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   Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1969-1970 OF 2010

Prasad Shrikant Purohit   …Appellant

VERSUS

State of Maharashtra & Anr.  …Respondent With  

Criminal Appeal No.1971 of 2010 Criminal Appeal Nos.1994-98 of 2010 Criminal Appeal No.58 of 2011 Criminal Appeal No. 636 of 2015 @ SLP (Crl.) No.8132 of 2010 Criminal Appeal Nos. 639-40 of 2015 @ SLP (Crl.) Nos.9370-71 of  2011 SLP (Crl.) 9303 of 2011 SLP (Crl.) No.9369 of 2011

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave  granted  in  SLP  (Crl.)  No.8132  of  2010  and  SLP  

(Crl.) Nos.9370-71 of 2011.

2.  As  in  all  the  above appeals  the  issue  that  arises  for  

consideration is  the applicability  of  the Maharashtra Control  of  

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Organized  Crime  Act,  1999  (hereinafter  called  “MCOCA”),  all  

these appeals are disposed of by this common judgment.

3. Criminal Appeal Nos.1969-70/2010 have been preferred  

by Lt. Col. Prasad Shrikant Purohit challenging the judgment in  

Criminal Appeal No.867 of 2009 which was disposed of by the  

common order passed by the Division Bench of the Bombay High  

Court  in  Criminal  Appeal  Nos.866,  867,  868,  869 and 1024 of  

2009 dated 19.07.2010. By the  said  order  the  Division  Bench  

reversed the order of the Special Judge dated 31.7.2009 passed  

in Special Case No.1 of 2009 wherein he held that the charges  

against the accused in C.R.No.18 of 2008 registered with Anti-

Terrorist Squad, Mumbai (hereinafter referred to as “ATS”) under  

the MCOCA do not survive and were discharged from the case.  

The Special Court by invoking Section 11 of the MCOCA directed  

the case to  be tried by the regular  Court.  The Division Bench  

while allowing the Criminal Appeal Nos.866 to 869 of 2009 set  

aside the order of the Special Judge 31.07.2009 in Special Case  

No.1 of 2009 as well as orders passed in Bail Application Nos.40  

to 42 of 2008, restored those applications to the file in MCOCA  

Special  Case  No.  01  of  2009  for  being  decided  on  merits  by  

Special Judge himself. In Criminal Appeal No.1024 of 2009 while  

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allowing  the  said  appeal,  Bail  Application  No.41  of  2008  was  

directed to be restored in MCOCA Special Case No. 01 of 2009 for  

being heard and decided on merits.  

4. The appellant-Lt. Col. Prasad Shrikant Purohit is the first  

respondent in Criminal Appeal No.867 of 2009.  

5. The  appeals  arising  out  of  SLP  (Crl.)  No.9370-71/2011  

have also been preferred by the very same appellant, namely, Lt.  

Col.  Prasad  Shrikant  Purohit  challenging  the  common  order  

passed in Criminal Bail Application No.333 of 2011 with Criminal  

Application  No.464  of  2011  along  with  Criminal  Application  

No.556 of 2011 dated 9th November 2011 by the learned Single  

Judge of the Bombay High Court. By the said order the learned  

Judge allowed the Criminal Application No.556 of 2011 filed by  

Ajay Ekanath Rahirkar by granting him bail by imposing certain  

conditions. In the case of appellant herein, the challenge made in  

Criminal Application No.464 of 2011 was the order of the Special  

Judge after the order of remand passed by the Division Bench  

dated  19.07.2010.  The  Special  Judge  by  the  order  dated  

30.12.2010  rejected  the  appellant’s  application  for  bail.  The  

learned  Single  Judge  after  detailed  discussion,  dismissed  the  

Criminal  Bail  Application  No.333  of  2011  as  well  as  Criminal  

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Application  No.464  of  2011  by  the  order  impugned  in  these  

appeals.

6. The  appeal  arising  out  of  SLP(Crl.)  No.8132/2010  has  

been filed by one Pragyasinh Chandrapalsinh Thakur challenging  

the  common  order  dated  19.07.2010  passed  by  the  Division  

Bench of the Bombay High Court in Criminal Appeal No.866 of  

2009 which is identical to the case of the appellant in Criminal  

Appeal Nos.1969-70 of 2010.

7. Criminal  Appeal  No.1971  of  2010  is  preferred  by  one  

Rakesh  Dattaray  Dhawade  challenging  the  order  dated  

19.07.2010 passed by the Division Bench of  the Bombay High  

Court in Criminal Appeal No.868 of 2009.

8. The  appeal  arising  out  of  SLP  (Crl.)  No.9303/2011  is  

preferred  by  one  Sudhakar  Dhar  Dwivedi  and  Ramesh  Shivji  

Upadhyay challenging the order dated 20.10.2011 of the learned  

Single Judge of the Bombay High Court. By the said judgment, the  

learned  Single  Judge  declined  to  interfere  with  the  order  of  

Special  Judge in Misc.  Application No.98/2011 permitting police  

custody to  the first  respondent,  namely,  National  Investigation  

Agency (NIA) for 8 days from 22.07.2011 up to 30.07.2011. In  

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fact, the said case was originally investigated by ATS and final  

report was submitted on 30.01.2009 and supplementary charge-

sheet vide MCOCA No.8/2011 was filed on 21.4.2011. Thereafter  

by  order  dated  1.4.2011  of  the  Ministry  of  Home  Affairs,  

Government of India, investigation was transferred to NIA and an  

FIR was registered as Crime No.5/2011 by police station NIA on  

13.4.2011. Thereafter NIA sought for police custody which was  

granted by order passed in Misc. Application No.98/2011 dated  

19.07.2011. The said SLP is not argued before us and, therefore,  

the same is delinked from this batch of cases and the same shall  

be heard separately.

9. We  heard  arguments  of  Mr.  U.R.  Lalit,  learned  senior  

counsel  who appeared before us for the appellants in Criminal  

Appeal Nos.1969-70/2010 as well as Criminal Appeal Nos.1994-

98/2010,  Mr.  Triloki  Nath  Razdan,  learned  counsel  for  the  

appellant in appeal arising out of SLP (Crl.)  No.9303/2011,  Mr.  

Basava  Prabhu  S.  Patil,  learned  senior  counsel  in  the  appeal  

arising  out  of  SLP  (Crl.)  No.8132/2010  and  Mr.  Vikas  Mehta,  

learned counsel in Criminal Appeal No.1971 of 2010.  

10. Mr. U.R. Lalit, learned senior counsel in his submissions  

referred  to  the  brief  facts  which  led  to  the  initiation  of  the  

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proceedings  against  the  appellants  under  the  provisions  of  

MCOCA. As the narration goes, there was a bomb blast at the  

place called Malegaon in Mumbai on 29.9.2008. With reference to  

the said occurrence, FIR No.130/2008 was registered in the Azad  

Nagar police station in Malegaon on 30.9.2008. On 26.10.2008,  

the said FIR was transferred and registered as C.R. No. 18/2008  

and  the  investigation  was  taken  over  by  ATS.  Thereafter  the  

appellant in Criminal Appeal No. 1971/2010, namely, one Rakesh  

Dattaray  Dhawade  was  arrested  by  ATS  on  02.11.2008.  

Subsequent to his arrest, the appellant in Crl. Appeal Nos. 1969-

1970/2010 was arrested on 05.11.2008. On 20.11.2008, approval  

was given as per Section 23(1) (a)  of MCOCA by DIG, ATS for  

recording of information about the commission of an offence and  

for  applying  the  provisions  of  Section  3(1)(i),3(2)  and  3(4)  of  

MCOCA against all the accused in C.R. No. 18/2008.  

11. Be that  as  it  may,  earlier  on 21.11.2003,  there was a  

bomb explosion at Mohmedia Masjid, Nanalpeth, Parbhani which  

was  registered  as  C.R.  No.161  of  2003/Parbhani.  There  was  

another  bomb explosion at  Kaderia  Masjid,  Jalna  during  Friday  

Namaz which was registered as C.R.No. 194 of 2004/Jalna.   

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12. In the case pertaining to Parbhani, the charge-sheet was  

filed  on  07.09.2006  against  A1–Sanjay  Choudhary  for  the  

offences punishable under Sections 302, 307, 324, 337, 338, 285,  

286  and  295  read  with  34,  IPC  and  Sections  3,  4,  6  of  the  

Explosives Act and Section 25(1) and (3) of  the Arms Act. The  

case  was  registered  as  RCC  No.467/2006.  A  supplementary  

chargesheet-I was filed in Parbhani case against four accused for  

the above referred to offences as well as Sections 120-B & 153-A  

read with 34 of IPC on 29.9.2006.  

13. In Jalna case, charge-sheet was filed against A-1 for the  

offences punishable under Sections 307, 436, 324, 323, 120-B,  

153-A read with 34 of IPC and Sections 3, 4, 6 of Explosives Act  

on  30.9.2006.  In  Jalna  case,  two  supplementary  charge-sheets  

were  filed  on  7.1.2008  against  four  additional  accused  and  

against  five  accused  on  14.1.2008.  On  13.11.2008,  

supplementary charge-sheet-2 was filed against the appellant in  

Crl.  Appeal  No.1971  of  2010-Rakesh  Dattaray  Dhawade  in  

Parbhani  Case  and  a  supplementary  charge-sheet-3  was  filed  

against  him  in  Jalna  Case  on  15.11.2008.  Thereafter,  on  

20.11.2008,  charge-sheet in Malegaon Blast  Case was filed by  

ATS  against  the  appellants  herein  under  the  MCOCA.  On  

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15.01.2009,  sanction  under  Section  23(2)  of  MCOCA  was  also  

granted.

14. In the above stated background, Mr. U.R. Lalit, learned  

senior counsel made as many as five submissions to contend that  

MCOCA  was  not  attracted  as  against  the  appellants  and,  

therefore, the orders impugned are liable to be set aside.

15. Mr.  U.R.  Lalit,  learned  senior  counsel  prefaced  his  

submissions  by  stating  that  appellants  were  all  proceeded  

against  based  on  the  footing  that  they  were  members  of  an  

organization  called  “Abhinav  Bharat”  which  was  registered  in  

2007  and  that  they  were  now  being  prosecuted  under  the  

provisions of MCOCA. The learned senior counsel submitted that  

in  order  to  prosecute  the  appellants  under  the  MCOCA,  the  

definition of “continuing unlawful activity”, “organized crime” and  

“organized crime syndicate” as defined under Section 2(1)(d),(e)  

and (f) of MCOCA should be satisfied. The learned senior counsel  

while  referring  to  the  above  definitions  submitted  that  the  

prosecuting  agency  were  relying  upon  the  Parbhani  case  and  

Jalna  case  which  occurred  in  2003 and  2004 and  which  were  

organized by RSS and Bajrang Dal with which neither Abhinav  

Bharat  nor  the  appellants  were  in  anyway  connected  and,  

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therefore,  the  definition  of  “continuing  unlawful  activity”  or  

“organized crime” as well as “organized crime syndicate” was not  

fully established.

16. The  next  submission  of  Mr.  U.R.  Lalit,  learned  senior  

counsel was that in order to attract Section 2(1)(d) for an offence  

to be a ‘continuing unlawful activity’ within a period of preceding  

ten years from the date of the third occurrence, two prior cases  

falling under the said Section should have been filed and taken  

cognizance  of  and  that  the  date  with  reference  to  which  the  

preceding  ten  years  is  to  be  counted  is  the  date  of  third  

occurrence. The learned senior counsel, therefore, submitted that  

the Malegaon bomb blast occurred on 29.09.2008, the arrest of  

Rakesh  Dattaray  Dhawade  was  on  02.11.2008,  supplementary  

charge-sheet  against  him  was  filed  in Parbhani  case  on  

13.11.2008 and in Jalna case on 15.11.2008 and in Parbhani, the  

case was committed to Sessions Court only on 29.4.2009 i.e. not  

within the preceding 10 years of the occurrence in Malegaon and,  

therefore,  the  definition  of  Section  2(1)  (d)  was  not  satisfied.  

Even  with  reference  to  Jalna,  the  learned  senior  counsel  

submitted that the Express Order of cognizance was taken only  

on  28.11.2008  i.e.  after  the  occurrence  in  Malegaon,  namely,  

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29.09.2008. Therefore, the requirement of preceding ten years in  

order to bring the earlier two occurrences in Parbhani and Jalna  

within the definition of 2(1)(d) as continuing unlawful activities  

was  not  made out.  The  learned senior  counsel  in  this  context  

submitted  that  the  conclusion  of  the  Division  Bench  that  

cognizance is always with reference to the offence and not the  

offender,  is  not  the  correct  legal  position.  The  learned  senior  

counsel after referring to Sections 173(2)(i)(a), 190(1)(b) and 178  

of the Code of Criminal Procedure (Cr.P.C.) submitted that a close  

reading of the above Sections shows that the cognizance will be  

with reference to the offender and not the offence. The learned  

senior counsel, therefore, submitted that in the case of Jalna the  

Express Order of cognizance was taken on 28.11.2008 after the  

supplementary  charge-sheet  dated  15.11.2008  against  Rakesh  

Dattaray Dhawade, which was long after the date of occurrence  

of  Malegaon,  namely,  29.09.2008,  and,  therefore,  the  

requirement of two earlier cases as stipulated under Section 2(1)

(d) was not satisfied. The learned senior counsel relied upon the  

decisions in  Ajit Kumar Palit v. State of West Bengal - AIR  

1963 SC 765 and Dilawar Singh v. Parvinder Singh @ Iqbal  

Singh & Anr. - 2005 (12) SCC 709 in support of his submissions.

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17. Mr. U.R. Lalit, learned senior counsel then contended that  

the event of  cognizance being taken as defined under Section  

2(1) (d) can only be with reference to ‘competent court’ and in  

the  case  of  Parbhani  and  Jalna  as  the  offences  were  under  

Sections 302, 307/308 etc.,  Sessions Court was the competent  

court  and not the Chief  Judicial  Magistrate.  The learned senior  

counsel pointed out that in the case of Parbhani, the committal  

order was passed only on 29.04.2009 i.e. long after the Malegaon  

case occurrence, namely, 29.09.2008. Therefore, the requirement  

of  two  earlier  cases  which  were  taken  cognizance  of  by  the  

competent  court  cannot  be  held  to  have  been  satisfied.  In  

support  of  the  said  submission,  learned  senior  counsel  relied  

upon Fakhruddin Ahmad v. State of Uttaranchal and Anr. –  

(2008) 17 SCC 157.

18. The learned senior counsel then contended that in order  

to attract the provisions of MCOCA, in all  the three cases,  the  

same gang must have been involved. Elaborating his submission,  

the  learned  senior  counsel  contended  that  Rakesh  Dattaray  

Dhawade  who  has  been  added  as  A-7  in  Malegaon  case  was  

arrested on 02.11.2008 and his arrest was shown in Parbhani and  

in  Jalna  on  13.11.2008  and  15.11.2008  as  directed  by  the  

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Additional  Police  Commissioner  of  ATS and even going by the  

statement of A-7, he procured some materials and gave them to  

one principal accused in Parbhani and Jalna, namely, Devle and  

going  by  the  said  statement,  there  is  no  scope  to  link  the  

appellant with the cases which related to Parbhani and Jalna and,  

therefore, the requirement of involvement of the same gang in all  

the  three  cases  was  not  satisfied.  The  learned  senior  counsel  

submitted that in any event, the appellants were not concerned  

with Parbhani and Jalna, that they were not even aware of A-7’s  

involvement in those two occurrences, as they were not members  

of those gangs which were involved in Parbhani and Jalna and,  

therefore,  the  invocation  of  MCOCA  was  not  made  out.  The  

learned senior counsel further contended that it was all the more  

reason to hold that cognizance should be with reference to the  

offender  and  not  the  offence  which  has  to  be  mandatorily  

satisfied.

