Sunday, 27 September 2015

Magistrate takes cognizance of offence not offender

 Reliance was then placed upon the decision in
Fakhruddin Ahmad (supra), in particular paragraph 17. The
said paragraph 17 reads as under:
“17. Nevertheless, it is well settled that before a
Magistrate can be said to have taken cognizance of an
offence, it is imperative that he must have taken
notice of the accusations and applied his mind to the
allegations made in the complaint or in the police
report or the information received from a source other
than a police report, as the case may be, and the
material filed therewith. It needs little emphasis that it
 is only when the Magistrate applies his mind and is
satisfied that the allegations, if proved, would
constitute an offence and decides to initiate
proceedings against the alleged offender, that it can
be positively stated that he has taken cognizance of
the offence. Cognizance is in regard to the offence and
not the offender.”
(emphasis added)
70. Even here this Court has stated in uncontroverted terms
that once the Magistrate applies his mind to the offence alleged
and decides to initiate proceedings against the alleged offender,
it can be stated that he has taken cognizance of the offence and
by way of reiteration. It is further stated that cognizance is in
regard to the offence and not the offender. This decision,
therefore, reinforces the position that cognizance is mainly of the
offence and not the offender.
 Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1969-1970 OF 2010
Prasad Shrikant Purohit …Appellant
VERSUS
State of Maharashtra & Anr. …Respondent
With
Criminal Appeal No.1971 of 2010
Citation;(2015) 7 SCC440

Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted in SLP (Crl.) No.8132 of 2010 and SLP
(Crl.) Nos.9370-71 of 2011.
2. As in all the above appeals the issue that arises for
consideration is the applicability of the Maharashtra Control of
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 1 of 97Page 2
Organized Crime Act, 1999 (hereinafter called “MCOCA”), all
these appeals are disposed of by this common judgment.
3. Criminal Appeal Nos.1969-70/2010 have been preferred
by Lt. Col. Prasad Shrikant Purohit challenging the judgment in
Criminal Appeal No.867 of 2009 which was disposed of by the
common order passed by the Division Bench of the Bombay High
Court in Criminal Appeal Nos.866, 867, 868, 869 and 1024 of
2009 dated 19.07.2010. By the said order the Division Bench
reversed the order of the Special Judge dated 31.7.2009 passed
in Special Case No.1 of 2009 wherein he held that the charges
against the accused in C.R.No.18 of 2008 registered with AntiTerrorist
Squad, Mumbai (hereinafter referred to as “ATS”) under
the MCOCA do not survive and were discharged from the case.
The Special Court by invoking Section 11 of the MCOCA directed
the case to be tried by the regular Court. The Division Bench
while allowing the Criminal Appeal Nos.866 to 869 of 2009 set
aside the order of the Special Judge 31.07.2009 in Special Case
No.1 of 2009 as well as orders passed in Bail Application Nos.40
to 42 of 2008, restored those applications to the file in MCOCA
Special Case No. 01 of 2009 for being decided on merits by
Special Judge himself. In Criminal Appeal No.1024 of 2009 while
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 2 of 97Page 3
allowing the said appeal, Bail Application No.41 of 2008 was
directed to be restored in MCOCA Special Case No. 01 of 2009 for
being heard and decided on merits.
4. The appellant-Lt. Col. Prasad Shrikant Purohit is the first
respondent in Criminal Appeal No.867 of 2009.
5. The appeals arising out of SLP (Crl.) No.9370-71/2011
have also been preferred by the very same appellant, namely, Lt.
Col. Prasad Shrikant Purohit challenging the common order
passed in Criminal Bail Application No.333 of 2011 with Criminal
Application No.464 of 2011 along with Criminal Application
No.556 of 2011 dated 9th November 2011 by the learned Single
Judge of the Bombay High Court. By the said order the learned
Judge allowed the Criminal Application No.556 of 2011 filed by
Ajay Ekanath Rahirkar by granting him bail by imposing certain
conditions. In the case of appellant herein, the challenge made in
Criminal Application No.464 of 2011 was the order of the Special
Judge after the order of remand passed by the Division Bench
dated 19.07.2010. The Special Judge by the order dated
30.12.2010 rejected the appellant’s application for bail. The
learned Single Judge after detailed discussion, dismissed the
Criminal Bail Application No.333 of 2011 as well as Criminal
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 3 of 97Page 4
Application No.464 of 2011 by the order impugned in these
appeals.
6. The appeal arising out of SLP(Crl.) No.8132/2010 has
been filed by one Pragyasinh Chandrapalsinh Thakur challenging
the common order dated 19.07.2010 passed by the Division
Bench of the Bombay High Court in Criminal Appeal No.866 of
2009 which is identical to the case of the appellant in Criminal
Appeal Nos.1969-70 of 2010.
7. Criminal Appeal No.1971 of 2010 is preferred by one
Rakesh Dattaray Dhawade challenging the order dated
19.07.2010 passed by the Division Bench of the Bombay High
Court in Criminal Appeal No.868 of 2009.
8. The appeal arising out of SLP (Crl.) No.9303/2011 is
preferred by one Sudhakar Dhar Dwivedi and Ramesh Shivji
Upadhyay challenging the order dated 20.10.2011 of the learned
Single Judge of the Bombay High Court. By the said judgment, the
learned Single Judge declined to interfere with the order of
Special Judge in Misc. Application No.98/2011 permitting police
custody to the first respondent, namely, National Investigation
Agency (NIA) for 8 days from 22.07.2011 up to 30.07.2011. In
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 4 of 97Page 5
fact, the said case was originally investigated by ATS and final
report was submitted on 30.01.2009 and supplementary chargesheet
vide MCOCA No.8/2011 was filed on 21.4.2011. Thereafter
by order dated 1.4.2011 of the Ministry of Home Affairs,
Government of India, investigation was transferred to NIA and an
FIR was registered as Crime No.5/2011 by police station NIA on
13.4.2011. Thereafter NIA sought for police custody which was
granted by order passed in Misc. Application No.98/2011 dated
19.07.2011. The said SLP is not argued before us and, therefore,
the same is delinked from this batch of cases and the same shall
be heard separately.
9. We heard arguments of Mr. U.R. Lalit, learned senior
counsel who appeared before us for the appellants in Criminal
Appeal Nos.1969-70/2010 as well as Criminal Appeal Nos.1994-
98/2010, Mr. Triloki Nath Razdan, learned counsel for the
appellant in appeal arising out of SLP (Crl.) No.9303/2011, Mr.
Basava Prabhu S. Patil, learned senior counsel in the appeal
arising out of SLP (Crl.) No.8132/2010 and Mr. Vikas Mehta,
learned counsel in Criminal Appeal No.1971 of 2010.
10. Mr. U.R. Lalit, learned senior counsel in his submissions
referred to the brief facts which led to the initiation of the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 5 of 97Page 6
proceedings against the appellants under the provisions of
MCOCA. As the narration goes, there was a bomb blast at the
place called Malegaon in Mumbai on 29.9.2008. With reference to
the said occurrence, FIR No.130/2008 was registered in the Azad
Nagar police station in Malegaon on 30.9.2008. On 26.10.2008,
the said FIR was transferred and registered as C.R. No. 18/2008
and the investigation was taken over by ATS. Thereafter the
appellant in Criminal Appeal No. 1971/2010, namely, one Rakesh
Dattaray Dhawade was arrested by ATS on 02.11.2008.
Subsequent to his arrest, the appellant in Crl. Appeal Nos. 1969-
1970/2010 was arrested on 05.11.2008. On 20.11.2008, approval
was given as per Section 23(1) (a) of MCOCA by DIG, ATS for
recording of information about the commission of an offence and
for applying the provisions of Section 3(1)(i),3(2) and 3(4) of
MCOCA against all the accused in C.R. No. 18/2008.
11. Be that as it may, earlier on 21.11.2003, there was a
bomb explosion at Mohmedia Masjid, Nanalpeth, Parbhani which
was registered as C.R. No.161 of 2003/Parbhani. There was
another bomb explosion at Kaderia Masjid, Jalna during Friday
Namaz which was registered as C.R.No. 194 of 2004/Jalna.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 6 of 97Page 7
12. In the case pertaining to Parbhani, the charge-sheet was
filed on 07.09.2006 against A1–Sanjay Choudhary for the
offences punishable under Sections 302, 307, 324, 337, 338, 285,
286 and 295 read with 34, IPC and Sections 3, 4, 6 of the
Explosives Act and Section 25(1) and (3) of the Arms Act. The
case was registered as RCC No.467/2006. A supplementary
chargesheet-I was filed in Parbhani case against four accused for
the above referred to offences as well as Sections 120-B & 153-A
read with 34 of IPC on 29.9.2006.
13. In Jalna case, charge-sheet was filed against A-1 for the
offences punishable under Sections 307, 436, 324, 323, 120-B,
153-A read with 34 of IPC and Sections 3, 4, 6 of Explosives Act
on 30.9.2006. In Jalna case, two supplementary charge-sheets
were filed on 7.1.2008 against four additional accused and
against five accused on 14.1.2008. On 13.11.2008,
supplementary charge-sheet-2 was filed against the appellant in
Crl. Appeal No.1971 of 2010-Rakesh Dattaray Dhawade in
Parbhani Case and a supplementary charge-sheet-3 was filed
against him in Jalna Case on 15.11.2008. Thereafter, on
20.11.2008, charge-sheet in Malegaon Blast Case was filed by
ATS against the appellants herein under the MCOCA. On
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 7 of 97Page 8
15.01.2009, sanction under Section 23(2) of MCOCA was also
granted.
14. In the above stated background, Mr. U.R. Lalit, learned
senior counsel made as many as five submissions to contend that
MCOCA was not attracted as against the appellants and,
therefore, the orders impugned are liable to be set aside.
15. Mr. U.R. Lalit, learned senior counsel prefaced his
submissions by stating that appellants were all proceeded
against based on the footing that they were members of an
organization called “Abhinav Bharat” which was registered in
2007 and that they were now being prosecuted under the
provisions of MCOCA. The learned senior counsel submitted that
in order to prosecute the appellants under the MCOCA, the
definition of “continuing unlawful activity”, “organized crime” and
“organized crime syndicate” as defined under Section 2(1)(d),(e)
and (f) of MCOCA should be satisfied. The learned senior counsel
while referring to the above definitions submitted that the
prosecuting agency were relying upon the Parbhani case and
Jalna case which occurred in 2003 and 2004 and which were
organized by RSS and Bajrang Dal with which neither Abhinav
Bharat nor the appellants were in anyway connected and,
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 8 of 97Page 9
therefore, the definition of “continuing unlawful activity” or
“organized crime” as well as “organized crime syndicate” was not
fully established.
16. The next submission of Mr. U.R. Lalit, learned senior
counsel was that in order to attract Section 2(1)(d) for an offence
to be a ‘continuing unlawful activity’ within a period of preceding
ten years from the date of the third occurrence, two prior cases
falling under the said Section should have been filed and taken
cognizance of and that the date with reference to which the
preceding ten years is to be counted is the date of third
occurrence. The learned senior counsel, therefore, submitted that
the Malegaon bomb blast occurred on 29.09.2008, the arrest of
Rakesh Dattaray Dhawade was on 02.11.2008, supplementary
charge-sheet against him was filed in Parbhani case on
13.11.2008 and in Jalna case on 15.11.2008 and in Parbhani, the
case was committed to Sessions Court only on 29.4.2009 i.e. not
within the preceding 10 years of the occurrence in Malegaon and,
therefore, the definition of Section 2(1) (d) was not satisfied.
Even with reference to Jalna, the learned senior counsel
submitted that the Express Order of cognizance was taken only
on 28.11.2008 i.e. after the occurrence in Malegaon, namely,
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 9 of 97Page 10
29.09.2008. Therefore, the requirement of preceding ten years in
order to bring the earlier two occurrences in Parbhani and Jalna
within the definition of 2(1)(d) as continuing unlawful activities
was not made out. The learned senior counsel in this context
submitted that the conclusion of the Division Bench that
cognizance is always with reference to the offence and not the
offender, is not the correct legal position. The learned senior
counsel after referring to Sections 173(2)(i)(a), 190(1)(b) and 178
of the Code of Criminal Procedure (Cr.P.C.) submitted that a close
reading of the above Sections shows that the cognizance will be
with reference to the offender and not the offence. The learned
senior counsel, therefore, submitted that in the case of Jalna the
Express Order of cognizance was taken on 28.11.2008 after the
supplementary charge-sheet dated 15.11.2008 against Rakesh
Dattaray Dhawade, which was long after the date of occurrence
of Malegaon, namely, 29.09.2008, and, therefore, the
requirement of two earlier cases as stipulated under Section 2(1)
(d) was not satisfied. The learned senior counsel relied upon the
decisions in Ajit Kumar Palit v. State of West Bengal - AIR
1963 SC 765 and Dilawar Singh v. Parvinder Singh @ Iqbal
Singh & Anr. - 2005 (12) SCC 709 in support of his submissions.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 10 of 97Page 11
17. Mr. U.R. Lalit, learned senior counsel then contended that
the event of cognizance being taken as defined under Section
2(1) (d) can only be with reference to ‘competent court’ and in
the case of Parbhani and Jalna as the offences were under
Sections 302, 307/308 etc., Sessions Court was the competent
court and not the Chief Judicial Magistrate. The learned senior
counsel pointed out that in the case of Parbhani, the committal
order was passed only on 29.04.2009 i.e. long after the Malegaon
case occurrence, namely, 29.09.2008. Therefore, the requirement
of two earlier cases which were taken cognizance of by the
competent court cannot be held to have been satisfied. In
support of the said submission, learned senior counsel relied
upon Fakhruddin Ahmad v. State of Uttaranchal and Anr. –
(2008) 17 SCC 157.
