Govind Sakharam Ubhe vs The State Of Maharashtra

Mr. S.R. Borulkar, Public Prosecutor with Ms. V.R.

Bhonsale, A.P.P. for the State.

CORAM : SMT. RANJANA DESAI &

R.G. KETKAR, JJ.

DATE ON WHICH THE JUDGMENT IS RESERVED : 9TH APRIL, 2009.

DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 11TH JUNE, 2009.

JUDGMENT.:- (Per Smt. Ranjana Desai, J.)

1. Rule. Rule made returnable forthwith. Respondent

::: Downloaded on - 09/06/2013 14:38:30 ::: AJN 2

waives service. By consent of the parties, taken up for

hearing and final disposal.

2. The appellant is original accused 8 in MCOC Special

Case No. 8 of 2007 pending in the Special Designated

Court constituted under the Maharashtra Control of

Organized Crime Act, 1999 ("the MCOC Act" for short).

3. It is necessary to begin with the prosecution case.

The prosecution case rests on the evidence of two

witnesses. They are referred to as Mr. `X' and Mr. `Y' so

as not to disclose their identity. It is the case of Mr. `X'

that on 8/10/2006 he received a telephone call from an

unknown person who introduced himself as Guru Satam.

He stated that he and his associates are required to be

paid Diwali. After two days, Mr. `X' received another call

from one Raju threatening him of dire consequences and

demanding money. After a few days the said person

again gave a telephone call from overseas telephone

number and asked Mr. `X' to contact Guru Satam on the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 3

said phone. Thereafter he received a call from a person

who identified himself as Guru Satam and demanded

money and threatened him of dire consequences if the

demand was not fulfilled.

Mr. `X' apprehended danger to his life. He

approached Anti Extortion Cell of DCB CID Mumbai and

informed them about the incident. His statement was

recorded by the police. It was treated as First Information

Report.

During the investigation other accused came to be

arrested on 7/12/2006, 8/12/2006 and 16/12/2006. It was

revealed that the accused and their associates in India

and abroad are members of organized crime syndicate

headed by accused Guru Satam and they are indulging in

commission of extortion by threatening the builders, who

undertake development work under the Slum

Rehabilitation Scheme.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 4

Prior approval to apply provisions of the MCOC Act

was accorded by the Joint Commissioner of Police on

18/12/2006 and thereafter the provisions of the MCOC Act

were applied to the case on 18/12/2006. The appellant

was arrested on 29/12/2006.

During investigation, it was revealed that the

appellant had taken active part in continuing unlawful

activities and commission of organized crime on behalf of

organized crime syndicate headed by accused Guru

Satam. The investigation further revealed that the

appellant had taken part in the negotiations of the

extortion amount from a witness and he had accepted the

amount on behalf of the syndicate. The appellant actively

participated and facilitated in continuing the unlawful

activities and commission of the organized crime in

pursuance to a deep rooted conspiracy. On completing

the investigation the charge sheet was submitted before

the Special Court on 25/4/2007 against all the accused.

On 8/9/2007, learned Special Judge released the appellant

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 5

on bail. On 30/3/2009 the Special Court framed the

charge under Section 3(2) read with Section 3(1)(ii) and

3(4) of the MCOC Act against the appellant.

4. The appellant filed an application for discharge

before the Special Court. By the impugned order the said

application was rejected. Hence the appellant has filed

the present appeal challenging the said order.

5. We have heard Mr. Amit Desai, learned senior

counsel appearing for the appellant at some length. Mr.

Desai submitted that the Special Court erred in dismissing

the application for discharge filed by the appellant. He

submitted that the appellant is involved in the present

case on account of business rivalry. The present

prosecution is a malafide prosecution. Learned counsel

submitted that the entire case of the prosecution rests on

statements of two witnesses. Mr. Desai took us through

those statements and submitted that they do not show

that the appellant is a part of the organized crime

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 6

syndicate and he is involved in their activities of giving

threats or collecting money, etc. There is no evidence to

indicate that the appellant is involved in the alleged deep

rooted conspiracy. The statements indicate that the

appellant only wanted to help his colleague in business,

who was in distress. He wanted to ensure that the matter

is settled and Mr. 'X' is relieved of threats of extortion. On

the basis of such evidence according to Mr. Desai, the

appellant cannot be charged for offences under the

stringent provisions of the MCOC Act. Mr. Desai further

submitted that approval under Section 23(1)(a) was

accorded on 8/12/2006. In that approval the appellant's

name does not figure. Mr. Desai submitted that even if

this challenge is not specifically raised in the trial court or

in this court, the contention of the appellant that the

evidence collected by the accused does not make out an

offence under the MCOC Act against him, covers this plea.

