3(2) and 21(4)(b) – Involvement of A-7 in Malegaon case with prime accused of Parbhani and Jalna cases alleged – Nexus of A-7 with a member of an ‘organized crime syndicate’ and with the offence in the nature of an ‘organized crime’ of the two earlier cases satisfactorily shown – Not entitled to bail u/s 21(4)(b). (Para 90)
       (2005) 5 SCC 294 – Relied upon
       (2007) 4 SCC 171; (2009) 4 SCC 94; (2014) 11 SCC 282; (2008) 13 SCC 5; AIR 1954 SC 496; 2011 (5) Mh.L.J. 386; AIR 1943 Patna 245 – Referred
       (j) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(d) – Appellants other than A-7 – Presently no material to show their involvement by way of nexus with any accused of the Parbhani and Jalna cases or offence of an organised crime – At the same time possibility of any material showing such nexus coming to light during investigation cannot be ruled out – Cannot declared that MCOCA is not attracted and they should be discharged. (Para 91)
       (k) Maharashtra Control of Organized Crime Act, 1999 – Section 21(4) (b) – Appellants other than A-7 – Absence of any material to disclose any nexus with the accused of an ‘organized crime syndicate’ or with the offence in the nature of an ‘organized crime’, in Parbhani and Jalna as of now – Appellants can be granted by bail by Special Court. (Para 92)
       (2005) 5 SCC 294 – Relied upon
       (l) Maharashtra Control of Organized Crime Act, 1999 – Section 2(1)(e) – Organised crime – Insurgency – Indulging in any violent or other related activity by an organized gang – To promote insurgency i.e. to damage the peace and tranquility in the State – Would fall within definition of “organized crime” under Section 2(1)(e) – Application of MCOCA doubtful even for limited purpose of section 21(4)(b) – Appellants are entitled to bail on merits. (Para 98, 99)
       (2010) 5 SCC 246; (2005) 8 SCC 21 – Relied upon
       Facts of the case:
       This is the case about proceedings under Maharashtra Control of Organized Crime Act, 1999 in the Malegaon bomb blast case. The applicability of the Act and refusal of bail by the High Court has been challenged in these appeals.
       Finding of the Court:
       A-7 is not entitled to bail. Other appellants can be granted bail on merits.
       Result: Criminal Appeal Nos.1969-70 of 2010, 1971 of 2010, 1994-98 of 2010, 58 of 2011, 1971 of 2010, and 1994-98 of 2010; as also appeal arising out of SLP(Crl) No.8132 of 2010 dismissed.
       Appeals arising out of SLP(Crl.) Nos.9370-71 of 2011 and SLP(Crl.) No.8132 of 2010 partly allowed.

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

The definitions of ‘Continuing unlawful activity’, ‘organized crime’, and ‘organized crime syndicate’ are closely interconnected, and activity under these definitions includes involvement in violent acts for pecuniary gain, to promote insurgency, or on behalf of an organized crime syndicate (!) (!) .
To invoke the provisions of the relevant law, there must be evidence of more than one charge-sheet filed within the preceding ten years, with the Court having taken cognizance of such offences, and the activity should have been undertaken either singly or jointly, as a member of or on behalf of an organized crime syndicate (!) (!) .
The relevant date for counting the ten-year period is the date of the third activity (or occurrence), and the Court's taking of cognizance in earlier cases (such as in Parbhani and Jalna) was properly established based on the filing of charge-sheets and the Court's cognizance within the specified period (!) (!) (!) .
The process of taking cognizance by a Magistrate occurs when the Magistrate applies his or her judicial mind to the facts of the case, which can be established through the filing of police reports and charge-sheets, and supplementary charge-sheets do not amount to fresh cognizance (!) (!) (!) (!) (!) (!) (!) (!) (!) .
The Court's jurisdiction to take cognizance is linked to the filing of charge-sheets before a competent Court and the Court having taken cognizance within the ten-year period, which can be fulfilled by the initial filing in the Magistrate's Court, not necessarily requiring a Sessions Court's involvement (!) (!) (!) (!) (!) .
The involvement of the same organized crime gang or syndicate across different cases is a relevant factor but not an absolute requirement for invoking the law, provided that the activities are linked through nexus or association, and the Court must examine the evidence for such nexus (!) (!) .
The element of violence used in the activities can be for various purposes, including pecuniary benefits, economic advantage, or promoting insurgency, and the law does not require that all violent acts be for pecuniary gain specifically (!) (!) .
The term ‘promoting insurgency’ is understood as creating a significant disturbance or threat to public order and national sovereignty, and does not necessarily require a direct link to pecuniary benefit, but rather a grave threat to peace and tranquility (!) (!) .
The application of the law is stringent, requiring clear evidence of nexus with organized crime, prior involvement in similar activities, and the involvement of organized crime syndicates, but the Court recognizes that the assessment of such nexus can be based on the available evidence and the application of judicial discretion in bail considerations (!) (!) (!) .
The Court emphasizes the importance of timely and expeditious trial proceedings, especially when significant time has elapsed since the occurrence, and directs the authorities to ensure speedy trial and proper posting of cases (!) (!) .
The Court clarifies that the focus of cognizance is on the offence itself, not necessarily on the individual offender, and that filing of police reports and charge-sheets, along with the Court's application of judicial notice, fulfills the requirement of cognizance (!) (!) (!) (!) .
The law also provides safeguards and procedural requirements, such as prior approval for recording information and investigation under the law, and sanctions before taking cognizance, which are to be strictly followed for valid proceedings (!) (!) (!) (!) .

