TaxTMI 
TaxTMI 
2015 (4) TMI 1222
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....Court in Criminal Appeal Nos.866, 867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the said order the Division Bench reversed the order of the Special Judge dated 31.7.2009 passed in Special Case No.1 of 2009 wherein he held that the charges against the accused in C.R.No.18 of 2008 registered with Anti-Terrorist Squad, Mumbai (hereinafter referred to as "ATS") under the MCOCA do not survive and were discharged from the case. The Special Court by invoking Section 11 of the MCOCA directed the case to be tried by the regular Court. The Division Bench while allowing the Criminal Appeal Nos.866 to 869 of 2009 set aside the order of the Special Judge 31.07.2009 in Special Case No.1 of 2009 as well as orders passed in Bail Application Nos.40 to 42 of 2008, restored those applications to the file in MCOCA Special Case No. 01 of 2009 for being decided on merits by Special Judge himself. In Criminal Appeal No.1024 of 2009 while allowing the said appeal, Bail Application No.41 of 2008 was directed to be restored in MCOCA Special Case No. 01 of 2009 for being heard and decided on merits. The appellant-Lt. Col. Prasad Shrikant Purohit is the first respondent in Criminal Appeal No.867 of 2....
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....R was registered as Crime No.5/2011 by police station NIA on 13.4.2011. Thereafter NIA sought for police custody which was granted by order passed in Misc. Application No.98/2011 dated 19.07.2011. The said SLP is not argued before us and, therefore, the same is delinked from this batch of cases and the same shall be heard separately. We heard arguments of Mr. U.R. Lalit, learned senior counsel who appeared before us for the appellants in Criminal Appeal Nos.1969-70/2010 as well as Criminal Appeal Nos.1994-98/2010, Mr. Triloki Nath Razdan, learned counsel for the appellant in appeal arising out of SLP (Crl.) No.9303/2011, Mr. Basava Prabhu S. Patil, learned senior counsel in the appeal arising out of SLP (Crl.) No.8132/2010 and Mr. Vikas Mehta, learned counsel in Criminal Appeal No.1971 of 2010. Mr. U.R. Lalit, learned senior counsel in his submissions referred to the brief facts which led to the initiation of the proceedings against the appellants under the provisions of MCOCA. As the narration goes, there was a bomb blast at the place called Malegaon in Mumbai on 29.9.2008. With reference to the said occurrence, FIR No.130/2008 was registered in the Azad Nagar police station....
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....e appellants and, therefore, the orders impugned are liable to be set aside. Mr. U.R. Lalit, learned senior counsel prefaced his submissions by stating that appellants were all proceeded against based on the footing that they were members of an organization called "Abhinav Bharat" which was registered in 2007 and that they were now being prosecuted under the provisions of MCOCA. The learned senior counsel submitted that in order to prosecute the appellants under the MCOCA, the definition of "continuing unlawful activity", "organized crime" and "organized crime syndicate" as defined under Section 2(1)(d),(e) and (f) of MCOCA should be satisfied. The learned senior counsel while referring to the above definitions submitted that the prosecuting agency were relying upon the Parbhani case and Jalna case which occurred in 2003 and 2004 and which were organized by RSS and Bajrang Dal with which neither Abhinav Bharat nor the appellants were in anyway connected and, therefore, the definition of "continuing unlawful activity" or "organized crime" as well as "organized crime syndicate" was not fully established. The next submission of Mr. U.R. Lalit, learned senior counsel was that in ....
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....or counsel then contended that the event of cognizance being taken as defined under Section 2(1) (d) can only be with reference to 'competent court' and in the case of Parbhani and Jalna as the offences were under Sections 302, 307/308 etc., Sessions Court was the competent court and not the Chief Judicial Magistrate. The learned senior counsel pointed out that in the case of Parbhani, the committal order was passed only on 29.04.2009 i.e. long after the Malegaon case occurrence, namely, 29.09.2008. Therefore, the requirement of two earlier cases which were taken cognizance of by the competent court cannot be held to have been satisfied. In support of the said submission, learned senior counsel relied upon Fakhruddin Ahmad v. State of Uttaranchal and Anr. - (2008) 17 SCC 157. The learned senior counsel then contended that in order to attract the provisions of MCOCA, in all the three cases, the same gang must have been involved. Elaborating his submission, the learned senior counsel contended that Rakesh Dattaray Dhawade who has been added as A-7 in Malegaon case was arrested on 02.11.2008 and his arrest was shown in Parbhani and in Jalna on 13.11.2008 and 15.11.2008 as d....