19. The learned senior counsel lastly submitted that going by  

the definition of ‘organized crime’ under Section 2(1) (e), there  

must  have been a  pecuniary  gain  accompanied  by the  act  of  

violence,  that  the  appellant  had  not  taken  any  money  from  

anybody and when such pecuniary advantage should have been  

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present in all  the three cases, it  cannot be held that the case  

against  the  appellant  would  come  under  the  definition  of  

‘organized  crime’.  According  to  learned  senior  counsel,  in  the  

case  of  Parbhani  and  Jalna,  only  violence  was  the  basis  and  

promoting  insurgency  was  not  even  the  case  of  prosecution  

which may have a semblance of application in Malegaon case and  

certainly not in Parbhani and Jalna. The learned senior counsel,  

therefore,  contended that the application of MCOCA as against  

the appellants was wholly  inappropriate and consequently,  the  

order  of  the  Division  Bench  and  the  subsequent  order  of  the  

Special Court in declining to grant bail was liable to be set aside.  

The learned senior counsel submitted that the appellants made  

out  a  case  to  show  that  there  were  reasonable  grounds  for  

believing that he was not guilty of such offence under MCOCA  

and as provided under  Section 21(4)(b)  of  MCOCA and should  

have  been  granted  bail.  The  learned  senior  counsel  further  

submitted that the appellant in Criminal Appeal Nos.1969-70 of  

2010 as well as in SLP (Crl.) Nos.9370-71 of 2011 has been in jail  

for more than six years and he is entitled for grant of bail.  

20. Mr.  Triloki  Nath Razdan,  learned counsel  appearing for  

the  appellants  in  the  appeal  arising  out  of  SLP  (Crl.)  

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No.9303/2011  while  adopting  the  arguments  of  Mr.  U.R.  Lalit,  

learned senior counsel for the appellant in Crl.A.No.1969-70/2010  

contended that the Objects and Reasons of MCOCA shows that  

the very purport of the enactment was to curb the accumulation  

of illegal wealth, that in order to attract the provisions of MCOCA,  

involvement in organized crime by an organized crime syndicate  

in  all  the  three  cases  must  be  satisfied.   By  referring  to  the  

sanction order dated 15.01.2009, learned counsel submitted that  

when the arrest of Rakesh Dattaray Dhawade was in the month  

of November, 2008, the requirement of Section 2(1) (d) relating  

to  two  previous  cases  of  continuing  unlawful  activity  was  not  

satisfied.  In other words, according to learned counsel,  as the  

requirement  of  continuing  unlawful  activity  in  respect  of  an  

organized  crime  by  the  organized  crime  syndicate  was  not  

shown,  MCOCA  was  not  attracted.  The  learned  counsel  relied  

upon in Central Bank of India v. State of Kerala and others  

- (2009) 4 SCC 94 and Ranjitsing Brahamjeetsing Sharma v.  

State of Maharashtra & Anr. – (2005) 5 SCC 294.  

21. Mr.  Patil,  learned  senior  counsel  appearing  for  the  

appellant  in SLP (Crl.)  No.8132/2010 referred to  the impugned  

judgment of the Division Bench, in particular, paragraph 18 and  

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submitted that the question which was posed for consideration by  

the Division Bench was limited to the extent of examining the  

issue of taking cognizance of the offences by the Chief Judicial  

Magistrate at Parbhani and its counterpart at Jalna.  Sofaras the  

appellant in the present appeal was concerned, learned senior  

counsel submitted that she became a Sanyasin after performing  

appropriate Hindu religious rites and prayers on 30.01.2007, that  

she was residing in an ashram at Jabalpur, Madhya Pradesh and  

that she owned a two wheeler LML-Freedom which she sold out to  

one Sunil Joshi of Madhya Pradesh way back in October, 2004 for  

a  sale  consideration  of  Rs.24,000/-  and  she  also  signed  the  

necessary transfer application Forms in October, 2004 itself and  

that thereafter  she had no control  over the said vehicle.   The  

learned senior  counsel  submitted that  inspite of  her disclosing  

the above facts, the officials of ATS applied third degree methods  

upon  her  and  insisted  that  the  said  vehicle  was  involved  in  

Malegaon blast occurrence and, therefore, she was also involved  

in  the said  occurrence.   The learned senior  counsel  submitted  

that  she  was  implicated  in  the  Malegaon  case  while  she  is  

innocent simply because the vehicle bearing registration No.MH-

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15-P-4572, which she owned, was stated to have been involved in  

the Malegaon blast.  

22. The  learned  senior  counsel  then  submitted  that  if  the  

Objects and Reasons is read for interpreting Section 3, a strict  

application of the Act should be made, in which event, in order to  

invoke the provisions of MCOCA Section 2(1)(d), (e) and (f) should  

be satisfied. It was contended that for implicating a person it is to  

be  mandatorily  shown  that  he  was  involved  in  a  ‘continuing  

unlawful activity’ as a member of crime syndicate or on behalf of  

it on two earlier occasions, that the appellant was not involved in  

either  the  Parbhani  case  or  in  Jalna  case  and,  therefore,  the  

invocation of MCOCA against the appellant was not maintainable.  

The learned senior counsel also submitted that having regard to  

the relevant dates with reference to the committal order in Jalna  

case, namely, 11.8.2008, the subsequent charge-sheet against A-

7 on 15.11.2008 on which date the case was registered afresh as  

RCC No.648/2008 and on 28.11.2008 when committal order was  

passed, the sanction order in Malegaon case being 20.11.2008,  

there was no scope to  hold  that  there were two earlier  cases  

falling  within  the  definition  of  continuing  unlawful  activity  as  

defined  under  Section  2(1)(d)  of  the  Act.  The  learned  senior  

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counsel,  therefore,  contended that  the order of  the trial  Court  

dated 31.07.2009 discharging all the accused was justified and  

the Division Bench ought not  to  have interfered with  the said  

order.  

23. The  learned  senior  counsel  also  submitted  that  the  

Division Bench having noted that the offence under Section 153A,  

IPC was not laid after getting prior sanction as required under  

Section  196  Cr.P.C.  even  as  against  A-7  Rakesh  Dattaray  

Dhawade, there was no valid cognizance taken by the trial Court  

in respect of the earlier cases of Parbhani and Jalna. The learned  

Senior Counsel, therefore, contended that in the absence of the  

‘continuing unlawful activity’ as defined under Section 2(1)(d) of  

an  ‘organized  crime’  by  ‘organized  crime  syndicate’  shown,  

application of MCOCA was not justified. As far as the preceding  

10  years  as  prescribed  under  Section  2(1)(d)  is  concerned,  

learned senior counsel submitted that Section 2(1)(d) specifically  

refers to ‘activity’  for calculating the preceding 10 years and,  

therefore, 29.09.2008 would be the relevant date and calculated  

on that basis the claim of the prosecution that there were two  

earlier  cases  as  stipulated  under  Section  2  (1)(d)  was  not  

satisfied.  In support  of  this  submission,  learned senior  counsel  

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relied  upon  the  decisions  of  this  Court  reported  as  Mahipal  

Singh v. Central Bureau of Investigation & Anr. - 2014 (11)  

SCC 282, State of  Maharashtra & Ors.  v.  Lalit  Somdatta  

Nagpal & Anr. – (2007) 4 SCC 171, State of Maharashtra v.  

Bharat  Shanti  Lal  Shah  and  Ors.  -  2008  (13)  SCC  5  and  

Tolaram Relumal & Anr. v. The State of Bombay - AIR 1954  

SC 496.

24. Mr.  Vikas  Mehta,  learned  counsel  appearing  for  the  

appellant  in  Criminal  Appeal  No.1971/2010,  namely,  Rakesh  

Dattaray  Dhawade  after  making  reference  to  the  judgment  in  

Mahipal Singh (supra) contended that prior to the registration  

of FIR No.130 of 2008 on 30.09.2008 in the Malegaon blast case,  

the  appellant  was  not  involved  in  any  ‘continuing  unlawful  

activity’.   According  to  him,  if  a  strict  interpretation  is  to  be  

placed on the definition of ‘continuing unlawful activity’ as stated  

in the said decision of this Court, the appellant having been not  

involved in the commission of any offence prior to registration of  

FIR  No.130/2008  either  singly  or  jointly  as  a  member  of  an  

‘organized  crime  syndicate,  invocation  of  MCOCA  was  not  

justified.  The learned counsel  then contended that  in  order  to  

invoke MCOCA all the three definitions of Section 2 (1) (d), (e)  

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and (f)  should be satisfied in which event it  should be by the  

same gang  in  all  the  three  cases.   The  learned  counsel  then  

contended  that  since  strict  interpretation  is  to  be  made  as  

directed by this Court while upholding the validity of the Act, it  

should be construed only in that manner. The learned counsel by  

relying  upon  the  decisions  in  Ranjitsing  Brahamjeetsing  

Sharma  (supra),  Lalit  Somdatta  Nagpal  (supra)  and  

Mahipal  Singh  (supra)  contended  that  the  requirement  of  

satisfaction  of  ‘continuing  unlawful  activity’  of  an  ‘organized  

crime’ by an ‘organized crime syndicate’ insofar as it related to  

the  appellant  was  not  made  out  and  the  application  of  the  

MCOCA was not justified.  Mr. S.S. Shamshery, learned counsel  

appearing  for  the  appellant  in  Criminal  Appeal  No.58/2011  

submitted that he is  adopting the arguments of  Mr.  U.R.  Lalit,  

learned senior counsel for appellant in Criminal Appeal No.1969-

70 of 2010 and the judgment of the Division Bench is liable to be  

set aside.

25. As against the above submissions made on behalf of the  

appellants, Mr. Anil Singh, learned ASG for the respondent State  

submitted that the Division Bench after formulating the question  

in paragraph 18 ascertained the relevant dates when cognizance  

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was taken in Parbhani case and in Jalna case by the Committal  

Court and in both the cases cognizance was taken as early as on  

07.09.2006 in  Parbhani  and on 30.9.2006 in  Jalna  which  were  

borne  out  by  records  and,  therefore,  the  Division  Bench  was  

justified in setting aside the order of the Special Court.  In support  

of  his  submission  that  taking  a  fresh  cognizance  is  not  a  

requirement of law in a case where cognizance is already taken  

in respect of the same offence, reliance was placed upon  R.R.  

Chari  v.  State  of  Uttar  Pradesh -  AIR  1951  SC  207,  

Raghubans  Dubey  v.  State  of  Bihar -  AIR  1967  SC  1167,  

Darshan Singh Ram Kishan v. State of Maharashtra - AIR  

1971  SC  2372, State  of  West  Bengal  v.  Salap  Service  

Station  &  Ors.  -  1994  (3)  Suppl.  SCC  318,  CREF  Finance  

Limited v.  Shree Shanthi  Homes (P)  Ltd.  and another -  

2005 (7)  SCC 467, State of Karnataka v. Pastor P. Raju -  

2006 (6) SCC 728, S.K. Sinha, Chief Enforcement Officer v.  

Videocon  International  Ltd.  &  Ors.  –  (2008)  2  SCC  492,  

Fakhruddin Ahmad (supra) and Sarah Mathew v. Institute  

of  Cardio  Vascular  Diseases  By  its  Director  Dr.  K.M.  

Cherian & Ors.– (2014) 2 SCC 62.

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26. According to learned ASG, in respect of an offence under  

MCOCA,  for  invoking  its  provisions,  cognizance  of  the  offence  

taken as provided under Section 190 Cr.P.C. was sufficient.  The  

learned  ASG  then  submitted  that  in  order  to  ascertain  a  

‘continuing unlawful activity’ as defined under Section 2 (1) (d) of  

the MCOCA what is required is commission of such an offence as  

a member of either ‘organized crime syndicate’ or on behalf of  

‘organized  crime  syndicate’  would  mean  any  ‘organized  crime  

syndicate’ and not the same ‘organized crime syndicate’.  As far  

as the contention relating to two earlier cases in the preceding 10  

years, the learned ASG submitted that in the Malegaon case, the  

occurrence was on 29.09.2008 and in the preceding 10 years i.e.  

on 07.09.2006 cognizance was taken in the Parbhani case and in  

Jalna case cognizance was taken on 30.09.2006 and, therefore,  

the same was sufficient to hold that the appellants were involved  

in  a  ‘continuing  unlawful  activity’  and  thereby  satisfied  the  

requirement of 2 (1) (d) (e) and (f) of MCOCA. The learned ASG  

sought to distinguish the case in  Mahipal Singh (supra). The  

learned ASG by relying upon Zameer Ahmed Latifur Rehman  

Sheikh v. State of Maharashtra & Ors. – 2010 (5) SCC 246  

submitted that insurgency is a grave disturbance of public order  

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and,  therefore,  the  question  of  pecuniary  advantage  was  not  

needed  where  promotion  of  insurgency  formed  the  basis  for  

prosecuting the appellants under MCOCA. On ‘other advantage’,  

learned  ASG  relied  upon  State  of  Maharashtra  v.  Jagan  

Gagansingh Nepali @ Jagya -2011 (5) Mh.L.J. 386.  

27. Mr. Mariaarputham, learned senior counsel appearing for  

the  State  of  Maharashtra  and  NIA  after  referring  to  the  

accusations  against  the  accused  submitted  that  going  by  the  

allegations and the gravity of the offence, they are not entitled  

for  bail.  The  learned  senior  counsel  also  submitted  that  apart  

from  offences  under  the  MCOCA,  the  appellants  are  also  

proceeded under the Unlawful Activities (Prevention) Act, 1967,  

in particular, offences under Sections 13, 15, 16, 17, 18, 18B, 20,  

23 etc. and the maximum penalty for offences under Sections 15  

to  23 is  the  death  penalty  and  that  under  Section  43D(5)  for  

grant  of  bail,  severe  restrictions  have  been  imposed  and,  

therefore,  both  because  the  question  raised  about  the  

implications of MCOCA, as well as, having regard to the offences  

for  which  the  appellants  are  proceeded  against,  they  are  not  

entitled  for  grant  of  bail.   The  learned  senior  counsel  then  

contended that in order to constitute an offence as an ‘organized  

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crime’ under Section 2 (1)(e) of MCOCA, it is not necessary that  

for the commission of such aggressive offences, there should be  

allegation  of  pecuniary  advantage  also.   According  to  learned  

senior counsel, insofar as, promotion of insurgency is concerned,  

even without any allegation of pecuniary gain,  the said act by  

itself would constitute an ‘organized crime’. The learned senior  

counsel,  therefore, contended that even in the absence of any  

allegation of pecuniary gain, the offence alleged would fall under  

the  category  of  ‘organized  crime’.  The  learned  senior  counsel  

further contended that in any event there were materials to show  

that the appellant in Criminal Appeal 1969-70/2010 as well as the  

appellant  in  Criminal  Appeal  No.1971/2010  had  pecuniary  

advantage.  The  learned  senior  counsel  then  contended  that  

cognizance of the offence was taken by the Magistrate based on  

the charge-sheet and when once there was application of judicial  

mind with a view to proceed with the matter, the requirement of  

cognizance  was  fulfilled.  Insofar  as  the  offences  pertaining  to  

Parbhani and Jalna were concerned, the learned senior counsel  

contended that they were all IPC offences and, therefore, taking  

cognizance of those offences need not be tested on the anvil of  

the  provisions  of  MCOCA.   The  learned  senior  counsel  placed  

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reliance  upon  the  decisions  in  Gopal  Marwari  &  Ors.  v.  

Emperor -AIR 1943 Patna 245 which was affirmed by this Court  

in  R.R. Chari (supra).  He also placed reliance upon  Darshan  

Singh Ram Kishan (supra), State of West Bengal & Anr. v.  

Mohd.  Khalid  &  Ors.–  (1995)  1  SCC  684, CREF  Finance  

Limited (supra), Pastor P. Raju (supra), Mona Panwar v.  

High  Court  of  Judicature  at  Allahabad  Through  its  

Registrar  &  Ors.  –  (2011)  3  SCC  496 and Sarah  Mathew  

(supra).   

