Saturday, 11 June 2016

What is distinction between cognizance taken erroneously and cognizance taken by disregarding specific bar or prohibition created by statute?

However, a distinction has to be drawn between cases where cognizance
is taken on insufficient basis, or by coming to an erroneous conclusion;
and cases where cognizance is taken without having a power to do so, or
by   violating   an   express   provision   of   law   prohibiting   such   taking   of
cognizance.   If cognizance is taken by the concerned Courts on the basis
of material insufficient for taking cognizance, then that would be clearly
erroneous, but still, that would not be a matter to be considered by the
Special Court under the MCOC Act.  This however, cannot apply where
there would be a legal bar to taking of cognizance of the offences in

question.  Invalid cognizance on the basis of the merits of the case would
not be a ground to take away the activity outside the purview of the
    concept of     'continuing unlawful activity    '.  However, cognizance taken in
spite of a specific bar created by a statute, has to be treated on a totally
different footing.   In the previous case, the decision or order of taking
cognizance   would   be   erroneous,   but   the   error   would   not   be   a
jurisdictional error.   In the latter case, the error would be clearly a
jurisdictional   error.     Taking   cognizance   by   violating   the   specific   bar
created by a statute would be of no cognizance at all in the eyes of law,
and would be non est.  The distinction between cognizance erroneously
taken i.e. in spite of insufficiency of material, and the cognizance taken
by disregarding the specific bar or prohibition created by the statute, is
clear, basic and must be clearly recognized.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.722 of 2012
The State of Maharashtra .. Appellant
Vs.
Ajay Jagdish Pande and 3 ors .. Respondents
and 2.

­­­
   CORAM :   NARESH H. PATIL &
ABHAY M. THIPSAY, JJ.
      
  PRONOUNCED ON : 25th JUNE 2014
­­­
Citation : 2016 ALLMR(CRI)1864

1 These two Appeals can be conveniently disposed of by this
common order as they take exception to the same order i.e. the order
dated 7th October 2011 passed by the Judge of the Special Court under
the Maharashtra Control of Organized Crime Act (hereinafter referred to
as “MCOC Act”) for Greater Bombay in MCOC Special Case No.9 of 2011
which was pending before him.  The respondents herein are the accused
in the said case.
2 The respondent no.3 had filed an application (Exhibit­21)
before the Trial Court praying that the proceedings under the MCOC Act
be dropped, and the case be sent for trial to the Court of Sessions.  It
was   the   contention   of   the   respondent   no.3   that   since   no   offence
punishable under the provisions of the MCOC Act was disclosed from the
police report and accompanying documents, the said Special Court had
no jurisdiction to try the offence in question.  The learned Judge after
hearing the parties, came to the conclusion that the offence allegedly
committed by the respondents, as disclosed from the charge­sheet, was
not falling 'within the purview of the provisions of the MCOC Act' and
that, therefore, he had no jurisdiction to try the said offence/offences.
He, therefore, by the impugned order, directed the case to be transferred
to the Court of Sessions for Greater Bombay, as empowered by section
11 of the MCOC Act.  Being aggrieved thereby, these two appeals have
been filed.
3 Criminal Appeal No.722 of 2012 has been filed by the State
of Maharashtra while Criminal Appeal No.1325 of 2011 has been filed
by one Sandhya Prafulla Patil who is the wife of the deceased Prafulla
Patil, claiming to be a victim of the alleged offence/offences.