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....e than six years and he is entitled for grant of bail. Mr. Triloki Nath Razdan, learned counsel appearing for the appellants in the appeal arising out of SLP (Crl.) No.9303/2011 while adopting the arguments of Mr. U.R. Lalit, learned senior counsel for the appellant in Crl.A.No.1969-70/2010 contended that the Objects and Reasons of MCOCA shows that the very purport of the enactment was to curb the accumulation of illegal wealth, that in order to attract the provisions of MCOCA, involvement in organized crime by an organized crime syndicate in all the three cases must be satisfied. By referring to the sanction order dated 15.01.2009, learned counsel submitted that when the arrest of Rakesh Dattaray Dhawade was in the month of November, 2008, the requirement of Section 2(1) (d) relating to two previous cases of continuing unlawful activity was not satisfied. In other words, according to learned counsel, as the requirement of continuing unlawful activity in respect of an organized crime by the organized crime syndicate was not shown, MCOCA was not attracted. The learned counsel relied upon in Central Bank of India v. State of Kerala and others - (2009) 4 SCC 94 and Ranjitsing Braha....
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....8, the subsequent charge-sheet against A-7 on 15.11.2008 on which date the case was registered afresh as RCC No.648/2008 and on 28.11.2008 when committal order was passed, the sanction order in Malegaon case being 20.11.2008, there was no scope to hold that there were two earlier cases falling within the definition of continuing unlawful activity as defined under Section 2(1)(d) of the Act. The learned senior counsel, therefore, contended that the order of the trial Court dated 31.07.2009 discharging all the accused was justified and the Division Bench ought not to have interfered with the said order. The learned senior counsel also submitted that the Division Bench having noted that the offence under Section 153A, IPC was not laid after getting prior sanction as required under Section 196 Cr.P.C. even as against A-7 Rakesh Dattaray Dhawade, there was no valid cognizance taken by the trial Court in respect of the earlier cases of Parbhani and Jalna. The learned Senior Counsel, therefore, contended that in the absence of the 'continuing unlawful activity' as defined under Section 2(1)(d) of an 'organized crime' by 'organized crime syndicate' shown, applica....
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....e out and the application of the MCOCA was not justified. Mr. S.S. Shamshery, learned counsel appearing for the appellant in Criminal Appeal No.58/2011 submitted that he is adopting the arguments of Mr. U.R. Lalit, learned senior counsel for appellant in Criminal Appeal No.1969-70 of 2010 and the judgment of the Division Bench is liable to be set aside. As against the above submissions made on behalf of the appellants, Mr. Anil Singh, learned ASG for the respondent State submitted that the Division Bench after formulating the question in paragraph 18 ascertained the relevant dates when cognizance was taken in Parbhani case and in Jalna case by the Committal Court and in both the cases cognizance was taken as early as on 07.09.2006 in Parbhani and on 30.9.2006 in Jalna which were borne out by records and, therefore, the Division Bench was justified in setting aside the order of the Special Court. In support of his submission that taking a fresh cognizance is not a requirement of law in a case where cognizance is already taken in respect of the same offence, reliance was placed upon R.R. Chari v. State of Uttar Pradesh - AIR 1951 SC 207, Raghubans Dubey v. State of Bihar - AIR 196....
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....offence, they are not entitled for bail. The learned senior counsel also submitted that apart from offences under the MCOCA, the appellants are also proceeded under the Unlawful Activities (Prevention) Act, 1967, in particular, offences under Sections 13, 15, 16, 17, 18, 18B, 20, 23 etc. and the maximum penalty for offences under Sections 15 to 23 is the death penalty and that under Section 43D(5) for grant of bail, severe restrictions have been imposed and, therefore, both because the question raised about the implications of MCOCA, as well as, having regard to the offences for which the appellants are proceeded against, they are not entitled for grant of bail. The learned senior counsel then contended that in order to constitute an offence as an 'organized crime' under Section 2 (1)(e) of MCOCA, it is not necessary that for the commission of such aggressive offences, there should be allegation of pecuniary advantage also. According to learned senior counsel, insofar as, promotion of insurgency is concerned, even without any allegation of pecuniary gain, the said act by itself would constitute an 'organized crime'. The learned senior counsel, therefore, contended t....
