2014 Supreme(Bom) 1399

High Court of Judicature at Bombay
P.V. HARDAS & A.S. GADKARI, JJ.
Sachin Bansilal Ghaiwal & Another
Versus
State of Maharashtra
Criminal Appeal Nos. 25 of 2014 & 1115 of 2013
Decided on: 16-07-2014

Headnote:Criminal Procedure Code, 1973 - Section 228 Maharashtra Control of Organised Crimes Act, 1999, Section 12 Framing of charge. - Since from statements of witnesses, prima facie, it is clear that accused played an active role in commission of crime hence a prima facie case against them made out far framing charge for offence under Act. It is very clear that the appellants in the commission of the present crime have played an active role i.e. to say they were present on the spot and assisted the principal accused ’N’ commission of the crime which has resulted into the death of ’S’. Thus, there is a strong prima facie case against the appellants to frame a charge as contemplated under Section 228 of the Code of Criminal Procedure, under Sections 143, 147, 148, 149, 302 read with 120-B of the Indian Penal Code and under Sections 3, 4 and 25 of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act and under Sections 3(1)(i)(ii), 3(2) and 3(4) of the MCOC Act, 1999.

       Maharashtra Control of Organised Crimes Act, 1999 - Sections 2(1)(a)(iii) and 3(2) - Organized crime. - Presence of accused persons at seen of offence and that, they were assisting in commission of crime, falls within purview of definition of organized crime as defined under Section 2(1)(a)(iii) and Section 3(2) of Act. - It is worth here to note that the appellants have also been charged with Section 3(2) of the MCOC Act wherein a punishment has been prescribed for a term which shall not be less than five years, but which may extend to imprisonment for life and also for fine if a person abets or knowingly facilitates the commission of an organized crime apart from other related aspects of the said case. Section 2(1)(a)(iii) has defined the word ’abate’ as, the rendering of any assistance whether financial or otherwise to the organized crime syndicate, would amount to abating the crime. Therefore, the meaning of the term ’abatement’ as mentioned in the Indian Penal Code under Section 107 has been further expanded by the definition of Section 2(1)(a) of the MCOC Act and therefore the presence of the appellants at the scene of offence and that, they were assisting in the commission of crime, undoubtedly falls, within the purview of the definition of Section 2(a)(a)(iii) read with Section 3(2) of the MCOC Act.

       Maharashtra Control of Organised Crimes Act, 1999 - Section 2(1)(d) - Continuing unlawful activity. - A narrow and constricted interpretation, which would have effect of multifying Section 2(1)(d) of Act cannot be given at all. - The Division Bench has in unequivocal terms laid down the ratio that the requirement of more than one charge-sheet is qua the unlawful activities of the organised crime syndicate and not qua the individual member thereof.

       Maharashtra Control of Organised Crimes Act, 1999 - Sections 2(1)(d), 2(1)(e) and 3 - Member of gang of organized crime - Syndicate. - Expression "member" used in Section 2(1)()d) of Act, can be interpreted as, a person who participates in crime either actively or passively, committed by organized crime syndicate, automatically becomes member of said syndicate. - The expression ’member’ as has been termed in Section 2(1)(d) of the MCOC Act can be interpreted and defined as, a person who participates in the crime either actively or passively or a person who facilitates the commission of the crime committed by the organized crime syndicate or on behalf of the organized crime syndicate, automatically becomes the member of the said crime syndicate which commits the offence or on whose behalf the offence in question is committed, as contemplated under Section 2(1)(d), 2(1)(e), Section 3 and other provisions of the MCOC Act. The said intention of the legislature can further be gathered from the expression which is used in sub-section (2) of Section 3 of the MCOC Act i.e. "any act preparatory to organised crime" has direct bearing with the expression ’member’ which appears in Section 2(1)(d) of the MCOC Act and therefore taking into consideration the intention of the legislature, widest possible meaning has to be given to the expression ’member’ as is appearing in Section 2(1)(d), 2(1)(e),Section 3 and other provisions of the MCOC Act.

       Maharashtra Control of Organised Crimes Act, 1999 - Section 23 - Grant of sanction for prosecution. - Where competent authority, while granting sanction for prosecution had recorded its subjective satisfaction therefore sanction order not vitiated due to non application of mind. - The prosecution has to be afforded an opportunity to lead evidence with regard to the subjective satisfaction recorded by the competent authority by leading evidence at the time of trial. Undoubtedly, an accused desiring to raise objection regarding the defects in such grant of approval or sanction, the accused can raise such objection, however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to an inherent lack or jurisdiction of the concerned authority to grant approval or sanction and such an issue can be decided only on the undisputed facts on record. As has been observed by use earlier, after perusing the material on record and after carefully reading the prior approval dated 3rd August 2010 and the sanction dated 22nd October 2010, the concerned authorities have recorded their subjective satisfaction correctly while initially granting prior approval and subsequently according sanction as contemplated under Section 23 of the MCOC Act in the present case and therefore the contention of the appellants raised in ground (ii) in paragraph 4 above deserves to be rejected on that count.