These points collectively outline the legal principles governing the invocation of the law related to organized crime, the process of taking cognizance, the relevance of prior cases, and procedural safeguards, all aimed at ensuring proper legal procedure and evidentiary standards.

JUDGMENT

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted in SLP (Crl.) No.8132 of 2010 and SLP (Crl.) Nos.9370-71 of 2011.

2. As in all the above appeals the issue that arises for consideration is the applicability of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter called “MCOCA”), all these appeals are disposed of by this common judgment.

3. Criminal Appeal Nos.1969-70/2010 have been preferred by Lt. Col. Prasad Shrikant Purohit challenging the judgment in Criminal Appeal No.867 of 2009 which was disposed of by the common order passed by the Division Bench of the Bombay High Court in Criminal Appeal Nos.866, 867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the said order the Division Bench reversed the order of the Special Judge dated 31.7.2009 passed in Special Case No.1 of 2009 wherein he held that the charges against the accused in C.R.No.18 of 2008 registered with Anti-Terrorist Squad, Mumbai (hereinafter referred to as “ATS”) under the MCOCA do not survive and were discharged from the case. The Special Court by invoking Section 11 of the MCOCA directed the case to be tried by the regular Court. The Division Bench while allowing the Criminal Appeal Nos.866 to 869 of 2009 set aside the order of the Special Judge 31.07.2009 in Special Case No.1 of 2009 as well as orders passed in Bail Application Nos.40 to 42 of 2008, restored those applications to the file in MCOCA Special Case No. 01 of 2009 for being decided on merits by Special Judge himself. In Criminal Appeal No.1024 of 2009 while allowing the said appeal, Bail Application No.41 of 2008 was directed to be restored in MCOCA Special Case No. 01 of 2009 for being heard and decided on merits.

4. The appellant-Lt. Col. Prasad Shrikant Purohit is the first respondent in Criminal Appeal No.867 of 2009.

5. The appeals arising out of SLP (Crl.) No.9370-71/2011 have also been preferred by the very same appellant, namely, Lt. Col. Prasad Shrikant Purohit challenging the common order passed in Criminal Bail Application No.333 of 2011 with Criminal Application No.464 of 2011 along with Criminal Application No.556 of 2011 dated 9th November 2011 by the learned Single Judge of the Bombay High Court. By the said order the learned Judge allowed the Criminal Application No.556 of 2011 filed by Ajay Ekanath Rahirkar by granting him bail by imposing certain conditions. In the case of appellant herein, the challenge made in Criminal Application No.464 of 2011 was the order of the Special Judge after the order of remand passed by the Division Bench dated 19.07.2010. The Special Judge by the order dated 30.12.2010 rejected the appellant’s application for bail. The learned Single Judge after detailed discussion, dismissed the Criminal Bail Application No.333 of 2011 as well as Criminal Application No.464 of 2011 by the order impugned in these appeals.

6. The appeal arising out of SLP(Crl.) No.8132/2010 has been filed by one Pragyasinh Chandrapalsinh Thakur challenging the common order dated 19.07.2010 passed by the Division Bench of the Bombay High Court in Criminal Appeal No.866 of 2009 which is identical to the case of the appellant in Criminal Appeal Nos.1969-70 of 2010.

7. Criminal Appeal No.1971 of 2010 is preferred by one Rakesh Dattaray Dhawade challenging the order dated 19.07.2010 passed by the Division Bench of the Bombay High Court in Criminal Appeal No.868 of 2009.

8. The appeal arising out of SLP (Crl.) No.9303/2011 is preferred by one Sudhakar Dhar Dwivedi and Ramesh Shivji Upadhyay challenging the order dated 20.10.2011 of the learned Single Judge of the Bombay High Court. By the said judgment, the learned Single Judge declined to interfere with the order of Special Judge in Misc. Application No.98/2011 permitting police custody to the first respondent, namely, National Investigation Agency (NIA) for 8 days from 22.07.2011 up to 30.07.2011. In fact, the said case was originally investigated by ATS and final report was submitted on 30.01.2009 and supplementa

Click Here to Read the rest of this document

2015 Supreme(SC) 320

Cases Referred (20)