18. The learned senior counsel then contended that in order
to attract the provisions of MCOCA, in all the three cases, the
same gang must have been involved. Elaborating his submission,
the learned senior counsel contended that Rakesh Dattaray
Dhawade who has been added as A-7 in Malegaon case was
arrested on 02.11.2008 and his arrest was shown in Parbhani and
in Jalna on 13.11.2008 and 15.11.2008 as directed by the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 11 of 97Page 12
Additional Police Commissioner of ATS and even going by the
statement of A-7, he procured some materials and gave them to
one principal accused in Parbhani and Jalna, namely, Devle and
going by the said statement, there is no scope to link the
appellant with the cases which related to Parbhani and Jalna and,
therefore, the requirement of involvement of the same gang in all
the three cases was not satisfied. The learned senior counsel
submitted that in any event, the appellants were not concerned
with Parbhani and Jalna, that they were not even aware of A-7’s
involvement in those two occurrences, as they were not members
of those gangs which were involved in Parbhani and Jalna and,
therefore, the invocation of MCOCA was not made out. The
learned senior counsel further contended that it was all the more
reason to hold that cognizance should be with reference to the
offender and not the offence which has to be mandatorily
satisfied.
19. The learned senior counsel lastly submitted that going by
the definition of ‘organized crime’ under Section 2(1) (e), there
must have been a pecuniary gain accompanied by the act of
violence, that the appellant had not taken any money from
anybody and when such pecuniary advantage should have been
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 12 of 97Page 13
present in all the three cases, it cannot be held that the case
against the appellant would come under the definition of
‘organized crime’. According to learned senior counsel, in the
case of Parbhani and Jalna, only violence was the basis and
promoting insurgency was not even the case of prosecution
which may have a semblance of application in Malegaon case and
certainly not in Parbhani and Jalna. The learned senior counsel,
therefore, contended that the application of MCOCA as against
the appellants was wholly inappropriate and consequently, the
order of the Division Bench and the subsequent order of the
Special Court in declining to grant bail was liable to be set aside.
The learned senior counsel submitted that the appellants made
out a case to show that there were reasonable grounds for
believing that he was not guilty of such offence under MCOCA
and as provided under Section 21(4)(b) of MCOCA and should
have been granted bail. The learned senior counsel further
submitted that the appellant in Criminal Appeal Nos.1969-70 of
2010 as well as in SLP (Crl.) Nos.9370-71 of 2011 has been in jail
for more than six years and he is entitled for grant of bail.
20. Mr. Triloki Nath Razdan, learned counsel appearing for
the appellants in the appeal arising out of SLP (Crl.)
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 13 of 97Page 14
No.9303/2011 while adopting the arguments of Mr. U.R. Lalit,
learned senior counsel for the appellant in Crl.A.No.1969-70/2010
contended that the Objects and Reasons of MCOCA shows that
the very purport of the enactment was to curb the accumulation
of illegal wealth, that in order to attract the provisions of MCOCA,
involvement in organized crime by an organized crime syndicate
in all the three cases must be satisfied. By referring to the
sanction order dated 15.01.2009, learned counsel submitted that
when the arrest of Rakesh Dattaray Dhawade was in the month
of November, 2008, the requirement of Section 2(1) (d) relating
to two previous cases of continuing unlawful activity was not
satisfied. In other words, according to learned counsel, as the
requirement of continuing unlawful activity in respect of an
organized crime by the organized crime syndicate was not
shown, MCOCA was not attracted. The learned counsel relied
upon in Central Bank of India v. State of Kerala and others
- (2009) 4 SCC 94 and Ranjitsing Brahamjeetsing Sharma v.
State of Maharashtra & Anr. – (2005) 5 SCC 294.
21. Mr. Patil, learned senior counsel appearing for the
appellant in SLP (Crl.) No.8132/2010 referred to the impugned
judgment of the Division Bench, in particular, paragraph 18 and
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 14 of 97Page 15
submitted that the question which was posed for consideration by
the Division Bench was limited to the extent of examining the
issue of taking cognizance of the offences by the Chief Judicial
Magistrate at Parbhani and its counterpart at Jalna. Sofaras the
appellant in the present appeal was concerned, learned senior
counsel submitted that she became a Sanyasin after performing
appropriate Hindu religious rites and prayers on 30.01.2007, that
she was residing in an ashram at Jabalpur, Madhya Pradesh and
that she owned a two wheeler LML-Freedom which she sold out to
one Sunil Joshi of Madhya Pradesh way back in October, 2004 for
a sale consideration of Rs.24,000/- and she also signed the
necessary transfer application Forms in October, 2004 itself and
that thereafter she had no control over the said vehicle. The
learned senior counsel submitted that inspite of her disclosing
the above facts, the officials of ATS applied third degree methods
upon her and insisted that the said vehicle was involved in
Malegaon blast occurrence and, therefore, she was also involved
in the said occurrence. The learned senior counsel submitted
that she was implicated in the Malegaon case while she is
innocent simply because the vehicle bearing registration No.MHCrl.
Appeal Nos.1969-70/2010 with Conctd. matters 15 of 97Page 16
15-P-4572, which she owned, was stated to have been involved in
the Malegaon blast.
22. The learned senior counsel then submitted that if the
Objects and Reasons is read for interpreting Section 3, a strict
application of the Act should be made, in which event, in order to
invoke the provisions of MCOCA Section 2(1)(d), (e) and (f) should
be satisfied. It was contended that for implicating a person it is to
be mandatorily shown that he was involved in a ‘continuing
unlawful activity’ as a member of crime syndicate or on behalf of
it on two earlier occasions, that the appellant was not involved in
either the Parbhani case or in Jalna case and, therefore, the
invocation of MCOCA against the appellant was not maintainable.
The learned senior counsel also submitted that having regard to
the relevant dates with reference to the committal order in Jalna
case, namely, 11.8.2008, the subsequent charge-sheet against A-
7 on 15.11.2008 on which date the case was registered afresh as
RCC No.648/2008 and on 28.11.2008 when committal order was
passed, the sanction order in Malegaon case being 20.11.2008,
there was no scope to hold that there were two earlier cases
falling within the definition of continuing unlawful activity as
defined under Section 2(1)(d) of the Act. The learned senior
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 16 of 97Page 17
counsel, therefore, contended that the order of the trial Court
dated 31.07.2009 discharging all the accused was justified and
the Division Bench ought not to have interfered with the said
order.
23. The learned senior counsel also submitted that the
Division Bench having noted that the offence under Section 153A,
IPC was not laid after getting prior sanction as required under
Section 196 Cr.P.C. even as against A-7 Rakesh Dattaray
Dhawade, there was no valid cognizance taken by the trial Court
in respect of the earlier cases of Parbhani and Jalna. The learned
Senior Counsel, therefore, contended that in the absence of the
‘continuing unlawful activity’ as defined under Section 2(1)(d) of
an ‘organized crime’ by ‘organized crime syndicate’ shown,
application of MCOCA was not justified. As far as the preceding
10 years as prescribed under Section 2(1)(d) is concerned,
learned senior counsel submitted that Section 2(1)(d) specifically
refers to ‘activity’ for calculating the preceding 10 years and,
therefore, 29.09.2008 would be the relevant date and calculated
on that basis the claim of the prosecution that there were two
earlier cases as stipulated under Section 2 (1)(d) was not
satisfied. In support of this submission, learned senior counsel
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 17 of 97Page 18
relied upon the decisions of this Court reported as Mahipal
Singh v. Central Bureau of Investigation & Anr. - 2014 (11)
SCC 282, State of Maharashtra & Ors. v. Lalit Somdatta
Nagpal & Anr. – (2007) 4 SCC 171, State of Maharashtra v.
Bharat Shanti Lal Shah and Ors. - 2008 (13) SCC 5 and
Tolaram Relumal & Anr. v. The State of Bombay - AIR 1954
SC 496.
24. Mr. Vikas Mehta, learned counsel appearing for the
appellant in Criminal Appeal No.1971/2010, namely, Rakesh
Dattaray Dhawade after making reference to the judgment in
Mahipal Singh (supra) contended that prior to the registration
of FIR No.130 of 2008 on 30.09.2008 in the Malegaon blast case,
the appellant was not involved in any ‘continuing unlawful
activity’. According to him, if a strict interpretation is to be
placed on the definition of ‘continuing unlawful activity’ as stated
in the said decision of this Court, the appellant having been not
involved in the commission of any offence prior to registration of
FIR No.130/2008 either singly or jointly as a member of an
‘organized crime syndicate, invocation of MCOCA was not
justified. The learned counsel then contended that in order to
invoke MCOCA all the three definitions of Section 2 (1) (d), (e)
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 18 of 97Page 19
and (f) should be satisfied in which event it should be by the
same gang in all the three cases. The learned counsel then
contended that since strict interpretation is to be made as
directed by this Court while upholding the validity of the Act, it
should be construed only in that manner. The learned counsel by
relying upon the decisions in Ranjitsing Brahamjeetsing
Sharma (supra), Lalit Somdatta Nagpal (supra) and
Mahipal Singh (supra) contended that the requirement of
satisfaction of ‘continuing unlawful activity’ of an ‘organized
crime’ by an ‘organized crime syndicate’ insofar as it related to
the appellant was not made out and the application of the
MCOCA was not justified. Mr. S.S. Shamshery, learned counsel
appearing for the appellant in Criminal Appeal No.58/2011
submitted that he is adopting the arguments of Mr. U.R. Lalit,
learned senior counsel for appellant in Criminal Appeal No.1969-
70 of 2010 and the judgment of the Division Bench is liable to be
set aside.
25. As against the above submissions made on behalf of the
appellants, Mr. Anil Singh, learned ASG for the respondent State
submitted that the Division Bench after formulating the question
in paragraph 18 ascertained the relevant dates when cognizance
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 19 of 97Page 20
was taken in Parbhani case and in Jalna case by the Committal
Court and in both the cases cognizance was taken as early as on
07.09.2006 in Parbhani and on 30.9.2006 in Jalna which were
borne out by records and, therefore, the Division Bench was
justified in setting aside the order of the Special Court. In support
of his submission that taking a fresh cognizance is not a
requirement of law in a case where cognizance is already taken
in respect of the same offence, reliance was placed upon R.R.
Chari v. State of Uttar Pradesh - AIR 1951 SC 207,
Raghubans Dubey v. State of Bihar - AIR 1967 SC 1167,
Darshan Singh Ram Kishan v. State of Maharashtra - AIR
1971 SC 2372, State of West Bengal v. Salap Service
Station & Ors. - 1994 (3) Suppl. SCC 318, CREF Finance
Limited v. Shree Shanthi Homes (P) Ltd. and another -
2005 (7) SCC 467, State of Karnataka v. Pastor P. Raju -
2006 (6) SCC 728, S.K. Sinha, Chief Enforcement Officer v.
Videocon International Ltd. & Ors. – (2008) 2 SCC 492,
Fakhruddin Ahmad (supra) and Sarah Mathew v. Institute
of Cardio Vascular Diseases By its Director Dr. K.M.
Cherian & Ors.– (2014) 2 SCC 62.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 20 of 97Page 21
26. According to learned ASG, in respect of an offence under
MCOCA, for invoking its provisions, cognizance of the offence
taken as provided under Section 190 Cr.P.C. was sufficient. The
learned ASG then submitted that in order to ascertain a
‘continuing unlawful activity’ as defined under Section 2 (1) (d) of
the MCOCA what is required is commission of such an offence as
a member of either ‘organized crime syndicate’ or on behalf of
‘organized crime syndicate’ would mean any ‘organized crime
syndicate’ and not the same ‘organized crime syndicate’. As far
as the contention relating to two earlier cases in the preceding 10
years, the learned ASG submitted that in the Malegaon case, the
occurrence was on 29.09.2008 and in the preceding 10 years i.e.
on 07.09.2006 cognizance was taken in the Parbhani case and in
Jalna case cognizance was taken on 30.09.2006 and, therefore,
the same was sufficient to hold that the appellants were involved
in a ‘continuing unlawful activity’ and thereby satisfied the
requirement of 2 (1) (d) (e) and (f) of MCOCA. The learned ASG
sought to distinguish the case in Mahipal Singh (supra). The
learned ASG by relying upon Zameer Ahmed Latifur Rehman
Sheikh v. State of Maharashtra & Ors. – 2010 (5) SCC 246
submitted that insurgency is a grave disturbance of public order
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 21 of 97Page 22
and, therefore, the question of pecuniary advantage was not
needed where promotion of insurgency formed the basis for
prosecuting the appellants under MCOCA. On ‘other advantage’,
learned ASG relied upon State of Maharashtra v. Jagan
Gagansingh Nepali @ Jagya -2011 (5) Mh.L.J. 386.
27. Mr. Mariaarputham, learned senior counsel appearing for
the State of Maharashtra and NIA after referring to the
accusations against the accused submitted that going by the
allegations and the gravity of the offence, they are not entitled
for bail. The learned senior counsel also submitted that apart
from offences under the MCOCA, the appellants are also
proceeded under the Unlawful Activities (Prevention) Act, 1967,
in particular, offences under Sections 13, 15, 16, 17, 18, 18B, 20,
23 etc. and the maximum penalty for offences under Sections 15
to 23 is the death penalty and that under Section 43D(5) for
grant of bail, severe restrictions have been imposed and,
therefore, both because the question raised about the
implications of MCOCA, as well as, having regard to the offences
for which the appellants are proceeded against, they are not
entitled for grant of bail. The learned senior counsel then
contended that in order to constitute an offence as an ‘organized
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 22 of 97Page 23
crime’ under Section 2 (1)(e) of MCOCA, it is not necessary that
for the commission of such aggressive offences, there should be
allegation of pecuniary advantage also. According to learned
senior counsel, insofar as, promotion of insurgency is concerned,
even without any allegation of pecuniary gain, the said act by
itself would constitute an ‘organized crime’. The learned senior
counsel, therefore, contended that even in the absence of any
allegation of pecuniary gain, the offence alleged would fall under
the category of ‘organized crime’. The learned senior counsel
further contended that in any event there were materials to show
that the appellant in Criminal Appeal 1969-70/2010 as well as the
appellant in Criminal Appeal No.1971/2010 had pecuniary
advantage. The learned senior counsel then contended that
cognizance of the offence was taken by the Magistrate based on
the charge-sheet and when once there was application of judicial
mind with a view to proceed with the matter, the requirement of
cognizance was fulfilled. Insofar as the offences pertaining to
Parbhani and Jalna were concerned, the learned senior counsel
contended that they were all IPC offences and, therefore, taking
cognizance of those offences need not be tested on the anvil of
the provisions of MCOCA. The learned senior counsel placed
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 23 of 97Page 24
reliance upon the decisions in Gopal Marwari & Ors. v.