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...., there was nothing lacking for the purpose of invoking the provisions of MCOCA. The learned senior counsel further contended that as long as all the three incidents were committed by a group of persons and one common individual was involved in all the three incidents, that would attract invocation of MCOCA. Mr. Tushar Mehta, learned ASG also appearing for NIA submitted that in the event of granting bail, having regard to the nature of offence alleged to have been indulged in by the appellants, severe conditions should be imposed and that the agency is entitled for custodial interrogation and also the presence of the accused at the time of trial should be ensured. By way of reply Mr. U.R. Lalit, learned senior counsel submitted that the prosecution has not shown involvement of 'Abhinav Bharat' in the Parbhani case or Jalna case in which event if 'Abhinav Bharat' is to be excluded, the linking of the appellants by making reference to Abhinav Bharat will also entitle them to contend that MCOCA cannot be invoked. The learned senior counsel submitted that since MCOCA has been invoked for the purpose of ascertaining the cognizance of the offence, reference to Secti....
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....tions. Thereafter, those orders were the subject matter of challenge in Criminal Bail Application No.333/2011 with Criminal Application No.464/2011 insofar as the appellant in Criminal Appeal No.1969-70/2010 is concerned. One other appellant namely, Ajay Eknath Rahirkar filed Criminal Application No.556/2011 which was allowed by the Bombay High Court and he was granted bail by imposing certain conditions. As far as Criminal Application No.333/2011 was concerned, the said application was rejected and the main Criminal Application No.464/2011 was disposed of by the High Court. The appellant in Criminal Appeal No.1971 of 2010 was one of the respondents in Criminal Appeal No.868 of 2009 which was disposed of by the Division Bench of the Bombay High Court by its order dated 19.07.2010 along with the connected appeals preferred by the State of Maharashtra through ATS which is the prosecuting agency in respect of the Special Case No.1 of 2009 on the file of the Special Judge under MCOCA. The said appellant was also aggrieved by the order of the Division Bench referred to above in having set aside the order of the Special Judge dated 31.07.2009. The appellant in the appeal arising out o....
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....s 4, 173(2) & (8), 190, 191, 192, 193, 200, 201 and 209. In order to appreciate the said provisions the same are extracted as under: "The Maharashtra Control of Organized Crime Act, 1999 Section 2 (1)(d) "Continuing unlawful activity" means 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 organized 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; (e) "organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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; (f) "Organised crime syndicate" means a group of two or more persons who, acting eith....
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.... organized crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police; (b) No investigation of an offence under the provisions of this Act shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. (2) No Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police." Code of Criminal Procedure, 1973 4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 173. Report of police officer on completion of investigation....
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....thin his competence to inquire into or try. (a) upon receiving a complaint of facts which constitutes such offence: (b) upon a police report of such facts: (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 191. Transfer on application of the accused.- When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. 192. Making over of cases to Magistrates.-(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizan....
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....ent has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. In the first instance, it will be profitable to examine the scheme of MCOCA by making a cursory glance to the Objects and Reasons and thereafter to make an intensive reading of the above referred to provisions. When we peruse the Objects and Reasons, it discloses that organized crime has been posing very serious threat to our society for quite some years and it was also noted that organized crime syndicates had a common cause with terrorist gangs. In the Objects and Reasons, the foremost consideration was the serious threat to the society by those who were indulging in organized crimes in the recent years apart from organized crime criminals operating hand in glove with terrorist gangs. It is common knowledge that for the terrorist gangs, the sole object is to create panic in the minds of peace loving members of t....
