TaxTMI 
TaxTMI 
2014 (7) TMI 1403
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....erred by the Appellants under Section 227 of the Criminal Procedure Code, for their discharge from the case. The Appellants have questioned the correctness of the said orders dated 10th February 2013 and 18th February 2013 passed below Exhibits 192 and 204 respectively. 2. Both these Appeals are decided by this common judgment as they are arising out of the same crime number, have similar set of witnesses /facts and also involve common questions of law. For the sake of brevity in the matter, the compilation of documents which has been preferred by original accused No.9 - Umesh Kirve along with the final report filed in Criminal Appeal 1115 of 2013 has been referred to hereinafter with reference to the page numbers thereto. 3. The Appellant - Sachin Ghaiwal in Criminal Appeal No.25 of 2014 has challenged the application of the provisions of the MCOC Act qua him to C.R. No.82 of 2010 whereas the Appellant - Umesh Kirve in Criminal Appeal No.1115 of 2013 has sought for complete discharge from the crime or in the alternate discharge from the provisions of the MCOC Act. 4. The Appellants have challenged the impugned orders apart from various miscellaneous grounds which are take....
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....dated 9th May 2010 the witness Atul @ Pappu Laxman Kudale has stated that he along with his brother Sachin Kudale, Balaji Kadam, Santosh and one Nanya had been to Dattawadi Police Station for the release of their friend Aakash Shinde on 8th May 2010. That in the midnight the police released said Aakash after giving admonition to him. That the complainant Atul @ Pappu, his brother Sachin and their friends were returning to their house at about 12.30 to 1 a.m .. The complainant was travelling in a van whereas his brother Sachin and other witnesses were travelling on motorcycles. On the way back to their home, the complainant heard sound of firing and he realized that a bullet has passed through brushing his right shoulder. Due to darkness the complainant could not see immediately the assailants properly. The complainant asked his driver to drive the van towards Dattawadi Police Station and after reaching to Dattawadi Police Station, the complainant rushed inside the said police station. At that time, the complainant saw that Nilesh Ghaiwal and his associates were on 4 to 5 motorcycles. That accused No.1 - Nilesh fired a bullet at the complainant. However, the complainant dodge the sa....
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....nit-I, Pune City as the investigating officer for the investigation of the said crime. The said order dated 3rd August 2010 thereby appointing the Assistant Commissioner of Police, Crime Branch, Unit-I, Pune for investigating the offence after invoking the provisions of the MCOC Act is at page No.307 of the compilation. iv) After completion of the investigation, the Assistant Commissioner of Police, Crime Branch, Unit I, Pune City submitted a report dated 15th October 2010 to the Additional Director General and Commissioner of Police, Pune City for granting sanction under Section 23(2) of the MCOC Act. The competent authority i.e. the Additional Director General and Commissioner of Police, Pune City on 22nd October 2010 accorded sanction as contemplated under Section 23(2) of the MCOC Act to prosecute the accused persons mentioned in the said sanction under Sections 3(1)(i)(ii), 3(2), 3(4) of the MCOC Act for taking cognizance by the Special Court constituted for trying the said offences as contemplated under sub section (1) of Section 5 of the MCOC Act. v) It further appears from the record that on 26th October 2010 the investigating agency submitted its final re....
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....les emerge: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broa....
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....of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage." 12. A further reliance can also usefully be placed on the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659 wherein the Supreme Court has held that if there is a ground for presuming that the accused has....
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....ed 9th May 2010 and has further specifically mentioned the names of the Appellants and has further stated that the Appellants were holding deadly weapons in their hands and were chasing the complainant and the deceased and the persons accompanying the complainant on the date of the incident. As far as the Appellant in Criminal Appeal No.25 of 2014-Sachin Ghaiwal is concerned, witness Sagar Dimble whose statement is at page No.71 of the compilation has specifically stated about the presence of the Appellant Sachin Ghaiwal at the scene of offence and the specific role of assisting the principal accused Nilesh Ghaiwal at the time of commission of offence has been attributed to the Appellant Sachin Ghaiwal. The witness Waghu Tukaram Halande whose supplementary statement dated 19th September 2010, is at page No.431, has also specifically stated that Sachin Ghaiwal - Appellant in Criminal No.25 of 2014 and Umesh Kirve - Appellant in Criminal Appeal No.1115 of 2013 were present at the scene of offence along with the principal accused Nilesh Ghaiwal and other associates on the said fateful day, at the time of incident. Witness at page No.81 of the compilation viz. Ritesh @ Rinkya Gundgal i....