4 We have heard Mrs.M.M.Deshmukh, learned APP for the
State in support of the Appeal filed by the State.   We have also heard
Mr.Amit Desai, learned Senior Advocate who appeared for the wife of
the   deceased.     We   have   also   heard   Mr.Nilesh   Oza,   Advocate   for
respondent nos.1 and 2,  Mr.H.H. Ponda for respondent no.3 and Mr.A.P.
Mundargi, learned Senior Advocate for respondent no.4.
5 A  reference to the facts of the case as appearing from the
police report and the accompanying documents would be necessary at
this stage.  In brief, the prosecution case is that one Prafulla K. Patil who
was a leader of Congress ­ I party,  a former Mayor, and President of an
Education Trust and who as such, was well known as a social worker in
Thane District, was having inimical relations with the respondents.  The
respondents attempt to grab government land   was obstructed by the
said Prafulla Patil and therefore, the respondents were having grudge
against him.    That, on 15th March 2010, the respondents had trespassed
upon the property belonging to the educational trust run by Prafulla
Patil and had damaged the property situated therein.  That, on 8th May
2010, Prafulla Patil had gone to inspect the newly constructed building
of the said educational institution.  At that time, he was fired at by some
unknown   persons,   and   was   also   assaulted   by   deadly   weapons   like
choppers   causing   serious   injuries   to   him.     He   was   removed   to   the
hospital, but was declared dead.   Amol Patil, brother of Prafulla Patil,
lodged a report with Navghar Police Station, alleging commission of
offences punishable under section 302 of the IPC, 120B of the IPC read
with section 34 of the IPC, and an offence punishable under the Arms
Act; and in this report, he expressed suspicion against the respondent
no.3 – Vishal Mhatre ­­  and others.  

In   the   course   of   investigation,   the   involvement   of   the
respondents was revealed and they were arrested on different dates.
The Investigating Agency came to the conclusion that the offence in
question was an  organized crime  as defined under section 2(e) of the
MCOC Act.   After obtaining prior approval under section 23(1) of the
MCOC Act, a case in respect of offences punishable under sections 3(1)
(i),   3(2)   and   3(4)   of   the   MCOC   Act   was   registered,   and   further
investigation   was   carried   out.     On   obtaining   sanction   under   section
23(2) of the MCOC Act, a charge­sheet came to be filed in the Special
Court for the offences punishable under sections  3(1)(i), 3(2) and 3(4)
of the MCOC Act at Thane.  The case was, later on, transferred to the
Special Court under the MCOC Act at Greater Bombay.
6 We have carefully gone through the impugned order.  The
learned Judge noticed the facts of the case as reflected from the chargesheet
correctly.  He also took the contentions advanced by the counsel
for the parties into consideration and made a number of observations
about the ingredients of an offence punishable under the MCOC Act
while   ultimately   coming   to   a   conclusion   that   no   such   offence   was
disclosed from the police report and accompanying documents.  
7 Mrs.M.M.   Deshmukh,   learned   APP   and   Mr.Amit   Desai,
learned Senior Advocate contended that the impugned order has been
passed on misconstruing the provisions of the MCOC Act.  According to
them, all the ingredients of an offence punishable under the MCOC Act,
were   clearly   made   out   from   the   police   report   and   accompanying
documents, and there was no scope for taking a view that no offence
punishable under the MCOC Act, was disclosed.  It was submitted that

the notion of the learned Judge of the Special Court as regards the
ingredients   of   an   offence   of   organized   crime,   as   reflected   from   the
impugned order, is not proper or legal.   Mr.Desai contended that the
propositions of law on which the learned Judge based his conclusion, are
contrary to the authoritative pronouncements of the Superior Courts and
the Apex Court.
8 Before going into the real question needing determination,
and   in   order   to   appreciate   the   arguments   advanced   by   the   learned
counsel   for   the  parties  in   support  of  their   respective  contentions,  it
would be appropriate to reproduce the definitions of certain terms used
in the MCOC Act.
9 Section 2(e) of the MCOC Act defines “Organized Crime” as
under:­
“(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   person   or
promoting insurgency”  (Emphasis supplied)
It is clear that an 'organized crime' should first qualify as a continuing
unlawful activity.
10 The term 'continuing unlawful activity' has been defined in
section 2(d) as under:­