6. Mr. Desai drew our attention to Section 2(1) (a)

which defines the word 'abet'. Relying on the judgment of

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 7

the Supreme Court in Ranjitsing Brahmajeetsing

Sharma v. State of Maharashtra & Anr., 2005 ALL

MR (Cri.) 1538 (S.C.). Mr. Desai submitted that the

case of the prosecution that the appellant abetted the

crime must also fail. He submitted that abetment

involves mensrea, knowledge and intention. He

submitted that the offence under Section 3(2) of the

MCOC Act must have a direct nexus with the offence

committed by an organized crime syndicate. and

abetment of commission of offence must be by way of

accessories before the commission of an offence. Mr.

Desai submitted that such is not the case here and hence

charge of abetment cannot be sustained.

7. Mr. Desai then submitted that Section 2(1)(d) of the

MCOC Act defines continuing unlawful activity. This

provision requires that an activity can be a continuing

unlawful activity if it is prohibited by the law for the time

being in force which is a cognizable offence punishable

with imprisonment of three years or more undertaken

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 8

either singally or jointly as a member of organized crime

syndicate or on behalf of such syndicate in respect of

which more than one charge sheet have been filed before

a competent authority within the preceding period of 10

years and that court has taken cognizance of such

offence. Mr. Desai submitted that so far as the appellant

is concerned except the present complaint no other

charge sheet is filed against him. Therefore, submitted

Mr. Desai, provisions of the MCOC Act could not have been

used against the appellant.

8. In this connection he relied upon the judgment of the

Supreme Court in State of Maharashtra & Ors. v. Lalit

Somdatta Nagpal & Anr., 2007 Cri. L.J. 1678 and

judgments of learned Single Judges of this court in

Sherbahadur Akram Khan & Ors. v. State of

Maharashtra, 2007 (1) BCR (Cri.) 26 and State of

Maharashtra v. Bharat Baburao Gavhane & Ors.,

2007 Cri. L.J. 552. Reliance was also placed on the

judgment of the Division Bench of this court in Bharat

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 9

Shantilal Shah v. State of Maharashtra, 2003 All MR

(Cri.) 1061.

9. On the scope of Section 227 of the Code of Criminal

Procedure, 1973 (for short, "the Code"), Mr. Desai relied

on the judgment of the Supreme Court in Dilawar Balu

Kurane v. State of Maharashtra, (2002) 2 SCC 135.

He submitted that while considering an application for

discharge under Section 227 of the Code, if the court finds

that two views are equally possible and the evidence

gives rise to some suspicion but not grave suspicion

against the accused, the court will be fully justified in

discharging the accused. Mr. Desai submitted that if this

case is viewed in the light of the settled principles

underlying Section 227 of the Code, the impugned order

will have to be set aside and the appellant will have to be

discharged.

10. Mr. Borulkar, learned Public Prosecutor, on the other

hand, submitted that the statements of Mr. `X' and Mr. `Y'

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 10

are sufficient to establish the appellants' connection with

the organized crime syndicate and his involvement in its

activities. Mr. Borulkar submitted that the appellant knew

Guru Satam. He facilitated the exchange of extortion

amount. He was present when the money was

exchanged. His case that he wanted to help Mr. `X' is a

tissue of lies.

11. Mr. Borulkar relied on the judgment of the Supreme

Court in Vinod Asrani v. State of Maharashtra in

Special Leave Petition (Cri.) No.6312 of 2006

decided on 21/2/2007 in support of his submission that

because the appellant's name is not mentioned in the

approval order, that does not vitiate the prosecution. Mr.

Borulkar submitted that in any case, the appellant has not

raised any challenge to approval, at any stage. He cannot

be now allowed to raise it.

12. Mr. Borulkar submitted that the appellant's case that

because there is only one case registered against him, his

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 11

case is not covered by Section 2(1)(d) of the MCOC Act

must be rejected because Section 2(1)(d) refers to

registration of more than one charge-sheet against the

organized crime syndicate and not against individual

member of the organized crime syndicate. He submitted

that in Lalit Nagpal's case, this point was not raised

and, hence, the Supreme Court has not dealt with it. The

said judgment must be confined to its own peculiar facts.

There, the cases registered against the accused were

under the Essential Commodities Act and the Supreme

Court ultimately came to a conclusion that the only

offence registered against the accused was one under

Section 63 of the Sales Tax Act. The Supreme Court

expressed that Section 63 of the Sales Tax Act would not

attract the provisions of the MCOC Act. Mr. Borulkar

submitted that therefore, the said judgment will not be

applicable to the present case. Mr. Borulkar relied on a

judgment of this court in Criminal Appeal No.749 of

2007 decided by this court (R.M.S. Khandeparkar

and V.K. Tahilramani, JJ.) decided on 16/10/2007

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 12

where this court has referred to Sherbahadur Akram

Khan's case and observed that once it is disclosed that a

person is a member of the organized crime syndicate and

the offence is part of the continuing unlawful activity by

the organized crime syndicate, then charge-sheet

referred to in Section 2(1)(d) refers to organized crime

syndicate.

