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
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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)
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
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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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