“(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 organised crime syndicate
or on behalf of such, syndicate in respect of which
more than one charge­sheets have been field before a
competent Court within the preceding period of ten
years and that Court has taken cognizance of such
offence”
11 The term 'Organised Crime Syndicate' has been defined in
section 2(f) as under:­
“organized crime syndicate' means a group of
two   or   more   persons   who,   acting   either   singly   of
collectively, as syndicate or gang indulge in activities of
organized crime”
12 The   learned   Judge   of   the   Special   Court   came   to   the
conclusion   that   the   offences   disclosed   from   the   police   report   and
accompanying documents, were not such as would be covered by the
penal provisions of the MCOC Act on a number of considerations.  The
learned Judge, inter alia, noted that in order to constitute an activity as
a 'continuing unlawful activity', there was a requirement that atleast two
previous charge­sheets must have been filed in respect of the activities of
the organized crime syndicate, in question, and the observations made
by him in the impugned order indicate that he was not satisfied that the
previous two charge­sheets relied upon in this case, prima facie indicated
that the activities alleged therein were undertaken as a member of an
'organized crime syndicate' or on behalf of such syndicate.  The learned
Judge observed that the two previous charge­sheets that had been relied

upon   in   the   present   case,   did   not   show   any   violence   or   threat   of
violence, or intimidation with the objective of gaining pecuniary benefit,
and that therefore, the offences disclosed in the said previous chargesheets,
  would   not   be   in   respect   of  activities   of   the   organized   crime
syndicate.  Some of the observations made by the learned Judge indicate
that he was of the opinion  that the 'continuing unlawful activity' must be
such as would involve force or violence.  On this, and on a number of
other   grounds,   he   concluded   that   no   offence   punishable   under   the
MCOC Act,  was disclosed  from  the  police  report and  accompanying
documents, and that, therefore, he had no jurisdiction to try the case.
13 In   the   context   of   the   observations  made  by   the   learned
Judge of the Special Court, the learned counsel for the parties have
advanced extensive arguments and cited much case law dealing with the
aspect as to what are the ingredients of an offence of organized crime,
and   how   the   terms   used   in   defining   'organized   crime',   'continuing
unlawful activity' etc, have been interpreted.  
14 It has been submitted Mrs.M.M.Desmukh, learned APP and
Mr.Amit Desai, the learned Senior Advocate for the appellant in Criminal
Appeal No.1352/11 that  violence is not an  essential requirement to
constitute an activity as an 'unlawful activity' as contemplated under the
MCOC Act.   To support this proposition, Mr.Desai has relied upon the
following reported decisions :
(i)  State of Maharashtra Vs. Lalit Somdatta
Nagpal and Anr.  2007(2) AIR BOM R 642 (SC)
(ii) Cr.Appeal No 1088/07 decided on   17/8/07
(SUPREME COURT)   CBI Vs. Pradeep Bhalchandra
Sawant  & Anr.

(iii)  Chenna Boyanna Krishna Yadav Vs. State
of Maharashtra & Anr,  2007(1) AIR BOM R 745
(iv) Dattatray   Krishnaji   Ghule   Vs.   State   of
Maharashtra & Anr., 2006 ALL MR (Cri) 3457  
(v) Mohammed   Chand   Mulant   Vs.   Union   of
India, 2006 BCR (Cri)­1­610  
(vi) Kamaljeet Singh  Vs. State, 148 (2008) DLT
170 Delhi High Court, decided on 29/1/2008.
(vii) Shiv   Murat   Dwivedi   @   Shiva   Vs.   State,
Delhi High Court, 2012 Cri.L.J. 4237.
15 Since the learned Judge has made some remarks about the
legality and validity of the sanction granted under section 23(2) of the
MCOC Act, Mr.Desai has relied upon the following authorities to support
a   contention   that   the   question   of   validity   of   the   sanction   and   the
application of mind by the sanctioning authority can be gone into only
during the trial. 
(i)   Ganesh   Nivrutti   Marne   Vs.   State   of
Maharashtra  2010­TL­MHH­O­409.
(ii)  Vinod G. Asrani Vs. State of Maharashtra, AIR
2007 Supreme Court 1253.
(iii) Prakash   Singh   Badal   and   Anr   Vs.   State   of
Punjab (2007) 1 SCC 1. 
16 Since the maintainability of the appeal filed by the wife of
the deceased claiming to be a victim was challenged,   Mr.Desai has
relied upon the following authoritative pronouncements on the issue of
locus standi of a victim to file such an Appeal.