28. On the submission relating to competent Court, learned  

senior  counsel  submitted that  in  Parbhani  and Jalna  reference  

needs to be made only to Sections 190, 200, 201, 202 read with  

Section  4  Cr.P.C.  and  when  on  a  complaint  filed  by  the  

prosecution,  the  CJM  having  taken  cognizance,  the  same  was  

sufficient  for  the  fulfillment  of  requirement  of  the  ‘continuing  

unlawful  activity’  as  defined  under  Section  2  (1)  (d)  of  the  

MCOCA. According to learned senior counsel, for the purpose of  

taking cognizance under the above provisions, the presence of  

the accused was not necessary.  As far as the relevant date is  

concerned, according to learned senior counsel, even if the date  

of occurrence of Malegaon blast, namely, 29.9.2008 is taken as  

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the relevant date, the committal Court having taken cognizance  

by receipt  of  the charge-sheet dated 07.09.2006 in  respect  of  

Parbhani  and  on  30.09.2006  in  the  case  of  Jalna  and  the  

committal order was on 12.02.2007 in Jalna, the cognizance was  

well before 29.09.2008 and, therefore, there was nothing lacking  

for the purpose of invoking the provisions of MCOCA. The learned  

senior  counsel  further  contended that as  long as all  the three  

incidents  were  committed  by  a  group  of  persons  and  one  

common individual was involved in all the three incidents, that  

would attract invocation of MCOCA.

29. Mr.  Tushar  Mehta,  learned ASG also appearing  for  NIA  

submitted that in the event of granting bail, having regard to the  

nature  of  offence  alleged  to  have  been  indulged  in  by  the  

appellants,  severe  conditions  should  be  imposed  and  that  the  

agency  is  entitled  for  custodial  interrogation  and  also  the  

presence of the accused at the time of trial should be ensured.  

30. By  way  of  reply  Mr.  U.R.  Lalit,  learned  senior  counsel  

submitted  that  the  prosecution  has  not  shown involvement  of  

‘Abhinav  Bharat’  in  the  Parbhani  case  or  Jalna  case  in  which  

event  if  ‘Abhinav Bharat’  is  to  be excluded,  the linking  of  the  

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appellants by making reference to Abhinav Bharat will also entitle  

them to contend that MCOCA cannot be invoked.  The learned  

senior counsel submitted that since MCOCA has been invoked for  

the  purpose  of  ascertaining  the  cognizance  of  the  offence,  

reference to Section 2(1)(d) would alone be made and not under  

Section 190 Cr.P.C. The learned senior counsel further contended  

that  cognizance  by  the  competent  Court  in  the  facts  and  the  

nature of offence alleged in Parbhani and Jalna would only mean  

the  Sessions  Court  under  Section  209  Cr.P.C.  and,  therefore,  

there  is  a  serious  doubt  as  to  the  application  of  MCOCA.  The  

learned  senior  counsel,  therefore,  contended  that  such  doubt  

should be held in favour of the appellants under Section 21(4)(b)  

of MCOCA and the appellants should be granted bail.

31. Mr.  Patil,  learned  senior  counsel  for  the  appellant  in  

appeal arising out of SLP(Crl.) No.8132/2010 submitted that when  

the case of  the said  appellant  is  considered with  reference  to  

additional  charge-sheet,  appellant  being  a  lady  suffering  from  

cancer  and  her  implication  was  because  of  sale  of  her  two  

wheeler four years before the occurrence, applying the decision  

in Salap Service Station (supra), she is entitled for the grant  

of bail.

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32. Having noted the submissions of respective counsel, at  

the outset, we want to note the specific challenges made in these  

appeals. As far as the appellant in Criminal Appeal No.1969-70 of  

2010  is  concerned,  he  along  with  the  other  appellants  is  

aggrieved by the common judgment of the Division Bench of the  

Bombay High Court in Crl.A. Nos.866, 867, 868, 869 and 1024 of  

2009  dated  19.07.2010.   By  the  said  judgment,  the  Division  

Bench set aside the order of the Special Judge dated 31.07.2009  

in Special Case No.1/2009.  While setting aside the said order of  

the Special Judge, the Division Bench directed the Special Judge  

to consider the bail applications in Bail Application Nos.40-42 of  

2008 and pass orders on merits.  In fact, the Special Judge in his  

order  dated  31.07.2009  took  the  view  that  MCOCA  was  not  

applicable  to  Special  Case  No.1/2009  and  consequently  by  

invoking Section 11 of MCOCA, directed the case to be tried by  

the regular Court.  Therefore, when we examine the correctness  

of the judgment of the Division Bench dated 19.07.2010 in Crl. A  

Nos.866/2009 and connected appeals, if the said judgment is to  

be upheld, the consequence would be to the consideration of the  

bail applications under Section 21 of the MCOCA.   

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33. It is relevant to note that after the order of the Division  

Bench  dated  19.7.2010,  the  Special  Judge  dealt  with  the  Bail  

Applications  Nos.  40-42  of  2008  and  dismissed  all  the  

applications. Thereafter, those orders were the subject matter of  

challenge in Criminal Bail Application No.333/2011 with Criminal  

Application  No.464/2011  insofar  as  the  appellant  in  Criminal  

Appeal  No.1969-70/2010  is  concerned.   One  other  appellant  

namely,  Ajay  Eknath  Rahirkar  filed  Criminal  Application  

No.556/2011 which was allowed by the Bombay High Court and  

he was granted bail by imposing certain conditions.  As far as  

Criminal  Application  No.333/2011  was  concerned,  the  said  

application  was  rejected  and  the  main  Criminal  Application  

No.464/2011 was disposed of by the High Court.

34. The appellant in Criminal Appeal No.1971 of 2010 was  

one of the respondents in Criminal Appeal No.868 of 2009 which  

was disposed of by the Division Bench of the Bombay High Court  

by its order dated 19.07.2010 along with the connected appeals  

preferred by the State of Maharashtra through ATS which is the  

prosecuting agency in respect of the Special Case No.1 of 2009  

on the file of the Special Judge under MCOCA. The said appellant  

was also aggrieved by the order of the Division Bench referred to  

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above in having set aside the order of the Special Judge dated  

31.07.2009.  The appellant in the appeal arising out of SLP (Crl.)  

No.8132/2010 is also similarly placed like that of the appellants in  

Criminal  Appeal  Nos.1969-70/2010  and  Criminal  Appeal  

No.1971/2010.  

35. Having thus noted the grievances of the appellants in the  

above referred to appeals as against the order of the Division  

Bench dated 19.07.2010 as well as the subsequent order of the  

learned  Single  Judge  in  having  declined  to  grant  bail  by  

confirming the order of the Special Court in Bail Application No.42  

of 2008, from the above referred to details gathered from the  

appeal papers as well as the orders impugned in these appeals  

the  scope  for  consideration  in  these  appeals  pertains  to  the  

questions:-  

(a) Whether  the  common  order  of  the  Division Bench dated 19.07.2010 in having set aside  the order of the Special Judge in Special Case No.1 of  2009 discharging the appellants from the said case on  the ground that MCOCA was not applicable to the said  case and consequently the case was to be tried by the  Regular  Court  under  Section  11  of  MCOCA calls  for  interference?

(b) If answer to question No. (a) is in the  negative,  whether  for  the  purpose  of  grant  of  bail  under Section 21(4)(b) of MCOCA, can it be held that  the application of the said Act is not made out against  

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the appellants and consequently the rejection of bail  by  the  trial  Court  and  as  confirmed by  the  learned  Single Judge of the Bombay High Court is justified?

36. Having  thus  ascertained  the  scope  involved  in  these  

appeals  by  virtue  of  the  orders  impugned  herein,  when  we  

consider the submissions of learned counsel for the appellants,  

we find that the sum and substance of the submissions can be  

summarized as under:

“That  the definition of  ‘continuing unlawful  activity’,  ‘organized  crime’  or  ‘organized  crime  syndicate’  as  defined under Section 2(1)(d)(e) and (f) of MCOCA was  not cumulatively satisfied in order to proceed with the  Special Case No.1 of 2009 for the alleged commission  of  offence  of  organized  crime  under  Section  3  of  MCOCA.”

37.  In order to find an answer to the said question a detailed  

reference to some of the provisions of MCOCA, its Objects and  

Reasons and some other provisions of the Cr.P.C. are required to  

be noted. The prime provisions which are relevant under MCOCA  

are Sections  2(1)  (d),  (e)  & (f),  3,  21 (4)  (b),  23 (1)  & (2)  of  

MCOCA. As far as the Cr.P.C. is concerned, reference will have to  

be made to Sections 4, 173(2) & (8), 190, 191, 192, 193, 200,  

201 and 209. In order to appreciate the said provisions the same  

are extracted as under:

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“The  Maharashtra  Control  of  Organized  Crime  Act, 1999

Section  2  (1)(d) “Continuing  unlawful  activity”  means an activity prohibited by law for the time being  in force, which is a cognizable offence punishable with  imprisonment  of  three  years  or  more,  undertaken  either singly or jointly, as a member of an organized  crime  syndicate  or  on  behalf  of  such  syndicate  in  respect of which more than one charge-sheets have  been  filed  before  a  competent  Court  within  the  preceding period of ten years and that Court has taken  cognizance of such offence;

(e) “organized crime” means any continuing unlawful  activity by an individual, singly or jointly, either as a  member of an organized crime syndicate or on behalf  of  such  syndicate,  by  use  of  violence  or  threat  of  violence or intimidation or coercion, or other unlawful  means,  with  the  objective  of  gaining  pecuniary  benefits,  or  gaining  undue  economic  or  other  advantage  for  himself  or  any  other  person  or  promoting insurgency;

(f) “Organised crime syndicate” means a group of two  or  more  persons  who,  acting  either  singly  or  collectively,  as  a  syndicate  or  gang  indulge  in  activities of organized crime;

3. Punishment for organized crime. – (1) Whoever  commits an offence of organized crime shall –

(i)  if  such offence has resulted in the death of  any person, be punishable with death or imprisonment  for life and shall also be liable to a fine, subject to a  minimum fine of rupees one lac;

(ii)  in  any  other  case,  be  punishable  with  imprisonment for a term which shall not be less than  five years but which may extend to imprisonment for  life  and  shall  also  be  liable  to  a  fine,  subject  to  a  minimum fine of rupees five lacs.

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(2)  Whoever  conspires  or  attempts  to  commit  or  advocates,  abets  or  knowingly  facilitates  the  commission  of  an  organized  crime  or  any  act  preparatory  to  organized  crime,  shall  be  punishable  with imprisonment for a term which shall be not less  than five years but which may extend to imprisonment  for life and shall also be liable to a fine, subject to a  minimum fine of rupees five lacs.

(3)  Whoever  harbours  or  conceals  or  attempts  to  harbour  or  conceal,  any  member  of  an  organized  crime  syndicate  shall  be  punishable  with  imprisonment for a term which shall not be less than  five years but which may extend to imprisonment for  life,  and  shall  also  be  liable  to  a  fine,  subject  to  a  minimum fine of rupees five lacs.

(4) A person who is a member of an organized crime  syndicate shall be punishable with imprisonment for a  term which shall not be less than five years but which  may extend to imprisonment for life and shall also be  liable to a fine, subject to a minimum fine of rupees  five lacs.

(5) Whoever holds any property derived or obtained  from commission of an organized crime or which has  been acquired through the organized crime syndicate  funds shall be punishable with a term which shall not  be  less  than  three  years  but  which  may  extend  to  imprisonment for life and shall also be liable to fine,  subject to a minimum fine of rupees two lacs.

21.(4)(b) Where  the  Public  Prosecutor  opposes  the  application,  the  Court  is  satisfied  that  there  are  reasonable grounds for believing that he is not guilty  of such offence and that he is not likely to commit any  offence while on bail.

23.  Cognizance  of,  and  investigation  into,  an  offence.-  (1)  Notwithstanding anything contained in  the Code,-

(a) no information about the commission of an offence  of organized crime under this Act, shall be recorded by  

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a police officer without the prior approval of the police  officer  not  below  the  rank  of  the  Deputy  Inspector  General of Police;

(b) No investigation of an offence under the provisions  of this Act shall be carried out by a police officer below  the rank of the Deputy Superintendent of Police.

(2)  No  Special  Court  shall  take  cognizance  of  any  offence under this Act without the previous sanction of  the  police  officer  not  below  the  rank  of  Additional  Director General of Police.”

Code of Criminal Procedure, 1973

4. Trial of offences under the Indian Penal Code  and other laws.- (1)  All  offences  under  the Indian  Penal Code (45 of 1860) shall be investigated, inquired  into, tried, and otherwise dealt with according to the  provisions hereinafter contained. (2)  All  offences  under  any  other  law  shall  be  investigated, inquired into, tried, and otherwise dealt  with according to the same provisions, but subject to  any enactment for the time being in force regulating  the manner  or  place of  investigating,  inquiring  into,  trying or otherwise dealing with such offences.

173.  Report  of  police officer  on completion  of  investigation: (1) Xxx (2) (i) As soon as it is completed, the officer in charge  

of the police station shall forward to a Magistrate  empowered to take cognizance of the offence on a  police report, a report in the form prescribed by the  State Government, stating –  

(a)the names of the parties; (b)the nature of the information; (c) the names of the persons who appear to be  

acquainted  with  the  circumstances  of  the  case;

(d)whether  any  offence  appears  to  have  been  committed and, if so, by whom;

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(e)whether the accused has been arrested; (f) whether  he  has  been  released  on  his  bond  

and, if so, whether with or without sureties; (g)whether  he  has  been  forwarded  in  custody  

under Section 170; (h)whether the report of medical examination of  

the  woman  has  been  attached  where  investigation  relates  to  an  offence  under  Section 376, 376A, 376B, 376C, Section 376D  or Section 376E of the Indian Penal Code (45  of 1860)

(ii)  the officer  shall  also communicate,  in  such  manner  as  may  be  prescribed  by  the  State  Government,  the  action  taken  by  him,  to  the  person, if any, by whom the information relating  to the commission of offence was first given.

(8)  Nothing  in  this  section  shall  be  deemed  to  preclude further investigation in respect of an offence  after  a  report  under  sub-section  (2)  has  been  forwarded  to  the  Magistrate  and,  whereupon  such  investigation, the officer in charge of the police station  obtains  further  evidence,  oral  or  documentary,  he  shall  forward  to  the  Magistrate  a  further  report  or  reports  regarding  such  evidence  in  the  form  prescribed; and the provisions of sub-section (2) to (6)  shall, as far as may be, apply in relation to such report  or  reports  as  they  apply  in  relation  to  a  report  forwarded under sub-section (2).

190. Cognizance of offences by Magistrates.-(1)  Subject  to  the  provisions  of  this  Chapter,  any  Magistrate of the first class, and any Magistrate of the  second class specially empowered in this behalf under  sub-section (2), may take cognizance of any offence-

(a)  upon  receiving  a  complaint  of  facts  which  constitute such offence,  (b) upon a police report of such facts, and  (c)  upon information received from any person  other  than  a  police  officer,  or  upon  his  own  

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knowledge,  that  such  offence  has  been  committed.

(2) The Chief Judicial Magistrate may empower any  Magistrate  of  the  second  class  to  take  cognizance  under sub-section (1) of such offences as are within  his competence to inquire into or try.

(a)  upon  receiving  a  complaint  of  facts  which  constitutes such offence: (b) upon a police report of such facts: (c)  upon information received from any person  other  than  a  police  officer,  or  upon  his  own  knowledge,  that  such  offence  has  been  committed.

191. Transfer  on  application  of  the  accused.-  When  a  Magistrate  takes  cognizance  of  an  offence  under clause (c) of sub-section (1) of section 190, the  accused  shall,  before  any  evidence  is  taken,  be  informed that he is entitled to have the case inquired  into or tried by another Magistrate, and if the accused  or  any  of  the  accused,  if  there  be  more  than  one,  objects to further proceedings before the Magistrate  taking  cognizance,  the  case  shall  be  transferred  to  such other Magistrate as may be specified by the Chief  Judicial Magistrate in this behalf.

192.  Making  over  of  cases  to  Magistrates.-(1)  Any  Chief  Judicial  Magistrate  may,  after  taking  cognizance  of  an  offence,  make  over  the  case  for  inquiry  or  trial  to  any  competent  Magistrate  subordinate to him.

(2) Any Magistrate of the first class empowered in  this behalf by the Chief Judicial Magistrate may, after  taking cognizance of an offence, make over the case  for inquiry or trial to such other competent Magistrate  as  the  Chief  Judicial  Magistrate  may,  by  general  or  special order, specify, and thereupon such Magistrate  may hold the inquiry or trial.