Emperor -AIR 1943 Patna 245 which was affirmed by this Court
in R.R. Chari (supra). He also placed reliance upon Darshan
Singh Ram Kishan (supra), State of West Bengal & Anr. v.
Mohd. Khalid & Ors.– (1995) 1 SCC 684, CREF Finance
Limited (supra), Pastor P. Raju (supra), Mona Panwar v.
High Court of Judicature at Allahabad Through its
Registrar & Ors. – (2011) 3 SCC 496 and Sarah Mathew
(supra).
28. On the submission relating to competent Court, learned
senior counsel submitted that in Parbhani and Jalna reference
needs to be made only to Sections 190, 200, 201, 202 read with
Section 4 Cr.P.C. and when on a complaint filed by the
prosecution, the CJM having taken cognizance, the same was
sufficient for the fulfillment of requirement of the ‘continuing
unlawful activity’ as defined under Section 2 (1) (d) of the
MCOCA. According to learned senior counsel, for the purpose of
taking cognizance under the above provisions, the presence of
the accused was not necessary. As far as the relevant date is
concerned, according to learned senior counsel, even if the date
of occurrence of Malegaon blast, namely, 29.9.2008 is taken as
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 24 of 97Page 25
the relevant date, the committal Court having taken cognizance
by receipt of the charge-sheet dated 07.09.2006 in respect of
Parbhani and on 30.09.2006 in the case of Jalna and the
committal order was on 12.02.2007 in Jalna, the cognizance was
well before 29.09.2008 and, therefore, there was nothing lacking
for the purpose of invoking the provisions of MCOCA. The learned
senior counsel further contended that as long as all the three
incidents were committed by a group of persons and one
common individual was involved in all the three incidents, that
would attract invocation of MCOCA.
29. Mr. Tushar Mehta, learned ASG also appearing for NIA
submitted that in the event of granting bail, having regard to the
nature of offence alleged to have been indulged in by the
appellants, severe conditions should be imposed and that the
agency is entitled for custodial interrogation and also the
presence of the accused at the time of trial should be ensured.
30. By way of reply Mr. U.R. Lalit, learned senior counsel
submitted that the prosecution has not shown involvement of
‘Abhinav Bharat’ in the Parbhani case or Jalna case in which
event if ‘Abhinav Bharat’ is to be excluded, the linking of the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 25 of 97Page 26
appellants by making reference to Abhinav Bharat will also entitle
them to contend that MCOCA cannot be invoked. The learned
senior counsel submitted that since MCOCA has been invoked for
the purpose of ascertaining the cognizance of the offence,
reference to Section 2(1)(d) would alone be made and not under
Section 190 Cr.P.C. The learned senior counsel further contended
that cognizance by the competent Court in the facts and the
nature of offence alleged in Parbhani and Jalna would only mean
the Sessions Court under Section 209 Cr.P.C. and, therefore,
there is a serious doubt as to the application of MCOCA. The
learned senior counsel, therefore, contended that such doubt
should be held in favour of the appellants under Section 21(4)(b)
of MCOCA and the appellants should be granted bail.
31. Mr. Patil, learned senior counsel for the appellant in
appeal arising out of SLP(Crl.) No.8132/2010 submitted that when
the case of the said appellant is considered with reference to
additional charge-sheet, appellant being a lady suffering from
cancer and her implication was because of sale of her two
wheeler four years before the occurrence, applying the decision
in Salap Service Station (supra), she is entitled for the grant
of bail.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 26 of 97Page 27
32. Having noted the submissions of respective counsel, at
the outset, we want to note the specific challenges made in these
appeals. As far as the appellant in Criminal Appeal No.1969-70 of
2010 is concerned, he along with the other appellants is
aggrieved by the common judgment of the Division Bench of the
Bombay High Court in Crl.A. Nos.866, 867, 868, 869 and 1024 of
2009 dated 19.07.2010. By the said judgment, the Division
Bench set aside the order of the Special Judge dated 31.07.2009
in Special Case No.1/2009. While setting aside the said order of
the Special Judge, the Division Bench directed the Special Judge
to consider the bail applications in Bail Application Nos.40-42 of
2008 and pass orders on merits. In fact, the Special Judge in his
order dated 31.07.2009 took the view that MCOCA was not
applicable to Special Case No.1/2009 and consequently by
invoking Section 11 of MCOCA, directed the case to be tried by
the regular Court. Therefore, when we examine the correctness
of the judgment of the Division Bench dated 19.07.2010 in Crl. A
Nos.866/2009 and connected appeals, if the said judgment is to
be upheld, the consequence would be to the consideration of the
bail applications under Section 21 of the MCOCA.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 27 of 97Page 28
33. It is relevant to note that after the order of the Division
Bench dated 19.7.2010, the Special Judge dealt with the Bail
Applications Nos. 40-42 of 2008 and dismissed all the
applications. Thereafter, those orders were the subject matter of
challenge in Criminal Bail Application No.333/2011 with Criminal
Application No.464/2011 insofar as the appellant in Criminal
Appeal No.1969-70/2010 is concerned. One other appellant
namely, Ajay Eknath Rahirkar filed Criminal Application
No.556/2011 which was allowed by the Bombay High Court and
he was granted bail by imposing certain conditions. As far as
Criminal Application No.333/2011 was concerned, the said
application was rejected and the main Criminal Application
No.464/2011 was disposed of by the High Court.
34. The appellant in Criminal Appeal No.1971 of 2010 was
one of the respondents in Criminal Appeal No.868 of 2009 which
was disposed of by the Division Bench of the Bombay High Court
by its order dated 19.07.2010 along with the connected appeals
preferred by the State of Maharashtra through ATS which is the
prosecuting agency in respect of the Special Case No.1 of 2009
on the file of the Special Judge under MCOCA. The said appellant
was also aggrieved by the order of the Division Bench referred to
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 28 of 97Page 29
above in having set aside the order of the Special Judge dated
31.07.2009. The appellant in the appeal arising out of SLP (Crl.)
No.8132/2010 is also similarly placed like that of the appellants in
Criminal Appeal Nos.1969-70/2010 and Criminal Appeal
No.1971/2010.
35. Having thus noted the grievances of the appellants in the
above referred to appeals as against the order of the Division
Bench dated 19.07.2010 as well as the subsequent order of the
learned Single Judge in having declined to grant bail by
confirming the order of the Special Court in Bail Application No.42
of 2008, from the above referred to details gathered from the
appeal papers as well as the orders impugned in these appeals
the scope for consideration in these appeals pertains to the
questions:-
(a) Whether the common order of the
Division Bench dated 19.07.2010 in having set aside
the order of the Special Judge in Special Case No.1 of
2009 discharging the appellants from the said case on
the ground that MCOCA was not applicable to the said
case and consequently the case was to be tried by the
Regular Court under Section 11 of MCOCA calls for
interference?
(b) If answer to question No. (a) is in the
negative, whether for the purpose of grant of bail
under Section 21(4)(b) of MCOCA, can it be held that
the application of the said Act is not made out against
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 29 of 97Page 30
the appellants and consequently the rejection of bail
by the trial Court and as confirmed by the learned
Single Judge of the Bombay High Court is justified?
36. Having thus ascertained the scope involved in these
appeals by virtue of the orders impugned herein, when we
consider the submissions of learned counsel for the appellants,
we find that the sum and substance of the submissions can be
summarized as under:
“That the definition of ‘continuing unlawful activity’,
‘organized crime’ or ‘organized crime syndicate’ as
defined under Section 2(1)(d)(e) and (f) of MCOCA was
not cumulatively satisfied in order to proceed with the
Special Case No.1 of 2009 for the alleged commission
of offence of organized crime under Section 3 of
MCOCA.”
37. In order to find an answer to the said question a detailed
reference to some of the provisions of MCOCA, its Objects and
Reasons and some other provisions of the Cr.P.C. are required to
be noted. The prime provisions which are relevant under MCOCA
are Sections 2(1) (d), (e) & (f), 3, 21 (4) (b), 23 (1) & (2) of
MCOCA. As far as the Cr.P.C. is concerned, reference will have to
be made to Sections 4, 173(2) & (8), 190, 191, 192, 193, 200,
201 and 209. In order to appreciate the said provisions the same
are extracted as under:
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 30 of 97Page 31
“The Maharashtra Control of Organized Crime
Act, 1999
Section 2 (1)(d) “Continuing unlawful activity”
means an activity prohibited by law for the time being
in force, which is a cognizable offence punishable with
imprisonment of three years or more, undertaken
either singly or jointly, as a member of an organized
crime syndicate or on behalf of such syndicate in
respect of which more than one charge-sheets have
been filed before a competent Court within the
preceding period of ten years and that Court has taken
cognizance of such offence;
(e) “organized crime” means any continuing unlawful
activity by an individual, singly or jointly, either as a
member of an organized crime syndicate or on behalf
of such syndicate, by use of violence or threat of
violence or intimidation or coercion, or other unlawful
means, with the objective of gaining pecuniary
benefits, or gaining undue economic or other
advantage for himself or any other person or
promoting insurgency;
(f) “Organised crime syndicate” means a group of two
or more persons who, acting either singly or
collectively, as a syndicate or gang indulge in
activities of organized crime;
3. Punishment for organized crime. – (1) Whoever
commits an offence of organized crime shall –
(i) if such offence has resulted in the death of
any person, be punishable with death or imprisonment
for life and shall also be liable to a fine, subject to a
minimum fine of rupees one lac;
(ii) in any other case, 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 a fine, subject to a
minimum fine of rupees five lacs.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 31 of 97Page 32
(2) Whoever conspires or attempts to commit or
advocates, abets or knowingly facilitates the
commission of an organized crime or any act
preparatory to organized crime, shall be punishable
with imprisonment for a term which shall be not less
than five years but which may extend to imprisonment
for life and shall also be liable to a fine, subject to a
minimum fine of rupees five lacs.
(3) Whoever harbours or conceals or attempts to
harbour or conceal, any member of an organized
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 a fine, subject to a
minimum fine of rupees five lacs.
(4) A person who is a member of an organized 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 a fine, subject to a minimum fine of rupees
five lacs.
(5) Whoever holds any property derived or obtained
from commission of an organized crime or which has
been acquired through the organized crime syndicate
funds shall be punishable with a term which shall not
be less than three years but which may extend to
imprisonment for life and shall also be liable to fine,
subject to a minimum fine of rupees two lacs.
21.(4)(b) Where the Public Prosecutor opposes the
application, the Court is satisfied that there are
reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit any
offence while on bail.
23. Cognizance of, and investigation into, an
offence.- (1) Notwithstanding anything contained in
the Code,-
(a) no information about the commission of an offence
of organized crime under this Act, shall be recorded by
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 32 of 97Page 33
a police officer without the prior approval of the police
officer not below the rank of the Deputy Inspector
General of Police;
(b) No investigation of an offence under the provisions
of this Act shall be carried out by a police officer below
the rank of the Deputy Superintendent of Police.
(2) No Special Court shall take cognizance of any
offence under this Act without the previous sanction of
the police officer not below the rank of Additional
Director General of Police.”
Code of Criminal Procedure, 1973
4. Trial of offences under the Indian Penal Code
and other laws.- (1) All offences under the Indian
Penal Code (45 of 1860) shall be investigated, inquired
into, tried, and otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to
any enactment for the time being in force regulating
the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.
173. Report of police officer on completion of
investigation:
(1) Xxx
(2) (i) As soon as it is completed, the officer in charge
of the police station shall forward to a Magistrate
empowered to take cognizance of the offence on a
police report, a report in the form prescribed by the
State Government, stating –
(a)the names of the parties;
(b)the nature of the information;
(c)the names of the persons who appear to be
acquainted with the circumstances of the
case;
(d)whether any offence appears to have been
committed and, if so, by whom;
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 33 of 97Page 34
(e)whether the accused has been arrested;
(f) whether he has been released on his bond
and, if so, whether with or without sureties;
(g)whether he has been forwarded in custody
under Section 170;
(h)whether the report of medical examination of
the woman has been attached where
investigation relates to an offence under
Section 376, 376A, 376B, 376C, Section 376D
or Section 376E of the Indian Penal Code (45
of 1860)
(ii) the officer shall also communicate, in such
manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any, by whom the information relating
to the commission of offence was first given.
(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an offence
after a report under sub-section (2) has been
forwarded to the Magistrate and, whereupon such
investigation, the officer in charge of the police station
obtains further evidence, oral or documentary, he
shall forward to the Magistrate a further report or
reports regarding such evidence in the form
prescribed; and the provisions of sub-section (2) to (6)
shall, as far as may be, apply in relation to such report
or reports as they apply in relation to a report
forwarded under sub-section (2).
190. Cognizance of offences by Magistrates.-(1)
Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which
constitute such offence,
(b) upon a police report of such facts, and
(c) upon information received from any person
other than a police officer, or upon his own
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 34 of 97Page 35
knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance
under sub-section (1) of such offences as are within
his competence to inquire into or try.
(a) upon receiving a complaint of facts which
constitutes such offence:
(b) upon a police report of such facts:
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
191. Transfer on application of the accused.-
When a Magistrate takes cognizance of an offence
under clause (c) of sub-section (1) of section 190, the
accused shall, before any evidence is taken, be
informed that he is entitled to have the case inquired
into or tried by another Magistrate, and if the accused
or any of the accused, if there be more than one,
objects to further proceedings before the Magistrate
taking cognizance, the case shall be transferred to
such other Magistrate as may be specified by the Chief
Judicial Magistrate in this behalf.
192. Making over of cases to Magistrates.-(1)
Any Chief Judicial Magistrate may, after taking
cognizance of an offence, make over the case for
inquiry or trial to any competent Magistrate
subordinate to him.
