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IN THE HIGH COURT OF BOMBAY
R. C. CHAVAN, JJ.
Prafulla s/o.Uddhav Shende - Appellant
Versus
State of Maharashtra - Respondent
Cri. Appeal No.664 of 2002 WITH Cri. Appeal No.665, 717 of 2002 WITH Cri. Appeal No.86, 90, 93, 215 of 2003
Decided On : 11/18/2008
(d) other unlawful means.
(viii)(a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or
(b) with the object of promoting Insurgency
Mere proof of filing previous charge sheet is not enough, but the accused shall be continuing the said acts which causes pecuniary gains to them. Participation in the organized crime is a sinaquanon for conviction under the Act.
Key Points: - (!) (!) Definition of continuing unlawful activity in Section 2(1)(d) and its reliance on past charge-sheets within ten years. - (!) (!) (!) Section 3 punishment framework for organised crime, including distinctions between death/life imprisonment and other offences. - (!) (!) (!) (!) Required elements to charge someone with organised crime or being a member of an organised crime syndicate. - (!) (!) The role of multiple charge-sheets and cognizance as part of establishing continuing unlawful activity. - (!) (!) Jurisprudence on how past activities must relate to ongoing continuation and not merely be arithmetical; need for substantive ongoing acts. - (!) (!) (!) The mandatory nature of Section 23 approvals and the need for mindful, case-specific application. - (!) (!) Outcome: in these appeals, conviction based solely on past charge-sheets without a continuing overt act could not be sustained; appeals allowed and acquittals/rescissions.
2. The accused persons, who were tried in Special Criminal Case No. 112001, are allegedly gangsters led by one Shiva (Accused No.1 therein) and those in Special Criminal Case No.212001, allegedly belong to rival gang led by Mehmood Khan Path an (Accused No.1 in Special Criminal Case No.2/200l). It is alleged that initially all of them formed one gang, which later split into two gangs. They used to clash over right to extort. Both these gangs were allegedly involved in criminal activities like extortion etc. in industrial town of Khaparkheda on the outskirts of Nagpur City.
3. The gang leaders, i.e. Shiva @ Shivaji Ramaji Son wane (Accused No.1 in Spl. Criminal Case N 0.112001, hereinafter referred to as Accused No. 111 to avoid confusion) and Mehmood Khan Pathan (Accused No.1 in Special Criminal Case No.212001, hereinafter referred to as Accused No.1III) were convicted for the offence punishable under Section 3(1)(ii) of the MCOCA and sentenced to suffer R.I.for 12 years and fine of Rs.Five Lacs in default S.1. For three years. They were also convicted for offence punishable under Section 3(4) of the MCOCA and sentenced to R.1.for 8 years and fine of Rs.Five Lacs in default to suffer S.I. for three years. Both were acquitted for offence under Section 4, punishable under Section 25 of the Arms Act.
4. Other accused in Special Criminal Case No.l/2001 (belonging to Shiva Gang), except Accused No.6 Nana, who was absconding, were convicted for the offence punishable under Section 3(l)(ii) and Section 3(4) of MCOCA and sentenced to suffer R.I. for seven years with fine of Rs.Five Lacs in default to suffer S.I. for three years each on each of the two counts. Accused No.3/1 Babu has not filed an appeal. Accused No.6 Nana is reportedly acquitted on 01.08.2007 after he was arrested and put to trial.
5. The other accused persons in Special Criminal Case No. 2/200 1 (belonging to Mehmood Khan Path an 's gang), except accused No.5 Laxman, who was absconding, were likewise convicted for the offences punishable under Section 3(l)(ii) and 3(4) of MCOCA and sentenced to suffer S.I. for six years with fine of Rs.Five Lacs in default to suffer S.I. for three years each on each of the two counts.
5-A. Though offences were separately registered against the members of the two gangs and they were separately charge-sheeted and tried, interestingly, there is a striking similarity in the facts leading to the two prosecutions.
6. It was alleged that the members of the two gangs have been involved in crime which comes within the sweep of "continuing unlawful activity" as defined in Clause (d) of Section 2 of MCOCA, as could be seen from the fact that several (not just more than one) charge-sheets had been filed against them in ten years preceding the present prosecutions, whereof Courts had taken cognizance. Activities of members of the gang of Shiva (accused in Special Criminal Case No.l/200 1), which were relied on by the prosecution, and referred to by the learned Judge, Special Court, in the charge framed are as under ':
8. Filing of charge-sheets, referred to in the chart, has been proved by producing before the Court, copies of charge-sheets and examining some witnesses in relation to some of the incidents indicated therein. To avoid confusion appellants in these several appeals would be referred to by their numbers in the trial Court. Accused in Special Criminal Case No.l/2001 would be referred to as Accused No.l/I, Accused No.2/I etc. whereas those in Special Case No.2/2001 would be referred to as Accused No.2/II, Accused No.2/II etc. Witness numbers too would be suffixed by I or II to signify whether they are from Spe
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