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SUPREME COURT OF INDIA
Dinesh Maheshwari, Aniruddha Bose, JJ.
Abhishek - Appellant
Versus
State of Maharashtra & Ors. - Respondents
Criminal Appeal No. 869 of 2022 Arising Out of SLP (CRL.) no. 1157 of 2022 (@ Diary No. 2575 of 2022)
Decided On : 20-05-2022
(A) Interpretation of Statute – Rule of Strict Interpretation – Rule of strict construction cannot be applied in an impracticable manner so as to render the statute itself nugatory – Rule of strict construction of a penal statute or a special penal statute is not intended to put all provisions in such a tight iron cast that they become practically unworkable, and thereby, entire purpose of law is defeated – Provisions of MCOCA need to be strictly construed and for their application, an unlawful activity has to fall within periphery of organised crime – Strict adherence by authorities concerned to requirements of MCOCA also cannot be stretched beyond common sense and practical requirements in terms of letter and spirit of statute. (Paras 12.3, 12.6 and 12.7)
(B) Maharashtra Control of Organised Crime Act, 1999 – Section 23(2) – Indian Penal Code, 1860 – Sections 363, 364A, 384, 386, 387, 397 and 504 – Organised crime – Approval for investigation and sanction for prosecution – Actual use of violence is not always a sine qua non for an activity falling within mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate – Threat of violence or even intimidation or even coercion would fall within mischief – This apart, use of other unlawful means would also fall within same mischief – Requirement of law is not limited to pecuniary benefits but it could also be of ‘gaining undue economic or other advantage’ – Expression ‘other advantage’ cannot be read in a restrictive manner and is required to be given its full effect – There could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in society or even in syndicate itself – In such matters, competent authority has to focus essentially on factum whether material in question reveals commission of crime, which is an organised crime, committed by organised crime syndicate – Authority cannot be said to have proceeded on any irrelevant consideration – Reference in confessional statements of two co-accused persons in relation to appellant is not a factor entirely irrelevant for appellant being a co-accused person with them – Any person who is declared as an ‘absconder’ and remains out of reach of investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or indulgence – Any claim towards fundamental rights also cannot be justifiably made without person concerned himself adhering to and submitting to process of law – Appeal dismissed. (Paras 14.1, 14.2, 14.4, 16, 17.5, 18.1, 21 and 23)
Facts of the case:
Appellant has challenged the judgment and order dated 16.12.2021, as passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of 2020 whereby, the High Court has rejected his challenge to the order dated 05.11.2020, as issued by the Additional Director General of Police and Commissioner of Police, Nagpur City under Section 23(2) of Maharashtra Control of Organised Crime Act, 1999 sanctioning prosecution of the appellant with five other accused persons in Crime No. 251 of 2020 of Sadar Police Station, Nagpur City for varying offences under the Indian Penal Code, 1860, the Arms Act, 1959 as also MCOCA.
Findings of Court:
MCOCA seeks to curb such menace, where a criminal case cannot be taken to its logical conclusion because of witnesses either turning hostile or not turning up at all. The provision for witness protection, as contained in Section 19 of MCOCA is one of those steps.
Result : Appeal dismissed.
The petitioner's arguments primarily challenge the validity of the sanctioning process and the sufficiency of the material relied upon to invoke the provisions of MCOCA against the accused, including the appellant. The petitioner contends that the sanctioning authority failed to adequately apply its mind or to fulfill the statutory requirements necessary for sanctioning prosecution under MCOCA (!) . It is argued that the material considered, such as prior criminal cases, confessional statements, and evidence of ongoing unlawful activities, does not sufficiently establish the existence of an organized crime syndicate or the appellant’s active participation in such activities (!) .
Furthermore, the petitioner asserts that the procedural safeguards mandated by the statute, such as prior approval and proper documentation of the basis for invoking MCOCA, were not properly adhered to. The petitioner emphasizes that the involvement of the accused in multiple cases with allegations of violence and the alleged gains from unlawful activities do not, in their view, meet the stringent criteria required for invoking the provisions of MCOCA (!) .