13. As regards the scope of Section 227 of the Code, Mr.

Borulkar relied on the judgments of the Supreme Court in

State of Bihar v. Ramesh Singh, AIR 1977 SC 2018

and State of Maharashtra v. Priya Sharan Maharaj

& Ors. (1997) 4 SCC 393. Mr. Borulkar submitted that,

at this stage, the court is not required to undertake an

elaborate enquiry and record a finding regarding guilt or

otherwise of the accused. If there is a strong suspicion

about the involvement of the accused, it is not open to the

court to discharge him. Mr. Borulkar submitted that in

this case, there is enough indication in the statements of

Mr. `X' and Mr. `Y' that the accused is a part of the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 13

organized crime syndicate and is actively participating in

its illegal activities and, therefore, the appeal deserves to

be dismissed.

14. Before we deal with the rival submissions, we must

ascertain what is the scope of Section 227 of the Code

which provides for discharge. In several judgments, the

Supreme Court has outlined the scope of Section 227 of

the Code. We shall refer to a few of them.

15. Section 227 of the Code reads as under :

227.Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the

prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his

reasons for so doing.

16. In State of Bihar v. Ramesh Singh (1977) 4

SCC 39, while referring to Section 227 of the Code, the

Supreme Court observed :

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 14

"At that stage, the Court is not to see whether there is sufficient ground for

conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of the suspicion

cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, 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 it is not

open to the Court to say that there is no sufficient ground for proceeding against the accused".

The Supreme Court further observed that -

"If the evidence which the Prosecutor

proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence if any,

cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial".

The Supreme Court then went on to observe -

"If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 15

of benefit of doubt the case must end in

the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under

section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227."

17. In Union of India v. Prafulla Kumar Samal, AIR

1979 SC 366, the Supreme Court reiterated the same

principles but added that at the stage of Section 227 of

the Code, the Court has power to sift and weigh the

evidence to find out whether there is prima facie case

against the accused but if two views are equally possible

and the Judge is satisfied that the evidence gives rise to

some suspicion but not grave suspicion against the

accused, he will be fully within his right to discharge the

accused. The Supreme Court further observed that the

Judge cannot act as a mouth-piece of the prosecution, but

has to consider the broad probabilities of the case, the

total effect of the evidence, any basic infirmities in the

case and so on. The Supreme Court clarified that this

however does not mean that the Judge should make a

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 16

roving enquiry into the pros and cons of the matter and

weigh the evidence as if he was conducting a trial.

18. In Superintendent & Remembrancer of Legal

Affairs, West Bengal v. Anil Bhunja & Ors. AIR

1980 SC 52, the Supreme Court observed that the

standard test, proof and judgment which is to be applied

finally before finding the accused guilty or otherwise is not

exactly to be applied at the stage of Section 227 or

Section 228. At this stage, even a very strong suspicion

founded upon materials before the Magistrate, which

leads him to form a presumptive opinion as to the

existence of the factual ingredients constituting the

offence alleged, may justify the framing of charges

against the accused in respect of the commission of that

offence.

19. Same principles were reiterated by the Supreme

Court in Niranjan Singh Karam Singh Punjabi v.

Jiendra Bijja & Ors. AIR 1990 SC 1962.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 17

20. In State of Maharashtra & Ors. v. Som Nath

Thapa & Ors. (1996) 4 SCC 659, the Supreme Court

observed that if there is a ground for presuming that the

accused has committed the offence, it can be said that a

prima facie case has been made out against the accused.

Even if the court finds that the accused might have

committed the offence, it can frame the charges. The

Supreme Court clarified that at the stage of framing of

charge, probative value of the materials on record cannot

be gone into.

21. In State of Maharashtra v. Priya Sharan

Maharaj & Ors. AIR 1997 SC 2041, the Supreme Court

again reiterated that at the stage of framing of the

charge, the court has to consider the material with a view

to finding out if there is ground for presuming that the

accused has committed the offence or that there is not

sufficient ground for proceeding against him and not for

the purpose of arriving at the conclusion that it is not

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 18

likely to lead to a conviction.

22. In Dilawar Kurane's case (supra), the Supreme

Court extensively quoted observations made by it in

Prafulla Kumar Samal's case and reiterated the same

principles.