(i) Jamiruddin Ansari vs. CBI, AIR 2009 SC 2781
(ii) Cr.Appeal   No.991/11   with   992/11   Balasaheb
Rangnath   Khade   vs.   The   State   of   Maharashtra   &   ors
decided on 27.4.2012
(iii)   A.R.Antulay Vs. Ramdas Shriniwas Nayak & Anr,
AIR 1984 SC 718. 
(iv)   M/s.J.K.International   vs.   State   Government   of
NCT of Delhi. 2001 Cr.L.J 1264
(v) Manohar Lal Vs. Vinesh Anand & ors,  AIR 2001 SC
1820 
(vi)  Sukhbir Singh & ors Vs. State of Haryana,(1997) 8
SCC 164  
(vii)   Tarachand Damu Sutar Vs. State of Maharashtra
(1962) 2 SCR 775, AIR 1962 SC 130.
(viii)  Prithvi Raj Vs. Kamlesh Kumar & Anr,  AIR 2004
SC 4401
(ix) Garikapatti Veeraya Vs. N. Subbiah Choudhary, AIR
1957 SC 540 
(x)  P.S.R Sadhanantham vs. Arunachalam & Anr, AIR
1980 SC 856
(xi)  Kishan Singh Vs. The King Emperor,  AIR 1928 PC
54  Privy Council
(xii) State of Maharashtra vs. Jagan Gagansingh Nepali,
Criminal Appeal No.20 of 2011.
17 A   number   of   arguments   based   on   the   principles   of
Interpretation   of   Statutes   have   also   been   advanced   by   him,   and   in
::: Downloaded on - 11/06/2016 15:42:41 :::Bombay High Court
tilak 10 CR.APP-1325-11-722-12(DB)
support   thereof,   he   has   placed   reliance   on   the   following   reported
decisions.
(i)  State of Maharashtra vs. Jagan Gagansingh Nepali,
2011(3) BOM.C.R. (Cri) 790.
(ii) State of Kerala vs. Mathal Verghese & Ors,  AIR
1987 SC 33
(iii) Balaram Kumawat vs. Union of India (UOI) & Ors,
AIR 2003 SC 3268
(iv)  Jannalagadda Samrajyam & Ors vs. Registrar, The
Special Court, 2006(6) ALD 176
(v) Criminal   Appeal   No.829   of   2005,   Mrs.Sarah
Mathew vs. The Institute of Cardoi Vascular Diseases by
its Director – Dr.  K.M.Cherian & ors.
(vi)   Dinesh Kumar vs. Chairman Airport Authority of
India and Anr,(2012) 1 SCC 532
(vii)  Superintendent and Remembrance of Legal Affairs
to Govt of West Bengal Vs. Abani Maity,  AIR 1979
SC,1029
(viii)    State of Maharashtra Vs. Natwarlal Damodardas
Soni, (1980) 4 SCC, 669
(ix)   Murlidhar Meghraj Loya Vs. State of Maharashtra,
AIR 1976 SCC, 1929.
(x) N. Kannapan vs. State, AIR 2013, SCC 336  
18 Certain broad observations made by the learned Judge of
the Special Court, have given rise to a  number of arguments as regards
'how whether a  particular activity has been undertaken as a member of
an organized crime syndicate or on behalf of any such syndicate should
be decided';   'Whether such activity must necessarily involve violence';

