SUPREME COURT CLARIFIES THAT ORGANIZED CRIME UNDER THE MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999 INCLUDES ANY UNLAWFUL ACTIVITY BY AN ORGANISED CRIME SYNDICATE

A Division Bench of the Hon’ble Supreme Court of India comprising of Justice Dinesh Maheshwari and Justice Aniruddha Bose passed a Judgment dated 20-05-2022 in the case of Abhishek versus State of Maharashtra & Ors. (Criminal Appeal No. 869 OF 2022 arising out of SLP (CRL.) No. 1157 of 2022) and held that continuous engagement with the objective of gaining advantages other than economic or pecuniary is also an “organized crime” under The Maharashtra Control Of Organised Crime Act, 1999 (MCOCA).

In the present case, the Complainant had alleged that he was forcefully kidnapped from Motimahal Restaurant, Sadar, Nagpur on 02-05-2019 and was intimidated with knife and a ransom of Rs. 20 lakhs was demanded by the accused persons. The three accused persons namely Abhishek Singh (Appellant), one Ankit Pali and another Roshan Sheikh were known to the Complainant. 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 death threats periodically; forcefully took his son in a vehicle; created terror of death for 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 was compelled to leave his home and stay at other places.

Based on the aforesaid allegations, Crime No. 251 of 2020 was registered for offences under Sections 363, 364A, 384, 386, 387, 397 and 504 Indian Penal Code, 1860 (IPC). Thereafter, the Appellant applied for pre-arrest bail and on 11-05-2020, the Sessions Judge, Nagpur granted him ad interim bail.

The Additional Commissioner of Police (Crime), Crime Branch, Nagpur City on 02.06.2020 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 Additional Commissioner of Police vide Order dated 02.06.2020 approved the proposal submitted by the Police Inspector. Upon invocation of MCOCA, Application for pre-arrest bail filed by the Appellant on 11-05-2020 was rejected by the Sessions Judge, Nagpur. However, as the Appellant was out of reach, a proclamation was issued on 14-10-2020 under Section 82 of the Code of Criminal Procedure, 1973 (Cr.P.C.) read with Section 20(3) of MCOCA, declaring him as an ‘absconder’.

The Additional Director General of Police and Commissioner of Police, Nagpur City, examined the proposal of the Assistant Commissioner of Police (Crime), Crime Branch, Nagpur dated 31-10-2020 on 05-11-2020 for according sanction in terms of Section 23(2) of MCOCA for prosecution of the accused persons in Crime No. 251 of 2020 for the offences under IPC, Arms Act, 1959 and MCOCA; and proceeded to issue such sanction as per the proposal. Subsequently, the Sanctioning Authority recorded its observation that all the essential ingredients of Sections 2(1)(d) and 2(1) (e) of MCOCA were fulfilled and hence, granted sanction in terms of Section 23(2) of MCOCA for prosecution of the six accused persons including the Appellant for the aforesaid offences.

Thereafter, the Police filed the charge-sheet on 07-11-2020. Aggrieved, the Appellant filed a Writ Petition No. 667 of 2020 before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur (High Court), challenging the Sanction Order dated 05-11-2020.

The High Court vide Impugned Judgment and Order dated 16-12-2021, rejected the Appellant’s challenge to the Order dated 05-11-2020 issued by the Additional Director General of Police and Commissioner of Police, Nagpur City and observed as follows:

“13. It is only after the record of satisfaction in the aforesaid terms that the sanctioning authority, in terms of Section 23 (2) of the said Act, has proceeded to record further satisfaction in terms of focus by Mr. Mishra, learned Senior Advocate and quoted at para no. 5 of this order. Even the quotation makes it clear that satisfaction about the existence of the essential ingredients is “in view of the forgoing observations”. The satisfaction is not restricted to the ingredients of Section 2(d) and 2(e) of the said Act but to the ingredients of the said Act in general though, particular reference may have been made in the above-quoted portion to Section 2(d) and 2(e) of the said Act. 14. Therefore, based upon the reading of only the above-quoted portion, it will not be proper to hold that the sanctioning authority has either not applied its mind and failed to record any satisfaction about the existence of “organized crime syndicate” as defined under Section 2(f) of the said Act or satisfaction that these accused persons including the petitioner herein are a part of or are the members of this organized crime syndicate. The impugned sanction order is to be read in its entirety and based on some truncated portion, no contention can be advanced or at least sustained about any alleged non-application of mind by the sanctioning authority to the requirements of Section 2(1) of the said Act.”

Aggrieved and dissatisfied by the Impugned Judgment and Order dated 16-12-2021 passed by the High Court and the Sanction Order dated 05-11-2020, the Appellant approached the Hon’ble Supreme Court of India. The Apex Court after taking into consideration the facts of the case and the contentions raised by the Parties referred to the following relevant provisions of MCOCA:

Section 2(1)(d) defines “continuing unlawful activity” an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

Section 2(1)(e) defines “organised crime” as any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.

The Bench observed that the provisions of MCOCA have to be construed strictly and for the application of these Sections, an unlawful activity must fall within the ambit of “organized crime”. While referring to Section 2(1)(e), the Supreme Court observed that

“14.1. A bare look at clause (e) of Section 2(1) of MCOCA makes it clear that ‘organised crime’ means any unlawful activity by an individual singly or jointly, either as a member of organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means. The suggestions on behalf of the appellant to limit the activity only to the use of violence is obviously incorrect when it omits to mention the wide-ranging activities contemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat or violence or intimidation or coercion or other unlawful means. Actual use of violence is not always a sine qua non for an activity falling within the 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 the mischief. This apart, use of other unlawful means would also fall within the same mischief.

14.2. The second part of the requirement of the nature of activity, i.e., its objective, has also not been projected correctly on behalf of the appellant. The requirement of law is not limited to pecuniary benefits but it could also be of ‘gaining undue economic or other advantage’. The frame of the proposition that the object ought to be gaining pecuniary benefit or other ‘similar’ benefit is not correct as it misses out the specific phraseology of the enactment which refers to undue economic or other advantage apart from pecuniary benefit.”

The Apex Court held that the involvement of the Appellant in such crimes and unlawful activities which are aimed at gaining pecuniary advantages or of gaining supremacy and thereby, leading to other unwarranted advantages is clearly made out.

Therefore, the Apex Court rejected the contentions raised by the Appellant and upheld the Impugned Judgment and Order dated 16-12-2021 passed by the High Court and Sanction Order dated 05-11-2020.

 

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

 

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services