193. Cognizance  of  offences  by  Courts  of  Session.- Except as otherwise expressly provided by  

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this  Code or by any other law for the time being in  force, no Court of Session shall take cognizance of any  offence as a Court  of  original  jurisdiction unless the  case has been committed to it by a Magistrate under  this Code.

200. Examination of  complainant.—  A Magistrate  taking  cognizance  of  an  offence  on  complaint  shall  examine upon oath the complainant and the witnesses  present, if any, and the substance of such examination  shall be reduced to writing and shall be signed by the  complainant  and  the  witnesses,  and  also  by  the  Magistrate:

Provided  that,  when  the  complaint  is  made  in  writing,  the  Magistrate  need  not  examine  the  complainant and the witnesses—

(a) if a public servant acting or purporting to act in  the discharge of his official duties or a court has  made the complaint; or

(b) if the Magistrate makes over the case for inquiry  or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over  the case to another Magistrate under section 192 after  examining  the  complainant  and  the  witnesses,  the  latter Magistrate need not re-examined them.

201. Procedure by Magistrate not competent to  take cognizance of the case.-(1) If the complaint is  made to a Magistrate who is not competent to take  cognizance of the offence, he shall.-

(a) if  the complaint is in writing,  return it  for  presentation  to  the  proper  Court  with  an  endorsement to that effect;

(b) if the complaint is not in writing, direct the  complainant to the proper Court.

209. Commitment of case to Court of Session  when offence is  triable  exclusively  by  it.- when in a case instituted on a police report or  otherwise,  the  accused  appears  or  is  brought  before  the  Magistrate  and  it  appears  to  the  

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Magistrate that the offence is triable exclusively  by the Court of Session, he shall- (a) commit, after complying with the provisions  of Section 207 or Section 208, as the case may  be, the case to the Court of Sessions, and subject  to  the  provisions  of  this  Code relating  to  bail,  remand  the  accused  to  custody  until  such  commitment has been made; (b) subject to the provisions of this Code relating  to bail, remand the accused to custody, and until  the conclusion of, the trial; (c) send to that Court the record of the case and  the documents and articles, if any, which are to  be produced in evidence; (d)  notify  the  Public  Prosecutor  of  the  commitment of the case to the Court of Session.

38. In the first instance, it will be profitable to examine the  

scheme of MCOCA by making a cursory glance to the Objects and  

Reasons  and  thereafter  to  make  an  intensive  reading  of  the  

above referred to provisions. When we peruse the Objects and  

Reasons, it discloses that organized crime has been posing very  

serious threat to our society for quite some years and it was also  

noted that organized crime syndicates had a common cause with  

terrorist  gangs.  In  the  Objects  and  Reasons,  the  foremost  

consideration was the serious threat to the society by those who  

were indulging in organized crimes in the recent years apart from  

organized crime criminals operating hand in glove with terrorist  

gangs.  It is common knowledge that for the terrorist gangs, the  

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sole  object  is  to  create  panic  in  the  minds  of  peace  loving  

members of the society and in that process attempt to achieve  

some  hidden  agenda  which  cannot  be  easily  identified,  but  

certainly will not be in the general interest or well being of the  

society.  Those who prefer to act in such clandestine manner and  

activities  will  formulate  their  own mind-set  and ill-will  towards  

others  and attempt to achieve their  objectives by indulging in  

unlawful  hazardous  criminal  activities  unmindful  of  the serious  

consequences and in majority of such cases it results in severe  

loss of life of innocent people apart from extensive damage to the  

properties  of  public  at  large.   It  was  further  found  that  the  

existing legal framework, that is the penal and procedural laws  

and the  adjudicatory  system,  were  found to  be inadequate  to  

curb or control the menace of ‘organized crime’. The Objects and  

Reasons also states that such ‘organized crimes’ were filled by  

illegal wealth generated by contract killing, extrusion, smuggling  

in contraband, illegal trade in narcotics, kidnapping for ransom,  

collection of  protection money, money laundering etc.  Keeping  

the above serious repercussions referred to in the Objects and  

Reasons, when we examine Section 2(1)(d)(e)&(f), which defines  

‘continuing  unlawful  activity’,  ‘organized  crime’  or  ‘organized  

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crime syndicate’,  we find that the three definitions are closely  

interlinked.  

39. The  definition  of  ‘continuing  unlawful  activity’  under  

Section 2(1)(d) mainly refers to an activity prohibited by law. The  

said  activity  should  be  a  cognizable  offence,  punishable  with  

imprisonment of three years or more. The commission of such  

offence  should  have  been  undertaken  either  by  an  individual  

singly  or  by  joining  with  others  either  as  a  member  of  an  

‘organized  crime  syndicate’  or  even  if  as  an  individual  or  by  

joining hands with others even if not as a member of a ‘organized  

crime  syndicate’  such  commission  of  an  offence  should  have  

been on behalf of such syndicate. It further states that in order to  

come within the definition of ‘continuing unlawful activity’ there  

should  have  been  more  than  one  charge-sheet  filed  before  a  

competent Court within the preceding period of 10 years and that  

the said Court should have taken cognizance of such offence.  

40. Before getting into the nuances of the said definition of  

‘continuing unlawful activity’, it will be worthwhile to get a broad  

idea of the definition of ‘organized crime’ under Section 2(1)(e)  

and  ‘organized  crime  syndicate’  under  Section  2(1)(f).  An  

‘organized  crime’  should  be  any  ‘continuing  unlawful  activity’  

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either by an individual singly or jointly, either as a member of an  

‘organized crime syndicate’ or on behalf of such syndicate. The  

main  ingredient  of  the  said  definition  is  that  such  ‘continuing  

unlawful activity’ should have been indulged in by use of violence  

or threat of violence or intimidation or coercion or other unlawful  

means. Further such violence and other activity should have been  

indulged in  with  an objective  of  gaining  pecuniary  benefits  or  

gaining undue economic or other advantage for himself or for any  

other  person  or  for  promoting  insurgency.  Therefore,  an  

‘organized crime’ by nature of violent action indulged in by an  

individual singly or jointly either as a member of an ‘organized  

crime syndicate’ or on behalf of such syndicate should have been  

either  with  an  object  for  making  pecuniary  gains  or  undue  

economic or other advantage or for promoting insurgency. If the  

object was for making pecuniary gains it can be either for himself  

or for any other person. But we notice for promoting insurgency,  

there  is  no  such  requirement  of  any  personal  interest  or  the  

interest of any other person or body. The mere indulgence in a  

violent activity etc. either for pecuniary gain or other advantage  

or  for  promoting  insurgency  as  an  individual,  either  singly  or  

jointly as a member of ‘organized crime syndicate’ or on behalf of  

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a such syndicate would be sufficient for bringing the said activity  

within the four corners of the definition of ‘organized crime’.  

41. An ‘organized crime syndicate’ is a group of two or more  

persons  who by acting singly or  collectively  as  a  syndicate or  

gang indulge in activities of ‘organized crime’.  

42. By conspectus reading of the above three definitions, if in  

the preceding 10 years from the date of third continuing unlawful  

activity if  more than one charge-sheet has been filed before a  

competent  Court  which  had  taken  cognizance  of  such  offence  

which would result in imposition of a punishment of three years  

or more, undertaken by a person individually or jointly either as a  

member of an ‘organized crime syndicate’ or on its behalf, such  

crime  if  falls  within  the  definition  of  ‘organized  crime’,  the  

invocation of MCOCA would be the resultant position.  

43. Keeping the above broad prescription as the outcome of  

the definition of Section 2(1)(d)(e)&(f) in mind, when we refer to  

Section 3, we find that it is a penal provision under which, the  

various  punishments  for  the  commission  of  ‘organized  crime’  

have  been  set  out  and  such  punishment  can  be  up  to  life  

imprisonment  and  even  death,  apart  from  fine  subject  to  

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minimum of Rupees one lakh to maximum of Rupees five lakhs.  

The imprisonment ranges from five years  to  life  imprisonment  

and can also result  in  imposition of  death penalty.  Section 17  

prescribes  Special  Rules  of  evidence  notwithstanding  anything  

contrary contained in Cr.P.C. or the Indian Evidence Act for the  

purposes  of  trial  and  punishment  for  offences  under  MCOCA.  

Section 18 of the Act is again a non-obstante clause which states  

that  irrespective of  any provision in the Code or in the Indian  

Evidence  Act,  and subject  to  the  provisions  of  said  Section,  a  

confession made by a person before a police officer not below the  

rank  of  Superintendent  of  Police  and  recorded  by  such  police  

officer  either  in  writing  or  in  any  mechanical  devices  like  

cassettes, tapes or sound tracks from which sounds or images  

can be reproduced shall be admissible in the trial of such person  

or co-accused abettor or conspirator provided they are charged  

and tried in the same case together with the accused. Section 20  

is  yet  another  provision  under  MCOCA  which  prescribes  that  

where  a  person is  convicted of  any of  the  offence  punishable  

under MCOCA, the Special Court may in addition to awarding any  

punishment,  by  order  in  writing  declare  that  any  property,  

movable or  immovable or  both,  belonging to  the accused and  

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specified  in  the  order  shall  stand  forfeited  to  the  State  

Government free from all encumbrances etc. Under Section 21,  

which again is a  non-obstante clause, the provisions of the Act  

notwithstanding anything contained in the Code or any other law  

shall be deemed to be a cognizable offence within the meaning of  

clause  (c)  of  Section  2  of  the  Code and  “cognizable  case”  as  

defined in that clause should be constructed accordingly.  

44. Under Section 21(4) notwithstanding anything contained  

in the Code, no person accused of an offence punishable under  

MCOCA, when he is in custody, should be released on bail on his  

own bond unless  under  sub-clause (b)  of  sub-section (4)  even  

when the Public Prosecutor opposes the application for bail, the  

Court is satisfied that there are reasonable grounds for believing  

that the said accused is not guilty of such offence and that he is  

not likely to commit any offence while on bail.  

45. Under Section 22 there is  a rebuttable presumption of  

commission of organized crime punishable under Section 3 unless  

the contrary is proved. Under Section 23 a safeguard is provided  

to the effect that under Section 23(1)(a) no information about the  

commission  of  an  offence  of  organized  crime  under  MCOCA  

should be recorded by a police officer without the prior approval  

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of a police officer not below the rank of Deputy Inspector General  

of Police. Further under Section 23(1)(b) no investigation of an  

offence  under  MCOCA shall  be  carried  out  by  a  police  officer  

below the rank of Deputy Superintendent of Police. Under sub-

Section  (2)  of  Section  23,  no  Special  Court  should  take  

cognizance  of  any  offence  under  MCOCA without  the  previous  

sanction of  the police  officer  not  below the rank  of  Additional  

Director General of Police.  

46. Reference to the above provisions thus discloses that the  

Act  is  very  stringent  in  its  operation  when  it  comes  to  the  

question of dealing with an ‘organized crime’ committed by an  

‘organized crime syndicate’ in respect of a ‘continuing unlawful  

activity’.  With  the  above  salient  features  of  the  provisions  of  

MCOCA in mind, when we consider the various submissions of the  

learned counsel, the main submissions of the learned counsel for  

the appellants were five-fold.  

47. The  first  submission  was  that  the  present  appellants  

were all  alleged to have been involved in a bomb blast which  

occurred on 29.09.2008 at a place called ‘Malegaon’. According  

to the prosecuting agency, the appellants were either member of  

an organization called ‘Abhinav Bharat’ which was registered in  

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the year 2007 or the commission of the offence was jointly with  

the members of the said organization for and on its behalf. The  

contention  in  the  foremost  was  that  in  order  to  rope  in  the  

appellants on the above footing, the requirement of Section 2(1)

(d),  namely,  ‘continuing  unlawful  activity’  must  have  been  

satisfied.  In  order  to  demonstrate  such  compliance,  it  was  

contended on behalf of the prosecuting agency that there were  

two  earlier  occurrences  of  bomb  blasts  one  in  Parbhani  on  

21.11.2003 and another at Jalna on 27.08.2004, that on those  

two earlier occurrences A-7, namely, Rakesh Dattaray Dhawade  

was  involved who  is  also  a  member  of  the  present  gang and  

consequently  the  definition  of  ‘continuing  unlawful  activity’  is  

satisfied.  

48. The learned counsel for the appellants on the other hand  

contended that A-7 was not a member of the so-called ‘Abhinav  

Bharat’,  that  ‘Abhinav  Bharat’  as  an  organization  was  not  

indisputably involved in the two earlier occurrences in the year  

2003 and 2004, therefore, when such clear demarcation existed  

as  between the  appellants,  the  so-called  members  of  Abhinav  

Bharat and the earlier occurrences of 2003 and 2004, as well as,  

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the exclusion of A-7 as member of ‘Abhinav Bharat’ there was no  

scope to invoke MCOCA.  

49. We  are,  in  the  first  instance,  concerned  with  the  

appellant’s  challenge to the order of  the Division Bench dated  

19.07.2010 wherein the sole question considered pertains to the  

application  of  MCOCA  based  on  the  definition  of  ‘continuing  

unlawful activity’ under Section 2(1)(d) for the purpose of grant of  

bail  under  Section  21(4)(b)  of  MCOCA.  To  recapitulate  the  

background of this litigation, it was the order of discharge passed  

by  the  Special  Judge  in  Special  Case  No.1  of  2009  dated  

31.07.2009 on the footing that cognizance of two earlier cases  

within  preceding  10  years  from  the  date  of  third  occurrence  

dated  29.09.2008  was  not  satisfied  and  based  on  the  said  

conclusion the Special Judge passed the order of discharge and  

also  simultaneously  passed an order  under  Section  11 for  the  

transfer of the Special Case No.1 of 2009 to the Regular Court  

which went before the Division Bench at the instance of the State  

and the prosecuting agency.  The Division Bench while dealing  

with the said conclusion of the Special Court took a contrary view  

holding that the Special Judge misdirected himself by stating that  

the cognizance was with reference to the offender and not the  

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offence which led to the passing of such an illegal order dated  

31.07.2009. The Division Bench took the view that going by the  

provisions contained in Section 2(1)(d) read along with Sections  

190 and 173(3) of the Cr.P.C., as well as the settled principles in  

the various decisions of this Court, the cognizance of offence was  

taken  as  early  as  on  07.09.2006  in  the  Parbhani  case  and  

30.09.2006 in the Jalna case, which were within the preceding 10  

years from the date of the occurrence of Malegaon case, namely,  

29.09.2008 and therefore, the order of discharge passed by the  

Special Judge was not sustainable and valid in law.  

50. Having recapitulated the background to the above extent  

when we examine the contentions raised, it must be stated that  

the conclusion of the Division Bench as regards the cognizance  

aspect  cannot  be  held  to  be  totally  erroneous  when  it  struck  

down the order of the Special Judge dated 31.07.2009. Keeping  

aside  for  the  present  the  various  other  submissions  and  

considering the opening submission of the counsel while assailing  

the order of Division Bench wherein we confine to the question  

relating to taking cognizance of the offence as set out apparently  

in Section 2(1)(d) of MCOCA. In that perception, on the opening  

submission of the learned counsel for the appellants we too have  

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no hesitation to hold that the cognizance of the offence as stated  

to have been rightly taken into account in respect of Parbhani  

and  Jalna  based  on  the  charge-sheets  dated  07.09.2006  and  

30.09.2006  respectively  was  perfectly  in  order  to  apply  the  

definition  of  ‘continuing  unlawful  activity’  for  the  purpose  of  

invoking  MCOCA  with  reference  to  Malegaon  occurrence.  We,  

however, wish to examine in detail the justification for our above  

conclusion  when  we  deal  with  the  other  contentions  where  

submissions were made  in extenso with particular reference to  

the involvement of  A-7 in the alleged occurrences  of  Parbhani  

and  Jalna,  more  particularly  with  reference  to  the  date  of  

supplementary charge-sheet, arrest made and the arrest made  

with reference to Malegaon occurrence and the alleged nexus as  

between  the  appellants  and  A-7  in  order  to  find  out  whether  

application of MCOCA could still be held to be validly made by the  

prosecuting agency.  For the present by reaching our conclusion  

as above on the first submission, we proceed to deal with the  

next submission of learned counsel for the appellants.