23. It is also necessary to refer to the Supreme Court's

judgment in the State of Karnataka v. L. Muniswamy

& Ors. (1977) 2 SCC 699. In that case, some of the

accused were discharged by learned Session Judge under

Section 227 of the Code. So far as the other accused

were concerned, learned Sessions Judge adjourned their

case for framing charges against them. Two revision

petitions were filed against this order. These petitions

were allowed by the Karnataka High Court on the view

that there was no sufficient ground for proceeding against

them. It is clear from the first paragraph of the Supreme

Court judgment that the High Court had, in exercise of its

powers under Section 482 of the Code, quashed the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 19

proceedings initiated by the State of Karnataka. Being

aggrieved by this judgment, the State of Karnataka

approached the Supreme Court. The Supreme Court

referred to Section 227 of the Code and observed that the

High Court is entitled to go into the reasons given by the

Sessions Judge in support of his order and to determine

for itself whether the order of discharge is justified. The

Supreme Court then referred to Section 482 of the Code

and observed that in exercise of the wholesome power,

the High Court is entitled to quash a proceeding if it

comes to the conclusion that allowing the proceeding to

continue would be an abuse of the process of the court or

that the ends of justice require that the proceeding ought

to be quashed. The Supreme Court further observed that

this power is designed to achieve a salutary public

purpose which is that a court proceeding ought not to be

permitted to degenerate into a weapon of harassment or

persecution. The following observation of the Supreme

Court needs to be quoted.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 20

"In a criminal case, the veiled object behind a lame prosecution, the very nature

of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The

ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity

for making these observations is that without a proper realisation of the object

and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and

its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

24. It is significant to note that when the attention of the

Supreme Court was drawn to the judgment in R.P. Kapur

v. The State of Punjab, AIR 1960 SC 866 to the effect

that in its inherent jurisdiction, the High Court cannot

embark upon an enquiry as to whether the evidence in

the case is reliable or not, the Supreme Court reaffirmed

this position and referring to the facts before it observed

that in that case, there was no material on record on the

basis of which any court can reasonably come to the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 21

conclusion that the accused were in any manner

connected with the crime. Of course, in this case, the

Supreme Court has also referred to Section 227 of the

Code and observed that in exercise of this power, the

court can determine the question whether the material on

record if unrebutted is such on the basis of which a

conviction can be reasonably possible. But, it must be

remembered that primarily the Supreme Court was

dealing with the High Court's power under Section 482 of

the Code and that was a case where there was no

material to reasonably connect the accused with the

crime. Undoubtedly, the powers of the High Court under

Section 482 of the Code are very wide and as observed by

the Supreme Court, it has to consider ends of justice and

not the ends of mere law. In any case, what the

Supreme Court has said in this judgment does not go

counter to what it has said on this point in a line of

judgments, which we have referred to hereinabove.

25. The principles laid down by the Supreme Court in the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 22

above cases need to be summarized. It is settled law that

at the stage of Section 227 of the Code, the court has

power to sift the materials collected by the prosecution to

find out whether there is prima facie case against the

accused or not. The court has to be satisfied that there is

ground for presuming that the accused has committed the

offence or that there is no sufficient ground for

proceeding against him. The Court's enquiry must not be

directed to find out whether the case will end in

conviction. However, though roving enquiry is not

permissible, the court can consider whether the material

collected by the prosecution if accepted as it is without

being subjected to cross-examination gives rise to strong

and grave suspicion for presuming that the accused has

committed the offence and that unrebutted material will

lead to a conviction. If at the stage of Section 227 or

Section 228, the scales as to the guilt or innocence of the

accused are even then the court must proceed to frame a

charge. There is no question of giving benefit of doubt to

the accused and discharge the accused at that stage

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 23

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.

26. We will examine the present case in the light of the

above principles. Since the case of the prosecution qua

the present appellant rests basically on the statements of

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 24

two witnesses, that is Mr. `X' and Mr. `Y', we will first

ascertain what these witnesses have said in their

statements. Mr. 'X' is a cable distributor.

27. Gist of statement of Mr. `X'.:

The appellant who is cable distributor/operator is

known to him personally. Every month a meeting is

convened of cable operators. In such meetings business

activities and other consequential matters are discussed

for redressal of grievances of the cable operators. From

28/4/2005 he was receiving threatening calls from one

Ravi Pujari. An amount of Rs.50 lakhs was demanded

from him as extortion amount., The said extortion

amount was to be paid to Guru Satam. He was given

threats of dire consequences if the amount was not paid.

In the meeting held in May 2005 he disclosed the above

facts to all business colleagues. At that time the appellant

whom he personally knows was present. The appellant

told him that he knew a relative of Guru Satam personally.

Two to three days after the said meeting the appellant

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 25

told him to come to a particular place. Around 7 p.m. in

the evening he along with his another business friend

reached that place. The appellant was present there. The

appellant dialed someone and 15 to 20 minutes thereafter

two unknown persons came on the motorcycle. The

appellant introduced them to him as Bhushan Satam s/o

Guru Satam and Sachin Shetye a relative of Guru Satam.