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....orthwhile to get a broad idea of the definition of 'organized crime' under Section 2(1)(e) and 'organized crime syndicate' under Section 2(1)(f). An 'organized crime' should be any 'continuing unlawful activity' either by an individual singly or jointly, either as a member of an 'organized crime syndicate' or on behalf of such syndicate. The main ingredient of the said definition is that such 'continuing unlawful activity' should have been indulged in by use of violence or threat of violence or intimidation or coercion or other unlawful means. Further such violence and other activity should have been indulged in with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. Therefore, an 'organized crime' by nature of violent action indulged in by an individual singly or jointly either as a member of an 'organized crime syndicate' or on behalf of such syndicate should have been either with an object for making pecuniary gains or undue economic or other advantage or for promoting insurgency. If the object was for making pecuni....
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....officer either in writing or in any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced shall be admissible in the trial of such person or co-accused abettor or conspirator provided they are charged and tried in the same case together with the accused. Section 20 is yet another provision under MCOCA which prescribes that where a person is convicted of any of the offence punishable under MCOCA, the Special Court may in addition to awarding any punishment, by order in writing declare that any property, movable or immovable or both, belonging to the accused and specified in the order shall stand forfeited to the State Government free from all encumbrances etc. Under Section 21, which again is a non- obstante clause, the provisions of the Act notwithstanding anything contained in the Code or any other law shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code and "cognizable case" as defined in that clause should be constructed accordingly. Under Section 21(4) notwithstanding anything contained in the Code, no person accused of an offence punishable under MCOCA, when he is in custody, sh....
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....prosecuting agency that there were two earlier occurrences of bomb blasts one in Parbhani on 21.11.2003 and another at Jalna on 27.08.2004, that on those two earlier occurrences A- 7, namely, Rakesh Dattaray Dhawade was involved who is also a member of the present gang and consequently the definition of 'continuing unlawful activity' is satisfied. The learned counsel for the appellants on the other hand contended that A-7 was not a member of the so-called 'Abhinav Bharat', that 'Abhinav Bharat' as an organization was not indisputably involved in the two earlier occurrences in the year 2003 and 2004, therefore, when such clear demarcation existed as between the appellants, the so-called members of Abhinav Bharat and the earlier occurrences of 2003 and 2004, as well as, the exclusion of A-7 as member of 'Abhinav Bharat' there was no scope to invoke MCOCA. We are, in the first instance, concerned with the appellant's challenge to the order of the Division Bench dated 19.07.2010 wherein the sole question considered pertains to the application of MCOCA based on the definition of 'continuing unlawful activity' under Section 2(1)(d) for th....
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....0.09.2006 respectively was perfectly in order to apply the definition of 'continuing unlawful activity' for the purpose of invoking MCOCA with reference to Malegaon occurrence. We, however, wish to examine in detail the justification for our above conclusion when we deal with the other contentions where submissions were made in extenso with particular reference to the involvement of A-7 in the alleged occurrences of Parbhani and Jalna, more particularly with reference to the date of supplementary charge-sheet, arrest made and the arrest made with reference to Malegaon occurrence and the alleged nexus as between the appellants and A-7 in order to find out whether application of MCOCA could still be held to be validly made by the prosecuting agency. For the present by reaching our conclusion as above on the first submission, we proceed to deal with the next submission of learned counsel for the appellants. The submission of the learned counsel for the appellants was that under Section 2(1)(d), in order to construe a 'continuing unlawful activity' two earlier charge-sheets in the preceding 10 years should exist and that such charge-sheets should have been taken cogn....
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....06 before the Chief Judicial Magistrate. Similarly, the filing of the first charge-sheet on 30.09.2006 in Jalna case is also not in dispute. The contention put forward is that the supplementary charge-sheet in respect of A-7 in Parbhani case was filed only on 13.11.2008 and on 15.11.2008 in Jalna case and if those two dates with regard to A-7 are taken as the relevant dates, then the requirement of two earlier cases as stipulated under Section 2(1)(d) preceding 10 years period was not satisfied, inasmuch as, the date of third occurrence was 29.09.2008 and the date of charge-sheets as against the A-7 were subsequent to that date and not earlier. The said crucial factor is required to be determined to decide the contention raised on behalf of the appellants. In this context reliance was placed upon the decisions in Ajit Kumar Palit (supra) and Dilawar Singh (supra) on behalf of the appellants. That apart, reference was also made to Section 173(2)(i)(a) and 173(8) to contend that cognizance referred to in context of MCOCA would only relate to the offender and not to the offence as prescribed under Section 190(1)(b). As against the above submissions Mr. Anil Singh, learned ASG appea....