'Whether making some pecuniary gain would be absolutely essential for
bringing such activity within the scope of the term as defined in section
2(d) of the MCOC Act' etc. 
19 Mr.H.H. Ponda, learned counsel for the respondent no.3,
however, emphasized only one aspect of the matter.   While maintaining
that the order passed by the learned Judge, is proper and legal, and that
there were several reasons for coming to a conclusion that the activity in
question could not be termed as a 'continuing unlawful activity, Mr.Ponda
submitted that he would point out only a direct and clear lacuna in the
case of the prosecution in that regard.  He submitted that even assuming
– just for the sake of arguments –  that the other requirements to make
    an activity a '    continuing unlawful activity'      had been fulfilled, still the
requirement of filing of atleast two charge­sheets before a competent
court withing preceding period of 10 years, and of the Court/Courts
having taken cognizance of the offences contained in the said chargesheet,
was not fulfilled.  He therefore, submitted that since the activity in
question,   therefore,   could   not   be   termed   as   a   'continuing   unlawful
activity', the question of it amounting to an organized crime,   does not
arise.
20 In view of this contention raised by Mr.Ponda, we do not
think it necessary to deal with all the contentions advanced before us by
the learned Additional Public Prosecutor and Mr.Desai, and to examine
whether they are supported by the authoritative pronouncements relied
upon by them.  Though the contentions cannot be said to be irrelevant
in view of the broad observations made by the learned Judge of the
Special Court, in view of the specific contention raised by Mr.Ponda,
what really needs to be decided is  whether the requirement of filing of

at least two charge­sheets  (indicated by the  phrase  “more  than  one
charge­sheets”)     which is an essential ingredient of '    continuing unlawful
    activity    ' as defined under section 2(d), has been fulfilled in the present
case.    It is quite elementary that unless the activity in question can be
    termed, or is qualified to be termed as '    continuing unlawful activity    ' it can
never amount to an organized crime.  Clearly, an essential ingredient of
    an '    Organized Crime    ' is that it must be a part of any     continuing unlawful
    activity.
21 We may straightaway, therefore, proceed to examine this
aspect of the matter.
22 On   an   analysis   of   section   2(d)   reproduced   earlier,   it
becomes clear that an activity to be qualified as 'continuing unlawful
activity' it must be :­ 
(i) an activity prohibited by law for the time being in force;
(ii) it should be a cognizable offence punishable with Imprisonment for
three years or more;
(iii)it   should   have   been   undertaken,   (either   singly   or   jointly)   as   a
member   of   an   organized   crime   syndicate,   or   on   behalf   of   such
syndicate;
(iv)in respect of such activity, 'more than one charge­sheets' should
have been filed before a competent court  :­
(a) such filing should be within the preceding period of
10 years
and;
(b) the Court should have taken cognizance of the
offence/s contained in the said charge-sheets.
We are concerned with the requirement at (iv) above.

23 The two charge­sheets that have been mentioned in this
case are the charge­sheets arising out of C.R.No.173/05 registered at
Mira Road police station, in respect of offences punishable under section
399 and 402 of the IPC as also the offences punishable under section 25
r/w   section   3   of   the   Arms   Act,   and   the   charge­sheet   submitted   in
C.R.No.II­30   of   2008   alleging   commission   of   an   offence   punishable
under section 15 of the  Environment(Protection) Act, 1986, ( for short
“the Environment Act”)  by the respondent no.3 and other accused.
24 That it is on the basis of these two charge­sheets that it is
    claimed that the activity in question is a part of a     continuing unlawful
    activity,      is not in dispute.
25 Mr.Ponda submitted   that the police  could not have filed a
charge­sheet in respect of an offence punishable under section 15 of The
Environment Act, at all.  He submitted that the police had no power to
file a charge­sheet in the matter and that, at any rate, there was no
question of the Court taking cognizance of an offence punishable under
the Environment  Act  on the basis of a charge­sheet filed by the police
in view of the provisions of section 19 of the said Act. 
26  Section 19 of the said Act reads as under :­
“19.   Cognizance   of   offences   :­   No   court   shall   take
cognizance of any offence under this Act except on a
complaint made by­­ 
(a) the Central Government or any authority or
officer   authorized   in   this   behalf   by   that
Government, or 