He apprised Bhushan Satam about the phone calls which

he had received from Guru Satam. He told Bhushan

Satam that the extortion amount was quite large and out

of his reach. Thereafter Bhushan Satam and Sachin

Shetye talked to Guru Satam and Guru Satam insisted for

payment of certain amount. He expressed inability to pay

even that amount. He told them the amount which he

could pay. Bhushan Satam then said that he should keep

that amount ready with him within two days. Two days

after that meeting at around 5 p.m. the appellant phoned

him and asked him to reach near a particular place and

hand over the agreed amount to Bhushan Satam for

onward payment to Guru Satam. Accordingly he packed

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 26

the amount in bundles and along with his friend reached

that place at about 8 p.m. The appellant was present

there. He gave the said amount to the appellant for

handing it over to Bhushan Satam and Sachin Shetye. He

did not receive any threatening calls thereafter.

28. Gist of statement of Mr. `Y'.

Mr. `Y' knows the appellant. Mr. `Y' was present in

the meeting held in May, 2005 where the appellant stated

that he was harassed by Ravi Pujari on telephone by

making demands for payment of extortion money. He

advised Mr. `X' to lodge a police complaint. At that time

the appellant told Mr. 'X' that a relation of Guru Satam

was personally acquainted with him. After the meeting

was over, the appellant dialed someone and called him to

the ground opposite K.E.M. Hospital. As called by the

appellant he accompanied Mr. `X' to the ground opposite

K.E.M. Hospital. After they arrived there, the appellant

dialed someone and asked him to come to that place.

Sometime thereafter two persons came at that place.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 27

One of them was known to Mr. 'Y' as Sachin Shetye. He

was normally seen in the company of the appellant. The

appellant introduced the other person as Bhushan Satam,

son of Guru Satam. Thereafter the appellant, Mr. Bhushan

Satam and Sachin Shetye had a discussion. Four days

thereafter the appellant dialed someone and called him

at a specific place and thereafter Mr. `X' went to that

place accompanied by Mr. `Y' when the bundle containing

currency notes was handed over by Mr. `X' to the

appellant for onward handing over to Guru Satam and

Ravi Pujari through Bhushan Satam and Sachin Shetye.

After the money was handed over to the appellant by Mr.

`X' for onward transmission to Guru Satam and Ravi Pujari

Mr. 'X' stopped receiving threatening calls from Ravi Pujari

and Guru Satam.

29. The irresistible, prima facie, conclusion from the

above statements is that the appellant intimately knows

the son and a relative of Guru Satam. This is evident from

the fact that he was confident that he would settle the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 28

extortion amount. He, therefore, took lead in settlement

talks. His intimacy with Guru Satam gang is evident from

the fact that within 15 minutes of his dialing the son and

relative of Guru Satam, they came to the agreed place.

The appellant was present when the extortion amount

was settled. The appellant was present when the

extortion amount was to be handed over. In fact he took

that amount from Mr. `X' and through Guru Satam's son

and relative he handed it over to Guru Satam. That the

money reached Guru Satam is prima facie evident from

the fact that Mr. `X' stopped receiving threats thereafter.

30. Prima facie, it is difficult to accept the story of the

appellant that he merely wanted to help Mr. `X'. The

appellant's intimacy with Guru Satam's son, his being

present at the time of settlement of extortion amount and

at the time of handing over the said amount cannot be

lightly brushed aside. It is difficult to digest prima facie

the appellant's case that he merely wanted to help Mr.

`X'. If that was so, he could have merely introduced Mr.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 29

`X' to right persons. There was no need for him to play

such active role. The fact that after the money was paid

Mr. `X' stopped receiving threats is important. Thus,

prima facie, it appears that the appellant is a member of

the organized crime syndicate of Guru Satam and is

connected with its activities of collecting extortion amount

by giving threats. We prima facie also feel that charge of

abetment is rightly framed. It is true that in Ranjitsingh

Sharma's case the Supreme Court has reiterated that it

is not enought that an act on the part of the alleged

abettor happens to facilitate the commission of the crime.

Intentional aiding and therefore active complicity is the

gist of the offence of abetment. Prima facie, we feel that

by taking part in the negotiations of extortion amount and

by taking charge of the extortion amount and handing it

over to Guru Satam's son so that it reaches Guru Satam,

the appellant has intentionally aided the commission of

the crime. He has actively participated in the crime. The

argument of Mr. Desai that offence of abetment is not

made out must, therefore, fail.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 30

31. Mr. Desai then submitted that since against the

appellant only one charge-sheet is filed, he is not covered

by Section 2(1)(d) of the MCOC Act which defines

"continuing unlawful activity". Consequently, the

appellant cannot be tried for offences under the MCOC

Act.