(2) Any Magistrate of the first class empowered in
this behalf by the Chief Judicial Magistrate may, after
taking cognizance of an offence, make over the case
for inquiry or trial to such other competent Magistrate
as the Chief Judicial Magistrate may, by general or
special order, specify, and thereupon such Magistrate
may hold the inquiry or trial.
193. Cognizance of offences by Courts of
Session.- Except as otherwise expressly provided by
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 35 of 97Page 36
this Code or by any other law for the time being in
force, no Court of Session shall take cognizance of any
offence as a Court of original jurisdiction unless the
case has been committed to it by a Magistrate under
this Code.
200. Examination of complainant.— A Magistrate
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that, when the complaint is made in
writing, the Magistrate need not examine the
complainant and the witnesses—
(a) if a public servant acting or purporting to act in
the discharge of his official duties or a court has
made the complaint; or
(b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over
the case to another Magistrate under section 192 after
examining the complainant and the witnesses, the
latter Magistrate need not re-examined them.
201. Procedure by Magistrate not competent to
take cognizance of the case.-(1) If the complaint is
made to a Magistrate who is not competent to take
cognizance of the offence, he shall.-
(a) if the complaint is in writing, return it for
presentation to the proper Court with an
endorsement to that effect;
(b) if the complaint is not in writing, direct the
complainant to the proper Court.
209. Commitment of case to Court of Session
when offence is triable exclusively by it.-
when in a case instituted on a police report or
otherwise, the accused appears or is brought
before the Magistrate and it appears to the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 36 of 97Page 37
Magistrate that the offence is triable exclusively
by the Court of Session, he shall-
(a) commit, after complying with the provisions
of Section 207 or Section 208, as the case may
be, the case to the Court of Sessions, and subject
to the provisions of this Code relating to bail,
remand the accused to custody until such
commitment has been made;
(b) subject to the provisions of this Code relating
to bail, remand the accused to custody, and until
the conclusion of, the trial;
(c) send to that Court the record of the case and
the documents and articles, if any, which are to
be produced in evidence;
(d) notify the Public Prosecutor of the
commitment of the case to the Court of Session.
38. In the first instance, it will be profitable to examine the
scheme of MCOCA by making a cursory glance to the Objects and
Reasons and thereafter to make an intensive reading of the
above referred to provisions. When we peruse the Objects and
Reasons, it discloses that organized crime has been posing very
serious threat to our society for quite some years and it was also
noted that organized crime syndicates had a common cause with
terrorist gangs. In the Objects and Reasons, the foremost
consideration was the serious threat to the society by those who
were indulging in organized crimes in the recent years apart from
organized crime criminals operating hand in glove with terrorist
gangs. It is common knowledge that for the terrorist gangs, the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 37 of 97Page 38
sole object is to create panic in the minds of peace loving
members of the society and in that process attempt to achieve
some hidden agenda which cannot be easily identified, but
certainly will not be in the general interest or well being of the
society. Those who prefer to act in such clandestine manner and
activities will formulate their own mind-set and ill-will towards
others and attempt to achieve their objectives by indulging in
unlawful hazardous criminal activities unmindful of the serious
consequences and in majority of such cases it results in severe
loss of life of innocent people apart from extensive damage to the
properties of public at large. It was further found that the
existing legal framework, that is the penal and procedural laws
and the adjudicatory system, were found to be inadequate to
curb or control the menace of ‘organized crime’. The Objects and
Reasons also states that such ‘organized crimes’ were filled by
illegal wealth generated by contract killing, extrusion, smuggling
in contraband, illegal trade in narcotics, kidnapping for ransom,
collection of protection money, money laundering etc. Keeping
the above serious repercussions referred to in the Objects and
Reasons, when we examine Section 2(1)(d)(e)&(f), which defines
‘continuing unlawful activity’, ‘organized crime’ or ‘organized
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 38 of 97Page 39
crime syndicate’, we find that the three definitions are closely
interlinked.
39. The definition of ‘continuing unlawful activity’ under
Section 2(1)(d) mainly refers to an activity prohibited by law. The
said activity should be a cognizable offence, punishable with
imprisonment of three years or more. The commission of such
offence should have been undertaken either by an individual
singly or by joining with others either as a member of an
‘organized crime syndicate’ or even if as an individual or by
joining hands with others even if not as a member of a ‘organized
crime syndicate’ such commission of an offence should have
been on behalf of such syndicate. It further states that in order to
come within the definition of ‘continuing unlawful activity’ there
should have been more than one charge-sheet filed before a
competent Court within the preceding period of 10 years and that
the said Court should have taken cognizance of such offence.
40. Before getting into the nuances of the said definition of
‘continuing unlawful activity’, it will be worthwhile to get a broad
idea of the definition of ‘organized crime’ under Section 2(1)(e)
and ‘organized crime syndicate’ under Section 2(1)(f). An
‘organized crime’ should be any ‘continuing unlawful activity’
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 39 of 97Page 40
either by an individual singly or jointly, either as a member of an
‘organized crime syndicate’ or on behalf of such syndicate. The
main ingredient of the said definition is that such ‘continuing
unlawful activity’ should have been indulged in by use of violence
or threat of violence or intimidation or coercion or other unlawful
means. Further such violence and other activity should have been
indulged in with an objective of gaining pecuniary benefits or
gaining undue economic or other advantage for himself or for any
other person or for promoting insurgency. Therefore, an
‘organized crime’ by nature of violent action indulged in by an
individual singly or jointly either as a member of an ‘organized
crime syndicate’ or on behalf of such syndicate should have been
either with an object for making pecuniary gains or undue
economic or other advantage or for promoting insurgency. If the
object was for making pecuniary gains it can be either for himself
or for any other person. But we notice for promoting insurgency,
there is no such requirement of any personal interest or the
interest of any other person or body. The mere indulgence in a
violent activity etc. either for pecuniary gain or other advantage
or for promoting insurgency as an individual, either singly or
jointly as a member of ‘organized crime syndicate’ or on behalf of
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 40 of 97Page 41
a such syndicate would be sufficient for bringing the said activity
within the four corners of the definition of ‘organized crime’.
41. An ‘organized crime syndicate’ is a group of two or more
persons who by acting singly or collectively as a syndicate or
gang indulge in activities of ‘organized crime’.
42. By conspectus reading of the above three definitions, if in
the preceding 10 years from the date of third continuing unlawful
activity if more than one charge-sheet has been filed before a
competent Court which had taken cognizance of such offence
which would result in imposition of a punishment of three years
or more, undertaken by a person individually or jointly either as a
member of an ‘organized crime syndicate’ or on its behalf, such
crime if falls within the definition of ‘organized crime’, the
invocation of MCOCA would be the resultant position.
43. Keeping the above broad prescription as the outcome of
the definition of Section 2(1)(d)(e)&(f) in mind, when we refer to
Section 3, we find that it is a penal provision under which, the
various punishments for the commission of ‘organized crime’
have been set out and such punishment can be up to life
imprisonment and even death, apart from fine subject to
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 41 of 97Page 42
minimum of Rupees one lakh to maximum of Rupees five lakhs.
The imprisonment ranges from five years to life imprisonment
and can also result in imposition of death penalty. Section 17
prescribes Special Rules of evidence notwithstanding anything
contrary contained in Cr.P.C. or the Indian Evidence Act for the
purposes of trial and punishment for offences under MCOCA.
Section 18 of the Act is again a non-obstante clause which states
that irrespective of any provision in the Code or in the Indian
Evidence Act, and subject to the provisions of said Section, a
confession made by a person before a police officer not below the
rank of Superintendent of Police and recorded by such police
officer either in writing or in any mechanical devices like
cassettes, tapes or sound tracks from which sounds or images
can be reproduced shall be admissible in the trial of such person
or co-accused abettor or conspirator provided they are charged
and tried in the same case together with the accused. Section 20
is yet another provision under MCOCA which prescribes that
where a person is convicted of any of the offence punishable
under MCOCA, the Special Court may in addition to awarding any
punishment, by order in writing declare that any property,
movable or immovable or both, belonging to the accused and
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 42 of 97Page 43
specified in the order shall stand forfeited to the State
Government free from all encumbrances etc. Under Section 21,
which again is a non-obstante clause, the provisions of the Act
notwithstanding anything contained in the Code or any other law
shall be deemed to be a cognizable offence within the meaning of
clause (c) of Section 2 of the Code and “cognizable case” as
defined in that clause should be constructed accordingly.
44. Under Section 21(4) notwithstanding anything contained
in the Code, no person accused of an offence punishable under
MCOCA, when he is in custody, should be released on bail on his
own bond unless under sub-clause (b) of sub-section (4) even
when the Public Prosecutor opposes the application for bail, the
Court is satisfied that there are reasonable grounds for believing
that the said accused is not guilty of such offence and that he is
not likely to commit any offence while on bail.
45. Under Section 22 there is a rebuttable presumption of
commission of organized crime punishable under Section 3 unless
the contrary is proved. Under Section 23 a safeguard is provided
to the effect that under Section 23(1)(a) no information about the
commission of an offence of organized crime under MCOCA
should be recorded by a police officer without the prior approval
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 43 of 97Page 44
of a police officer not below the rank of Deputy Inspector General
of Police. Further under Section 23(1)(b) no investigation of an
offence under MCOCA shall be carried out by a police officer
below the rank of Deputy Superintendent of Police. Under subSection
(2) of Section 23, no Special Court should take
cognizance of any offence under MCOCA without the previous
sanction of the police officer not below the rank of Additional
Director General of Police.
46. Reference to the above provisions thus discloses that the
Act is very stringent in its operation when it comes to the
question of dealing with an ‘organized crime’ committed by an
‘organized crime syndicate’ in respect of a ‘continuing unlawful
activity’. With the above salient features of the provisions of
MCOCA in mind, when we consider the various submissions of the
learned counsel, the main submissions of the learned counsel for
the appellants were five-fold.
47. The first submission was that the present appellants
were all alleged to have been involved in a bomb blast which
occurred on 29.09.2008 at a place called ‘Malegaon’. According
to the prosecuting agency, the appellants were either member of
an organization called ‘Abhinav Bharat’ which was registered in
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 44 of 97Page 45
the year 2007 or the commission of the offence was jointly with
the members of the said organization for and on its behalf. The
contention in the foremost was that in order to rope in the
appellants on the above footing, the requirement of Section 2(1)
(d), namely, ‘continuing unlawful activity’ must have been
satisfied. In order to demonstrate such compliance, it was
contended on behalf of the prosecuting agency that there were
two earlier occurrences of bomb blasts one in Parbhani on
21.11.2003 and another at Jalna on 27.08.2004, that on those
two earlier occurrences A-7, namely, Rakesh Dattaray Dhawade
was involved who is also a member of the present gang and
consequently the definition of ‘continuing unlawful activity’ is
satisfied.
48. The learned counsel for the appellants on the other hand
contended that A-7 was not a member of the so-called ‘Abhinav
Bharat’, that ‘Abhinav Bharat’ as an organization was not
indisputably involved in the two earlier occurrences in the year
2003 and 2004, therefore, when such clear demarcation existed
as between the appellants, the so-called members of Abhinav
Bharat and the earlier occurrences of 2003 and 2004, as well as,
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 45 of 97Page 46
the exclusion of A-7 as member of ‘Abhinav Bharat’ there was no
scope to invoke MCOCA.
49. We are, in the first instance, concerned with the
appellant’s challenge to the order of the Division Bench dated
19.07.2010 wherein the sole question considered pertains to the
application of MCOCA based on the definition of ‘continuing
unlawful activity’ under Section 2(1)(d) for the purpose of grant of
bail under Section 21(4)(b) of MCOCA. To recapitulate the
background of this litigation, it was the order of discharge passed
by the Special Judge in Special Case No.1 of 2009 dated
31.07.2009 on the footing that cognizance of two earlier cases
within preceding 10 years from the date of third occurrence
dated 29.09.2008 was not satisfied and based on the said
conclusion the Special Judge passed the order of discharge and
also simultaneously passed an order under Section 11 for the
transfer of the Special Case No.1 of 2009 to the Regular Court
which went before the Division Bench at the instance of the State
and the prosecuting agency. The Division Bench while dealing
with the said conclusion of the Special Court took a contrary view
holding that the Special Judge misdirected himself by stating that
the cognizance was with reference to the offender and not the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 46 of 97Page 47
offence which led to the passing of such an illegal order dated
31.07.2009. The Division Bench took the view that going by the
provisions contained in Section 2(1)(d) read along with Sections
190 and 173(3) of the Cr.P.C., as well as the settled principles in
the various decisions of this Court, the cognizance of offence was
taken as early as on 07.09.2006 in the Parbhani case and
30.09.2006 in the Jalna case, which were within the preceding 10
years from the date of the occurrence of Malegaon case, namely,
29.09.2008 and therefore, the order of discharge passed by the
Special Judge was not sustainable and valid in law.
50. Having recapitulated the background to the above extent
when we examine the contentions raised, it must be stated that
the conclusion of the Division Bench as regards the cognizance
aspect cannot be held to be totally erroneous when it struck
down the order of the Special Judge dated 31.07.2009. Keeping
aside for the present the various other submissions and
considering the opening submission of the counsel while assailing
the order of Division Bench wherein we confine to the question
relating to taking cognizance of the offence as set out apparently
in Section 2(1)(d) of MCOCA. In that perception, on the opening
submission of the learned counsel for the appellants we too have
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 47 of 97Page 48
no hesitation to hold that the cognizance of the offence as stated
to have been rightly taken into account in respect of Parbhani
and Jalna based on the charge-sheets dated 07.09.2006 and
30.09.2006 respectively was perfectly in order to apply the
definition of ‘continuing unlawful activity’ for the purpose of
invoking MCOCA with reference to Malegaon occurrence. We,
however, wish to examine in detail the justification for our above
conclusion when we deal with the other contentions where
submissions were made in extenso with particular reference to
the involvement of A-7 in the alleged occurrences of Parbhani
and Jalna, more particularly with reference to the date of
supplementary charge-sheet, arrest made and the arrest made
with reference to Malegaon occurrence and the alleged nexus as
between the appellants and A-7 in order to find out whether
application of MCOCA could still be held to be validly made by the
prosecuting agency. For the present by reaching our conclusion
as above on the first submission, we proceed to deal with the
next submission of learned counsel for the appellants.
