BOMBAY HIGH COURT
S. S. Shinde and N. J. Jamadar, JJ.
Shabhana Parveen Inayatullah Shaikh – Petitioner
versus
State of Maharashtra – Respondent
Writ Petition No.1959 of 2021
Decided on 13.8.2021

IMPORTANT POINTS
(1) Offence under MCOCA must comprise continuing unlawful activity relating to organized crime undertaken by an individual singly or jointly, either as a member of organized crime syndicate or on behalf of such syndicate.
(2) Linchpin of offence of organized crime is nexus with organized crime syndicate.

Headnote:

Maharashtra Control of Organized Crimes Act, 1999 – Sections 2(1)(d), 3(1)(i), 3(2) and 3(4) – Indian Penal Code, 1860 – Sections 302, 504, 506, 427, 143, 144, 147, 148, 149 – Maharashtra Police Act, 1951 – Section 142 – Arms Act, 1959 – Section 4 read with Section 25 – Petition for quashing of sanction order and for grant of pre-arrest bail – Competent authority had granted prior approval as envisaged by Section 23(1)(a) of MCOC Act wherein petitioner was named as an active member of organized crime syndicate – Alleged leader of organized crime syndicate, presents himself as a history sheeter – To the extent competent authority recorded satisfaction for invocation of provisions of MCOC Act on the basis of continuing unlawful activity, in context of cognizable offences registered against A1, prima facie, no fault can be found therewith – It is not the requirement of law that two charge-sheets for cognizable offences punishable with imprisonment for three years or more need be fled against each of members of such syndicate – It is membership of organized crime syndicate which makes a person liable under MCOC Act – What is of significance is nexus or link of person with organized crime syndicate – Linchpin of offence of organized crime is nexus with organized crime syndicate – Apart from fact that petitioner is relative of A1, at this juncture, prima facie, there is next to no material to establish nexus between petitioner and organized crime syndicate – Qua petitioner, there is hardly any material which justifies her designation as a member of organized crime syndicate – Rule of strict interpretation merits full application to facts of the case – Embargo under Section 21(3) of MCOC Act may not come into play and entitlement of petitioner for grant of relief of pre-arrest bail would hinge upon considerations which generally weigh in exercise of discretion to grant pre-arrest bail – No case for invocation of stringent provisions under MCOC Act qua petitioner is made out – Prima facie case for grant of relief is made out – Petitioner is a woman – In light of nature of occurrence and role attributed to petitioner therein, custodial interrogation of petitioner is not warranted – Pre-arrest bail granted.

Held: We have considered the aforesaid preliminary objections to the maintainability of the petition, in the present form. In our view, the issue which really arises for consideration is the invocation of the provisions contained in MCOC Act, qua the petitioner. Indisputably, the competent authority had granted prior approval as envisaged by Section 23(1)(a) of the MCOC Act on 30th November, 2020, wherein the petitioner herein was named as an active member of the organized crime syndicate headed by Rashid Rehman Shaikh (A1). We thus propose to examine the core issue of justifability of the invocation of the provisions of MCOC Act against the petitioner and, consequently, the relief of pre-arrest bail sought by the petitioner.

During the course of investigation, it transpired that Rashid (A1) heads an organized crime syndicate. Numerous offences were registered against Rashid (A1). More than one charge-sheet in respect of cognizable offences punishable with imprisonment of three years or more were fled against Rashid (A1) and the Courts have taken cognizance thereof, in the preceding ten years. Having found that Rashid (A1) and his associates formed an organized crime syndicate and were indulging in continuing unlawful activity singly or jointly either as members of the said organized crime syndicate or on behalf of such syndicate by use of violence with the objective of gaining pecuniary benefts or undue economic or other advantage for the members of the said syndicate, the Additional Commissioner of Police East Region, Mumbai, granted approval under Section 23(1)(a) of the MCOC Act, on 30th November, 2020. The petitioner’s name was included therein as a member of the said organized crime syndicate.

We have given our anxious consideration to the submissions canvassed across the bar. The submission on behalf of the prosecution that Rashid (A1), the alleged leader of the organized crime syndicate, presents himself as a history sheeter seems to be factually impeccable. During the preceding ten years as many as 25 prosecutions for the offences under the Penal Code seem to have been lodged against Rashid (A1). The Courts have taken cognizance of the offences. To the extent the competent authority recorded the satisfaction for invocation of the provisions of MCOC Act on the basis of the continuing unlawful activity, in the context of the cognizable offences registered against Rashid (A1), prima facie, no fault can be found therewith. The question that however wrenches to the fore is whether the invocation of the provisions of the MCOC Act against the petitioner as a member of the organized crime syndicate is justifiable?

It is imperative to note that the prosecution does not claim that the petitioner has been arraigned in any of the offences registered against Rashid (A1) or other alleged members of the organized crime syndicate as a co-accused. Nor is it a case of the prosecution that offences have been registered against the petitioner individually. We are conscious of the proposition that in view of the definition of continuing unlawful activity under Section 2(1)(d) of the MCOC Act it is not the requirement of law that two charge-sheets for the cognizable offences punishable with imprisonment for three years or more need be fled against each of the members of such syndicate. It is the membership of the organized crime syndicate which makes a person liable under the MCOC Act. What is of significance is the nexus or the link of the person with organized crime syndicate. The linchpin of the offence of organized crime is the nexus with the organized crime syndicate.

In the case at hand, apart from the alleged participation of the petitioner in the subject offence, we do not find that the prosecution has attributed any role to the petitioner which would, prima facie, indicate that the petitioner is the member of the organized crime syndicate which Rashid (A1) allegedly heads. Such material is not forthcoming either in the form of the antecedents of the petitioner or the subject FIR and the statements of the witnesses recorded during the course of investigation. In contrast, the tenor of the FIR is that the genesis of the offence was the feud between the informant party and Rashid (A1) and his relatives. Undoubtedly, numerous cases have been registered against Rashid (A1). However, apart from the fact that the petitioner is the relative of Rashid (A1), at this juncture, prima facie, there is next to no material to establish the nexus between the petitioner and the organized crime syndicate.

The aforesaid exposition of law, in our considered view, is on all four with the facts of the case at hand. Qua the petitioner, there is hardly any material which justifes her designation as a member of the organized crime syndicate. The rule of strict interpretation merits full application to the facts of the case.

The upshot of aforesaid consideration is that we are prima facie satisfied that no case for invocation of stringent provisions under MCOC Act qua the petitioner is made out. In the context of the prelude, time and place of the occurrence and the role attributed to the petitioner, in our view, a prima facie case for grant of relief is made out. The petitioner is a woman. In the light of the nature of occurrence and the role attributed to the petitioner therein, the custodial interrogation of the petitioner is not warranted.

(Paras 4, 6, 13, 14, 15, 17, 25 and 26)

Result: Writ Petition Partly allowed.