32. In order to understand this submission it is necessary

to have a closer look at certain provisions of the MCOCA

and its preamble. The preamble states that it is an Act to

make special provisions for prevention and control of, and

for coping with the criminal activity by organized crime

syndicate or gang, and for matters connected therewith

and incidental thereto. The MCOCA, states the preamble,

makes special provisions for prevention and control of, for

coping with, criminal activity by organized crime

syndicate or gang. Essentially, therefore, the MCOCA

targets the unlawful activities of the organized crime

syndicate.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 31

33. Section 1(f) defines `organized crime syndicate' to

mean a group of two or more persons who acting singly or

collectively as a syndicate or gang indulge in activities of

organized crime. Section 1(e) defines `organized crime'

to mean 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 objective of gaining

pecuniary benefits, or gaining undue economic or other

advantage for himself or any other person or promoting

insurgency.

34. Therefore, the MCOCA contemplates a situation

where a group of persons as members of organized crime

syndicate indulge in organized crime. That is, they

indulge in use of violence, threats of violence,

intimidation, etc. to gain pecuniary benefit or undue

economic or other advantage for themselves or any other

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 32

person. These activities as per the definition of organized

crime are continuing unlawful activity prohibited by law.

35. It is now necessary to go to the definition of

`continuing unlawful activity'. Section 2(1)(d) defines

`continuing unlawful activity' to mean 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-

sheet have been filed before a competent court within the

preceding ten years and that court have taken cognizance

of such offence. Thus, for an activity to be a `continuing

unlawful activity' -

a) the activity must be prohibited by law;

b) it must be a cognizable offence

punishable with imprisonment of three

years or more;

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 33

c) it must be undertaken singly or jointly;

d) it must be undertaken as a member of

an organized crime syndicate or on

behalf of such syndicate

e)

in respect of which more than one

charge-sheet have been filed before a

competent court.

36. The words `in respect of which more than one

charge-sheet have been filed' cannot go with the words `a

member of a crime syndicate' because in that case, these

words would have read as `in respect of whom more than

one charge-sheet have been filed'.

37. But even otherwise, if all provisions are read

together we reach the same conclusion. Section 2(1)(d)

which defines `continuing unlawful activity' sets down a

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 34

period of 10 years within which more than one charge-

sheet have to be filed. The members of the crime

syndicate operate either singly or jointly in commission of

organized crime. They operate in different modules. A

person may be a part of the module which jointly

undertakes an organized crime or he may singly as a

member of the organized crime syndicate or on behalf of

such syndicate undertake an organized crime. In both the

situations, the MCOCA can be applied. It is the

membership of organized crime syndicate which makes a

person liable under the MCOCA. This is evident from

section 3(4) of the MCOCA which states that any person

who is a member of an organized crime syndicate shall be

punished 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,

subject to a minimum of fine of Rs.5 lakhs. The charge

under the MCOCA ropes in a person who as a member of

the organized crime syndicate commits organized crime

i.e. acts of extortion by giving threats, etc. to gain

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 35

economic advantage or supremacy, as a member of the

crime syndicate singly or jointly. Charge is in respect of

unlawful activities of the organized crime syndicate.

Therefore, if within a period of preceding ten years, one

charge-sheet has been filed in respect of organized crime

committed by the members of a particular crime

syndicate, the said charge-sheet can be taken against a

member of the said crime syndicate for the purpose of

application of the MCOCA against him even if he is

involved in one case. The organized crime committed by

him will be a part of the continuing unlawful activity of the

organized crime syndicate. What is important is the

nexus or the link of the person with organized crime

syndicate. The link with the `organized crime syndicate'

is the crux of the term `continuing unlawful activity'. If

this link is not established, that person cannot be roped

in.

38. In order to substantiate our construction of Section

2(1)(d) of the MCOCA, we will take hypothetical example

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 36

of accused 1(A), accused 2(B), accused 3(C) and accused

4(D), who are members of the organized crime syndicate

and who have committed crimes within preceding ten

years. Insofar as accused A is concerned, it is alleged that

he has committed an offence resulting in the death of any

person which is punishable with death or imprisonment

for life as described in Section 3(1) of the MCOCA.

Accordingly, one charge-sheet is filed against him. Insofar

as accused B is concerned, it is alleged that he has

committed an offence resulting in the death of any person

which is punishable with death or imprisonment for life as

described in Section 3(2) of the MCOCA. Accordingly, one

charge-sheet is filed against him. Likewise, insofar as

accused C is concerned, it is alleged that he has

committed an offence resulting in the death of any person

which is punishable with death or imprisonment for life as

described in Section 3(3) of the MCOCA. Accordingly, one

charge-sheet is filed against him. Finally, it is alleged that

accused D is a member of organized crime syndicate as

described in Section 3(4) of the MCOCA and as such has

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 37

indulged in organized crime and against whom also one

charge-sheet is filed.