51. The submission of the learned counsel for the appellants
was that under Section 2(1)(d), in order to construe a ‘continuing
unlawful activity’ two earlier charge-sheets in the preceding 10
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 48 of 97Page 49
years should exist and that such charge-sheets should have been
taken cognizance by the competent court within the said period
of 10 years and it must have been accomplished. It was also
contended that for ascertaining the said position, the date of the
third occurrence should be the relevant date for counting the
preceding 10 years. Insofar as that claim is concerned, it can be
straight away accepted that since Section 2(1)(d) uses the
expression ‘an activity’ in the very opening set of expressions,
which is prohibited by law, the date of such activity, namely, the
third one can be taken as the relevant date for the purpose of
finding out the two earlier charge-sheets in the preceding 10
years, in which event in the present case, the preceding 10 years
will have to be counted from 29.09.2008 which was the date
when the third occurrence of Malegaon bomb blast took place.
52. With reference to Malegaon bomb blast, A-7 is the key
person to be noted as it was with reference to his involvement in
the earlier two bomb blast cases, namely, Parbhani and Jalna the
whole case of the prosecution for invoking MCOCA was
developed. Even while examining the various other submissions,
we want to once again reiterate that our present endeavour is for
examining the correctness of the order of the Division Bench
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 49 of 97Page 50
which stems from the first order of the Special Judge dated
31.07.2009 by which the appellants were discharged and the
consequential order under Section 11 transferring the case to the
Regular Court. It must also be stated that our endeavour in this
respect is also for the purpose of finding an answer to the
prescription contained in Section 21(4)(b) of MCOCA.
53. Therefore, what all to be examined is whether
cognizance of the earlier two offences as mentioned in the
definition of Section 2(1)(d) was duly taken within the preceding
period of 10 years. Having stated in uncontroverted terms that
29.09.2008 is the relevant date, namely the date of third
occurrence (i.e.) Malegaon bomb blast, when we go back, the
question is whether in respect of the bomb blast in Parbhani on
21.11.2003 and similar bomb blast in Jalna on 27.08.2004 the
charge-sheets were filed and cognizance was taken by the
competent court within the said period of preceding 10 years.
There is no controversy as to the date of occurrence of the above
two bomb blasts. There is also no dispute that the very first
charge-sheet in Parbhani as against A-1 was filed on 07.09.2006
before the Chief Judicial Magistrate. Similarly, the filing of the first
charge-sheet on 30.09.2006 in Jalna case is also not in dispute.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 50 of 97Page 51
The contention put forward is that the supplementary chargesheet
in respect of A-7 in Parbhani case was filed only on
13.11.2008 and on 15.11.2008 in Jalna case and if those two
dates with regard to A-7 are taken as the relevant dates, then the
requirement of two earlier cases as stipulated under Section 2(1)
(d) preceding 10 years period was not satisfied, inasmuch as, the
date of third occurrence was 29.09.2008 and the date of chargesheets
as against the A-7 were subsequent to that date and not
earlier. The said crucial factor is required to be determined to
decide the contention raised on behalf of the appellants. In this
context reliance was placed upon the decisions in Ajit Kumar
Palit (supra) and Dilawar Singh (supra) on behalf of the
appellants. That apart, reference was also made to Section
173(2)(i)(a) and 173(8) to contend that cognizance referred to in
context of MCOCA would only relate to the offender and not to
the offence as prescribed under Section 190(1)(b).
54. As against the above submissions Mr. Anil Singh, learned
ASG appearing for respondent-State and Mr. Mariarputham,
learned Senior Counsel appearing for the State of Maharashtra
and NIA contended that the relevant dates are the first chargesheet
filed in Parbhani case on 07.09.2006 and in Jalna case on
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 51 of 97Page 52
30.09.2006. Reliance was placed upon the decisions in R.R.
Chari (supra), Raghbans Dubey (supra), Darshan Singh
Ram Kishan (supra), Salap Service Station (supra), CREF
Finance Limited (supra), Pastor P. Raju (supra), Videocon
International Ltd. (supra) and Fakhruddin Ahmad (supra)
in support of the submission. Reliance was also placed upon
Section 190 Cr.P.C. to contend that cognizance of offence is
relevant and not the offender and, therefore, the initial date of
cognizance taken by the Chief Judicial Magistrate on the above
dates in respect of Parbhani and Jalna will hold good for invoking
MCOCA.
55. It was also contended that cognizance is an act which a
Court when first apply its judicial mind with a view to proceed
with the matter and, therefore, when in Parbhani and Jalna by
virtue of Section 190 read along with Section 173 based on the
report of the police when the first charge-sheet was filed on
07.09.2006 and 30.09.2006 respectively in Parbhani and Jalna,
the requirement of taking cognizance by the Competent Court in
respect of offences under the Indian Penal Code which alone was
relevant in respect of the two earlier cases was satisfied and
nothing more was required to be shown. Further reliance was
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 52 of 97Page 53
placed upon R.R. Chari (supra), Darshan Singh Ram Kishan
(supra), Mohd. Khalid (supra), Mona Panwar (supra) and
Sarah Mathew (supra) in support of the above submissions.
56. Keeping the respective submissions of the learned
counsel in mind when we examine the said issue, in the first
instance we wish to refer to relevant provisions touching upon
this issue, namely, Section 2(1)(d) of MCOCA and Section 173(2)
and (8) as well as Sections 190 and 193 of Criminal Procedure
Code. When we refer to Section 2(1)(d) of MCOCA the definition
of ‘continuing unlawful activity’ is defined to mean an activity
prohibited by law and that it should be a cognizable offence
punishable with imprisonment of three years or more. For the
purpose of ascertaining the issue relating to cognizance, the
other part of the said definition which requires to be noted is that
more than one charge-sheet should have been filed before a
Competent Court within the preceding period of 10 years and
that Court should have taken cognizance of such offence. The
offence should alleged to have been committed either singly or
jointly as a member of an organized crime syndicate or on its
behalf. In so far as the offences are concerned, if the offence
would attract a punishment of three years or more that would
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 53 of 97Page 54
suffice for falling within the said definition. The charge-sheet
should have been filed before a Competent Court with reference
to such offence against the offenders.
57. One of the contentions raised and which was countered
by the respondents was that such two earlier offences should also
satisfy the other requirements stipulated under MCOCA, namely,
as a member of an organized crime syndicate or on behalf of an
organized crime syndicate either singly or jointly. A strict
interpretation of Section 2(1)(d) would definitely mean the
fulfillment of such requirement since the definition specifically
reads to the effect ‘undertaken either singly or jointly as a
member of an organized crime syndicate or on behalf of such
syndicate’. Therefore, even if the earlier offences were not
initiated under the provisions of MCOCA such initiations should
have been capable of being brought within the provisions of
MCOCA, namely, as part of an activity of an organized crime
syndicate either by its own members either singly or jointly or
though not as a member but such participation should have been
on behalf of an ‘organized crime syndicate’. As far as filing of the
charge-sheet is concerned what all it refers to is such filing before
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 54 of 97Page 55
a Competent Court and that Court should have taken cognizance
of such offence.
58. A minute reference to the said Section, therefore, shows
that in the event of the fulfillment of the rest of the requirements,
namely, the nature of offence providing for punishment of three
years and more, the involvement of the offender as required
under the said definition, when it comes to the question of filing
of the charge-sheet, the requirement of such filing should be
before a competent court within a period preceding 10 years and
that such court has taken cognizance of such offence.
Significantly, when it comes to the question of fulfillment of the
requirement of cognizance what is prescribed is the cognizance
of such offence and not the offender. As far as the court is
concerned, here again the specific reference used is ‘competent
court’ and not ‘Sessions Court’. Therefore, keeping aside the rest
of the requirements to be fulfilled under Section 2(1)(d) for the
present, when we consider the requirement of filing of the
charge-sheet before the Competent Court and such Court taking
cognizance of such offence, it can be stated without any scope of
controversy that two earlier cases which would attract a
punishment of more than three years and prohibited by law,
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 55 of 97Page 56
undertaken singly or jointly as a member of an organized crime
syndicate or on its behalf, if more than one charge-sheet is filed
in respect of such offence before the Competent Court and the
said Court had taken cognizance of such offence, the definition of
“continuing unlawful activity” would be satisfied.
59. Keeping the said prescription of the definition of
“continuing unlawful activity” under Section 2(1)(d) in mind when
we examine the question as to taking of cognizance and the
Competent Court before whom more than one charge-sheet to be
filed, there is no other provision under MCOCA which deals with
or prescribes any stipulation for fulfillment of the said
requirement. We have to, therefore, necessarily fall back upon
the provisions contained in the Criminal Procedure Code. For that
purpose reference to Sections 173, 190 and 193 have to be
noted. Under Section 173(2)(i), it is stipulated that as soon as the
investigation is completed, the officer in-charge of the Police
Station should forward to the Magistrate who is empowered to
take cognizance of the offence on a police report in the form
prescribed by the State Government, which should contain
among other things the names of the parties, the nature of
information, the names of the persons who appear to be
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 56 of 97Page 57
acquainted with the circumstances of the case and various other
details.
60. When we read the said Section 173(2)(i) along with
Section 190 of Cr.P.C., it can be seen that any Magistrate of the
first class or any Magistrate of the second class specially
empowered as provided under sub-section (2) of the said Section
may take cognizance of any offence upon a police report of such
facts. Therefore, reading Section 173(2)(i) along with Section
190(1)(b), a duty is cast upon the officer in-charge of the police
station mandatorily to forward to the Magistrate who is
empowered to take cognizance of the offence on a police report.
Under Section 190(1)(b) any Magistrate of the first class and for
that matter any Magistrate of second class who is empowered by
the Chief Judicial Magistrate for taking cognizance under subSection
(1) can take cognizance of any offence based on filing of
a police report furnished with the facts as stipulated under
Section 173(2)(i) (a to h). A conjoint reading of Section 173(2)(i)
and Section 190(1)(b), therefore, makes the position crystal clear
that taking of cognizance of any offence by a Magistrate of the
First Class or the Second Class subject to empowerment created
under sub-Section (2) of Section 190 can take cognizance upon a
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 57 of 97Page 58
police report. It can be emphasized here that under Section 190
(1) (b) where the Police Report as stated in Section 173(2) (i) is
filed before a Magistrate under Section 190(1) (b), irrespective of
the nature of offence, the said Magistrate has been invested with
all the powers to take cognizance by applying his judicial mind.
To be more precise, once the Police Report is filed before a
judicial Magistrate as prescribed under Section 190(1) (b), who
has been invested with the judicial authority to take cognizance
of any offence in the first instance, the requirement of taking
cognizance gets fulfilled at that very moment. Further the very
fact that proceedings pertaining to Parbhani and Jalna were
pending before the Magistrate where such proceedings were
initiated by the filing of the police report till the occurrence in
Malegaon took place itself was sufficient to demonstrate that
judicial mind was very much applied to the proceedings based on
the police report consequent upon cognizance taken.
61. Keeping the said prescription of law in mind, when we
apply the requirement as stipulated under Section 2(1)(d) of
MCOCA, without straining any further on this question, it can be
safely held that the requirement of filing of the charge-sheet in
two earlier cases before the competent court in respect of an
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 58 of 97Page 59
offence stipulated under Section 2(1)(d) can be held to be
satisfied once cognizance is taken by a Judicial Magistrate of first
class or for that matter an empowered second class Magistrate,
in the event of filing of a police report as prescribed under
Section 173(2)(i) by virtue of the power vested under Section
190(1)(b) of Cr.P.C. If the ingredients of the above requirements
are fulfilled it will have to be held, that that part of the
requirement under Section 2(1)(d), namely, the competent court
taking cognizance of the offence as stipulated under Section 2(1)
(d) in respect of two earlier cases will get fulfilled.
62. Once we steer clear of the said legal position, to
emphasize further, we also wish to refer to Section 193 Cr.P.C.
the caption of which specifically states “Cognizance of offences
by Courts of Session”. The said Section is negatively couched and
states that except as otherwise expressly provided by this Code
or by any other law for the time being in force, no Court of
Session shall take cognizance of any offence as a Court of
Original Jurisdiction unless the case has been committed to it by
a Magistrate under this Code. For our purpose of ascertaining the
requirement of competent court and cognizance stipulated under
Section 2(1)(d) of MCOCA, we find that under Section 193, the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 59 of 97Page 60
Court of Session can take hold of the case as a Court of Original
Jurisdiction only after committal order is passed to it by a
Magistrate under the provisions of Cr.P.C., whereas under Section
190(1)(b), the power of a Magistrate has been pithily stated to
mean that he can take cognizance of any offence subject to the
fulfillment of the requirements (a), (b) and (c) and no further.
63. We are now pitted with the question as to whether the
taking of cognizance of the offence by the Competent Court
under Section 2(1)(d) of MCOCA is referable only to the Court of
Sessions or even to a Magistrate of first class under Section 190.
In this context, when we read Section 2(1)(d) along with 190 and
193 in the absence of any specific stipulation either under
Section 2(1)(d) of MCOCA or any other provision under the said
Act in the ordinary course of interpretation it can be validly stated
that on fulfillment of Section 190, when a Judicial Magistrate of
first class or an empowered second class Magistrate, takes
cognizance of any offence that would fulfill the requirement of
Section 2(1)(d) relating to competent court. We have noted under
MCOCA that beyond what has been stipulated under Section 2(1)
(d) there is no other provision dealing with the matter relating to
a Competent Court for the purpose of taking cognizance. When
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 60 of 97Page 61
under the provisions of Cr.P.C., Judicial Magistrate of first class
has been empowered to take cognizance of any offence based on
a Police Report, we fail to see any hurdle to state that on taking
cognizance in that manner, the said court should be held to be
the competent court for satisfying the requirement of Section
2(1)(d) of MCOCA. In this respect, we will have to bear in mind
that the implication of MCOCA would come into play only after
the third occurrence takes place and only after that it will have to
be seen whether on the earlier two such occasions involvement
of someone jointly or singly, either as a member of an ‘organized
crime syndicate’ or on its behalf indulged in a crime in respect of
which a charge-sheet has already been filed before the
Competent Court which Court had taken cognizance of such
offence.