(b) any person who has given notice of not less
than sixty days, in the manner prescribed, of
the alleged offence and of his intention to make
a complaint, to the Central Government or the
authority or officer authorized as aforesaid.”
27 There can be no doubt that the filing of a charge­sheet in
respect of an offence punishable under section 15 of the Environment
Act, was not contemplated by law and the police could not have filed a
charge­sheet in the matter.
28 According to Mr.Ponda, if this charge­sheet, filing of which
is itself contrary to law, cannot be taken into consideration at all,  there
would be only one charge­sheet in respect in respect of the alleged
activities of the alleged organized crime syndicate.   According to him,
one of the essential requirements of 'continuing unlawful activity'   not
having   been   fulfilled   there   would     be   no   question   of   the   offence
disclosed by the police report and accompanying documents being an
'organized crime'.  
29 In reply to this contention, Mr.Amit Desai has advanced
arguments which have two shades.  His first contention is that the word
'charge­sheets'   appearing   in   the   definition   of   'continuing   unlawful
activity' is required to be broadly considered.  According to him, the use
of the word 'charge­sheets' is only incidental, and what is contemplated
by legislature thereby, is any document on the basis of which cognizance
of a particular type of the offence [as mentioned in section 2(d) of the
MCOC Act], is taken.  According to him, the word 'charge­sheet' is to be
construed and interpreted as a document on the basis of which Court
can take cognizance of the offence in question.  He submitted that there

are a number of serious crimes made punishable by different statutes
providing   for   severe   punishments   and   separate   procedure   for
investigating into them.   He submitted that many serious offences can
be   taken   cognizance   of,   on   the   basis   of   complaints   filed   by   public
servants or statutory authorities.   He submitted that it could not have
been the intention of the legislature to exclude such offences from being
considered for the purposes of making an activity  'continuing unlawful
activity'.  He, therefore, submitted that even if the police could not have
filed a charge­sheet with respect to the offence punishable under section
15 of the Environment Act, such invalid charge­sheet could be treated as
a complaint/document on the basis of which cognizance of the said
offence, was taken by the Court.   The other shade of his argument is
that the fact that the charge­sheet could not have been filed by the police
in respect of an offence under the said Act, is not at all relevant.  He
contended  that charge­sheet had, in fact been filed, was the factor that
was material.  He submitted that the validity of the filing of the chargesheet
  could   not   be   examined   in   the   present   proceeding,   as   the
requirement of filing of at least two charge­sheets is only for the purpose
of   deciding   whether   the   activity   in   question   is   'continuing   unlawful
activity'.  He contended that a Special Court under the MCOC Act cannot
go into the question of validity of the action of filing of the previous
charge­sheets, and the special Court's jurisdiction would be limited only
to examine whether in fact, at least two charge­sheets in respect of the
particular type of offfence have been filed, and whether cognizance of
the offences mentioned therein, has been taken.  He submitted that the
validity of the action of taking cognizance by the concerned Courts in
respect of the offences mentioned in the previous two charge­sheets
cannot obviously be gone into by the Special Court.

30 Thus, the substance of the contentions advanced by Mr.Amit
Desai is that 'charge­sheet' for the purposes of section 2(d) of the MCOC
Act   should   be   construed   as   any   document   submitted   to   the   Court
alleging   commission   of   offences,   and   further,   that   the   propriety   or
validity of taking of cognizance on the basis of such 'charge­sheet' cannot
be examined for the purpose of deciding whether the provisions of the
MCOC Act, have been properly applied.
31 We have considered the rival contentions and the different
shades of the basic arguments advanced by the learned counsel for the
parties.
32 The word 'charge­sheet' is not found in the Code of Criminal
Procedure.   It is found in Police Manual.   However, it has acquired a
particular   meaning   by   usage.   The   term   'charge­sheet',   though   not
defined or spoken about in the Code of Criminal Procedure, has become
popular and the Courts of all levels ­ including the Apex Court – use this
term in their judgments and orders.  Thus, the term 'charge­sheet' has
acquired a meaning by usage and undoubtedly, that meaning is 'a police
report' under section 173 of the Code, which discloses commission of an
offence by a certain person or persons.  Thus, 'charge­sheet' is popularly
and commonly understood to mean a final report submitted by a police
officer   after   investigation,   disclosing   commission   of   a   cognizable
offence/offences   by   a   certain   person/persons,   not   only   in   common
parlance, but also in legal parlance.
33 Admittedly,   what   has   been   submitted   by   the   police   in
respect of an offence punishable under section 15 of the Environment
Act, is a police report under section 173 of the Code.   A police report is