39. The submission on behalf of the appellant is that

even though all the four accused namely, A, B, C and D

may be members of the organized crime syndicate since

against each of the accused not more than one charge-

sheet is filed, it cannot be held that they are engaged in

continuing unlawful activity as contemplated under

Section 2(1)(d) of the MCOCA. Apart from the reasons

which we have given hereinabove as to why such a

construction is not possible, having regard to the object

with which the MCOCA was enacted, namely to make

special provisions for prevention and control of organized

crime syndicate and for coping with criminal activity by

organized crime syndicate, in our opinion, Section 2(1)(d)

cannot be so construed. Such a construction will defeat

the object of the MCOCA. What is contemplated under

Section 2(1)(d) of the MCOCA is that activities prohibited

by law for the time being in force which are punishable as

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 38

described therein have been undertaken either singly or

jointly as a member of organized crime syndicate and in

respect of which more than one charge-sheets have been

filed. Stress is on the unlawful activities committed by the

organized crime syndicate. Requirement of one or more

charge-sheet is qua the unlawful activities of the

organized crime syndicate.

40. In our opinion, in this connection, reliance placed by

Mr. Desai on Lalit Nagpal's case is misplaced. The ratio

of the said judgment is misconstrued by the appellant. In

that case, the issue whether the words `more than one

charge-sheet' refer to the unlawful activities of an

organized crime syndicate or to the individual members

was neither raised nor canvassed. Consequently, the said

issue did not fall for consideration and was not decided.

This is clear from the submissions made on behalf of the

State and recorded particularly in paragraphs 15, 16 and

17 of the Judgment. In paragraph 54 of the said

judgment, the Supreme Court clearly stated that from the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 39

submissions made on behalf of the State of Maharashtra,

it appears that the main question for determination

related to the applicability of the MCOC Act to offences

under the Essential Commodities Act, 1955 having

particular regard to the enactment of the Essential

Commodities (Special Provisions) Act, 1981. The High

Court had proceeded on the basis that offences

punishable under igthe provisions of the Essential

Commodities Act, 1955 committed during the period when

the Essential Commodities (Special Provisions) Act, 1981

was in force, could not be said to be offences which could

be considered for the purpose of continuing unlawful

activity as defined in Section 2(1)(d) of the MCOC Act. On

consideration of provisions of both the Acts, the Supreme

Court rejected this contention. The Supreme Court then

considered individual cases. The Supreme Court observed

that so far as Lalit Nagpal and Anil Nagpal are concerned,

their involvement was shown in several cases of similar

nature. However, so far as Kapil Nagpal was concerned,

his involvement was shown only in respect of C.R. No.25

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 40

of 2003 of the Rasayani Police Station under Sections 468,

420, 34 of the IPC and Sections 3, 7, 9 and 10 of the

Essential Commodities Act. However, permission to

register offence under Section 1(ii) of the MCOCA was

taken only in respect of an offence under Section 63 of

the Sales Tax Act. The Supreme Court observed that

Section 63 of the Sales Tax Act would not attract the

provisions of the MCOC Act. Kapil Nagpal was thus not

linked to the organized crime syndicate. The nexus was

lacking. It is in this context that the Supreme Court

observed that so far as Kapil Nagpal is concerned, he has

not been shown to be involved in any continuing unlawful

activity. The attempt was to apply the MCOCA to a

person who had no nexus with the organized crime

syndicate. The Supreme Court therefore observed that

the provisions of the MCOCA have to be strictly

interpreted and the concerned authorities would have to

be bound down to strict observance of the said provisions.

Observations of the Supreme Court cannot be torn out of

context. This judgment, in our opinion, does not lay down

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 41

the proposition canvassed by Mr. Desai.

41. Reliance was placed by Mr. Desai on the judgment of

this court in Bharat Shah's case (supra). In that case,

constitutional validity of the MCOC Act was under

challenge. The point raised before us was not raised in

that case. What was argued was that the definition of

continuing unlawful activity violates mandate of Article

14. It was argued that this definition ropes in anyone

charged more than once, irrespective of whether the

charge resulted in an acquittal or conviction. It is in this

context that this court observed that this provision only

defines what is continued unlawful activities and refers to

whether a person has been charged over a period of ten

years for the purpose of seeing whether a person is

charged for the first time or has been charged often. This

court further observed that the circumstance of conviction

or acquittal that followed is not material. This judgment,

in our opinion, does not lay down, the proposition

canvassed by Mr. Desai.

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 42

42. Reliance placed on the judgment of this court in

Sherbahadur's case is also misplaced. In that case, on

facts, this court came to a conclusion that the offences

could, by no stretch of imagination, be considered to give

the accused any pecuniary or undue economic or other

advantage. This court observed that some of the offences

had resulted from a quarrel at a public water tap. In most

of the cases, the accused had given fist blows. The

accused were related to each other. This court observed

that merely because the accused are from one family,

inference cannot be drawn that the accused formed an

organized crime syndicate. Against one of the accused

who was a lady, there was no charge-sheet pending. The

allegation was that she had sheltered two of her sons

after they committed certain offences. This court

observed that members of one family need not

necessarily be part of an organized crime syndicate

because some members of the family are involved in

unlawful activities. This court did not consider the

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 43

question whether requirement of more than one charge-

sheet is qua the unlawful activities of the organized crime

syndicate or qua an individual member thereof. The

appellant cannot draw any support from this judgment.