64. Therefore, we are able to state the legal position without
any ambiguity to the effect that in the event of a Judicial first
class Magistrate or an empowered second class Magistrate
having taken cognizance of an offence based on a police report
as stipulated under Section 173(2)(i), such cognizance of an
offence would fulfill the requirement of that part of the definition
under Section 2(1)(d) of MCOCA. Once we are able to ascertain
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 61 of 97Page 62
the said legal position by way of strict interpretation, without any
ambiguity, we also wish to refer to various decisions relied upon
by either party to note whether there is any scope of
contradiction with reference to said legal position.
65. Mr. Lalit, learned counsel in the course of his
submissions relied upon Ajit Kumar Palit v. State of West
Bengal and another – AIR 1963 SC 765. In the said decision
with reference to the expression ‘cognizance’ a three-Judge
Bench of this Court has explained what is really meant by the
said expression in the following words in paragraph 19:
“……The word “cognizance” has no esoteric or mystic
significance in criminal law or procedure. It merely
means-become aware of and when used with
reference to a court or Judge, to take notice of
judicially. It was stated in Gopal Marwari v. Emperor,
AIR 1943 PAT 245 (SB) by the learned Judges of the
Patna High Court in a passage quoted with approval
by this Court in R.R. Chari v. State of Uttar Pradesh,
1951 SCR 312 at page 320: (AIR 1951 SC 207 at page
210) that the word “cognizance” was used in the Code
to indicate the point when the Magistrate or Judge
takes judicial notice of an offence and that it was a
word of indefinite import, and is not perhaps always
used in exactly the same sense. As observed in
Emperor v. Sourindra Mohan Chuekorbutty, ILR 37 CAL
412 at page 416, “taking cognizance does not involve
any formal action; or indeed action of any kind, but
occurs as soon as a Magistrate, as such, applies his
mind to the suspected commission of an offence”.
Where the statute proscribes the materials on which
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 62 of 97Page 63
alone the judicial mind shall operate before any step is
taken, obviously the statutory requirement must be
fulfilled……”
(Emphasis added)
66. In the above extracted portion the reference made to the
earlier judgment in R.R. Chari’s case reported in R.R. Chari
(supra) at page 210 that the word ‘cognizance’ was used in the
Court to indicate the point when the Magistrate or Judge takes
judicial notice of an offence throws sufficient light to state that at
that very moment when a Magistrate takes judicial notice of an
offence, the requirement of cognizance of such offence will get
fulfilled. Therefore, the said decision also fully supports our
conclusion on the question of taking cognizance by the
competent Court.
67. Reliance was then placed upon the decision in Dilawar
Singh (supra) in particular paragraph 8. The said paragraph 8
reads as under:
“8. The contention raised by learned counsel for the
respondent that a court takes cognizance of an
offence and not of an offender holds good when a
Magistrate takes cognizance of an offence under
Section 190 CrPC. The observations made by this
Court in Raghubans Dubey v. State of Bihar were also
made in that context. The Prevention of Corruption Act
is a special statute and as the preamble shows, this
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 63 of 97Page 64
Act has been enacted to consolidate and amend the
law relating to the prevention of corruption and for
matters connected therewith. Here, the principle
 expressed in the maxim generalia specialibus non
 derogant would apply which means that if a special
provision has been made on a certain matter, that
matter is excluded from the general provisions. (See
Godde Venkateswara Rao v. Govt. of A.P., State of
Bihar v. Dr. Yogendra Singh and Maharashtra State
Board of Secondary and Higher Secondary Education
v. Paritosh Bhupeshkumar Sheth.) Therefore, the
provisions of Section 19 of the Act will have an
overriding effect over the general provisions contained
in Section 190 or 319 CrPC. A Special Judge while
trying an offence under the Prevention of Corruption
Act, 1988, cannot summon another person and
proceed against him in the purported exercise of
power under Section 319 CrPC if no sanction has been
granted by the appropriate authority for prosecution of
such a person as the existence of a sanction is sine
qua non for taking cognizance of the offence qua that
person.”
(Emphasis added)
68. By relying upon the said part of the decision it was
contended that taking ‘cognizance of an offence’ cannot be the
universal rule and that under special circumstances such
cognizance of offence would be qua that person, namely, the
offender. It is true that in the said decision while dealing with the
requirement of sanction under Section 19 of the Prevention of
Corruption Act with reference to an offence under Section 13(2)
of the said Act, this Court did say that in the absence of a
sanction under Section 19 the taking of cognizance of the offence
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 64 of 97Page 65
qua that person cannot be held to have been made out. When we
apply the said decision, it must be stated that it was laid in the
context of an offence under Section 13(2) of the Prevention of
Corruption Act which Act specifically stipulates the requirement
of prior sanction under Section 19 for proceeding against a public
servant by way of a sanction and, therefore, it was held that
Section 19 of the Act will have an overriding effect over the
general provisions contained in Section 190 or 319 of Cr.P.C. For
the fulfillment of the requirement to be complied with under
Section 2(1)(d) of MCOCA, for ascertaining a ‘continuing unlawful
activity’ in the absence of any such restriction as stipulated under
Section 19 of the Prevention of Corruption Act under the
provisions of MCOCA we have found that Section 190 will have
every effect insofar as taking of cognizance by a competent Court
is concerned as stipulated under Section 2(1)(d) and, therefore,
as held by us on compliance of the said requirement under
Section 190, namely, cognizance of the offence by the competent
Magistrate, that part of the requirement under Section 2(1)(d) will
get automatically fulfilled.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 65 of 97Page 66
69. Reliance was then placed upon the decision in
Fakhruddin Ahmad (supra), in particular paragraph 17. The
said paragraph 17 reads as under:
“17. Nevertheless, it is well settled that before a
Magistrate can be said to have taken cognizance of an
offence, it is imperative that he must have taken
notice of the accusations and applied his mind to the
allegations made in the complaint or in the police
report or the information received from a source other
than a police report, as the case may be, and the
material filed therewith. It needs little emphasis that it
 is only when the Magistrate applies his mind and is
satisfied that the allegations, if proved, would
constitute an offence and decides to initiate
proceedings against the alleged offender, that it can
be positively stated that he has taken cognizance of
the offence. Cognizance is in regard to the offence and
not the offender.”
(emphasis added)
70. Even here this Court has stated in uncontroverted terms
that once the Magistrate applies his mind to the offence alleged
and decides to initiate proceedings against the alleged offender,
it can be stated that he has taken cognizance of the offence and
by way of reiteration. It is further stated that cognizance is in
regard to the offence and not the offender. This decision,
therefore, reinforces the position that cognizance is mainly of the
offence and not the offender.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 66 of 97Page 67
71. In R.R. Chari (supra), in paragraph 8, this Court made it
clear that the word ‘cognizance’ is used by the Court to indicate
the point when the Magistrate or a Judge first takes judicial notice
of an offence. Therefore, primarily cognizance of an offence takes
place when a Judicial Magistrate applies his mind and takes
judicial notice of the offence. In fact that is what has been even
statutorily stipulated under Section 190(1) of Cr.P.C.
72. In Darshan Singh Ram Kishan (supra), in paragraph
8, with particular reference to Section 190, this Court has held as
under:
“8. As provided by Section 190 of the Code of Criminal
Procedure, a Magistrate may take cognizance of an
offence either, (a) upon receiving a complaint, or (b)
upon a police report, or (c) upon information received
from a person other than a police officer or even upon
his own information or suspicion that such an offence
has been committed. As has often been held, taking
cognizance does not involve any formal action or
indeed action of any kind but occurs as soon as a
Magistrate applies his mind to the suspected
commission of an offence. Cognizance, therefore,
takes place at a point when a Magistrate first takes
judicial notice of an offence. This is the position
whether the Magistrate takes cognizance of an offence
on a complaint, or on a police report, or upon
information of a person other than a police officer.
Therefore, when a Magistrate takes cognizance of an
offence upon a police report, prima facie he does so of
the offence or offences disclosed in such report.”
(emphasis added)
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 67 of 97Page 68
73. The above passage referred to in the said decision makes
the position explicitly clear that cognizance would take place at a
point when a Magistrate first takes judicial notice of the offence
either on a complaint or on a police report or upon information of
a person other than the police officer. Taking judicial notice is
nothing but pursuing the report of the police officer, proceeding
further on that report by opening the file and thereafter taking
further steps to ensure the presence of the accused and all other
consequential steps including at a later stage depending upon
the nature of offence alleged to pass necessary order of
committal to Court of Sessions.
74. In Salap Service Station (supra), the question as to
what is the implication of a supplementary report filed by the
investigating agency under Section 173(8) Cr.P.C. was
considered. While dealing with the same, it has been stated as
under in paragraph 2:
2.….It may be mentioned here that in the
supplementary charge-sheet allegations are to the
effect that there was violation of Direction 12 of the
Control Order. The question of taking cognizance does
not arise at this stage since cognizance has already
been taken on the basis of the main charge-sheet. What
all Section 173(8) lays down is that the investigating
agency can carry on further investigation in respect of
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 68 of 97Page 69
the offence after a report under sub-section (2) has
been filed. The further investigation may also disclose
some fresh offences but connected with the transaction
which is the subject-matter of the earlier
report…………..The purpose of sub-section (8) of Section
173 CrPC is to enable the investigating agency to
gather further evidence and that cannot be frustrated. If
the materials incorporated in the supplementary
charge-sheet do not make out any offence, the question
of framing any other charge on the basis of that may
not arise but in case the court frames a charge it is
open to the accused persons to seek discharge in
respect of that offence also as they have done already
in respect of the offence disclosed in the main chargesheet.
The rejection of the report outright at that stage
in our view is not correct.”
(emphasis added)
75. The above statement of law with particular reference to
Section 173(8) Cr.P.C. makes the position much more clear to the
effect that the filing of the supplementary charge-sheet does not
and will not amount to taking cognizance by the Court afresh
against whomsoever again with reference to the very same
offence. What all it states is that by virtue of the supplementary
charge-sheet further offence may also be alleged and charge to
that effect may be filed. In fact, going by Section 173(8) it can be
stated like in our case by way of supplementary charge-sheet
some more accused may also be added to the offence with
reference to which cognizance is already taken by the Judicial
Magistrate. While cognizance is already taken of the main offence
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 69 of 97Page 70
against the accused already arrayed, the supplementary chargesheet
may provide scope for taking cognizance of additional
charges or against more accused with reference to the offence
already taken cognizance of and the only scope would be for the
added offender to seek for discharge after the filing of the
supplementary charge-sheet against the said offender.
76. In CREF Finance Limited (supra) paragraph 10 is
relevant wherein this Court has held as under:
10……Cognizance is taken of the offence and not of
the offender and, therefore, once the court on perusal
of the complaint is satisfied that the complaint
discloses the commission of an offence and there is no
reason to reject the complaint at that stage, and
proceeds further in the matter, it must be held to have
taken cognizance of the offence. One should not
confuse taking of cognizance with issuance of process.
Cognizance is taken at the initial stage when the
Magistrate peruses the complaint with a view to
ascertain whether the commission of any offence is
disclosed……”
(emphasis added)
77. The said statement of law reinforces the legal position
that cognizance is always of the offence and not the offender and
once the Magistrate applies his judicial mind with reference to the
commission of an offence the cognizance is taken at that very
moment.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 70 of 97Page 71
78. To the very same effect is the judgment in Pastor P.
Raju (supra). Paragraph 13 is relevant for our purpose, which
reads as under:
“13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as
issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind to
the facts mentioned in a complaint or to a police
report or upon information received from any other
person that an offence has been committed. The
issuance of process is at a subsequent stage when
after considering the material placed before it the
court decides to proceed against the offenders against
whom a prima facie case is made out.”
(emphasis added)
79. The above principle has been reiterated again in
Videocon International Ltd. (supra) in paragraph 19.
Paragraph 19 can be usefully extracted, which reads as under:
“19. The expression “cognizance” has not been
defined in the Code. But the word (cognizance) is of
indefinite import. It has no esoteric or mystic
significance in criminal law. It merely means “become
aware of” and when used with reference to a court or
a Judge, it connotes “to take notice of judicially”. It
indicates the point when a court or a Magistrate takes
judicial notice of an offence with a view to initiating
proceedings in respect of such offence said to have
been committed by someone.”
(emphasis added)
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 71 of 97Page 72
80. In Mona Panwar (supra) at paragraph 19 what is
meant by ‘taking cognizance’ has been explained as under:
“19. The phrase “taking cognizance of” means
cognizance of an offence and not of the offender.
Taking cognizance does not involve any formal action
or indeed action of any kind but occurs as soon as a
Magistrate applies his mind to the suspected
commission of an offence. Cognizance, therefore,
takes place at a point when a Magistrate first takes
judicial notice of an offence. This is the position
whether the Magistrate takes cognizance of an offence
on a complaint or on a police report or upon
information of a person other than a police officer.
Before the Magistrate can be said to have taken
cognizance of an offence under Section 190(1)(b) of
the Code, he must have not only applied his mind to
the contents of the complaint presented before him,
but must have done so for the purpose of proceeding
under Section 200 and the provisions following that
section. However, when the Magistrate had applied his
mind only for ordering an investigation under Section
156(3) of the Code or issued a warrant for the
purposes of investigation, he cannot be said to have
taken cognizance of an offence.”
(emphasis added)
81. The above statement of law makes the position amply
clear that cognizance is of an offence and not of the offender,
that it does not involve any formal action and as soon as the
Magistrate applies his judicial mind to the suspected commission
of offence, cognizance takes place.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 72 of 97Page 73
82. Again in a recent decision of this Court in Sarah
Mathew (supra) in paragraph 34, the position has been
reiterated as under:
“34. Thus, a Magistrate takes cognizance when he
applies his mind or takes judicial notice of an offence
with a view to initiating proceedings in respect of
offence which is said to have been committed. This is
the special connotation acquired by the term
“cognizance” and it has to be given the same meaning
wherever it appears in Chapter XXXVI. It bears
repetition to state that taking cognizance is entirely an
act of the Magistrate. Taking cognizance may be
delayed because of several reasons. It may be delayed
because of systemic reasons. It may be delayed
because of the Magistrate’s personal reasons.”
