SHERBAHADUR AKRAM KHAN vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(Bom) 1999

IN THE HIGH COURT OF BOMBAY
(V. G. Palshikar and Smt. Nishita Mhatre, JJ.)
SHERBAHADUR AKRAM KHAN and others - Appellants
vs.
STATE OF MAHARASHTRA- Respondent
Cri. A. Nos. 202 and 980 of 2006
Decided on 8-12-2006. (Bombay)
Advocate Appeared
For appellant: Majeed Memon with P. Memon (in Criminal Appeal
No. 202 of 2006) S. Pasbola (in Criminal Appeal No. 980 of 2006)
For respondent: P. S. Hingorani, A.P.P. (in both appeals)

Headnote:Maharashtra Control of Organised Crime Act, 1999 - Preamble - Scope and object of - To prevent and control criminal activity by organised crime syndicates or gangs - For matters connected therewith or incidential thereto. - The avowed object of the Act was to prevent and control criminal activity by organised crime syndicates or gangs and for matters connected therewith or incidental thereto.
Maharashtra Control of Organised Crime Act, 1999 - Section 2(1)(e)(f) - Organized crime syndicate - A gang indulges in organised crime - Consist of two or more persons - Indulge in continuing unlawful activity - With objective of gaining pecuniary benefits - For promoting insurgency - Such unlawful activity can include use of violence or coercion. - An organised crime syndicate is a gang which indulges in organised crime. This gang may consist of two or more persons, either acting singly or collectively. Such a gang should be found to indulge in continuing unlawful activity i.e. an activity which is prohibited by law and is a cognizable offence punishable with imprisonment for three years and more. An activity would be termed as a continuing unlawful activity if more than one charge-sheet has been filed before the competent Court against the members of the gang either individually or jointly within the proceeding ten years. However, it must be established that such an offence or unlawful activity is undertaken by a person with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or for promoting insurgency. Such unlawful activity could include the use of violence or threat of violence or intimidation or coercion.
Maharashtra Control of Organised Crime Act, 1999 - Section 2(f) - Organised crime syndicate - A gang - Indulges in organised crime - Gang consist of two or more persons - Indulge in continuing unlawful activity - Members of one family not required to be part of an organised crime syndicate. - An organised crime syndicate is a gang which indulges in organised crime. This gang may consist of two or more persons, either acting singly or collectively. Such a gang should be found to indulge in continuing unlawful activity i.e. an activity which is prohibited by law and is a cognizable offence punishable with imprisonment for three years and more. An activity would be termed as a continuing unlawful activity if more than one charge-sheet has been filed before the competent Court against the members of the gang either individually or jointly within the preceding ten years. However, it must be established that such an offence or unlawful activity is undertaken by a person with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or for promoting insurgency. Such unlawful activity could include the use of violence or threat of violence or intimation or coercion.

ORAL JUDGMENT

SMT. NISHITA MHATRE, J.:- These two criminal appeals have been preferred by the accused challenging the order of the Special Court constituted under the Maharashtra Control of Organised Crime Act, 1999 (hereinafter. referred to as "the MCOC Act"). The order has been passed on an application filed by the accused for discharging them from MCOC Special Case No. 4 of 2004 arising out of Powai Police Station C.R. No. 77 of 2004. The appellants have prayed that the charges levelled against them under the MCOC Act should be dropped. Criminal Appeal No. 202 of 2006 has been filed by the accused Nos. 1, 2, 4, 6, 7, 8 and 11. Criminal Appeal No. 980 of 2006 has been filed by the accused No.1.

2. One Navinchandra Dube and Hausila Upadhyaya, claimed to be members of Vishwa Hindu Parishad. When they were proceeding home, they were allegedly killed by the accused. The complainant who was with them, lodged the F.I.R. and a crime was registered under the C.R. No. 77 of 2004 for offences punishable under sections 143 to 149, 302 and 34 of the Indian Penal Code read with sections 4 and 25 of the Arms Act. The accused were arrested on different dates and remanded to judicial custody which was extended from time to time. The provisions of the MCOC Act were applied and the accused were produced before the Special Court under the MCOC Act on 23-5-2005.

3. Some of the accused had filed a writ petition seeking to quash the charges levelled against them and the order sanctioning their prosecution under the MCOC Act. This writ petition was withdrawn by the accused with liberty to file an appropriate proceeding before the competent authority. Accordingly, a criminal application was moved before the Special Court seeking a discharge of the accused under the MCOC Act and a prayer to be tried under the general law i.e. the Indian Penal Code. By an order dated 4-9-2005, the Special Court rejected the application filed by the accused. Hence the present appeals.

4. Undisputedly, the accused have been charged for offences punishable under the aforesaid sections. The sanction, necessary for trying them under the MCOC Act, was obtained from the Commissioner of Police, Brihanmumbai on 28-7-2004 under section 23(2) of the MCOC Act. This sanction was accorded since the Commissioner of Police was convinced that the accused were members of an organised crime syndicate, namely, the Sherbahadur Khan gang. According to the Commissioner, there was sufficient evidence to prove continuous unlawful activities of this organised crime syndicate and that more than one charge-sheet had been filed before competent Courts within the last 10 years against the accused and the Court had taken cognizance of these charge-sheets.

5. The learned counsel appearing for the accused submitted that there was no evidence at all on record that the accused were members of the Sherbahadur Khan gang, Sherbahadur Khan being accused No. 1 in the present case. It was submitted that there were no charge-sheets pending against Sherbahadur Khan himself except for the present charge-sheet and C.R. No. 449 of 2000 from Sakinaka Police Station where he has been charged along with accused Nos. 2 and 8 under sections 323 and 324 read with 34 of the Indian Penal Code. The learned counsel points out that accused No. 6 had more than two charge-sheets filed against him and he was involved in cases relating to some of the offences punishable under the Penal Code. It was further submitted that accused No. 11 who is the wife of accused No. 1 has no case pending against her and, therefore, the prosecution against her and others under the MCOC Act as members of the gang of Sherbahadur Khan under the MCOC Act, was unsustainable. According to the learned counsel, although some of the accused have been charged for offences punishable for more than three years in more than one case, none of these cases would give any pecuniary advantage to the accused. None of these offences had been committed with the obj

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