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....ipal accused Nilesh Ghaiwal in commission of the crime which has resulted into the death of Sachin Kudale. Thus, in our considered opinion, there is a strong prima facie case against the Appellants to frame a charge as contemplated under Section 228 of the Code of Criminal Procedure, under Sections 143, 147, 148, 149, 302 read with 120-B of the Indian Penal Code and under Sections 3, 4 and 25 of the Arms Act and under Section 37(1) read with Section 135 of the Bombay Police Act and under Sections 3(1)(i)(ii), 3(2) and 3(4) of the MCOC Act 1999. 15. It is worth here to note that the Appellants have also been charged with Section 3(2) of the MCOC Act wherein a punishment has been prescribed for a term which shall not be less than five years, but which may extend to imprisonment for life and also for fine if a person abets or knowingly facilitates the commission of an organized crime apart from other related aspects of the said case. Section 2(1)(a)(iii) has defined the word 'abate' as, the rendering of any assistance whether financial or otherwise to the organized crime syndicate, would amount to abating the crime. Therefore, the meaning of the term 'abatement' as ....
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....t of approval and or sanction. It apparently discloses that question of validity of approval or sanction cannot be decided unless the prosecution is afforded opportunity to lead evidence in that regard. Undoubtedly, an accused desiring to raise objection regarding the defects in such approval or sanction, or grant, he can raise such objection; however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to inherent lack of jurisdiction to the concerned authority to grant sanction or approval and such issue can be decided on undisputed facts. The law being well settled to the effect that the prosecution in a case where sanction or the approval order does not ex-facie show consideration of all the materials and/or application of mind, is entitled to establish the same by leading necessary evidence regarding production of materials before the concerned authority, the question of discharge of accused merely on the basis of such objection being raised cannot arise. The decision on the point of defect, if any, in the order of approval or sanction will have to be at the ....
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....2 of the compilation. After perusing the aforesaid two documents, i.e. the prior approval dated 3rd August 2010 and the sanction dated 22nd October 2010, we are of the opinion that the competent authority has recorded its subjective satisfaction while granting prior approval and according sanction in the present case. Therefore we hereby while adhering to the ratio laid down in the case of Anil Nanduskar (supra) hold that the prosecution has to be afforded an opportunity to lead evidence with regard to the subjective satisfaction recorded by the competent authority by leading evidence at the time of trial. Undoubtedly, an accused desiring to raise objection regarding the defects in such grant of approval or sanction, the accused can raise such objection, however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to an inherent lack of jurisdiction of the concerned authority to grant approval or sanction and such an issue can be decided only on the undisputed facts on record. As has been observed by us earlier, after perusing the material on record and after care....
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....ee years or more, is not enough." "10. In order to bring an alleged act within the ambit of the MCOCA, the aforementioned requirements are mandatory. The word "in respect of which" occurring in the definition clause of "continuing unlawful activity" connotes that it is not a normal chargesheet, alleging commission of congnizable offence punishable with imprisonment of 3 years or more. The chargesheet sans allegations that the alleged act is undertaken either singly or jointly by the accused who is a member of an organized crimes syndicate or is undertaken on behalf of such syndicate, would not fall within the ambit of the expression "continuing unlawful activity", occurring in MCOCA." "15. We propose to clarify that to address the question which is posed in this appeal, interpretation of expressions "or other advantage" and "or other unlawful means", occurring under section 2(1)(e) of MCOCA, is not strictly necessary. Even if, both the terms are given wider meaning, the prosecution is not absolved of its duty to prove that within the preceding period of 10 years more than one chargesheets, alleging commission of cognizable offence punishable with imprisonment of t....
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....f the facts of the present case. 20. It is the settled position of law by a catena of judgments that, a statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the 'intention' of its maker. A statute is to be construed according to the intent of them, that make it and the duty of judicature is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature, in other words the 'legal meaning' or 'true meaning' of the statutory provision. The statute must be read as a whole in its context. It is now firmly established that the intention of the Legislature must be found by reading the statute as a whole. 21. The statute to be construed to make it effective and workable and the Courts strongly lean against a construction which reduces a statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative. The Courts should therefore reject that construction which will defeat the plain intention....
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....tra, (2007) 7 SCC 555 : (AIR 207 SC 3180 : 2007 AIR SCW 5782), this Court has held: "Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents." "31. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the a....
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....en by competent Court who later on are acquitted are recovered by the definition. According to him therefore a person is acquitted of ten charges cannot be treated as equal to a person who is charged and convicted of only one offence. In our opinion, there 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 part 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....
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.... back done by a Division Bench of this Court on 5th March 2003. In our opinion, the discussion pertaining to and the interpretation effected by the Division Bench in the case of Bharat Shantilal Shah (supra) was self eloquent. (ii) Being aggrieved by the striking down of Sections 13 to 16 of the MCOC Act by the Division Bench, as beyond the legislative competence of the state legislature in the case of Bharat Shantilal Shah (supra), the State of Maharashtra preferred Special Leave Petitions in the Hon'ble Supreme Court. The Supreme Court while deciding the Criminal Appeals in the case of State of Maharashtra v. Bharat Shantilal Shah and others, on 1st September 2008 in its judgment reported in (2008) 13 SCC 5 in its paragraph No.30 has held as under : "30. Even otherwise when the said definitions as existing in Sections 2 (1) (d), (e) and (f) of the MCOCA are read and understood with the object and purpose of the Act which is to make special provisions for prevention and control of organised crime it is clear that they are worded to subserve and achieve the said object and purpose of the Act. There is no vagueness as the definitions defined with clarity what i....