51. The submission of the learned counsel for the appellants  

was that under Section 2(1)(d), in order to construe a ‘continuing  

unlawful activity’ two earlier charge-sheets in the preceding 10  

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years should exist and that such charge-sheets should have been  

taken cognizance by the competent court within the said period  

of  10 years  and it  must  have been accomplished.  It  was  also  

contended that for ascertaining the said position, the date of the  

third  occurrence  should  be the  relevant  date  for  counting  the  

preceding 10 years. Insofar as that claim is concerned, it can be  

straight  away  accepted  that  since  Section  2(1)(d)  uses  the  

expression ‘an activity’ in the very opening set of expressions,  

which is prohibited by law, the date of such activity, namely, the  

third one can be taken as the relevant date for the purpose of  

finding  out  the  two  earlier  charge-sheets  in  the  preceding  10  

years, in which event in the present case, the preceding 10 years  

will  have  to  be  counted  from 29.09.2008 which  was  the  date  

when the third occurrence of Malegaon bomb blast took place.  

52. With reference to Malegaon bomb blast, A-7 is the key  

person to be noted as it was with reference to his involvement in  

the earlier two bomb blast cases, namely, Parbhani and Jalna the  

whole  case  of  the  prosecution  for  invoking  MCOCA  was  

developed. Even while examining the various other submissions,  

we want to once again reiterate that our present endeavour is for  

examining  the  correctness  of  the  order  of  the  Division  Bench  

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which  stems  from  the  first  order  of  the  Special  Judge  dated  

31.07.2009  by  which  the  appellants  were  discharged  and  the  

consequential order under Section 11 transferring the case to the  

Regular Court. It must also be stated that our endeavour in this  

respect  is  also  for  the  purpose  of  finding  an  answer  to  the  

prescription contained in Section 21(4)(b) of MCOCA.  

53. Therefore,  what  all  to  be  examined  is  whether  

cognizance  of  the  earlier  two  offences  as  mentioned  in  the  

definition of Section 2(1)(d) was duly taken within the preceding  

period of 10 years. Having stated in uncontroverted terms that  

29.09.2008  is  the  relevant  date,  namely  the  date  of  third  

occurrence  (i.e.)  Malegaon bomb blast,  when we go back,  the  

question is whether in respect of the bomb blast in Parbhani on  

21.11.2003 and similar bomb blast in  Jalna on 27.08.2004 the  

charge-sheets  were  filed  and  cognizance  was  taken  by  the  

competent court  within  the said period of  preceding 10 years.  

There is no controversy as to the date of occurrence of the above  

two  bomb blasts.  There  is  also  no  dispute  that  the  very  first  

charge-sheet in Parbhani as against A-1 was filed on 07.09.2006  

before the Chief Judicial Magistrate. Similarly, the filing of the first  

charge-sheet on 30.09.2006 in Jalna case is also not in dispute.  

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The contention  put  forward  is  that  the  supplementary  charge-

sheet  in  respect  of  A-7  in  Parbhani  case  was  filed  only  on  

13.11.2008 and on 15.11.2008 in  Jalna  case and if  those two  

dates with regard to A-7 are taken as the relevant dates, then the  

requirement of two earlier cases as stipulated under Section 2(1)

(d) preceding 10 years period was not satisfied, inasmuch as, the  

date of third occurrence was 29.09.2008 and the date of charge-

sheets as against the A-7 were subsequent to that date and not  

earlier.  The said crucial  factor is required to be determined to  

decide the contention raised on behalf of the appellants. In this  

context reliance was placed upon the decisions in  Ajit Kumar  

Palit  (supra) and Dilawar  Singh  (supra) on  behalf  of  the  

appellants.  That  apart,  reference  was  also  made  to  Section  

173(2)(i)(a) and 173(8) to contend that cognizance referred to in  

context of MCOCA would only relate to the offender and not to  

the offence as prescribed under Section 190(1)(b).  

54. As against the above submissions Mr. Anil Singh, learned  

ASG  appearing  for  respondent-State  and  Mr.  Mariarputham,  

learned Senior Counsel appearing for the State of Maharashtra  

and NIA contended that the relevant dates are the first charge-

sheet filed in Parbhani case on 07.09.2006 and in Jalna case on  

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30.09.2006.  Reliance  was  placed  upon  the  decisions  in  R.R.  

Chari (supra), Raghbans  Dubey  (supra),  Darshan  Singh  

Ram Kishan (supra), Salap Service Station (supra), CREF  

Finance Limited (supra), Pastor P. Raju (supra), Videocon  

International Ltd. (supra)  and  Fakhruddin Ahmad (supra)  

in  support  of  the  submission.  Reliance  was  also  placed  upon  

Section  190  Cr.P.C.  to  contend  that  cognizance  of  offence  is  

relevant and not the offender and, therefore, the initial date of  

cognizance taken by the Chief Judicial Magistrate on the above  

dates in respect of Parbhani and Jalna will hold good for invoking  

MCOCA.

55. It was also contended that cognizance is an act which a  

Court when first apply its judicial mind with a view to proceed  

with the matter and, therefore, when in Parbhani and Jalna by  

virtue of Section 190 read along with Section 173 based on the  

report  of  the  police  when  the  first  charge-sheet  was  filed  on  

07.09.2006 and 30.09.2006 respectively in Parbhani and Jalna,  

the requirement of taking cognizance by the Competent Court in  

respect of offences under the Indian Penal Code which alone was  

relevant  in  respect  of  the  two  earlier  cases  was  satisfied  and  

nothing more was required to  be shown.  Further  reliance  was  

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placed upon R.R. Chari (supra), Darshan Singh Ram Kishan  

(supra), Mohd. Khalid (supra), Mona Panwar (supra) and  

Sarah Mathew (supra) in support of the above submissions.

56. Keeping  the  respective  submissions  of  the  learned  

counsel  in  mind when we examine  the  said  issue,  in  the first  

instance we wish to refer to relevant provisions touching upon  

this issue, namely, Section 2(1)(d) of MCOCA and Section 173(2)  

and (8) as well as Sections 190 and 193 of Criminal Procedure  

Code. When we refer to Section 2(1)(d) of MCOCA the definition  

of  ‘continuing unlawful  activity’  is  defined to  mean an activity  

prohibited  by  law  and  that  it  should  be  a  cognizable  offence  

punishable with  imprisonment of  three years  or  more.  For the  

purpose  of  ascertaining  the  issue  relating  to  cognizance,  the  

other part of the said definition which requires to be noted is that  

more  than  one  charge-sheet  should  have  been  filed  before  a  

Competent  Court  within  the preceding period  of  10 years  and  

that Court should have taken cognizance of  such offence.  The  

offence should alleged to have been committed either singly or  

jointly as a member of an organized crime syndicate or on its  

behalf.  In  so far as the offences are concerned,  if  the offence  

would attract a punishment of three years or more that would  

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suffice  for  falling  within  the  said  definition.  The  charge-sheet  

should have been filed before a Competent Court with reference  

to such offence against the offenders.  

57. One of the contentions raised and which was countered  

by the respondents was that such two earlier offences should also  

satisfy the other requirements stipulated under MCOCA, namely,  

as a member of an organized crime syndicate or on behalf of an  

organized  crime  syndicate  either  singly  or  jointly.  A  strict  

interpretation  of  Section  2(1)(d)  would  definitely  mean  the  

fulfillment  of  such  requirement  since  the  definition  specifically  

reads  to  the  effect  ‘undertaken  either  singly  or  jointly  as  a  

member of  an organized crime syndicate or on behalf  of  such  

syndicate’.  Therefore,  even  if  the  earlier  offences  were  not  

initiated under the provisions of MCOCA such initiations should  

have  been  capable  of  being  brought  within  the  provisions  of  

MCOCA,  namely,  as  part  of  an  activity  of  an  organized  crime  

syndicate either by its own members either singly or jointly or  

though not as a member but such participation should have been  

on behalf of an ‘organized crime syndicate’. As far as filing of the  

charge-sheet is concerned what all it refers to is such filing before  

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a Competent Court and that Court should have taken cognizance  

of such offence.  

58. A minute reference to the said Section, therefore, shows  

that in the event of the fulfillment of the rest of the requirements,  

namely, the nature of offence providing for punishment of three  

years  and  more,  the  involvement  of  the  offender  as  required  

under the said definition, when it comes to the question of filing  

of  the  charge-sheet,  the  requirement  of  such  filing  should  be  

before a competent court within a period preceding 10 years and  

that  such  court  has  taken  cognizance  of  such  offence.  

Significantly, when it comes to the question of fulfillment of the  

requirement of cognizance what is prescribed is the cognizance  

of  such  offence  and  not  the  offender.  As  far  as  the  court  is  

concerned, here again the specific reference used is ‘competent  

court’ and not ‘Sessions Court’. Therefore, keeping aside the rest  

of the requirements to be fulfilled under Section 2(1)(d) for the  

present,  when  we  consider  the  requirement  of  filing  of  the  

charge-sheet before the Competent Court and such Court taking  

cognizance of such offence, it can be stated without any scope of  

controversy  that  two  earlier  cases  which  would  attract  a  

punishment  of  more  than  three  years  and  prohibited  by  law,  

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undertaken singly or jointly as a member of an organized crime  

syndicate or on its behalf, if more than one charge-sheet is filed  

in respect of such offence before the Competent Court and the  

said Court had taken cognizance of such offence, the definition of  

“continuing unlawful activity” would be satisfied.  

59. Keeping  the  said  prescription  of  the  definition  of  

“continuing unlawful activity” under Section 2(1)(d) in mind when  

we  examine  the  question  as  to  taking  of  cognizance  and  the  

Competent Court before whom more than one charge-sheet to be  

filed, there is no other provision under MCOCA which deals with  

or  prescribes  any  stipulation  for  fulfillment  of  the  said  

requirement.  We have to, therefore,  necessarily fall  back upon  

the provisions contained in the Criminal Procedure Code. For that  

purpose  reference  to  Sections  173,  190  and  193  have  to  be  

noted. Under Section 173(2)(i), it is stipulated that as soon as the  

investigation  is  completed,  the  officer  in-charge  of  the  Police  

Station should forward to the Magistrate who is empowered to  

take cognizance of  the offence on a police  report  in  the form  

prescribed  by  the  State  Government,  which  should  contain  

among  other  things  the  names  of  the  parties,  the  nature  of  

information,  the  names  of  the  persons  who  appear  to  be  

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acquainted with the circumstances of the case and various other  

details.  

60. When  we  read  the  said  Section  173(2)(i)  along  with  

Section 190 of Cr.P.C., it can be seen that any Magistrate of the  

first  class  or  any  Magistrate  of  the  second  class  specially  

empowered as provided under sub-section (2) of the said Section  

may take cognizance of any offence upon a police report of such  

facts.  Therefore,  reading  Section  173(2)(i)  along  with  Section  

190(1)(b), a duty is cast upon the officer in-charge of the police  

station  mandatorily  to  forward  to  the  Magistrate  who  is  

empowered to take cognizance of the offence on a police report.  

Under Section 190(1)(b) any Magistrate of the first class and for  

that matter any Magistrate of second class who is empowered by  

the  Chief  Judicial  Magistrate  for  taking  cognizance  under  sub-

Section (1) can take cognizance of any offence based on filing of  

a  police  report  furnished  with  the  facts  as  stipulated  under  

Section 173(2)(i) (a to h). A conjoint reading of Section 173(2)(i)  

and Section 190(1)(b), therefore, makes the position crystal clear  

that taking of cognizance of any offence by a Magistrate of the  

First Class or the Second Class subject to empowerment created  

under sub-Section (2) of Section 190 can take cognizance upon a  

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police report.  It can be emphasized here that under Section 190  

(1) (b) where the Police Report as stated in Section 173(2) (i) is  

filed before a Magistrate under Section 190(1) (b), irrespective of  

the nature of offence, the said Magistrate has been invested with  

all the powers to take cognizance by applying his judicial mind.  

To  be  more  precise,  once  the  Police  Report  is  filed  before  a  

judicial  Magistrate as prescribed under Section 190(1) (b), who  

has been invested with the judicial authority to take cognizance  

of  any offence in the first  instance,  the requirement  of  taking  

cognizance gets fulfilled at that very moment. Further the very  

fact  that  proceedings  pertaining  to  Parbhani  and  Jalna  were  

pending  before  the  Magistrate  where  such  proceedings  were  

initiated by the filing of the police report till  the occurrence in  

Malegaon  took  place  itself  was  sufficient  to  demonstrate  that  

judicial mind was very much applied to the proceedings based on  

the police report consequent upon cognizance taken.  

61. Keeping the said prescription of law in mind, when we  

apply  the  requirement  as  stipulated  under  Section  2(1)(d)  of  

MCOCA, without straining any further on this question, it can be  

safely held that the requirement of filing of the charge-sheet in  

two earlier  cases before the competent court  in  respect  of  an  

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offence  stipulated  under  Section  2(1)(d)  can  be  held  to  be  

satisfied once cognizance is taken by a Judicial Magistrate of first  

class or for that matter an empowered second class Magistrate,  

in  the  event  of  filing  of  a  police  report  as  prescribed  under  

Section 173(2)(i)  by virtue  of  the power vested under  Section  

190(1)(b) of Cr.P.C. If the ingredients of the above requirements  

are  fulfilled  it  will  have  to  be  held,  that  that  part  of  the  

requirement  under Section 2(1)(d), namely, the competent court  

taking cognizance of the offence as stipulated under Section 2(1)

(d) in respect of two earlier cases will get fulfilled.  

62. Once  we  steer  clear  of  the  said  legal  position,  to  

emphasize further, we also wish to refer to Section 193 Cr.P.C.  

the caption of which specifically states “Cognizance of offences  

by Courts of Session”. The said Section is negatively couched and  

states that except as otherwise expressly provided by this Code  

or  by  any  other  law for  the  time  being  in  force,  no  Court  of  

Session  shall  take  cognizance  of  any  offence  as  a  Court  of  

Original Jurisdiction unless the case has been committed to it by  

a Magistrate under this Code. For our purpose of ascertaining the  

requirement of competent court and cognizance stipulated under  

Section 2(1)(d) of MCOCA, we find that under Section 193, the  

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Court of Session can take hold of the case as a Court of Original  

Jurisdiction  only  after  committal  order  is  passed  to  it  by  a  

Magistrate under the provisions of Cr.P.C., whereas under Section  

190(1)(b), the power of a Magistrate has been pithily stated to  

mean that he can take cognizance of any offence subject to the  

fulfillment of the requirements (a), (b) and (c) and no further.  

63. We are now pitted with the question as to whether the  

taking  of  cognizance  of  the  offence  by  the  Competent  Court  

under Section 2(1)(d) of MCOCA is referable only to the Court of  

Sessions or even to a Magistrate of first class under Section 190.  

In this context, when we read Section 2(1)(d) along with 190 and  

193  in  the  absence  of  any  specific  stipulation  either  under  

Section 2(1)(d) of MCOCA or any other provision under the said  

Act in the ordinary course of interpretation it can be validly stated  

that on fulfillment of Section 190, when a Judicial Magistrate of  

first  class  or  an  empowered  second  class  Magistrate,  takes  

cognizance of any offence that would fulfill  the requirement of  

Section 2(1)(d) relating to competent court. We have noted under  

MCOCA that beyond what has been stipulated under Section 2(1)

(d) there is no other provision dealing with the matter relating to  

a Competent Court for the purpose of taking cognizance. When  

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under the provisions of Cr.P.C.,  Judicial  Magistrate of first class  

has been empowered to take cognizance of any offence based on  

a Police Report, we fail to see any hurdle to state that on taking  

cognizance in that manner, the said court should be held to be  

the  competent  court  for  satisfying  the  requirement  of  Section  

2(1)(d) of MCOCA. In this respect, we will have to bear in mind  

that the implication of MCOCA would come into play only after  

the third occurrence takes place and only after that it will have to  

be seen whether on the earlier two such occasions involvement  

of someone jointly or singly, either as a member of an ‘organized  

crime syndicate’ or on its behalf indulged in a crime in respect of  

which  a  charge-sheet  has  already  been  filed  before  the  

Competent  Court  which  Court  had  taken  cognizance  of  such  

offence.  