43. In this connection, we must refer to the judgment of

the Division Bench of this court (R.M.S. Khandeparkar &

V.K. Tahilramani, JJ.) in Asif Khan Bashir Khan v. The

State of Maharashtra in Criminal Appeal NO.749 of

2007 decided on 16/10/2007. In that case, it was

contended that the sanction to prosecute the accused

under the MCOC Act was granted on the assumption that

two charge-sheets are filed against them during the

preceding period of ten years, when in fact, it was not so.

This court after focussing its attention on the definition of

the term "continuing unlawful activity" observed as

under:

"However, the charge-sheet is essentially in relation to the offence committed in a matter. Merely because it relates to a particular person, once it

::: Downloaded on - 09/06/2013 14:38:31 ::: AJN 44

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 would mean that the charge-

sheet refers to, as defined in Section

2(d), the offence committed as part of a continuing unlawful activity by organised crime or organised crime syndicate and the person being a

member of such organised crime or organised crime syndicate, such charge-

sheet can definitely be taken into consideration for the purpose of application of MCOC Act against any

such person."

44. Since in Asifkhan, the point which we are

considering was squarely raised and answered, its ratio is

attracted to the present case. In Deepak Bajaj v. State

of Maharashtra & Anr., 2008 AIR SCW 7788, while

considering the precidential value of a judgment, the

Supreme Court took a resume 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

::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 45

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.

45. Mr. Desai's submission that inasmuch as the

appellant's name is not mentioned in the approval

granted under Section 23(1)(a) of the MCOC Act, the

prosecution qua the appellant is vitiated, must also be

rejected. In its judgment in Vinod Asrani v. State of

Maharashtra (Special Leave Petition (Cri.) No.6312

of 2006 dated 21/2/2007, the Supreme Court has

considered the same submission and observed that non

inclusion of the accused in the approval under Section

23(1)(a) of the MCOC Act is not fatal to the investigation

::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 46

qua that accused. The Supreme Court observed that

Section 23(1)(a) provides a safeguard that no

investigation into an offence under the MCOC Act should

be commenced without the approval of the concerned

authorities. Once such approval is obtained, an

investigation is commenced. The Supreme Court further

observed that those who are subsequently found to be

involved in the commission of the organized crime can

very well be proceeded against once sanction is obtained

against them under Section 23(2) of the MCOC Act.

46. We must also note that the submission of Mr. Desai

that the prosecution is malafide and is the outcome of

business rivalry does not prima facie appear to have any

basis and, hence, we reject it.

47. We have already noted the principles laid down by

the Supreme Court which should guide us while dealing

with the prayer for discharge made by an accused. In the

light of these principles, we have sifted the material to

::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 47

find out whether there is a prima facie case against the

appellant or not. The role played by the appellant as

disclosed by Mr. `X' and Mr. `Y' has been narrated by us

earlier. In our opinion, the material creates a strong and

grave suspicion leading us to presume that the appellant

is a member of the organized crime syndicate and is

involved in its continuing unlawful activities. The

appellant prima facie appears to have abetted the

unlawful activities of the organized crime syndicate

headed by Guru Satam. As stated by the Supreme Court

in Ramesh Singh's case, the court has not to examine,

at this stage, whether the case will end in conviction or

not. We have not conducted a roving enquiry which is

prohibited by law. But, in the light of Muniswamy's

case, we have considered whether material on record, if

unrebutted, is such on the basis of which a conviction can

be reasonably be possible. We are of the prima facie,

opinion that statements of Mr. `X' and Mr. `Y' lead to such

a conclusion. At the cost of repetition, we must state that

the appellant's intimacy with the son of Guru Satam, his

::: Downloaded on - 09/06/2013 14:38:32 ::: AJN 48

phoning the son and relative of Guru Satam for settling

the amount of extortion, his being present when

settlement talks were going on, his being present when

money was to be handed over and his accepting the

money and handing it over to Guru Satam's son and the

fact that Mr. `X' stopped receiving threats from that date,

are sufficient to prima facie indicate the appellant's

complicity. This is certainly not a case for discharge. It is

not disputed before us that the fact that the appellant was

released on bail has no relevance to the question whether

he could be discharged or not because considerations for

bail and considerations for discharge differ. In our

opinion, learned Special Judge has rightly rejected the

appellant's discharge application. The impugned order

merits no interference.

48. The appeal is dismissed.

[SMT. RANJANA DESAI, J.]

[R.G. KETKAR, J.]

::: Downloaded on - 09/06/2013 14:38:32 :::