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....rt within the preceding period of 10 years and that Court should have taken cognizance of such offence. The offence should alleged to have been committed either singly or jointly as a member of an organized crime syndicate or on its behalf. In so far as the offences are concerned, if the offence would attract a punishment of three years or more that would suffice for falling within the said definition. The charge-sheet should have been filed before a Competent Court with reference to such offence against the offenders. One of the contentions raised and which was countered by the respondents was that such two earlier offences should also satisfy the other requirements stipulated under MCOCA, namely, as a member of an organized crime syndicate or on behalf of an organized crime syndicate either singly or jointly. A strict interpretation of Section 2(1)(d) would definitely mean the fulfillment of such requirement since the definition specifically reads to the effect 'undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate'. Therefore, even if the earlier offences were not initiated under the provisions of MCOCA such ini....
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....ore, necessarily fall back upon the provisions contained in the Criminal Procedure Code. For that purpose reference to Sections 173, 190 and 193 have to be noted. Under Section 173(2)(i), it is stipulated that as soon as the investigation is completed, the officer in-charge of the Police Station should forward to the Magistrate who is empowered to take cognizance of the offence on a police report in the form prescribed by the State Government, which should contain among other things the names of the parties, the nature of information, the names of the persons who appear to be acquainted with the circumstances of the case and various other details. When we read the said Section 173(2)(i) along with Section 190 of Cr.P.C., it can be seen that any Magistrate of the first class or any Magistrate of the second class specially empowered as provided under sub-section (2) of the said Section may take cognizance of any offence upon a police report of such facts. Therefore, reading Section 173(2)(i) along with Section 190(1)(b), a duty is cast upon the officer in-charge of the police station mandatorily to forward to the Magistrate who is empowered to take cognizance of the offence on a p....
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.... that that part of the requirement under Section 2(1)(d), namely, the competent court taking cognizance of the offence as stipulated under Section 2(1)(d) in respect of two earlier cases will get fulfilled. Once we steer clear of the said legal position, to emphasize further, we also wish to refer to Section 193 Cr.P.C. the caption of which specifically states "Cognizance of offences by Courts of Session". The said Section is negatively couched and states that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under this Code. For our purpose of ascertaining the requirement of competent court and cognizance stipulated under Section 2(1)(d) of MCOCA, we find that under Section 193, the Court of Session can take hold of the case as a Court of Original Jurisdiction only after committal order is passed to it by a Magistrate under the provisions of Cr.P.C., whereas under Section 190(1)(b), the power of a Magistrate has been pithily stated to mean that he can take cognizance of any offenc....
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....o wish to refer to various decisions relied upon by either party to note whether there is any scope of contradiction with reference to said legal position. Mr. Lalit, learned counsel in the course of his submissions relied upon Ajit Kumar Palit v. State of West Bengal and another - AIR 1963 SC 765. In the said decision with reference to the expression 'cognizance' a three- Judge Bench of this Court has explained what is really meant by the said expression in the following words in paragraph 19: "......The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor, AIR 1943 PAT 245 (SB) by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R. Chari v. State of Uttar Pradesh, 1951 SCR 312 at page 320: (AIR 1951 SC 207 at page 210) that the word "cognizance" was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactl....
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....ot summon another person and proceed against him in the purported exercise of power under Section 319 CrPC if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person." (Emphasis added) By relying upon the said part of the decision it was contended that taking 'cognizance of an offence' cannot be the universal rule and that under special circumstances such cognizance of offence would be qua that person, namely, the offender. It is true that in the said decision while dealing with the requirement of sanction under Section 19 of the Prevention of Corruption Act with reference to an offence under Section 13(2) of the said Act, this Court did say that in the absence of a sanction under Section 19 the taking of cognizance of the offence qua that person cannot be held to have been made out. When we apply the said decision, it must be stated that it was laid in the context of an offence under Section 13(2) of the Prevention of Corruption Act which Act specifically stipulates the requirement of prior sanction under Section 19 for proceeding agains....
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.... the point when the Magistrate or a Judge first takes judicial notice of an offence. Therefore, primarily cognizance of an offence takes place when a Judicial Magistrate applies his mind and takes judicial notice of the offence. In fact that is what has been even statutorily stipulated under Section 190(1) of Cr.P.C. In Darshan Singh Ram Kishan (supra), in paragraph 8, with particular reference to Section 190, this Court has held as under: "8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a po....
