TaxTMI 
TaxTMI 
2022 (12) TMI 1103
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....n that falls for our consideration is: whether the requirement of 'continuing unlawful activity', as defined Under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019? To put it in other words: whether an FIR under the 2015 Act (Special enactment) is maintainable in law or can be registered if there is no FIR registered against the Accused after the promulgation of the 2015 Act for any offence under the Indian Penal Code or any other statute? 4. The aforesaid question arises especially in view of the fact that the last offence registered against the Respondent-Accused is of 2019 and the chargesheet in regard to the said FIR was filed on 21.01.2019 i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore, there is no FIR registered against the Respondent-Accused after the 2015 Act came into force w.e.f. 01.12.2019. FACTUAL MATRIX 5. On 27.11.2020 an FIR came to be registered against the Respondent Accused herein and thirteen other co-Accused for the offence punishable Under Sections 3(1)(i) and (ii), 3(2) and ....
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....been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence; (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; The combined reading of the aforesaid provisions suggest that 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. 7. The Supreme Court in the case of Shivaji Ramaji Sonawale (supra) while considering the pari materia provisions of Section 2(d) of the Maharashtra Control of Organised Crime Act, 1999 to that of Section 2(c) of the Gujarat Act, which defines "continuing unlawful activity" has held thus: 9. The significant feature of the two cases is that for Crimes No. 37 of 2001 and 38 of 2001 the Respondents were separately tried and acquitted on 18th January, 2008 in the case of Shiva and on 28th February, 2006 in the case of Meh....
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....hat ought to be satisfied. It is only if an organised crime is committed by the Accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence Under Section 3 of the Act. 11. In the case at hand, the offences which the Respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the Respondents in Crimes No. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the Respondents were acquitted of the charge under the Arms Act even in Crimes Case No. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the Respondents were proved to have committed an offence for gain or any pecuniar....
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.... could not have been considered by the authority while registering the F.I.R. on 27.11.2020. The Applicant has not committed any offence after the promulgation of the Act. At serial No. 6, the state has referred to the extension order dated 03.03.2019 also which is against the provisions of Section 2(c) of the Act. The Supreme Court has held that it is only if an organized crime is committed by the Accused after the promulgation of the Act that has to be considered in the light of the previous charge sheets. Thus, the state has misdirected itself with regard to the registration of offences against the applicant, hence the Applicant cannot be allowed to be further incarcerated in jail. 10. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the Accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. It is clarified that this Court has not expressed any opinion with regard to the Applicant not being a member or a member of the crime syndicate. 10. Being dissatisfied with the aforesaid impugn....
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....id in Shiva alias Shivaji Ramaji Sonawane (supra) is affirmed, the object of the 2015 Act i.e., prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates, will surely get hampered. 14. In the aforesaid contest, the submission of Mr. Mehta is that if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) is to be treated as the final word so far as the law is concerned, then the first case under the 2015 Act can be registered, only after two cases of the nature described in the 2015 Act, had been registered against the person or against an organised syndicate after 01.12.2019. As the definition indicates, for making a crime punishable under the provisions of the 2015 Act, there has to be more than one case registered or in other words, it is the third case which can be registered for an offence Under Sections 3 and 4 of the 2015 Act. Such an interpretation would be in direct conflict with the very purpose of the 2015 Act. If such an interpretation is accepted then the State will have to wait and helplessly watch the organised crime taking place till it is the third time a person or a syndicate is found involved in t....
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....ould not constitute the offence of organised crime. He would argue that there is no merit in the contention canvassed on behalf of the Appellant-State that offence of organised crime itself comprises of chargesheets filed in the past of which cognizance is taken. He would argue that if such a contention were to be accepted, it would amount to giving a free hand to the police to send anybody to a long term of imprisonment, merely by filing chargesheets in respect of more than one offence. 20. In such circumstances referred to above, the learned Counsel appearing for the Respondent-Accused prays that there being no merit in the present appeal, the same may be dismissed. ANALYSIS 21. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the decision rendered by a coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook and the issue be referred to a larger Bench. AN OVERVIEW OF THE GUJARAT CONTROL OF TERRORISM AND ORGANISED CRIME ACT, 2015 22. The Gujarat Control of Terrorism Act, 2015, as its long title i....
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....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; The expression 'organised crime' is defined with reference to a continuing unlawful activity. The definition is exhaustive since it is prefaced by the word 'means'. The ingredients of an organised crime are: a. The existence of a continuing unlawful activity; b. Engagement in the above activity by an individual; c. The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate; d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activit....
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....not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, which shall not be less than rupees five lakhs. (3) Whoever intentionally harbours or conceals or attempts to harbour or conceal any person who has committed an offence of any terrorist act or any member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs. (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs. (5) Whoever holds any property derived, or obtained from commission of terrorist act or an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be li....