specifically excluded from the definition of a  complaint,    as given in
section 2(d) of the Code.  Therefore, the police report erroneously filed
by the police cannot be treated as a complaint.
34 Coming to the other aspects of the matter and dealing with
the contention advanced by Mr.Desai, about the propriety of filing of
charge­sheet   and   his   contention   that   the   validity   of   the   taking   of
cognizance of the offences mentioned in the charge­sheet, cannot be
questioned or considered by the Special Court under the MCOC Act, we
may observe as follows.
35 It is true that whether the cognizance of the offences in
respect of which the previous two charge­sheets have been filed,  was
rightly taken or not, would not be a matter for the Special Court under
the  MCOC Act to determine.   If  the Court/Courts before which the
previous   two   charge­sheets   have   been   filed,   has/have  in   fact  taken
cognizance of the offences in question, then the Special Court cannot
refuse   to   accept   that   the   activity   in   question   would   be   'continuing
unlawful activity' within the meaning of section 2(d) of the MCOC Act,
on   the   ground   that   the   cognizance  ought   not   to   have   been   taken.
However, a distinction has to be drawn between cases where cognizance
is taken on insufficient basis, or by coming to an erroneous conclusion;
and cases where cognizance is taken without having a power to do so, or
by   violating   an   express   provision   of   law   prohibiting   such   taking   of
cognizance.   If cognizance is taken by the concerned Courts on the basis
of material insufficient for taking cognizance, then that would be clearly
erroneous, but still, that would not be a matter to be considered by the
Special Court under the MCOC Act.  This however, cannot apply where
there would be a legal bar to taking of cognizance of the offences in

question.  Invalid cognizance on the basis of the merits of the case would
not be a ground to take away the activity outside the purview of the
    concept of     'continuing unlawful activity    '.  However, cognizance taken in
spite of a specific bar created by a statute, has to be treated on a totally
different footing.   In the previous case, the decision or order of taking
cognizance   would   be   erroneous,   but   the   error   would   not   be   a
jurisdictional error.   In the latter case, the error would be clearly a
jurisdictional   error.     Taking   cognizance   by   violating   the   specific   bar
created by a statute would be of no cognizance at all in the eyes of law,
and would be non est.  The distinction between cognizance erroneously
taken i.e. in spite of insufficiency of material, and the cognizance taken
by disregarding the specific bar or prohibition created by the statute, is
clear, basic and must be clearly recognized.  
36 We are unable to accept the contention of Mr.Amit Desai
that   the   charge­sheet   filed   by   the   police   in   respect   of   the   offence
punishable under section 15 of the Environment Act, ought to be treated
as a complaint, and by giving an extended meaning to the term 'chargesheet',
  the   requirement   of   section   2(d)   be   treated   as   having   been
complied with.
37 In any case, even assuming for the sake of arguments, that
the   report   (along   with   documents)   that   has   been   submitted   by   the
police, in respect of the said offence, to the court, is to be treated as a
complaint,  and further, even if the word 'charge­sheets' appearing in
section 2(d) of the MCOC Act, is to be given an extended meaning so as
to include within its fold, a 'complaint', still the further requirement i.e.
of   the     Court   having   taken   cognizance   on   the   basis   of   such   a
    complaint/charge­sheet  ,     cannot be met.  Even if the distinction between a