83. Therefore, having regard to the overwhelming decisions
of this Court in having repeatedly expressed what is meant by
cognizance and in majority of the decisions by making specific
reference to Section 190, we are clear that the interpretation has
to be to the cognizance of the offence to be taken note of by the
Judicial Magistrate as prescribed under Section 190 and if it
takes place that would satisfy and fulfill the requirement of
cognizance of offence by the filing of more than one charge-sheet
before the Competent Court as stipulated in Section 2(1)(d) of
MCOCA.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 73 of 97Page 74
84. Having considered the scope of the definition of
“continuing unlawful activity” as defined under Section 2(1)(d)
with reference to the competent court and the cognizance of
more than one earlier case, when we apply the said principles to
the facts of this case, as noted in the initial part of this judgment,
the two earlier cases were the bomb blast in Parbhani and Jalna.
In Parbhani, the occurrence was on 21.11.2003 and in Jalna it was
on 27.08.2004. In the Parbhani case, the first charge-sheet was
filed as early as on 07.09.2006 before the Chief Judicial
Magistrate and in Jalna it was filed on 30.09.2006 before the
concerned Chief Judicial Magistrate and in both the cases,
cognizance was taken and the proceedings before the respective
Magistrates concerned were continued. Therefore, having regard
to our conclusion that the cognizance taken by the Judicial
Magistrate under Section 190(1) of Cr.P.C. based on the police
report under Section 173(2)(i) of Cr.P.C. the same would fulfill the
requirement of ‘cognizance’ as well as, the ‘competent court’. It
will have to be, therefore, held that to that extent, the definition
under Section 2(1)(d) relating to “continuing unlawful activity” in
respect of more than one case of an offence punishable for more
than three years is fully satisfied. Once we come to the said
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 74 of 97Page 75
conclusion, we do not find any substance in the third submission
of the appellants that cognizance by competent court would only
mean cognizance of such offences which can be dealt with only
by the Sessions Court and not by a Judicial Magistrate. Therefore,
the said submission that the cognizance was taken by Sessions
Court much later after its committal (i.e.) in the case of Parbhani
only on 29.04.2009 that is after the bomb blast in Malegaon and
thereby the definition of ‘continuing unlawful activity’ in respect
of more than one case under Section 2(1)(d) is not satisfied
cannot be accepted. The said submission, therefore, deserves to
be rejected.
85. The next submission made on behalf of the appellants
was that in order to constitute the earlier two offences to fall
within the definition of ‘continuing unlawful activity’ for invoking
the provisions of MCOCA after the third occurrence, the
involvement of the accused must have been by the same gang.
In other words, even if it were to be held that a member of an
‘organized crime syndicate’ singly or jointly participated or on
behalf of an ‘organized crime syndicate’ with reference to such
participation taken place, what is to be ensured is that in all the
three cases the same gang, namely, the ‘organized crime
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 75 of 97Page 76
syndicate’ must have been involved. Based on the said
contention it was submitted that in the case on hand after A-7
was arrested on 02.11.2008 he was produced in Parbhani case on
11.11.2008 and supplementary charge-sheet was filed against
him on 13.11.2008 and in Jalna case a supplementary chargesheet
was filed on 15.11.2008 while none of the other accused
had any role to play either in Parbhani or in Jalna, nor was the socalled
‘Abhinav Bharat’ was involved in either Parbhani or Jalna
occurrences. The contention was that though A-7 was implicated
both in Parbhani and Jalna such implication was not in pursuance
of his role as a member of an ‘organized crime syndicate’
pertaining to Malegaon bomb blast nor was the position that the
gang involved in Malegaon blast was also responsible for the
bomb blast in Parbhani and Jalna. It is, therefore, contended that
even as regards to A-7 he only alleged to have gathered certain
materials and procured at the request of one Devle who was the
prime accused in Parbhani and Jalna. It was contended that even
as per the counter affidavit of the second respondent herein
there was no nexus shown for the involvement of any of the
accused in the Malegaon bomb blast case to do anything with
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 76 of 97Page 77
Parbhani or Jalna bomb blast either individually or jointly as a
member of gang or on behalf of the gang.
86. In this context, reliance was placed upon the decision in
Lalit Somdatta Nagpal & Anr. (supra). A similar contention
was raised before this Court in that case to the effect that
isolated incidents spread over a period of 10 years involving
different types of offences would not attract the provisions of
MCOCA and that such activity must be such as to have a link
from the first to the last offence alleged to have been undertaken
in an organized manner by an organized crime syndicate. The
contention was that continuing unlawful activity would
necessarily mean continuous engagement in unlawful activity
where there would be a live link between all the different
offences alleged. The said contention was refuted on behalf of
the State in the said case by contending that no live link need
exist between the different cases for the application of MCOCA
and that such nexus theory was not contemplated by the
legislature. While dealing with the said contention, this Court in
the facts of that case held as under in paragraph 63:
“63. As has been repeatedly emphasised on behalf of
all the parties, the offence under MCOCA must
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 77 of 97Page 78
comprise continuing unlawful activity relating to
organised crime undertaken by an individual singly or
jointly, either as a member of the organised crime
syndicate or on behalf of such syndicate by use of
coercive or other unlawful means with the objective of
gaining pecuniary benefits or gaining undue economic
or other advantage for himself or for any other person
or for promoting insurgency. In the instant case, both
Lalit Somdatta Nagpal and Anil Somdatta Nagpal have
been shown to have been involved in several cases of
a similar nature which are pending trial or are under
investigation. As far as Kapil Nagpal is concerned, his
involvement has been shown only in respect of CR No.
25 of 2003 of Rasayani Police Station, Raigad, under
Sections 468, 420 and 34 of the Penal Code and
Sections 3, 7, 9 and 10 of the Essential Commodities
Act. In our view, the facts as disclosed justified the
application of the provisions of MCOCA to Lalit Nagpal
and Anil Nagpal. However, the said ingredients are not
available as far as Kapil Nagpal is concerned, since he
has not been shown to be involved in any continuing
unlawful activity. Furthermore, in the approval that
was given by the Special Inspector General of Police,
Kolhapur Range, granting approval to the Deputy
Commissioner of Police (Enforcement), Crime Branch,
CID, Mumbai to commence investigation under Section
23(1) of MCOCA, Kapil Nagpal has not been
mentioned. It is only at a later stage with the
registering of CR No. 25 of 2003 of Rasayani Police
Station, Raigad, that Kapil Nagpal was roped in with
Lalit Nagpal and Somdatta Nagpal and permission was
granted to apply the provisions of MCOCA to him as
well by order dated 22-8-2005.”
(underlining is ours)
87. When we refer to the said line of reasoning stated
therein, we find that in the case of one accused, namely, one
Kapil Nagpal, since he was not shown to be involved in any of the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 78 of 97Page 79
earlier cases, his case required to be dealt with differently and he
cannot be said to have been involved in any continuing unlawful
activity. We do not find any other specific reason for excluding
him.
88. In this context a three Judge Bench decision of this Court,
which throws much light on this issue is Ranjitsing
Brahamjeetsing Sharma (supra). Paragraphs 31, 36 and 37
are relevant for our purpose which read as under.
“31. The High Court does not say that the appellant
has abetted Telgi or had conspired with him. The
findings of the High Court as against the appellant are
attributable to allegations of abetting Kamat and
Mulani. Both Kamat and Mulani were public servants.
They may or may not have any direct role to play as
regards commission of an organised crime but unless
a nexus with an accused who is a member of the
organised crime syndicate or an offence in the nature
of organised crime is established, only by showing
some alleged indulgence to Kamat or Mulani, the
appellant cannot be said to have conspired or abetted
commission of an organised crime. Prima facie,
therefore, we are of the view that Section 3(2) of
MCOCA is not attracted in the instant case.
36. Does this statute require that before a person is
released on bail, the court, albeit prima facie, must
come to the conclusion that he is not guilty of such
offence? Is it necessary for the court to record such a
finding? Would there be any machinery available to
the court to ascertain that once the accused is
enlarged on bail, he would not commit any offence
whatsoever?
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 79 of 97Page 80
37. Such findings are required to be recorded only for
the purpose of arriving at an objective finding on the
basis of materials on record only for grant of bail and
for no other purpose.”
(emphasis added)
89. A reading of paragraph 31 shows that in order to invoke
MCOCA even if a person may or may not have any direct role to
play as regards the commission of an organized crime, if a nexus
either with an accused who is a member of an ‘organized crime
syndicate’ or with the offence in the nature of an ‘organized
crime’ is established that would attract the invocation of Section
3(2) of MCOCA. Therefore, even if one may not have any direct
role to play relating to the commission of an ‘organized crime’,
but when the nexus of such person with an accused who is a
member of the ‘organized crime syndicate’ or such nexus is
related to the offence in the nature of ‘organized crime’ is
established by showing his involvement with the accused or the
offence in the nature of such ‘organized crime’, that by itself
would attract the provisions of MCOCA. The said statement of law
by this Court, therefore, makes the position clear as to in what
circumstances MCOCA can be applied in respect of a person
depending upon his involvement in an organized crime in the
manner set out in the said paragraph. In paragraphs 36 and 37, it
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 80 of 97Page 81
was made further clear that such an analysis to be made to
ascertain the invocation of MCOCA against a person need not
necessarily go to the extent for holding a person guilty of such
offence and that even a finding to that extent need not be
recorded. But such findings have to be necessarily recorded for
the purpose of arriving at an objective finding on the basis of
materials on record only for the limited purpose of grant of bail
and not for any other purpose. Such a requirement is, therefore,
imminent under Section 21(4)(b) of MCOCA.
90. Having regard to the said legal position with reference to
the requirement to be fulfilled in respect of an ‘organized crime’
with particular reference to the past two instances and the
present one in order to find out as to whether a person was
involved in a ‘continuing unlawful activity’, when we refer to the
facts before us, in the case on hand insofar as A-7 Rakesh
Dattaray Dhawade is concerned, he has been charge-sheeted in
Parbhani, Jalna as well as, the Malegaon bomb blast. The
materials available on record disclose that he furnished certain
materials at the asking of the prime accused involved in Parbhani
and Jalna, which also related to bomb blasts in both the places.
Going by the charge-sheet filed against A-7 in Malegaon his direct
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 81 of 97Page 82
involvement has been alleged. A conspectus consideration of the
above facts discloses that insofar as A-7 was concerned, he had a
nexus with the member of an ‘organized crime syndicate’ and
also had every nexus with the offence in the nature of an
‘organized crime’ of the two earlier cases, namely, Parbhani and
Jalna and also direct involvement in the present bomb blast at
Malegaon. In such circumstances, there is no difficulty in coming
to a definite conclusion that insofar as, A-7 is concerned, his
activity and involvement in all the three occurrences, namely,
Parbhani, Jalna and Malegaon disclose nexus with the crime and
also with the other accused involved in the crime and thereby the
satisfaction of the definition of ‘continuing unlawful activity’ of an
‘organized crime’ on behalf of an ‘organized crime syndicate’ is
satisfactorily shown. In such circumstances, by virtue of Section
21 (4) of MCOCA he is not entitled for the grant of bail and that
he does not fall within the excepted category stipulated in subclause
(a) or (b) of the said sub-Section (4) of Section 21.
91. Having stated the said position relating to A-7, when we
come to the case of others, there is no dispute that in respect of
other appellants, their involvement is with reference to the
present occurrence, namely, Malegaon bomb blast. Admittedly
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 82 of 97Page 83
they are not proceeded against for the offence relating to
Parbhani and Jalna. But still at the present juncture, with the
materials available on record as on date, we are not in a position
to ascertain as to the involvement of the appellants either by way
of their nexus with any accused who is a member of an
‘organized crime syndicate’ or such nexus with the offence of an
‘organized crime’ which pertains to Parbhani and Jalna. We
cannot also rule out the possibility of the evidence based on the
investigation by the prosecuting agency to come out with reliable
materials in support of such nexus to be shown with an accused
or with the crime in respect of the earlier two cases, namely,
Parbhani and Jalna. We cannot, therefore, declare to the extent
as was done by the Special Judge in the order dated 31.07.2009
to straightway reach at a conclusion to the effect that MCOCA
was not attracted and, therefore, they should be discharged.
92. But, for the purpose of the requirement under Section
21(4) (b) having regard to the absence of any material as on date
to disclose any nexus with the accused of an ‘organized crime
syndicate’ or with the offence in the nature of an ‘organized
crime’, in Parbhani and Jalna as of now we can state that in
respect of appellants other than A-7 i.e. appellant in Criminal
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 83 of 97Page 84
Appeal No.1971/2010, their application for bail can be considered
by the Special Court. Therefore, on this issue, namely, in all
cases same gang must be involved, our answer is to the above
limited extent based on the earlier statement of law as declared
in Ranjitsing Brahamjeetsing Sharma (supra) in paragraph
31.
93. With that when we come to the next submission, namely,
that in order to characterize the past occurrence as well as the
present occurrence as an ‘organized crime’ falling under section
2 (1) (e) of MCOCA, in each of such occurrence, violence should
have played a key role and that such violence etc. should have
been for pecuniary gain. The submission was made on behalf of
the appellants that there was no material to show that any of the
appellants had any pecuniary advantage from anybody. The
contention was that all the attributes of Section 2(1)(e), namely,
an ‘organized crime’ must be present in all the three cases. It
was further contended that in the occurrence relating to Parbhani
and Jalna, there was no allegation of pecuniary advantage and
they were all just mere cases of violence. It was, also contended
that ‘promoting insurgency’ was also not the specific case of the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 84 of 97Page 85
prosecution in all the three cases, even assuming it may arise in
Malegaon blast, the same was not present in Parbhani or Jalna.