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....efore a competent court within the preceding period of ten years and the Court has taken cognizance of such offence. PRINCIPLES GOVERNING GRANT OF BAIL IN CASES OF THE 2015 ACT 25. Although, Mr. Mehta with all fairness submitted that the discretion exercised by the High Court in favour of the Respondent-Accused in so far as releasing the Accused on bail is concerned, the same may not be disturbed in the facts and circumstances of the case. Yet as this appeal arises from an order of bail granted by the High Court wherein the provisions of the 2015 Act are made applicable, we deem it fit to reiterate the principles of grant of bail. 26. The considerations which normally weigh with the Court in granting bail in non-bailable offences are: (1) the nature and seriousness of the offences; (2) the character of the evidence; (3) circumstances which are peculiar to the Accused; (4) a reasonable possibility of the presence of the Accused not being secured at the trial; (5) reasonable apprehension of witnesses being tampered with; (6) the larger interest of the public or the State and other similar factors which may be relevant in ....
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....(2005) 5 SCC 294. We quote paras 43, 44 and 46: 43. Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts. The question as to whether he is involved in the commission of organised crime or abetment thereof must be judged objectively. ... .. 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the Applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the Applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be con....
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....OURT IN THE CASE OF STATE OF MAHARASHTRA V. SHIVA ALIAS SHIVAJI RAMAJI SONAWANE 30. We may now proceed to look into the decision of this Court rendered in the case of Shiva alias Shivaji Ramaji Sonawane (supra). But before we undertake this exercise, we must look into the judgment of the High Court of Judicature at Bombay in Prafulla Uddhav Shende v. State of Maharashtra, (2009) 2 AIR Bom R 1, which came to be challenged by the State of Maharashtra before this Court & titled Shiva alias Shivaji Ramaji Sonawane (supra). 31. The High Court in Prafulla (supra) decided a batch of criminal appeals filed by individual convicts. The Accused persons therein were convicted for the offences punishable Under Section 3(4) of the MCOCA. Shiva alias Shivaji Ramaji Sonawane was also one of the Appellants in the batch of appeals before the High Court. 32. The High Court after referring to the various provisions of the MCOCA looked into its own decision delivered by a Division Bench in the case of Jaisingh Ashrfilal Yadav and Ors. v. State of Maharashtra and Another reported at 2003 All Mr. (Cri.) 1506. We quote paras 42 and 43 of the decision of the High Court in Prafulla (supra): ....
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....ce under the said Act prior to 24-2-1999. It also does not convert any activity done prior to 24-2-1999 to be an offence under the said Act. It merely considers two charge-sheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said Act. This by itself cannot be said to be in any manner violative of the mandate of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur Singh's case as well as in Sajjan Singh's case. 33. The High Court, thereafter in para 44 of Prafulla (supra) referred to its decision, rendered by a Division Bench in Bharat Shantilal Shah v. State of Maharashtra reported at 2003 All Mr. (Cri.) 1061. In Bharat Shantilal Shah (supra), the challenge was to the constitutional validity of MCOCA. We quote paras 44, 45 and 46: 44. In Bharat Shantilal Shah v. State of Maharashtra, reported at 2003 All Mr. (Cri.) 1061 the challenge to the constitutional validity of MCOC Act, was considered by another Division Bench. Definition of continuing unlawful activity i....
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....is no violation of Article 14 by this definition. If we read the definition again, what has been defined as continuing unlawful activity is a member of organized crime syndicate in respect of which any activity prohibited by law and done repeatedly i.e. more than once for which charge-sheet has been filed in the Court of competent jurisdiction in the past ten years. The purpose of definition is to define what continuing unlawful activity is and it is for the purposes of defining what is continued unlawful activity that those charges are to be taken into consideration. Mere taking into consideration of such charges cannot result in discrimination of the kind alleged by Shri Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge-sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge-sheeted in such cognizable offences in the past makes the unlawful activity continuing unlawful activity. This Section only defines what the activity....
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....s. reported in (2008) 13 SCC 5 upheld the judgment of the High Court of Judicature at Bombay deleting the words 'or under any other ....' from Sub-section (5) of the Section 21. The questions raised before this Court were concerned essentially with the constitutionality of interception of conversation or communication, which was subject matter of Sections 13 to 16 of the MCOCA. This Court reversed the judgment only to the extent the High Court held the provisions ultra vires. 36. There was no cross appeal filed by Bharat Shah challenging the order of the High Court upholding the constitutional validity of the provisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectively of the MCOCA. Therefore, this Court had no occasion to go into that question. This Court, however, observed that there was no vagueness as the definitions defined with clarity what was meant by continuing unlawful activity, organised crime and also organised crime syndicate. This Court specifically concluded that after examining the judgment of the High Court of Judicature at Bombay on the issue of the constitutional validity of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respective....