charge­sheet and a complaint is ignored, still, it not having been filed by
the authority specified in section 19 of the said Act, there would be no
question of the Court having taken cognizance of the offence on the basis of
    the documents submitted to it.  It cannot be doubted that the provisions
of section 19 of the Environment Act are mandatory. 
38 Clearly,   the   Court   would   have   no   jurisdiction   to   take
cognizance   of   the   offence   punishable   under   section   15   of   the
Environment Act, on the basis of the document submitted to it by the
police.  Even if any action has been taken by the Court pursuant to the
filing of such document, such action would be without jurisdiction, void
and ab initio.  The cognizance taken in violation of a specific provision.
would be no cognizance at all, and would be non­est.
39 Thus,   in   our   opinion,   the   requirement   of   filing   of   two
charge­sheets in respect of the alleged activities of an Organized Crime
Syndicate in the preceding 10 years, and the requirement of the Court
having taken cognizance of the offences mentioned in the charge­sheets,
have   not   been   met   with,   in   this   case.    Since   one   of   the   essential
ingredient for constituting an unlawful activity as 'continuing unlawful
activity' is missing, even if all the other ingredients required by section
2(d) of the MCOC Act are  treated  as present, still, the activity cannot
amount to 'continuing unlawful activity'.   Since  it fails to satisfy the
requirements of 'continuing unlawful activity' the activity in question can
never amount to an organized crime as defined under section 2(e) of the
MCOC Act.  It is therefore, clear that the provisions of the MCOC Act,
could not have been applied to the facts of the case.

40 Undoubtedly,   the   learned   Judge   has   made   some   other
observations about the nature and scope of the activities or offence that
would amount to an organized crime, and there is substance in the
contentions advanced by Mr.Amit Desai,that some of these observations
are not legally correct.  However, when one of the basic requirements to
attract the provisions of the MCOC Act, has clearly not been met in the
present case, the other observations made by the learned Judge of the
Special   Court,   need   not   bother   us.     In   the   ultimate   analysis,   the
conclusion arrived at, by the learned Judge – that no offence punishable
under the MCOC Act was disclosed – is proper and legal.
41 A question about the maintainability of the Criminal Appeal
No.1325   of   2011,   as   has   been   filed   by   the   widow   of   Praful   Patil,
purportedly, in view of the proviso to Section 372 of the Code, was
raised before this Court initially.   A Division Bench after hearing the
parties, came to the conclusion that the Appeal, purportedly filed under
the proviso to Section 372 of the Code, was not maintainable, and
dismissed the same.   The matter was taken to the Supreme Court of
India by the Appellant, and Their Lordships of the Supreme Court of
India were pleased to   set aside the order passed by this Court, and
remit   the   matter   back   for   reconsideration   of   the   issues/questions
involved in the matter.  However, before us, the learned counsel for the
respondents stated that they were not raising any issue regarding the
maintainability of the Criminal Appeal, and were ready to argue the
matter on merits.   Moreover, the Appellant Sandhya Patil – widow of
Praful Patil – had also filed an application for intervention in the matter,
and such intervention was permitted by us.  The appellant Sandhya Patil
was permitted not only to file her affidavit in the matter, but also to
advance full and extensive oral arguments through her counsel.   We

have given full hearing to Mr.Amit Desai, learned counsel appointed by
her.   Since the issue about the  maintainability of the Criminal Appeal
No.1325/11 arose out of the objection taken by the respondents, and
since the objection was given up, and the said Criminal Appeal was fully
heard on merits, there has been no occasion to decide the question of
maintainability of the said Appeal. 
42 Both the Appeals, therefore, fail.
43 The Appeals are dismissed.
(ABHAY.M.THIPSAY, J)               (NARESH.H. PATIL, J)
At this stage, Mr.V.V. Purwant prays for continuation of the
interim order for some further period.
Prayer rejected.
(ABHAY.M.THIPSAY, J)               (NARESH.H. PATIL, J)

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