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.... into consideration the judgments in the case of Bharat Shantilal Shah v. State of Maharashtra, reported in 2003 ALL M R (Cri.) 1061, Sherbahadur Akram Khan and others v. State of Maharashtra, reported in 2007 (1) Bom.C.R. (Cri.) 26, Jaisingh Asharfilal Yadav and others v. State of Maharashtra and another, reported in 2003 All M R (Cri.) 1506 and in the case of Appa alias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165, in its entirety respectfully agreed with the observations of the Division Bench made in paragraph 10 in the case of Appa alias Prakash Haribhau Londhe (supra). The Division Bench in the case of Asif Khan Bashir Khan (supra), while further explaining the scope and interpretation of Section 2(1)(d) of the MCOC Act in its paragraph 7 has held that : "However, the chargesheet is essentially in relation to the offence committed in a matter. Merely because it relates to a particular person, once it is disclosed that such person is a member of the organised crime or organised crime syndicate and the offence is part of the continuing unlawful activity by either the organised crime or organised crime syndicate, it obviously ....
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....esume of several decisions rendered by it. The Supreme Court referred to its judgment in Ambica Quarry Works v. State of Gujarat & Ors. (1987) 1 SCC 213, where it has observed that the ratio of any decision must be understood in the background of the facts of that case and a case is only an authority for what it actually decides and not what logically follows from it. In the light of this, we are of the opinion that the words `more than one charge-sheet' contained in Section 2(1)(d) refer to unlawful activities of the organized crime syndicate. Requirement of more than one charge-sheet is qua the unlawful activities of the organized crime syndicate and not qua individual member thereof." It is thus clear that the Division Bench of this Court in the case of Govind Sakharam Ubhe (supra) has after taking into consideration all the judgments prevailing in the field at that time has laid down the ratio as stated in paragraph Nos. 39 and 44 of the said case. 27. The interpretation which the learned counsel for the Appellants wants us to accept with respect to Section 2(1)(d) of the MCOC Act pertaining to expression 'continuing unlawful activity', if accepted would creat....
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....ed as an 'obiter dictum' and certainly not a 'ratio decidendi' in view of the judgment of the Supreme Court in the case of Arun Kumar Aggarwal v. State of Madhya Pradesh and others reported in AIR 2011 SC 3056. 31. We hereby further respectfully while agreeing with the propositions and interpretation made by the Division Bench of this Court in the cases of (i) Bharat Shantilal Shah v. State of Maharashtra, reported in 2003 ALL M R (Cri.) 1061 (ii) Appa alias Prakash Haribhau Londhe v. State of Maharashtra and another reported in 2007 CRI L.J. 165; (iii) Asif Khan Bashir Khan v. The State of Maharashtra in Criminal Appeal No.749 of 2007 and Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 hold that the said four judgments have binding effect. And the ratio laid down by the Division Bench in the case of Govind Sakharam Ubhe v. State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 is the correct position of law as far as the interpretation with reference to the expression 'continuing unlawful activity' as has been defined in Section 2(1)(d) of the MCOC Act. 32. A restrictive interpretation which would have the effect....
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....r' as mentioned in Section 2(d) has not been defined anywhere in the MCOC Act, so also the term 'Gang' referred to in Section 55 of the Bombay Police Act 1951 and therefore the Appellants are otherwise also not qualified to be held as 'member' of the 'gang' of the organized crime syndicate for want of any role in the alleged crime. It is true that the term 'member' has not been defined in the MCOC Act. However, a safe reliance can be placed on the the Black's Law Dictionary wherein the term "member' has been defined as under : "member- 1. Parliamentary law. One of the individuals of whom an organization or a deliberative assembly consists, and who enjoys the full rights of participating in the organization - including the rights of making, debating, and voting on motions - except to the extent that the organization reserves those rights to certain classes of membership." 35. Mr. J. Shekhar, learned counsel for the Appellant in Criminal Appeal 1115 of 2013, has further contended that even the term 'gang' has not been defined in the Bombay Police Act and submitted that the expression 'gang' has appeared in Sectio....
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.... the Appellant in Criminal Appeal 1115 of 2013 has further urged before us that taking into consideration the observations made by the Supreme Court (in paragraphs 62 and 63) in the case of State of Maharashtra and others v. Lalit Somdatta Nagpal and another reported in (2007) 4 SCC 171, the sanctioning authority ought not to have granted sanction for invoking the provisions of the MCOC Act in the present case. There cannot be any dispute about the observations made by the Supreme Court in paragraphs 62 and 63 of the said judgment. However, its applicability would be a factor which is different in each case. In other words, the facts and circumstances of each case and each prior approval order or sanction will have to be considered before applying the principle, that invocation of the MCOC Act was not justified if prerequisites are not attracted and satisfied. It is to be noted here that in the case before the Supreme Court i.e. in the case of Lalit Nagpal (supra), the offences alleged / charged by the police were punishable under Sections 468, 420 and Sections 3, 7, 9 and 10 of the Essential Commodities Act 1955. The Supreme Court therefore arrived at a conclusion that the offence....