64. Therefore, we are able to state the legal position without  

any ambiguity to the effect that in the event of a Judicial  first  

class  Magistrate  or  an  empowered  second  class  Magistrate  

having taken cognizance of an offence based on a police report  

as  stipulated  under  Section  173(2)(i),  such  cognizance  of  an  

offence would fulfill the requirement of that part of the definition  

under Section 2(1)(d) of MCOCA. Once we are able to ascertain  

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the said legal position by way of strict interpretation, without any  

ambiguity, we also wish to refer to various decisions relied upon  

by  either  party  to  note  whether  there  is  any  scope  of  

contradiction with reference to said legal position.

65. Mr.  Lalit,  learned  counsel   in  the  course  of  his  

submissions  relied  upon  Ajit  Kumar Palit  v.  State of  West  

Bengal and another – AIR 1963 SC 765. In the said decision  

with  reference  to  the  expression  ‘cognizance’  a  three-Judge  

Bench of this Court has explained what is really meant by the  

said expression in the following words in paragraph 19:  

“……The word “cognizance” has no esoteric or mystic  significance  in  criminal  law  or  procedure.  It  merely  means-become  aware  of  and  when  used  with  reference  to  a  court  or  Judge,  to  take  notice  of  judicially. It was stated in  Gopal Marwari v.  Emperor,  AIR 1943 PAT 245 (SB) by the learned Judges of the  Patna High Court in a passage quoted with approval  by this Court in  R.R. Chari v.  State of Uttar Pradesh,   1951 SCR 312 at page 320: (AIR 1951 SC 207 at page   210) that the word “cognizance” was used in the Code  to  indicate  the  point  when  the  Magistrate  or  Judge  takes judicial  notice of an offence and that it  was a  word of indefinite import, and is not perhaps always  used  in  exactly  the  same  sense.  As  observed  in  Emperor v. Sourindra Mohan Chuekorbutty, ILR 37 CAL  412 at page 416, “taking cognizance does not involve  any formal action; or indeed action of any kind, but  occurs as soon as a Magistrate, as such, applies his  mind  to  the  suspected  commission  of  an  offence”.  Where the statute proscribes the materials on which  

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alone the judicial mind shall operate before any step is  taken,  obviously  the  statutory  requirement  must  be  fulfilled……”  

(Emphasis added)

66. In the above extracted portion the reference made to the  

earlier  judgment  in  R.R.  Chari’s  case  reported  in  R.R.  Chari  

(supra) at page 210 that the word ‘cognizance’ was used in the  

Court to indicate the point when the Magistrate or Judge takes  

judicial notice of an offence throws sufficient light to state that at  

that very moment when a Magistrate takes judicial notice of an  

offence, the requirement of cognizance of such offence will get  

fulfilled.  Therefore,  the  said  decision  also  fully  supports  our  

conclusion  on  the  question  of  taking  cognizance  by  the  

competent Court.

67. Reliance was then placed upon the decision in  Dilawar  

Singh (supra) in particular paragraph 8.  The said paragraph 8  

reads as under:

“8. The contention raised by learned counsel for the  respondent  that  a  court  takes  cognizance  of  an  offence  and  not  of  an  offender  holds  good  when  a  Magistrate  takes  cognizance  of  an  offence  under  Section  190  CrPC.  The  observations  made  by  this  Court in Raghubans Dubey v. State of Bihar were also  made in that context. The Prevention of Corruption Act  is a special statute and as the preamble shows, this  

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Act has been enacted to consolidate and amend the  law relating  to  the prevention of  corruption  and for  matters  connected  therewith.  Here,  the  principle  expressed  in  the  maxim    generalia  specialibus  non    derogant   would apply which means that if  a special    provision  has  been  made  on  a  certain  matter,  that  matter is excluded from the general provisions. (See  Godde  Venkateswara  Rao v.  Govt.  of  A.P.,  State  of  Bihar v.  Dr.  Yogendra  Singh and  Maharashtra  State  Board of Secondary and Higher Secondary Education  v.  Paritosh  Bhupeshkumar  Sheth.)  Therefore,  the  provisions  of  Section  19  of  the  Act  will  have  an  overriding effect over the general provisions contained  in  Section  190  or  319  CrPC.  A  Special  Judge  while  trying an offence under the Prevention of Corruption  Act,  1988,  cannot  summon  another  person  and  proceed  against  him  in  the  purported  exercise  of  power under Section 319 CrPC if no sanction has been  granted by the appropriate authority for prosecution of  such a person as the existence of a sanction is  sine  qua non for taking cognizance of the offence qua that  person.”

(Emphasis added)

68. By  relying  upon  the  said  part  of  the  decision  it  was  

contended that taking ‘cognizance of an offence’ cannot be the  

universal  rule  and  that  under  special  circumstances  such  

cognizance  of  offence  would  be qua  that  person,  namely,  the  

offender. It is true that in the said decision while dealing with the  

requirement of  sanction under Section 19 of the Prevention of  

Corruption Act with reference to an offence under Section 13(2)  

of  the  said  Act,  this  Court  did  say  that  in  the  absence  of  a  

sanction under Section 19 the taking of cognizance of the offence  

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qua that person cannot be held to have been made out. When we  

apply the said decision, it must be stated that it was laid in the  

context of an offence under Section 13(2) of the Prevention of  

Corruption Act which Act specifically stipulates the requirement  

of prior sanction under Section 19 for proceeding against a public  

servant  by  way of  a  sanction  and,  therefore,  it  was  held  that  

Section  19  of  the  Act  will  have  an  overriding  effect  over  the  

general provisions contained in Section 190 or 319 of Cr.P.C. For  

the  fulfillment  of  the  requirement  to  be  complied  with  under  

Section 2(1)(d) of MCOCA, for ascertaining a ‘continuing unlawful  

activity’ in the absence of any such restriction as stipulated under  

Section  19  of  the  Prevention  of  Corruption  Act  under  the  

provisions of MCOCA we have found that Section 190 will have  

every effect insofar as taking of cognizance by a competent Court  

is concerned as stipulated under Section 2(1)(d) and, therefore,  

as  held  by  us  on  compliance  of  the  said  requirement  under  

Section 190, namely, cognizance of the offence by the competent  

Magistrate, that part of the requirement under Section 2(1)(d) will  

get automatically fulfilled.

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69. Reliance  was  then  placed  upon  the  decision  in  

Fakhruddin Ahmad (supra),  in  particular  paragraph 17.  The  

said paragraph 17 reads as under:

“17. Nevertheless,  it  is  well  settled  that  before  a  Magistrate can be said to have taken cognizance of an  offence,  it  is  imperative  that  he  must  have  taken  notice of the accusations and applied his mind to the  allegations  made  in  the  complaint  or  in  the  police  report or the information received from a source other  than  a  police  report,  as  the  case  may  be,  and  the  material filed therewith. It needs little emphasis that it  is  only when the Magistrate    applies his mind   and is    satisfied  that  the  allegations,  if  proved,  would  constitute  an  offence  and  decides  to  initiate  proceedings against the alleged offender, that it can  be positively stated that he has taken cognizance of  the offence. Cognizance is in regard to the offence and  not the offender.”

(emphasis added)

70. Even here this Court has stated in uncontroverted terms  

that once the Magistrate applies his mind to the offence alleged  

and decides to initiate proceedings against the alleged offender,  

it can be stated that he has taken cognizance of the offence and  

by way of reiteration. It  is  further stated that cognizance is  in  

regard  to  the  offence  and  not  the  offender.  This  decision,  

therefore, reinforces the position that cognizance is mainly of the  

offence and not the offender.

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71. In R.R. Chari (supra), in paragraph 8, this Court made it  

clear that the word ‘cognizance’ is used by the Court to indicate  

the point when the Magistrate or a Judge first takes judicial notice  

of an offence. Therefore, primarily cognizance of an offence takes  

place  when  a  Judicial  Magistrate  applies  his  mind  and  takes  

judicial notice of the offence. In fact that is what has been even  

statutorily stipulated under Section 190(1) of Cr.P.C.  

72. In Darshan Singh Ram Kishan  (supra), in paragraph  

8, with particular reference to Section 190, this Court has held as  

under:

“8. As provided by Section 190 of the Code of Criminal  Procedure,  a  Magistrate  may take  cognizance  of  an  offence either, (a) upon receiving a complaint, or (b)  upon a police report, or (c) upon information received  from a person other than a police officer or even upon  his own information or suspicion that such an offence  has been committed.  As has often been held, taking  cognizance  does  not  involve  any  formal  action  or  indeed  action  of  any  kind  but  occurs  as  soon as  a  Magistrate  applies  his  mind  to  the  suspected  commission  of  an  offence.  Cognizance,  therefore,  takes place at a point when a Magistrate first takes  judicial  notice  of  an  offence.  This  is  the  position  whether the Magistrate takes cognizance of an offence  on  a  complaint,  or  on  a  police  report,  or  upon  information  of  a  person  other  than  a  police  officer.  Therefore, when a Magistrate takes cognizance of an  offence upon a police report, prima facie he does so of  the offence or offences disclosed in such report.”

(emphasis added)

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73. The above passage referred to in the said decision makes  

the position explicitly clear that cognizance would take place at a  

point when a Magistrate first takes judicial notice of the offence  

either on a complaint or on a police report or upon information of  

a person other than the police officer.  Taking judicial notice is  

nothing but pursuing the report of the police officer, proceeding  

further on that report by opening the file and thereafter taking  

further steps to ensure the presence of the accused and all other  

consequential  steps including at  a later  stage depending upon  

the  nature  of  offence  alleged  to  pass  necessary  order  of  

committal to Court of Sessions.

74. In  Salap Service Station (supra),  the question as to  

what is  the implication of  a  supplementary report  filed by the  

investigating  agency  under  Section  173(8)  Cr.P.C.  was  

considered. While dealing with the same, it has been stated as  

under in paragraph 2:

2.….It  may  be  mentioned  here  that  in  the  supplementary  charge-sheet  allegations  are  to  the  effect  that  there was  violation of  Direction  12 of  the  Control Order.  The question of taking cognizance does  not  arise  at  this  stage  since  cognizance  has  already  been taken on the basis of the main charge-sheet. What  all  Section 173(8)  lays down is  that the investigating  agency can carry on further investigation in respect of  

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the  offence  after  a  report  under  sub-section  (2)  has  been filed. The further investigation may also disclose  some fresh offences but connected with the transaction  which  is  the  subject-matter  of  the  earlier  report…………..The purpose of sub-section (8) of Section  173  CrPC  is  to  enable  the  investigating  agency  to  gather further evidence and that cannot be frustrated. If  the  materials  incorporated  in  the  supplementary  charge-sheet do not make out any offence, the question  of framing any other charge on the basis of that may  not  arise but in case the court  frames a charge it  is  open  to  the  accused  persons  to  seek  discharge  in  respect of that offence also as they have done already  in respect of the offence disclosed in the main charge- sheet. The rejection of the report outright at that stage  in our view is not correct.”

(emphasis added)

75. The above statement of law with particular reference to  

Section 173(8) Cr.P.C. makes the position much more clear to the  

effect that the filing of the supplementary charge-sheet does not  

and will  not  amount  to  taking cognizance by the Court  afresh  

against  whomsoever  again  with  reference  to  the  very  same  

offence. What all it states is that by virtue of the supplementary  

charge-sheet further offence may also be alleged and charge to  

that effect may be filed. In fact, going by Section 173(8) it can be  

stated like in  our case by way of  supplementary charge-sheet  

some  more  accused  may  also  be  added  to  the  offence  with  

reference to which cognizance is  already taken by the Judicial  

Magistrate. While cognizance is already taken of the main offence  

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against the accused already arrayed, the supplementary charge-

sheet  may  provide  scope  for  taking  cognizance  of  additional  

charges or against more accused with reference to the offence  

already taken cognizance of and the only scope would be for the  

added  offender  to  seek  for  discharge  after  the  filing  of  the  

supplementary charge-sheet against the said offender.

76. In  CREF  Finance  Limited  (supra) paragraph  10  is  

relevant wherein this Court has held as under:

10……Cognizance is taken of the offence and not of  the offender and, therefore, once the court on perusal  of  the  complaint  is  satisfied  that  the  complaint  discloses the commission of an offence and there is no  reason  to  reject  the  complaint  at  that  stage,  and  proceeds further in the matter, it must be held to have  taken  cognizance  of  the  offence.  One  should  not  confuse taking of cognizance with issuance of process.  Cognizance  is  taken  at  the  initial  stage  when  the  Magistrate  peruses  the  complaint  with  a  view  to  ascertain  whether  the commission of  any offence is  disclosed……”  

(emphasis added)

77. The said statement of law reinforces the legal position  

that cognizance is always of the offence and not the offender and  

once the Magistrate applies his judicial mind with reference to the  

commission of an offence the cognizance is taken at that very  

moment.

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78. To the very same effect is the judgment in  Pastor P.  

Raju (supra). Paragraph 13 is relevant for our purpose, which  

reads as under:

“13. It  is  necessary  to  mention  here  that  taking  cognizance  of  an  offence  is  not  the  same  thing  as  issuance of process. Cognizance is taken at the initial  stage when the Magistrate applies his judicial mind to  the  facts  mentioned  in  a  complaint  or  to  a  police  report  or  upon information  received  from any  other  person  that  an  offence  has  been  committed.  The  issuance  of  process  is  at  a  subsequent  stage  when  after  considering  the  material  placed  before  it  the  court decides to proceed against the offenders against  whom a prima facie case is made out.”

(emphasis added)

79. The  above  principle  has  been  reiterated  again  in  

Videocon  International  Ltd.  (supra) in  paragraph  19.  

Paragraph 19 can be usefully extracted, which reads as under:

“19. The  expression  “cognizance”  has  not  been  defined in the Code. But the word (cognizance) is of  indefinite  import.  It  has  no  esoteric  or  mystic  significance in criminal law. It merely means “become  aware of” and when used with reference to a court or  a Judge,  it  connotes “to  take notice of  judicially”. It  indicates the point when a court or a Magistrate takes  judicial  notice of an offence with a view to initiating  proceedings in respect of such offence said to have  been committed by someone.”

(emphasis added)

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80. In  Mona  Panwar  (supra) at  paragraph  19  what  is  

meant by ‘taking cognizance’ has been explained as under:

“19. The  phrase  “taking  cognizance  of”  means  cognizance  of  an  offence  and  not  of  the  offender.  Taking cognizance does not involve any formal action  or indeed action of any kind but occurs as soon as a  Magistrate  applies  his  mind  to  the  suspected  commission  of  an  offence.  Cognizance,  therefore,  takes place at a point when a Magistrate first takes  judicial  notice  of  an  offence.  This  is  the  position  whether the Magistrate takes cognizance of an offence  on  a  complaint  or  on  a  police  report  or  upon  information  of  a  person  other  than  a  police  officer.  Before  the  Magistrate  can  be  said  to  have  taken  cognizance of an offence under Section 190(1)(b)  of  the Code, he must have not only applied his mind to  the contents of the complaint presented before him,  but must have done so for the purpose of proceeding  under  Section 200 and the provisions following that  section. However, when the Magistrate had applied his  mind only for ordering an investigation under Section  156(3)  of  the  Code  or  issued  a  warrant  for  the  purposes of investigation, he cannot be said to have  taken cognizance of an offence.”

(emphasis added)

81. The above statement of law makes the position amply  

clear that cognizance is of an offence and not of the offender,  

that it  does not involve any formal action and as soon as the  

Magistrate applies his judicial mind to the suspected commission  

of offence, cognizance takes place.  

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82. Again  in  a  recent  decision  of  this  Court  in  Sarah  

Mathew  (supra) in  paragraph  34,  the  position  has  been  

reiterated as under:

“34. Thus,  a  Magistrate  takes  cognizance  when  he  applies his mind or takes judicial notice of an offence  with  a  view  to  initiating  proceedings  in  respect  of  offence which is said to have been committed. This is  the  special  connotation  acquired  by  the  term  “cognizance” and it has to be given the same meaning  wherever  it  appears  in  Chapter  XXXVI.  It  bears  repetition to state that taking cognizance is entirely an  act  of  the  Magistrate.  Taking  cognizance  may  be  delayed because of several reasons. It may be delayed  because  of  systemic  reasons.  It  may  be  delayed  because of the Magistrate’s personal reasons.”

