SUPREME COURT REITERATES THE INGREDIENTS TO ESTABLISH AN OFFENCE OF ‘ORGANISED CRIME’

Recently, a two Judge Bench of the Supreme Court comprising of Justice S. Abdul Nazeer and Justice J.B. Pardiwala passed a Judgment dated 15-12-2022 in the matter of The State of Gujarat vs Sandip Omprakash Gupta, Criminal Appeal No. 2291 of 2022 and reiterated the essential ingredients to establish the offence of ‘organised crime’ under the Gujarat Control of Terrorism and Organised Crime Act, 2015.

Facts

In this case, a First Information Report (FIR) dated 27-11-2020 was registered as C.R. No. 11210015200100 of 2020 with the D.C.B. Police Station, Surat City, against the Respondent-Accused, Sandip Omprakash Gupta and 13 other co-Accused for offences punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) (Punishment for terrorist act and organised crime) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (Organised Crime Act). The Respondent-Accused was arrested the same day.

Sessions Court

Aggrieved, the Respondent-Accused filed a Criminal Miscellaneous Application No. 6483 of 2020 before the Sessions Court at Surat, seeking bail, which was rejected vide Order dated 21-01-2021.

High Court

Aggrieved, the Respondent-Accused filed a Miscellaneous Criminal Application No. 3819 of 2021 before the High Court of Gujarat, seeking bail, which was allowed vide Order dated 06-05-2021, on the ground that as per the definitions of ‘continuing unlawful activity’ and ‘organised crime’ under Sections 2 (1) (c) and (d) respectively, in order to constitute an offence under Section 3 of the Organised Crime Act, there has to be a continuing unlawful activity carried out by an organized crime syndicate, for which more than one charge sheets have been filed before a competent court within the preceding period of ten years, and that the court has taken cognizance of such offence. But in the present case, prior to registration of the aforesaid FIR dated 27-11-2020, no FIR had been registered against the Respondent-Accused for any substantive offence after 01.12.2019. Thus, the Respondent-Accused was released on bail.

The relevant provisions of the Organised Crime Act are reproduced below for easy reference:

2 (c) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment for a term 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.

2 (e) “organised crime” means continuing unlawful activity and terrorist act including extortion, land grabbing, contract killing, economic offences, cyber crimes having severe consequences, running large scale gambling rackets, human trafficking racket for prostitution or ransom 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;

2 (f) “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime;

Supreme Court

The State of Gujarat was aggrieved by the High Court’s observation that as prior to the registration of FIR dated 27-11-2020 against the Respondent-Accused under the Organised Crime Act, there was no other FIR registered against the Accused for any substantive offence under the said law or any other penal statute, hence, he was eligible to be released on bail under the Organised Crime Act.

Hence, the State of Gujarat filed an Appeal before the Supreme Court and sought for clarification on the point whether an FIR can be registered under the Organised Crime Act 2015, if no other FIR was earlier registered against the Accused under the Organised Crime Act or any other penal statute.

The Apex Court vide Judgment dated 15-12-2022 made the following observations:

1) That for charging a person for indulging in an ‘organised crime’ under the Organised Crime Act, it has to be proved that such person has committed an unlawful activity after the Organised Crime Act came into force i.e. 01-12-2019

2) Additionally, the following ingredients of an ‘organised crime’ have to be proved:

i) That the person had earlier engaged in such continuing unlawful activities, i.e.

a) cognizable acts that are prohibited under the law in force at the relevant time and

b) such acts are punishable with imprisonment for three or more years,

c) the said activities had been undertaken either singly or jointly, as a member of or on behalf of the organised crime syndicate and

d) more than one chargesheet has been filed against similar activities in the last ten years, and the Court has taken cognizance of such chargesheet. It is relevant to note here that the limited purpose of checking the similar activities / charges imposed against the accused in the last ten years is to only see the antecedents of the accused and not whether the accused was convicted or acquitted of such charges.

ii) That there was use of violence or its threat / intimidation / coercion / other unlawful means;

iii) That the object behind engagement in such continuous unlawful activities was to gain pecuniary benefits or undue economic advantage, etc either for the person undertaking the activity or any other person or for promoting insurgency.

Thus, the Supreme Court, vide Judgment dated 15-12-2022, limited its observations to clarify the point that where a person has not committed any unlawful activity prior to the promulgation of the Organised Crime Act 2015 i.e. on 01-12-2019, but has committed unlawful activity only after the Organised Crime Act 2015 came into force, such person cannot be arrested under the Organised Crime Act 2015, as in such case, the pre-essential requirement of a ‘continuing unlawful activity’ would not be deemed to have been satisfied. The Apex Court thereby disposed off the Appeal.

Harini Daliparthy

Senior Associate

The Indian Lawyer