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....t that stage in our view is not correct." (emphasis added) The above statement of law with particular reference to Section 173(8) Cr.P.C. makes the position much more clear to the effect that the filing of the supplementary charge-sheet does not and will not amount to taking cognizance by the Court afresh against whomsoever again with reference to the very same offence. What all it states is that by virtue of the supplementary charge-sheet further offence may also be alleged and charge to that effect may be filed. In fact, going by Section 173(8) it can be stated like in our case by way of supplementary charge-sheet some more accused may also be added to the offence with reference to which cognizance is already taken by the Judicial Magistrate. While cognizance is already taken of the main offence against the accused already arrayed, the supplementary charge-sheet may provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cognizance of and the only scope would be for the added offender to seek for discharge after the filing of the supplementary charge- sheet against the said offender. In CREF Finance Limit....
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....#39;taking cognizance' has been explained as under: "19. The phrase "taking cognizance of" means cognizance of an offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the purpose of proceeding under Section 200 and the provisions following that section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence." (emphasis added) The above statement ....
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....onclusion that the cognizance taken by the Judicial Magistrate under Section 190(1) of Cr.P.C. based on the police report under Section 173(2)(i) of Cr.P.C. the same would fulfill the requirement of 'cognizance' as well as, the 'competent court'. It will have to be, therefore, held that to that extent, the definition under Section 2(1)(d) relating to "continuing unlawful activity" in respect of more than one case of an offence punishable for more than three years is fully satisfied. Once we come to the said conclusion, we do not find any substance in the third submission of the appellants that cognizance by competent court would only mean cognizance of such offences which can be dealt with only by the Sessions Court and not by a Judicial Magistrate. Therefore, the said submission that the cognizance was taken by Sessions Court much later after its committal (i.e.) in the case of Parbhani only on 29.04.2009 that is after the bomb blast in Malegaon and thereby the definition of 'continuing unlawful activity' in respect of more than one case under Section 2(1)(d) is not satisfied cannot be accepted. The said submission, therefore, deserves to be rejected. Th....
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....he last offence alleged to have been undertaken in an organized manner by an organized crime syndicate. The contention was that continuing unlawful activity would necessarily mean continuous engagement in unlawful activity where there would be a live link between all the different offences alleged. The said contention was refuted on behalf of the State in the said case by contending that no live link need exist between the different cases for the application of MCOCA and that such nexus theory was not contemplated by the legislature. While dealing with the said contention, this Court in the facts of that case held as under in paragraph 63: "63. As has been repeatedly emphasised on behalf of all the parties, the offence under MCOCA must comprise continuing unlawful activity relating to organised crime undertaken by an individual singly or jointly, either as a member of the organised crime syndicate or on behalf of such syndicate by use of coercive or other unlawful means with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. In the instant case, both Lalit Somdatta Nagpal and A....
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....ing some alleged indulgence to Kamat or Mulani, the appellant cannot be said to have conspired or abetted commission of an organised crime. Prima facie, therefore, we are of the view that Section 3(2) of MCOCA is not attracted in the instant case. 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever? 37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose." (emphasis added) A reading of paragraph 31 shows that in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organized crime, if a nexus either with an accused who is a member of an 'organized crime syndicate' or with the offence in the nature of an 'organized crime' is established that would att....
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....ime' of the two earlier cases, namely, Parbhani and Jalna and also direct involvement in the present bomb blast at Malegaon. In such circumstances, there is no difficulty in coming to a definite conclusion that insofar as, A-7 is concerned, his activity and involvement in all the three occurrences, namely, Parbhani, Jalna and Malegaon disclose nexus with the crime and also with the other accused involved in the crime and thereby the satisfaction of the definition of 'continuing unlawful activity' of an 'organized crime' on behalf of an 'organized crime syndicate' is satisfactorily shown. In such circumstances, by virtue of Section 21 (4) of MCOCA he is not entitled for the grant of bail and that he does not fall within the excepted category stipulated in sub-clause (a) or (b) of the said sub-Section (4) of Section 21. Having stated the said position relating to A-7, when we come to the case of others, there is no dispute that in respect of other appellants, their involvement is with reference to the present occurrence, namely, Malegaon bomb blast. Admittedly they are not proceeded against for the offence relating to Parbhani and Jalna. But still at th....