83. Therefore, having regard to the overwhelming decisions  

of this Court in having repeatedly expressed what is meant by  

cognizance and in majority of the decisions by making specific  

reference to Section 190, we are clear that the interpretation has  

to be to the cognizance of the offence to be taken note of by the  

Judicial  Magistrate  as  prescribed  under  Section  190   and  if  it  

takes  place  that  would  satisfy  and  fulfill  the  requirement  of  

cognizance of offence by the filing of more than one charge-sheet  

before the Competent Court as stipulated in Section 2(1)(d) of  

MCOCA.  

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84. Having  considered  the  scope  of  the  definition  of  

“continuing unlawful  activity” as  defined under  Section 2(1)(d)  

with  reference  to  the  competent  court  and  the  cognizance  of  

more than one earlier case, when we apply the said principles to  

the facts of this case, as noted in the initial part of this judgment,  

the two earlier cases were the bomb blast in Parbhani and Jalna.  

In Parbhani, the occurrence was on 21.11.2003 and in Jalna it was  

on 27.08.2004. In the Parbhani case, the first charge-sheet was  

filed  as  early  as  on  07.09.2006  before  the  Chief  Judicial  

Magistrate  and  in  Jalna  it  was  filed  on  30.09.2006  before  the  

concerned  Chief  Judicial  Magistrate  and  in  both  the  cases,  

cognizance was taken and the proceedings before the respective  

Magistrates concerned were continued. Therefore, having regard  

to  our  conclusion  that  the  cognizance  taken  by  the  Judicial  

Magistrate under Section 190(1) of Cr.P.C.  based on the police  

report under Section 173(2)(i) of Cr.P.C. the same would fulfill the  

requirement of ‘cognizance’ as well as, the ‘competent court’.  It  

will have to be, therefore, held that to that extent, the definition  

under Section 2(1)(d) relating to “continuing unlawful activity” in  

respect of more than one case of an offence punishable for more  

than  three  years  is  fully  satisfied.  Once  we  come to  the  said  

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conclusion, we do not find any substance in the third submission  

of the appellants that cognizance by competent court would only  

mean cognizance of such offences which can be dealt with only  

by the Sessions Court and not by a Judicial Magistrate. Therefore,  

the said submission that the cognizance was taken by Sessions  

Court much later after its committal (i.e.) in the case of Parbhani  

only on 29.04.2009 that is after the bomb blast in Malegaon and  

thereby the definition of ‘continuing unlawful activity’ in respect  

of  more  than  one  case  under  Section  2(1)(d)  is  not  satisfied  

cannot be accepted.  The said submission, therefore, deserves to  

be rejected.

85. The next submission made on behalf  of the appellants  

was that in order to  constitute the earlier  two offences to  fall  

within the definition of ‘continuing unlawful activity’ for invoking  

the  provisions  of  MCOCA  after  the  third  occurrence,  the  

involvement of the accused must have been by the same gang.  

In other words, even if it were to be held that a member of an  

‘organized crime syndicate’  singly  or  jointly  participated or  on  

behalf of an ‘organized crime syndicate’ with reference to such  

participation taken place, what is to be ensured is that in all the  

three  cases  the  same  gang,  namely,  the  ‘organized  crime  

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syndicate’  must  have  been  involved.  Based  on  the  said  

contention it was submitted that in the case on hand after A-7  

was arrested on 02.11.2008 he was produced in Parbhani case on  

11.11.2008  and  supplementary  charge-sheet  was  filed  against  

him on 13.11.2008 and in Jalna case a supplementary charge-

sheet was filed on 15.11.2008 while none of the other accused  

had any role to play either in Parbhani or in Jalna, nor was the so-

called ‘Abhinav Bharat’ was involved in either Parbhani or Jalna  

occurrences. The contention was that though A-7 was implicated  

both in Parbhani and Jalna such implication was not in pursuance  

of  his  role  as  a  member  of  an  ‘organized  crime  syndicate’  

pertaining to Malegaon bomb blast nor was the position that the  

gang  involved  in  Malegaon  blast  was  also  responsible  for  the  

bomb blast in Parbhani and Jalna. It is, therefore, contended that  

even as regards to A-7 he only alleged to have gathered certain  

materials and procured at the request of one Devle who was the  

prime accused in Parbhani and Jalna. It was contended that even  

as  per  the  counter  affidavit  of  the  second  respondent  herein  

there  was  no  nexus  shown for  the  involvement  of  any of  the  

accused in the Malegaon bomb blast case to do anything with  

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Parbhani  or  Jalna bomb blast  either individually or  jointly  as  a  

member of gang or on behalf of the gang.  

86. In this context, reliance was placed upon the decision in  

Lalit Somdatta Nagpal & Anr. (supra).  A similar contention  

was  raised  before  this  Court  in  that  case  to  the  effect  that  

isolated  incidents  spread  over  a  period  of  10  years  involving  

different  types  of  offences  would  not  attract  the  provisions  of  

MCOCA and that such activity must be such as to have a link  

from the first to the last offence alleged to have been undertaken  

in an organized manner by an organized crime syndicate.  The  

contention  was  that  continuing  unlawful  activity  would  

necessarily  mean  continuous  engagement  in  unlawful  activity  

where  there  would  be  a  live  link  between  all  the  different  

offences alleged. The said contention was refuted on behalf of  

the State in the said case by contending that no live link need  

exist between the different cases for the application of MCOCA  

and  that  such  nexus  theory  was  not  contemplated  by  the  

legislature. While dealing with the said contention, this Court in  

the facts of that case held as under in paragraph 63:

“63. As has been repeatedly emphasised on behalf of  all  the  parties,  the  offence  under  MCOCA  must  

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comprise  continuing  unlawful  activity  relating  to  organised crime undertaken by an individual singly or  jointly,  either  as  a  member  of  the  organised  crime  syndicate  or  on  behalf  of  such  syndicate  by  use  of  coercive or other unlawful means with the objective of  gaining pecuniary benefits or gaining undue economic  or other advantage for himself or for any other person  or for promoting insurgency. In the instant case, both  Lalit Somdatta Nagpal and Anil Somdatta Nagpal have  been shown to have been involved in several cases of  a similar nature which are pending trial or are under  investigation. As far as Kapil Nagpal is concerned, his  involvement has been shown only in respect of CR No.  25 of 2003 of Rasayani Police Station, Raigad, under  Sections  468,  420  and  34  of  the  Penal  Code  and  Sections 3, 7, 9 and 10 of the Essential Commodities  Act.  In  our view, the facts  as  disclosed justified the  application of the provisions of MCOCA to Lalit Nagpal  and Anil Nagpal. However, the said ingredients are not  available as far as Kapil Nagpal is concerned, since he  has not been shown to be involved in any continuing  unlawful  activity.  Furthermore,  in  the  approval  that  was given by the Special Inspector General of Police,  Kolhapur  Range,  granting  approval  to  the  Deputy  Commissioner of Police (Enforcement), Crime Branch,  CID, Mumbai to commence investigation under Section  23(1)  of  MCOCA,  Kapil  Nagpal  has  not  been  mentioned.  It  is  only  at  a  later  stage  with  the  registering of  CR No. 25 of  2003 of  Rasayani Police  Station, Raigad, that Kapil Nagpal was roped in with  Lalit Nagpal and Somdatta Nagpal and permission was  granted to apply the provisions of MCOCA to him as  well by order dated 22-8-2005.”

(underlining is ours)

87. When  we  refer  to  the  said  line  of  reasoning  stated  

therein,  we find that in the case of one accused, namely,  one  

Kapil Nagpal, since he was not shown to be involved in any of the  

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earlier cases, his case required to be dealt with differently and he  

cannot be said to have been involved in any continuing unlawful  

activity. We do not find any other specific reason for excluding  

him.

88. In this context a three Judge Bench decision of this Court,  

which  throws  much  light  on  this  issue  is  Ranjitsing  

Brahamjeetsing Sharma (supra).  Paragraphs 31, 36 and 37  

are relevant for our purpose which read as under.  

“31. The High Court does not say that the appellant  has  abetted  Telgi  or  had  conspired  with  him.  The  findings of the High Court as against the appellant are  attributable  to  allegations  of  abetting  Kamat  and  Mulani. Both Kamat and Mulani were public servants.  They may or may not have any direct role to play as  regards commission of an organised crime but unless  a  nexus  with  an  accused  who  is  a  member  of  the  organised crime syndicate or an offence in the nature  of  organised  crime  is  established,  only  by  showing  some  alleged  indulgence  to  Kamat  or  Mulani,  the  appellant cannot be said to have conspired or abetted  commission  of  an  organised  crime.  Prima  facie,  therefore,  we  are  of  the  view  that  Section  3(2)  of  MCOCA is not attracted in the instant case.

36. Does this statute require that before a person is  released on bail,  the court,  albeit  prima facie,  must  come to the conclusion that he is not guilty of such  offence? Is it necessary for the court to record such a  finding?  Would  there be any machinery  available  to  the  court  to  ascertain  that  once  the  accused  is  enlarged on bail,  he  would  not  commit  any offence  whatsoever?

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37. Such findings are required to be recorded only for  the purpose of arriving at an objective finding on the  basis of materials on record only for grant of bail and  for no other purpose.”

(emphasis added)

89. A reading of paragraph 31 shows that in order to invoke  

MCOCA even if a person may or may not have any direct role to  

play as regards the commission of an organized crime, if a nexus  

either with an accused who is a member of an ‘organized crime  

syndicate’  or  with  the  offence  in  the  nature  of  an  ‘organized  

crime’ is established that would attract the invocation of Section  

3(2) of MCOCA. Therefore, even if one may not have any direct  

role to play relating to the commission of an ‘organized crime’,  

but when the nexus of such person with an accused who is a  

member  of  the  ‘organized  crime  syndicate’  or  such  nexus  is  

related  to  the  offence  in  the  nature  of  ‘organized  crime’  is  

established by showing his involvement with the accused or the  

offence  in  the  nature  of  such  ‘organized  crime’,  that  by  itself  

would attract the provisions of MCOCA. The said statement of law  

by this Court, therefore, makes the position clear as to in what  

circumstances  MCOCA  can  be  applied  in  respect  of  a  person  

depending upon his  involvement  in  an organized crime in  the  

manner set out in the said paragraph. In paragraphs 36 and 37, it  

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was  made  further  clear  that  such  an  analysis  to  be  made  to  

ascertain  the  invocation of  MCOCA against  a  person need not  

necessarily go to the extent for holding a person guilty of such  

offence  and  that  even  a  finding  to  that  extent  need  not  be  

recorded. But such findings have to be necessarily recorded for  

the purpose of  arriving at an objective finding on the basis of  

materials on record only for the limited purpose of grant of bail  

and not for any other purpose. Such a requirement is, therefore,  

imminent under Section 21(4)(b) of MCOCA.  

90. Having regard to the said legal position with reference to  

the requirement to be fulfilled in respect of an ‘organized crime’  

with  particular  reference  to  the  past  two  instances  and  the  

present  one  in  order  to  find  out  as  to  whether  a  person was  

involved in a ‘continuing unlawful activity’, when we refer to the  

facts  before  us,  in  the  case  on  hand  insofar  as  A-7  Rakesh  

Dattaray Dhawade is concerned, he has been charge-sheeted in  

Parbhani,  Jalna  as  well  as,  the  Malegaon  bomb  blast.  The  

materials available on record disclose that he furnished certain  

materials at the asking of the prime accused involved in Parbhani  

and Jalna, which also related to bomb blasts in both the places.  

Going by the charge-sheet filed against A-7 in Malegaon his direct  

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involvement has been alleged. A conspectus consideration of the  

above facts discloses that insofar as A-7 was concerned, he had a  

nexus with the member of an ‘organized crime syndicate’  and  

also  had  every  nexus  with  the  offence  in  the  nature  of  an  

‘organized crime’ of the two earlier cases, namely, Parbhani and  

Jalna and also direct involvement in the present bomb blast at  

Malegaon. In such circumstances, there is no difficulty in coming  

to a definite conclusion that insofar  as,   A-7 is  concerned,  his  

activity  and involvement  in  all  the three occurrences,  namely,  

Parbhani, Jalna and Malegaon disclose nexus with the crime and  

also with the other accused involved in the crime and thereby the  

satisfaction of the definition of ‘continuing unlawful activity’ of an  

‘organized crime’ on behalf of an ‘organized crime syndicate’ is  

satisfactorily shown.  In such circumstances, by virtue of Section  

21 (4) of MCOCA he is not entitled for the grant of bail and that  

he does not fall within the excepted category stipulated in sub-

clause (a) or (b) of the said sub-Section (4) of Section 21.   

91. Having stated the said position relating to A-7, when we  

come to the case of others, there is no dispute that in respect of  

other  appellants,  their  involvement  is  with  reference  to  the  

present  occurrence,  namely,  Malegaon bomb blast.  Admittedly  

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they  are  not  proceeded  against  for  the  offence  relating  to  

Parbhani and Jalna.  But still  at  the present juncture,  with the  

materials available on record as on date, we are not in a position  

to ascertain as to the involvement of the appellants either by way  

of  their  nexus  with  any  accused  who  is  a  member  of  an  

‘organized crime syndicate’ or such nexus with the offence of an  

‘organized  crime’  which  pertains  to  Parbhani  and  Jalna.  We  

cannot also rule out the possibility of the evidence based on the  

investigation by the prosecuting agency to come out with reliable  

materials in support of such nexus to be shown with an accused  

or  with the crime in respect  of  the earlier  two cases,  namely,  

Parbhani and Jalna. We cannot, therefore, declare to the extent  

as was done by the Special Judge in the order dated 31.07.2009  

to straightway reach at a conclusion to the effect that MCOCA  

was not attracted and, therefore, they should be discharged.   

92. But,  for the purpose of  the requirement under Section  

21(4) (b) having regard to the absence of any material as on date  

to disclose any nexus with the accused of an ‘organized crime  

syndicate’  or  with  the  offence  in  the  nature  of  an  ‘organized  

crime’,  in  Parbhani  and  Jalna  as  of  now we  can  state  that  in  

respect  of  appellants  other  than  A-7  i.e.  appellant  in  Criminal  

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Appeal No.1971/2010, their application for bail can be considered  

by the Special  Court.   Therefore,  on this  issue,  namely,  in  all  

cases same gang must be involved, our answer is to the above  

limited extent based on the earlier statement of law as declared  

in  Ranjitsing Brahamjeetsing Sharma (supra) in paragraph  

31.

93. With that when we come to the next submission, namely,  

that in order to characterize the past occurrence as well as the  

present occurrence as an ‘organized crime’ falling under section  

2 (1) (e) of MCOCA, in each of such occurrence, violence should  

have played a key role and that such violence etc. should have  

been for pecuniary gain.  The submission was made on behalf of  

the appellants that there was no material to show that any of the  

appellants  had  any  pecuniary  advantage  from  anybody.   The  

contention was that all the attributes of Section 2(1)(e), namely,  

an ‘organized crime’ must be present in all the three cases.  It  

was further contended that in the occurrence relating to Parbhani  

and Jalna, there was no allegation of pecuniary advantage and  

they were all just mere cases of violence.  It was, also contended  

that ‘promoting insurgency’ was also not the specific case of the  

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prosecution in all the three cases, even assuming it may arise in  

Malegaon blast, the same was not present in Parbhani or Jalna.   

94. To appreciate the said contention, it will be necessary to  

make a detailed reference to Section 2(1)(e) of MCOCA.  As far as  

the nature of activity is concerned, in Section 2(1)(e), it is stated  

that ‘organized crime’ means continuing unlawful activity by use  

of  violence or threat  of  violence or intimidation or coercion or  

other  unlawful  means  with  the  object  of  gaining  pecuniary  

benefits  or  gaining  undue  economic  or  other  advantage  for  

himself or for any other person or for promoting insurgency. If we  

make  a  detailed  reference  to  the  said  provision,  the  use  of  

violence  etc.  should  have  been  carried  out  with  the  object  of  

either gaining pecuniary benefits or for gaining undue economic  

or  other  advantage for  oneself  or  for  any other  person or  for  

promoting insurgency.  We find that the violent activity need not  

necessarily be for pecuniary advantage in all acts of ‘continuing  

unlawful  activity’.   Indulging in such violent activity can be for  

gaining  pecuniary  advantage  or  for  gaining  any  other  undue  

economic  or  other  advantage  or  for  promoting  insurgency.  