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....e enough to constitute offence of organised crime, it could have offended the requirement of Article 20(1) of the Constitution and possibly Article 20(2) as well, (and in any case Section 300 of the Cr PC). Had these judgments of the Supreme Court and Division Benches of this Court been cited before the learned Single Judge deciding Amarnath v. State, (2006 All Mr. (Cri.) 407 : ((2006) 6 AIR Bom R 120), the learned Single Judge, without doubt, would not have held that the matter was simply one of an arithmetical equation. The said judgment cannot be reconciled with the judgments or Division Benches in Jaisingh v. State, (2003 All Mr. (Cri.) 1506 and Bharat Shah v. State, 2003 All Mr. (Cri.) 1061, which I am bound to follow. 49. It is not necessary to go into the implications of the expression "prosecuted and punished" used in Article 20(2) of the Constitution. Section 300 of the Code of Criminal Procedure itself clearly bars a fresh trial for the same offence. Section 21 of MCOCA which prescribes modified applications of the Code to offences under MCOCA does not make provisions of Section 300 of the Code of Criminal Procedure inapplicable. Therefore, since the previous cri....
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.... without there being a substantive offence indicating continuity, there would be no continuation of the unlawful activity and as a corollary no "continuing unlawful activity". 52. A look at provisions of the punishment. Section 3 of the MCOCA would fortify this conclusion. Clauses (i) and (ii) of subsection (1) would show that "if such offence has re-suited in death of any person", the offence of organised crime would attract death sentence or life imprisonment with a fine of Rs. one lakh. Now, if only old charge-sheets should be held as enough, a person acquitted of a murder charge in the past would be liable to be sent for a life term, in spite of acquittal, simply because a charge-sheet had been filed in the past. Had this been contemplated, the learned Judge, Special Court, would have charged Accused No. 1/I Shiva of offence punishable Under Section 3(1)(i) of MCOCA and not one punishable Under Section 3(1)(ii) of the MCOCA, since Shiva had been charged once of murder (Sr. No. 9 in the chart) and acquitted. Same would hold good about the other gangsters. Advocate Tiwari, the learned Counsel for Mehmood and Ors. relying on judgment of the Supreme Court in Dilip Singh v.....
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.... to be of the nature of offence under the MCOC Act and having committed such activities on or after 24th February, 1999. In other words, the activities of a person to be termed as the offence under the MCOC Act, the same should inevitably disclose to have been committed on or after 24th February, 1999. If the activity of the person is relating to the period prior to 24th February, 1999, obviously, it cannot be said to be an offence under MCOC Act, even though the activity may be an offence under the provisions of some other statute in force at the relevant time..... (Emphasis supplied) 40. Thus, the High Court took the view relying on its various other decisions that if no illegal activities as contemplated by MCOCA are shown to have been committed after 1999, then the past activities, prior to 1999 may not be of any help for registering any FIR only on the basis of such past activities. Further, if two or more illegal activities are committed after 1999, then the past activities can be taken into consideration in order to show the continuity. 41. The State of Maharashtra being dissatisfied with the aforesaid judgment of the High Court of Judicature at Bombay challenged th....
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....A that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said to have committed an offence Under Section 3 of the Act. 11. In the case at hand, the offences which the Respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the Respondents in Crimes Nos. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the Respondents were acquitted of the charge under the Arms Act even in Crime Cases Nos. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of MCOCA could not be invoked only on the basis of the previous charge-sheets for Section 3 would come into play only if the Respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was,....
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.... provided for. In such a situation, it has to be ensured whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the 2015 Act. (See: State of Maharashtra and Others v. Lalit Somdatta Nagpal and Anr. reported in (2007) 4 SCC 171) 46. It is a sound Rule of construction that the substantive law should be construed strictly so as to give effect and protection to the substantive rights unless the statute otherwise intends. Strict construction is one which limits the application of the statute by the words used. According to Sutherland, 'strict construction refuses to extend the import of words used in a statute so as to embrace cases or acts which the words do not clearly describe'. 47. The Rule as stated by Mahajan C.J. in Tolaram Relumal and Anr. v. State of Bombay reported in AIR 1954 SC 496, is that "if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty. It is not competent to the court to stretch the meaning of an expression used by the legislature in order ....
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....ast two chargesheets are found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years. Indisputably, the period of ten years may relate to the period prior to 01.12.2019 or thereafter. In other words, it provides that the activities, which were offences under the law in force at the relevant time and in respect of which two chargesheets have been filed and the Court has taken cognizance thereof, during the period of preceding ten years, then it will be considered as continuing unlawful activity on 01.12.2019 or thereafter. It nowhere by itself declares any activity to be an offence under the said 2015 Act prior to 01.12.2019. It also does not convert any activity done prior to 01.12.2019 to be an offence under the said 2015 Act. It merely considers two chargesheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said 2015 Act. 51. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra)....