94. To appreciate the said contention, it will be necessary to
make a detailed reference to Section 2(1)(e) of MCOCA. As far as
the nature of activity is concerned, in Section 2(1)(e), it is stated
that ‘organized crime’ means continuing unlawful activity by use
of violence or threat of violence or intimidation or coercion or
other unlawful means with the object of gaining pecuniary
benefits or gaining undue economic or other advantage for
himself or for any other person or for promoting insurgency. If we
make a detailed reference to the said provision, the use of
violence etc. should have been carried out with the object of
either gaining pecuniary benefits or for gaining undue economic
or other advantage for oneself or for any other person or for
promoting insurgency. We find that the violent activity need not
necessarily be for pecuniary advantage in all acts of ‘continuing
unlawful activity’. Indulging in such violent activity can be for
gaining pecuniary advantage or for gaining any other undue
economic or other advantage or for promoting insurgency.
Therefore, at the very outset, we do not find any scope to
interpret Section 2(1)(e), namely, an ‘organized crime’ to mean
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 85 of 97Page 86
that in order to come within the said expression indulging in such
violent or other activity should always be for pecuniary gain. On
the other hand, we can safely hold that such indulgence in violent
activity can be either for pecuniary gain or for economic
advantage or for any other advantage either for the person who
indulged in such activity or for any other person or for promoting
insurgency. In that respect, we find that expected benefit for
indulging in any violent or related activity could be for any of the
above purposes independently and one such purpose may be for
promoting insurgency.
95. When once we are able to state the definition of
‘organized crime’ under Section 2(1) (e) with such clear precision,
the other question is what is meant by ‘promoting insurgency’. In
fact, the said expression has already been considered by some of
the judgments of this Court, and, therefore, we can make useful
reference to those judgments to understand what is insurgency
and whether there was any act of insurgency prevalent in the
case on hand when the alleged activity of violence etc. alleged
against the appellants. The dictionary meaning of expression
‘insurgent’ is raising an active revolt or a revolutionary.
Therefore, going by the dictionary meaning, promoting
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 86 of 97Page 87
insurgency would mean creating a revolution and thereby disturb
the peaceful atmosphere. In fact, in the decision of this Court in
Zameer Ahmad Latifur Rehman Sheikh (supra) a reference
has been made to this very expression and has been dealt with in
a detailed fashion in paragraphs 26 to 29. We can usefully refer
to the said paragraphs to understand the expression insurgency.
Paragraphs 26 to 29 are as under:
“26. The term “insurgency” has not been defined
either under MCOCA or any other statute. The word
“insurgency” does not find mention in UAPA even after
the 2004 and 2008 Amendments. The definition as
submitted by Mr Salve also does not directly or
conclusively define the term “insurgency” and thus
reliance cannot be placed upon it. The appellants
would contend that the term refers to rising in active
revolt or rebellion. Webster defines it as a condition of
revolt against the Government that does not reach the
proportion of an organised revolution.
27. In Sarbananda Sonowal v. Union of India this Court
has held that insurgency is undoubtedly a serious form
of internal disturbance which causes grave threat to
the life of people, creates panic situation and also
hampers the growth and economic prosperity of the
State.
28. We feel inclined to adopt the aforesaid definition
for the current proceedings as there does not appear
to exist any other satisfactory source.
29. Although the term “insurgency” defies a precise
definition, yet, it could be understood to mean and
cover breakdown of peace and tranquility as also a
grave disturbance of public order so as to endanger
the security of the State and its sovereignty.”
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 87 of 97Page 88
(Emphasis added)
96. It has been more succinctly described in paragraphs 45
to 47 which can also be usefully referred to:
“45. Now that we have examined under what
circumstances a State law can be said to be
encroaching upon the law-making powers of the
Central Government, we may proceed to evaluate the
current issue on merits. Let us once again examine
the provision at the core of this matter:
“2. (1)(e) ‘organised crime’ means any continuing
unlawful activity by an individual, singly or jointly,
either as a member of an organised crime syndicate or
on behalf of such syndicate, by use of violence or
threat of violence or intimidation or coercion, or other
unlawful means, with the objective of gaining
pecuniary benefits, or gaining undue economic or
other advantage for himself or any other person or
promoting insurgency;”
After examining this provision at length, we have
come to the conclusion that the definition of
“organised crime” contained in Section 2(1)( e ) of
MCOCA makes it clear that the phrase “promoting
insurgency” is used to denote a possible driving force
for “organised crime”. It is evident that MCOCA does
not punish “insurgency” per se, but punishes those
who are guilty of running a crime organisation, one of
the motives of which may be the promotion of
insurgency.
46. We may also examine the Statement of Objects
and Reasons to support the conclusion arrived at by
us. The relevant portion of the Statement of Objects
and Reasons is extracted hereinbelow:
“1. Organised crime has for quite some years now
come up as a very serious threat to our society. It
knows no national boundaries and is fuelled by illegal
wealth generated by contract, killing, extortion,
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 88 of 97Page 89
smuggling in contrabands, illegal trade in narcotics,
kidnappings for ransom, collection of protection
money and money laundering, etc. The illegal wealth
and black money generated by the organised crime
being very huge, it has had serious adverse effect on
our economy. It was seen that the organised criminal
syndicates made a common cause with terrorist gangs
and foster narcoterrorism which extends beyond the
national boundaries. There was reason to believe that
organised criminal gangs have been operating in the
State and thus, there was immediate need to curb
their activities.
2. The existing legal framework i.e. the penal and
procedural laws and the adjudicatory system are
found to be rather inadequate to curb or control the
menace of organised crime. The Government has,
therefore, decided to enact a special law with
stringent and deterrent provisions including in certain
circumstances power to intercept wire, electronic or
oral communication to control the menace of
organised crime.”
47. We find no merit in the contention that MCOCA, in
any way, deals with punishing insurgency directly. We
are of the considered view that the legislation only
deals with “insurgency” indirectly only to bolster the
definition of “organised crime”. However, even if it be
assumed that “insurgency” has a larger role to play
than pointed out by us above in MCOCA, we are of the
considered view that the term “promoting insurgency”
as contemplated under Section 2(1)(e) of MCOCA
comes within the concept of public order.”
(Emphasis added)
97. Therefore, ‘insurgency’ has been understood to mean
raising an active revolt or rebellion in the common parlance. It is
also stated that it could be understood to mean and cover
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 89 of 97Page 90
breakdown of peace and tranquility as also a grave disturbance
of public order so as to endanger the security of the State and its
sovereignty. While making specific reference to Section 2(1)(e), it
was pointed out that MCOCA though does not punish insurgency
per se, punishes those who are guilty of running a crime
organization and one of the motive of which may be the
promotion of insurgency. Therefore, it is not necessary that
promoting insurgency should always be linked to pecuniary
advantage. Whenever an organized gang indulges in a violent
act, such indulgence in violence or threat of violence or
intimidation or coercion or other unlawful means can be for
promoting an insurgency.
98. In the light of such line of thinking already expressed by
this Court with particular reference to Section 2(1)(e), we do not
find any different meaning to be attributed to the definition of
‘organized crime’, much less to the extent to which the
appellants seek to interpret the said definition and state that the
indulgence in any violent and related activity for promoting
insurgency, the element of pecuniary advantage should be
present. We, therefore, reject such a contention and hold that
indulging in any violent or other related activity by an organized
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 90 of 97Page 91
gang and thereby an effort to promote insurgency i.e. to damage
the peace and tranquility in the State is made, that by itself
would fall within the four corners of the definition of “organized
crime” under Section 2(1)(e).
99. In the light of our above conclusions on the various
submissions, we are convinced that in respect of the appellant in
Criminal Appeal No.1971/2010, namely, A-7, there is no scope
even for the limited purpose of Section 21(4)(b) to hold that
application of MCOCA is doubtful. We have held that the said
appellant A-7 had every nexus with all the three crimes, namely,
Parbhani, Jalna and Malegaon and, therefore, the bar for grant of
bail under Section 21 would clearly operate against him and there
is no scope for granting any bail. Insofar as the rest of the
appellants are concerned, for the purpose of invoking Section
21(4)(b), namely, to consider their claim for bail, it can be held
that for the present juncture with the available materials on
record, it is not possible to show any nexus of the appellants who
have been proceeded against for their involvement in Malegaon
blast with the two earlier cases, namely, Parbhani and Jalna.
There is considerable doubt about their involvement in Parbhani
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 91 of 97Page 92
and Jalna and, therefore, they are entitled for their bail
applications to be considered on merits.
100. When once we are able to steer clear of the said position,
the other question to be considered is the grant of bail on its own
merits. For which purpose, the submission of Mr. Mariarputham,
learned senior counsel who appeared for the State of
Maharashtra and NIA based on the decision relied upon by him in
State of U.P. Through CBI v. Amarmani Tripathi - 2005 (8)
SCC 21 should be kept in mind, in particular paragraph 18, which
reads as under:
“18. It is well settled that the matters to be considered
in an application for bail are (i) whether there is any
prima facie or reasonable ground to believe that the
accused had committed the offence; (ii) nature and
gravity of the charge; (iii) severity of the punishment
in the event of conviction; (iv) danger of the accused
absconding or fleeing, if released on bail; (v)
character, behaviour, means, position and standing of
the accused; (vi) likelihood of the offence being
repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of
course, of justice being thwarted by grant of bail [see
Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh
v. State (Delhi Admn.)]. While a vague allegation that
the accused may tamper with the evidence or
witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at
large would intimidate the witnesses or if there is
material to show that he will use his liberty to subvert
justice or tamper with the evidence, then bail will be
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 92 of 97Page 93
refused. We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36,
para 11)
11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted particularly
where the accused is charged of having committed
a serious offence. Any order devoid of such reasons
would suffer from non-application of mind. It is also
necessary for the court granting bail to consider
among other circumstances, the following factors
also before granting bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the
complainant.
(c) Prima facie satisfaction of the court in support of
the charge. (See Ram Govind Upadhyay v.
Sudarshan Singh and Puran v. Rambilas.)”
101. Even the other contentions submitted by the learned
senior counsel that the appellants are not entitled for bail, are all
matters which the prosecuting agency will have to place before
the Special Court for consideration while considering the
appellants’ application for bail. For the same reason, the various
other contentions raised on behalf of the appellant in Criminal
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 93 of 97Page 94
Appeal Nos.1969-70/2010 as well as the appeal arising out of
SLP(Crl.) No.8132 of 2010 by making reference to their personal
grievances are all matters which will have to be placed before the
Special Judge for consideration. We are not expressing any
opinion on those aspects and we leave it for the Special Judge to
consider the bail application on merits and pass appropriate
orders.
102. Accordingly, on question No.(a) in paragraph 35, we hold
that the judgment of the Division Bench in holding that
cognizance is of the offence and not of the offender is perfectly
justified and the same does not call for any interference.
Therefore, Criminal Appeal Nos.1969-70 of 2010, Criminal Appeal
No.1971 of 2010, Criminal Appeal Nos.1994-98 of 2010, appeal
arising out of SLP(Crl) No.8132 of 2010 and Criminal Appeal
No.58 of 2011 are dismissed. As far as the order dated
30.12.2010, rejecting bail, passed by the learned Special Judge,
which was also confirmed by the learned Single Judge of the
Bombay High Court by order dated 09.11.2011 in Criminal Bail
Application No.333 of 2011 with Criminal Application No.464 of
2011 of the appellant in appeals arising out of SLP (Crl.)
Nos.9370-71 of 2011, the said orders are set aside with the
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 94 of 97Page 95
observation that there is enough scope to doubt as to the
application of MCOCA under Section 21(4)(b) for the purpose of
grant of bail and consequently the Special Judge is directed to
consider the application for bail on merits keeping in mind the
observations in paragraphs 100 and 101 of this judgment and
pass orders. Consequently, the appeals arising out of SLP(Crl.)
Nos.9370-71 of 2011 are partly allowed. The order impugned in
these appeals is set aside and the application for bail in Bail
Application No.42 of 2008 is restored to the file of the Special
Judge for passing orders on merits. Similarly, for the reasons
stated in paragraph 99, we hold that the appellant in appeal
arising out of SLP(Crl.) No.8132 of 2010 is also entitled for the
same relief as is granted to the appellant for consideration for
grant of bail in the appeals arising out of SLP(Crl.) Nos.9370-71 of
2011. We thus answer question No.(b) of paragraph 35 and the
trial Court is, therefore, directed to apply the same principle and
consider the bail application pending or filed afresh, if so advised,
by the appellant in the appeal arising out of SLP(Crl.) No.8132 of
2010 and pass orders on merits. Consequently, Criminal Appeal
No.1971 of 2010, Criminal Appeal Nos.1994-98 of 2010 and
Criminal Appeal No.58 of 2011 are dismissed.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 95 of 97Page 96
103. Since the occurrence is of the year 2008 and nearly
seven years have gone by, it is imperative that the Special Court
commence the trial at the earliest and conclude the same
expeditiously. We direct the Prosecuting Agency to ensure that
the necessary evidence i.e. oral, documentary as well as other
form of evidence placed before the Court to enable the Special
Court to commence the trial early and conclude the same
expeditiously. It is stated that no officer has been posted for the
Special Court as on date. We, therefore, request the Chief Justice
of the High Court of Bombay to pass appropriate orders either for
posting these cases before a learned Judge by way of special
order or appoint a Presiding Officer exclusively for deciding these
cases in order to ensure speedy trial. We also direct the
Presiding Officer of the Special Court to dispose of the bail
applications expeditiously, preferably within one month from the
date of his/her assumption of Office as Special Judge. The
Registry is directed to transmit the records forthwith.
104. Since, we have not heard arguments on the question as
to the claim of NIA in seeking custody covered by SLP (Crl.)
No.9303 of 2011 and SLP (Crl.) No.9369 of 2011 the same are
delinked and shall be listed in due course.
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 96 of 97Page 97
 ……..…..……….…………………………...J.
 [Fakkir Mohamed Ibrahim
Kalifulla]
…..…………….………………………………J.
 [Abhay Manohar Sapre]
New Delhi;
April 15, 2015
Crl. Appeal Nos.1969-70/2010 with Conctd. matters 97 of 97
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