The petitioner also challenges the legality of proceeding against the accused, citing that previous acquittals or cases quashed against the appellant should have been considered to assess the ongoing threat or criminal activity. The declaration of the accused as an absconder, in the petitioner’s view, does not automatically justify the invocation of MCOCA without proper procedural compliance or sufficient evidence establishing continued unlawful activities (!) .
Additionally, the petitioner argues that the procedural and substantive conditions for initiating proceedings under MCOCA, including the requirement of demonstrating a pattern of organized crime and violence, have not been properly satisfied. The petitioner contends that the authorities’ actions in sanctioning and prosecuting under MCOCA are not consistent with the statutory framework or constitutional protections, thereby rendering the proceedings liable to be quashed (!) .
In conclusion, the petitioner maintains that the invocation of MCOCA against the accused lacks a proper legal and factual foundation, and that the procedural lapses and insufficient evidence undermine the legality of the proceedings initiated against the appellant (!) .
JUDGMENT :
Dinesh Maheshwari, J.
Leave granted.
2. By way of this appeal, the appellant has challenged the judgment and order dated 16.12.2021, as passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of 2020 whereby, the High Court has rejected his challenge to the order dated 05.11.2020, as issued by the Additional Director General of Police and Commissioner of Police, Nagpur City1[Hereinafter also referred to as the ‘sanctioning authority’.] under Section 23(2) of the Maharashtra Control of Organised Crime Act, 19992[For short, ‘MCOCA’.] sanctioning prosecution of the appellant with five other accused persons in Crime No. 251 of 2020 of Sadar Police Station, Nagpur City for varying offences under the Indian Penal Code, 18603[For short, ‘IPC’.], the Arms Act, 19594[Hereinafter also referred to as ‘the Arms Act’.]as also MCOCA.
3. The genesis of the present appeal is in the complaint filed on 08.05.2020 at Police Station Sadar, Nagpur City. Therein, the complainant alleged that on 02.05.2019, he was forcefully kidnapped from Motimahal Restaurant, Sadar, Nagpur; and was intimidated with knife and a ransom of Rs. 20 lakhs was demanded by the accused persons. The complainant alleged that three of the accused persons were known to him, being the present appellant Abhishek Singh, as also one Ankit Pali and another Roshan Sheikh. The complainant also alleged that the accused persons asked him to give them papers of his ancestral property and to hand over the shop; threatened him from time-to-time to kill; forcefully took his son in a vehicle; created terror of killing him and his son; and forcefully took out an amount of Rs. 9,000 to Rs. 11,000 from his pocket. The complainant further alleged that the accused persons visited his house from time-to-time demanding money; and that out of fear, he had left his house and was staying at other places.
3.1. On the basis of the complaint aforesaid, the said Crime No. 251 of 2020 came to be registered for offences under Sections 363, 364A, 384, 386, 387, 397 and 504 IPC.
3.2. It is noticed that the appellant, apprehending arrest, applied for pre-arrest bail and on 11.05.2020, the Sessions Judge, Nagpur granted him ad interim bail.
3.3. However, on 02.06.2020, the Additional Commissioner of Police (Crime), Crime Branch, Nagpur City examined the proposal submitted by the Police Inspector, Crime Branch, Nagpur City for addition of Sections 3(1)(ii), 3(2) and 3(4) of MCOCA in the said Crime No. 251 of 2020 against six accused persons, including the appellant. The said Additional Commissioner of Police, in his approval order dated 02.06.2020, inter alia, observed that more than one charge-sheet had been filed against the accused persons involving offences for which, punishment of three years or more of imprisonment had been prescribed; and the previous record made out that the accused persons had committed offences of very serious nature under IPC and related special enactments. The Additional Commissioner of Police recorded his satisfaction while granting approval in the following terms: -
I am prima facie satisfied that every othe
(1) Interpretation of Statute – Rule of strict construction cannot be applied in an impracticable manner so as to render the statute itself nugatory.(2) Organised crime – Any person who is declared a....
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(1) Organised Crime – For the purpose of organised crime, there has to be continuing unlawful activity – There cannot be continuing unlawful activity unless at least two charge-sheets are found to ha....
Unlawful activity - If a person may or may not have any direct role to play as regards commission of an organized crime, if a nexus either with an accused who is a member of an “organized crime syndi....
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