Therefore,  at  the  very  outset,  we  do  not  find  any  scope  to  

interpret Section 2(1)(e), namely, an ‘organized crime’ to mean  

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that in order to come within the said expression indulging in such  

violent or other activity should always be for pecuniary gain.  On  

the other hand, we can safely hold that such indulgence in violent  

activity  can  be  either  for  pecuniary  gain  or  for  economic  

advantage or for any other advantage either for the person who  

indulged in such activity or for any other person or for promoting  

insurgency.   In that respect,  we find that expected benefit  for  

indulging in any violent or related activity could be for any of the  

above purposes independently and one such purpose may be for  

promoting insurgency.   

95. When  once  we  are  able  to  state  the  definition  of  

‘organized crime’ under Section 2(1) (e) with such clear precision,  

the other question is what is meant by ‘promoting insurgency’.  In  

fact, the said expression has already been considered by some of  

the judgments of this Court, and, therefore, we can make useful  

reference to those judgments to understand what is insurgency  

and whether there was any act of insurgency prevalent in the  

case on hand when the alleged activity of violence etc. alleged  

against  the  appellants.  The  dictionary  meaning  of  expression  

‘insurgent’  is  raising  an  active  revolt  or  a  revolutionary.  

Therefore,  going  by  the  dictionary  meaning,  promoting  

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insurgency would mean creating a revolution and thereby disturb  

the peaceful atmosphere.  In fact, in the decision of this Court in  

Zameer Ahmad Latifur Rehman Sheikh (supra) a reference  

has been made to this very expression and has been dealt with in  

a detailed fashion in paragraphs 26 to 29.  We can usefully refer  

to the said paragraphs to understand the expression insurgency.  

Paragraphs 26 to 29 are as under:

“26. The  term  “insurgency”  has  not  been  defined  either under MCOCA or any other statute.  The word  “insurgency” does not find mention in UAPA even after  the  2004  and  2008  Amendments.  The  definition  as  submitted  by  Mr  Salve  also  does  not  directly  or  conclusively  define  the  term  “insurgency”  and  thus  reliance  cannot  be  placed  upon  it.  The  appellants  would contend that the term refers to rising in active  revolt or rebellion. Webster defines it as a condition of  revolt against the Government that does not reach the  proportion of an organised revolution.

27. In   Sarbananda Sonowal   v.   Union of India   this Court    has held that insurgency is undoubtedly a serious form  of internal disturbance which causes grave threat to  the  life  of  people,  creates  panic  situation  and  also  hampers the growth and economic prosperity of the  State.

28. We feel inclined to adopt the aforesaid definition  for the current proceedings as there does not appear  to exist any other satisfactory source.

29. Although the term “insurgency” defies a precise  definition,  yet,  it  could  be understood to  mean and  cover  breakdown of  peace and tranquility  as  also  a  grave disturbance of public order so as to endanger  the security of the State and its sovereignty.”

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(Emphasis added)

96. It has been more succinctly described in paragraphs 45  

to 47 which can also be usefully referred to:

 “45. Now  that  we  have  examined  under  what  circumstances  a  State  law  can  be  said  to  be  encroaching  upon  the  law-making  powers  of  the  Central Government, we may proceed to evaluate the  current  issue on merits.  Let  us  once again examine  the provision at the core of this matter:

“2. (1)(e) ‘organised crime’ means any continuing  unlawful  activity  by  an  individual,  singly  or  jointly,  either as a member of an organised crime syndicate or  on  behalf  of  such  syndicate,  by  use  of  violence  or  threat of violence or intimidation or coercion, or other  unlawful  means,  with  the  objective  of  gaining  pecuniary  benefits,  or  gaining  undue  economic  or  other  advantage for  himself  or  any other  person or  promoting insurgency;” After  examining  this  provision  at  length,  we  have  come  to  the  conclusion  that  the  definition  of  “organised  crime”  contained  in  Section  2(1)(  e  )  of    MCOCA  makes  it  clear  that  the  phrase  “promoting  insurgency” is used to denote a possible driving force  for “organised crime”. It is evident that MCOCA does  not  punish  “insurgency”  per  se,  but  punishes  those  who are guilty of running a crime organisation, one of  the  motives  of  which  may  be  the  promotion  of  insurgency.

46. We may also examine the Statement of Objects  and Reasons to support the conclusion arrived at by  us. The relevant portion of the Statement of Objects  and Reasons is extracted hereinbelow:

“1. Organised crime has for quite some years now  come up as  a very  serious  threat  to  our  society.  It  knows no national boundaries and is fuelled by illegal  wealth  generated  by  contract,  killing,  extortion,  

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smuggling  in  contrabands,  illegal  trade in  narcotics,  kidnappings  for  ransom,  collection  of  protection  money and money laundering, etc. The illegal wealth  and black money generated by the organised crime  being very huge, it has had serious adverse effect on  our economy. It was seen that the organised criminal  syndicates made a common cause with terrorist gangs  and foster narcoterrorism which extends beyond the  national boundaries. There was reason to believe that  organised criminal gangs have been operating in the  State  and  thus,  there  was  immediate  need  to  curb  their activities.

2. The existing legal framework i.e. the penal and  procedural  laws  and  the  adjudicatory  system  are  found to be rather inadequate to curb or control the  menace  of  organised  crime.  The  Government  has,  therefore,  decided  to  enact  a  special  law  with  stringent and deterrent provisions including in certain  circumstances  power to  intercept  wire,  electronic  or  oral  communication  to  control  the  menace  of  organised crime.”

47. We find no merit in the contention that MCOCA, in  any way, deals with punishing insurgency directly. We  are  of  the  considered view that  the  legislation  only  deals with “insurgency” indirectly only to bolster the  definition of “organised crime”. However, even if it be  assumed that “insurgency” has a larger role to play  than pointed out by us above in MCOCA, we are of the  considered view that the term “promoting insurgency”  as  contemplated  under  Section  2(1)(e)  of  MCOCA  comes within the concept of public order.”

(Emphasis added)

97. Therefore,  ‘insurgency’  has  been  understood  to  mean  

raising an active revolt or rebellion in the common parlance. It is  

also  stated  that  it  could  be  understood  to  mean  and  cover  

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breakdown of peace and tranquility as also a grave disturbance  

of public order so as to endanger the security of the State and its  

sovereignty. While making specific reference to Section 2(1)(e), it  

was pointed out that MCOCA though does not punish insurgency  

per  se,  punishes  those  who  are  guilty  of  running  a  crime  

organization  and  one  of  the  motive  of  which  may  be  the  

promotion  of  insurgency.   Therefore,  it  is  not  necessary  that  

promoting  insurgency  should  always  be  linked  to  pecuniary  

advantage.  Whenever  an organized gang indulges in  a  violent  

act,  such  indulgence  in  violence  or  threat  of  violence  or  

intimidation  or  coercion  or  other  unlawful  means  can  be  for  

promoting an insurgency.   

98. In the light of such line of thinking already expressed by  

this Court with particular reference to Section 2(1)(e), we do not  

find any different meaning to be attributed to the definition of  

‘organized  crime’,  much  less  to  the  extent  to  which  the  

appellants seek to interpret the said definition and state that the  

indulgence  in  any  violent  and  related  activity  for  promoting  

insurgency,  the  element  of  pecuniary  advantage  should  be  

present.  We, therefore, reject such a contention and hold that  

indulging in any violent or other related activity by an organized  

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gang and thereby an effort to promote insurgency i.e. to damage  

the  peace  and  tranquility  in  the  State  is  made,  that  by  itself  

would fall within the four corners of the definition of “organized  

crime” under Section 2(1)(e).

99. In  the  light  of  our  above  conclusions  on  the  various  

submissions, we are convinced that in respect of the appellant in  

Criminal  Appeal  No.1971/2010,  namely,  A-7,  there is  no scope  

even  for  the  limited  purpose  of  Section  21(4)(b)  to  hold  that  

application of MCOCA is doubtful.   We have held that the said  

appellant A-7 had every nexus with all the three crimes, namely,  

Parbhani, Jalna and Malegaon and, therefore, the bar for grant of  

bail under Section 21 would clearly operate against him and there  

is  no  scope  for  granting  any  bail.   Insofar  as  the  rest  of  the  

appellants  are  concerned,  for  the  purpose  of  invoking  Section  

21(4)(b), namely, to consider their claim for bail, it can be held  

that  for  the  present  juncture  with  the  available  materials  on  

record, it is not possible to show any nexus of the appellants who  

have been proceeded against for their involvement in Malegaon  

blast  with  the  two  earlier  cases,  namely,  Parbhani  and  Jalna.  

There is considerable doubt about their involvement in Parbhani  

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and  Jalna  and,  therefore,  they  are  entitled  for  their  bail  

applications to be considered on merits.

100. When once we are able to steer clear of the said position,  

the other question to be considered is the grant of bail on its own  

merits. For which purpose, the submission of Mr. Mariarputham,  

learned  senior  counsel  who  appeared  for  the  State  of  

Maharashtra and NIA based on the decision relied upon by him in  

State of U.P. Through CBI v. Amarmani Tripathi - 2005 (8)  

SCC 21 should be kept in mind, in particular paragraph 18, which  

reads as under:

“18. It is well settled that the matters to be considered  in an application for bail are (i) whether there is any  prima facie or reasonable ground to believe that the  accused had committed the offence;  (ii)  nature  and  gravity of the charge; (iii) severity of the punishment  in the event of conviction; (iv) danger of the accused  absconding  or  fleeing,  if  released  on  bail;  (v)  character, behaviour, means, position and standing of   the  accused;  (vi)  likelihood  of  the  offence  being  repeated;  (vii)  reasonable  apprehension  of  the  witnesses being tampered with;  and (viii)  danger, of  course, of justice being thwarted by grant of bail [see  Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh  v. State (Delhi Admn.)]. While a vague allegation that  the  accused  may  tamper  with  the  evidence  or  witnesses may not be a ground to refuse bail, if the  accused is of such character that his mere presence at  large  would  intimidate  the  witnesses  or  if  there  is  material to show that he will use his liberty to subvert  justice or tamper with the evidence, then bail will be  

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refused. We may also refer to the following principles  relating  to  grant  or  refusal  of  bail  stated  in  Kalyan  Chandra  Sarkar v.  Rajesh  Ranjan:  (SCC  pp.  535-36,  para 11)

11. The law in regard to grant or refusal of bail is  very  well  settled.  The  court  granting  bail  should  exercise its discretion in a judicious manner and not  as  a  matter  of  course.  Though  at  the  stage  of  granting  bail  a  detailed  examination  of  evidence  and  elaborate  documentation  of  the  merit  of  the  case need not be undertaken,  there is  a need to  indicate  in  such  orders  reasons  for  prima  facie  concluding why bail was being granted particularly  where the accused is charged of having committed  a serious offence. Any order devoid of such reasons  would suffer from non-application of mind. It is also  necessary  for  the  court  granting  bail  to  consider  among  other  circumstances,  the  following  factors  also before granting bail; they are: (a)  The  nature  of  accusation  and  the  severity  of  punishment in case of conviction and the nature of  supporting evidence. (b) Reasonable apprehension of tampering with the  witness  or  apprehension  of  threat  to  the  complainant. (c) Prima facie satisfaction of the court in support of  the  charge.  (See  Ram  Govind  Upadhyay v.  Sudarshan Singh and Puran v. Rambilas.)”

101. Even  the  other  contentions  submitted  by  the  learned  

senior counsel that the appellants are not entitled for bail, are all  

matters which the prosecuting agency will have to place before  

the  Special  Court  for  consideration  while  considering  the  

appellants’ application for bail. For the same reason, the various  

other contentions raised on behalf  of the appellant in Criminal  

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Appeal  Nos.1969-70/2010 as  well  as  the appeal  arising  out  of  

SLP(Crl.) No.8132 of 2010 by making reference to their personal  

grievances are all matters which will have to be placed before the  

Special  Judge  for  consideration.  We  are  not  expressing  any  

opinion on those aspects and we leave it for the Special Judge to  

consider  the  bail  application  on  merits  and  pass  appropriate  

orders.   

102. Accordingly, on question No.(a) in paragraph 35, we hold  

that  the  judgment  of  the  Division  Bench  in  holding  that  

cognizance is of the offence and not of the offender is perfectly  

justified  and  the  same  does  not  call  for  any  interference.  

Therefore, Criminal Appeal Nos.1969-70 of 2010, Criminal Appeal  

No.1971 of 2010, Criminal Appeal Nos.1994-98 of 2010, appeal  

arising  out  of  SLP(Crl)  No.8132  of  2010  and  Criminal  Appeal  

No.58  of  2011  are  dismissed.  As  far  as  the  order  dated  

30.12.2010, rejecting bail, passed by the learned Special Judge,  

which  was  also  confirmed  by  the  learned  Single  Judge  of  the  

Bombay High Court  by order dated 09.11.2011 in Criminal Bail  

Application No.333 of 2011 with Criminal Application No.464 of  

2011  of  the  appellant  in  appeals  arising  out  of  SLP  (Crl.)  

Nos.9370-71  of  2011,  the  said  orders  are  set  aside  with  the  

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observation  that  there  is  enough  scope  to  doubt  as  to  the  

application of MCOCA under Section 21(4)(b) for the purpose of  

grant of bail  and consequently the Special Judge is directed to  

consider the application for bail on merits keeping in mind the  

observations in paragraphs 100 and 101 of  this  judgment and  

pass orders.  Consequently,  the appeals arising out of SLP(Crl.)  

Nos.9370-71 of 2011 are partly allowed. The order impugned in  

these  appeals  is  set  aside  and  the  application  for  bail  in  Bail  

Application No.42 of 2008 is restored to the file of the Special  

Judge  for  passing  orders  on  merits.  Similarly,  for  the  reasons  

stated  in  paragraph  99,  we  hold  that  the  appellant  in  appeal  

arising out of SLP(Crl.) No.8132 of 2010 is also entitled for the  

same relief as is granted to the appellant for consideration for  

grant of bail in the appeals arising out of SLP(Crl.) Nos.9370-71 of  

2011. We thus answer question No.(b) of paragraph 35 and the  

trial Court is, therefore, directed to apply the same principle and  

consider the bail application pending or filed afresh, if so advised,  

by the appellant in the appeal arising out of SLP(Crl.) No.8132 of  

2010 and pass orders on merits. Consequently, Criminal Appeal  

No.1971  of  2010,  Criminal  Appeal  Nos.1994-98  of  2010  and  

Criminal Appeal No.58 of 2011 are dismissed.  

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103. Since  the  occurrence  is  of  the  year  2008  and  nearly  

seven years have gone by, it is imperative that the Special Court  

commence  the  trial  at  the  earliest  and  conclude  the  same  

expeditiously.  We direct the Prosecuting Agency to ensure that  

the necessary evidence i.e. oral, documentary as well as other  

form of evidence placed before the Court to enable the Special  

Court  to  commence  the  trial  early  and  conclude  the  same  

expeditiously.  It is stated that no officer has been posted for the  

Special Court as on date.  We, therefore, request the Chief Justice  

of the High Court of Bombay to pass appropriate orders either for  

posting  these cases before  a  learned Judge by way of  special  

order or appoint a Presiding Officer exclusively for deciding these  

cases  in  order  to  ensure  speedy  trial.   We  also  direct  the  

Presiding  Officer  of  the  Special  Court  to  dispose  of  the  bail  

applications expeditiously, preferably within one month from the  

date  of  his/her  assumption  of  Office  as  Special  Judge.   The  

Registry is directed to transmit the records forthwith.

104. Since, we have not heard arguments on the question as  

to  the  claim  of  NIA  in  seeking  custody  covered  by  SLP  (Crl.)  

No.9303 of 2011 and SLP (Crl.) No.9369 of 2011 the same are  

delinked and shall be listed in due course.   

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      ……..…..……….…………………………...J.                     [Fakkir Mohamed Ibrahim  

Kalifulla]

 …..…………….………………………………J.

                [Abhay Manohar Sapre] New Delhi; April 15, 2015

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