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....contended that 'promoting insurgency' was also not the specific case of the prosecution in all the three cases, even assuming it may arise in Malegaon blast, the same was not present in Parbhani or Jalna. To appreciate the said contention, it will be necessary to make a detailed reference to Section 2(1)(e) of MCOCA. As far as the nature of activity is concerned, in Section 2(1)(e), it is stated that 'organized crime' means continuing unlawful activity by use of violence or threat of violence or intimidation or coercion or other unlawful means with the object of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. If we make a detailed reference to the said provision, the use of violence etc. should have been carried out with the object of either gaining pecuniary benefits or for gaining undue economic or other advantage for oneself or for any other person or for promoting insurgency. We find that the violent activity need not necessarily be for pecuniary advantage in all acts of 'continuing unlawful activity'. Indulging in such violent activity can be for gaining pecuniar....
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....ndition of revolt against the Government that does not reach the proportion of an organised revolution. 27. In Sarbananda Sonowal v. Union of India this Court has held that insurgency is undoubtedly a serious form of internal disturbance which causes grave threat to the life of people, creates panic situation and also hampers the growth and economic prosperity of the State. 28. We feel inclined to adopt the aforesaid definition for the current proceedings as there does not appear to exist any other satisfactory source. 29. Although the term "insurgency" defies a precise definition, yet, it could be understood to mean and cover breakdown of peace and tranquility as also a grave disturbance of public order so as to endanger the security of the State and its sovereignty." [pic](Emphasis added) It has been more succinctly described in paragraphs 45 to 47 which can also be usefully referred to: "45. Now that we have examined under what circumstances a State law can be said to be encroaching upon the law-making powers of the Central Government, we may proceed to evaluate the current issue on merits. Let us once again examine the provision at the core of this matter: "2. (1....
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.... insurgency directly. We are of the considered view that the legislation only deals with "insurgency" indirectly only to bolster the [pic]definition of "organised crime". However, even if it be assumed that "insurgency" has a larger role to play than pointed out by us above in MCOCA, we are of the considered view that the term "promoting insurgency" as contemplated under Section 2(1)(e) of MCOCA comes within the concept of public order." (Emphasis added) Therefore, 'insurgency' has been understood to mean raising an active revolt or rebellion in the common parlance. It is also stated that it could be understood to mean and cover breakdown of peace and tranquility as also a grave disturbance of public order so as to endanger the security of the State and its sovereignty. While making specific reference to Section 2(1)(e), it was pointed out that MCOCA though does not punish insurgency per se, punishes those who are guilty of running a crime organization and one of the motive of which may be the promotion of insurgency. Therefore, it is not necessary that promoting insurgency should always be linked to pecuniary advantage. Whenever an organized gang indulges in a violent a....
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....ripathi - 2005 (8) SCC 21 should be kept in mind, in particular paragraph 18, which reads as under: "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to th....
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....Crl) No.8132 of 2010 and Criminal Appeal No.58 of 2011 are dismissed. As far as the order dated 30.12.2010, rejecting bail, passed by the learned Special Judge, which was also confirmed by the learned Single Judge of the Bombay High Court by order dated 09.11.2011 in Criminal Bail Application No.333 of 2011 with Criminal Application No.464 of 2011 of the appellant in appeals arising out of SLP (Crl.) Nos.9370-71 of 2011, the said orders are set aside with the observation that there is enough scope to doubt as to the application of MCOCA under Section 21(4)(b) for the purpose of grant of bail and consequently the Special Judge is directed to consider the application for bail on merits keeping in mind the observations in paragraphs 100 and 101 of this judgment and pass orders. Consequently, the appeals arising out of SLP(Crl.) Nos.9370-71 of 2011 are partly allowed. The order impugned in these appeals is set aside and the application for bail in Bail Application No.42 of 2008 is restored to the file of the Special Judge for passing orders on merits. Similarly, for the reasons stated in paragraph 99, we hold that the appellant in appeal arising out of SLP(Crl.) No.8132 of 2010 is also....