STATE OF MAHARASHTRA Vs SHIVA @SHIVAJI RAMAJI SONAWANE .
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-000458-000460 / 2009
Diary number: 4765 / 2009
Advocates: NISHANT RAMAKANTRAO KATNESHWARKAR Vs
J. P. DHANDA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.458-460 OF 2009
State of Maharashtra …Appellant
Versus
Shiva @ Shivaji Ramaji Sonawane & Ors. etc. …Respondents
WITH
CRIMINAL APPEAL NOs.461-464 OF 2009
State of Maharashtra etc. …Appellants
Versus
Mehmood Khan Yakub Khan Pathan etc. etc. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. High Court of Bombay has, by a common order dated 18th
November, 2008, impugned in these appeals, set aside orders
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passed by the Special Court under Maharashtra Control of
Organised Crime Act, 1999 and acquitted the respondents of the
charges framed against them. The High Court has relying upon
several earlier pronouncements on the subject, held that mere
proof of filing of charge sheets in the past was not enough to hold
the persons accused in such charge sheets to be guilty of the
offences of committing organised crime punishable under Section 3
of MCOCA for such charge sheets satisfy but one of the
requirements under the said Act. What is according to the High
Court equally important is to prove that the accused were guilty of
committing the offence of organised crime by reason of their
continuing unlawful activities. The High Court further held that any
such unlawful activity should be by use of threat of violence,
intimidation, coercion or other unlawful means with the objective of
“gaining pecuniary or other advantages”, and that the provisions of
MCOCA can be invoked only by strictly complying with the
provisions of Section 23 of the Act. The competent authority was,
declared the High Court, duty bound to apply its mind to the
attendant facts while permitting registration of an FIR under
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MCOCA or granting sanction for prosecution. The High Court held
that the competent authority, in the case at hand, had not applied
its mind properly which rendered the registration of the cases and
the filing of the charge sheets against the respondents legally
unsustainable. The High Court further held that the respondents
were, in the facts of the cases before it, not shown to have
committed any offence for pecuniary, economic or similar other
advantage which was one of the requirements to be satisfied
before they could be held guilty of an organised crime. The orders
of conviction recorded by the Special Court, and the sentences
awarded to the respondents were on those findings set aside.
2. We have heard learned counsel for the parties at considerable
length. We have also been taken through the record including the
judgments of the trial court and that passed by the High Court. The
factual matrix in which the respondents were prosecuted and found
guilty for offences punishable under MCOCA, have been set out at
great length by the Trial Court and even by the High Court.
Recapitulation of the same all over again would, therefore, serve
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no useful purpose. All that need be mentioned is that the
respondent Shiva @ Shivaji Sonwane, accused in Special Criminal
Case No.1 of 2001 and Mehmood Khan Pathan, accused in Special
Case No.2 of 2001 started off as partners in crimes which they
committed with the help of other gangsters in the industrial town
of Khaparkheda situate on the outskirts of the city of Nagpur. The
gang, in due course, appears to have split into two, one each led
by Shivaji Ramaji Sonwane and Mehmood Khan Pathan.
3. The prosecution case is that the two gangs have over ten
years prior to the enactment of MCOCA been involved in
commission of several crimes which constitutes “continuing
unlawful activity” within the meaning of Section 2(d) of MCOCA.
This, according to the prosecution, was evident from the fact that a
very large number of charge sheets had been filed against them in
which the competent jurisdictional Courts had taken cognizance. To
be precise, as many as 42 charge-sheets had been filed against the
gang led by Shiva Sonwane, whereas 30 similar charge-sheets
were presented against the rival gang led by Mehmood Khan
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Pathan. What led to the invocation of MCOCA in Criminal Case No.1
of 2002 against the gang led by Shiva Sonwane is an incident that
took place on 16th March, 2001 at about 9.15 a.m. when Shiva
Sonwane is alleged to have gone to the shop of one Rameshwar
Bawankar in which one Sunil Bante PW-8/I was working as an
employee. Respondent-Shiva and his companion gangsters are
alleged to have beaten up Sunil Bante and set the shop on fire
resulting in a loss of 1.5 lacs to the owner. Crime No.37 of 2001 for
several offences punishable under the Indian Penal Code and the
Arms Act was registered with the police station Khaparkheda, in
connection with the incident.
4. So also MCOCA was invoked against respondents Mehmood
Khan Pathan, Sanjay Girhe and Samad Pathan on the basis and in
connection with Crime Case No.38 of 2001 registered at police
station Khaparkheda for offences punishable under the I.P.C. and
the Arms Act. Interestingly, this crime (Criminal Case No.38 of
2001) was registered on a complaint made by Shiva Sonwane the
rival gangster in which the latter alleged that on 16th March, 2001
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the accused had barged into the complainant’s house, demanded a
gold chain, beat up the complainant’s father and set the house on
fire.
5. The prosecution version is that PW-13/1, PI Abdul Razzak,
Investigating Officer in Crime No.37 of 2001, had on the basis of
his investigation come to the conclusion that Shiva had formed and
was heading an organised crime syndicate. He, therefore,
prepared a proposal for invocation of the provisions of MCOCA in
connection with Crime No.37/2001 and requested for permission to
record information and register a case under Sections 3(1)(ii) and
3(4) of MCOCA. The proposal was forwarded to the Special
Inspector General of Police examined at the trial as PW-15/1. The
proposal was upon consideration, accepted and registration of
information under MCOCA in terms of Section 23 of the Act
permitted. The information relating to the commission of the
offence under MCOCA was accordingly registered against Shiva
Sonwane and his gang on 21st March, 2001 which eventually is
presented to this Court as Crime Case No.1 of 2001 under MCOCA.
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6. In Crime Case No.2 of 2001 also under MCOCA a similar
version has been put forth by the prosecution. The proposal for
invoking MCOCA was moved even in that case by PI Abdul Razzak
resulting in grant of approval for invocation and registration of
information under Section 3(i)(ii) read with Section 3(4) of MCOCA.
According to the prosecution, investigation into the cases was
entrusted to Deputy Superintendent of Police examined as PW-16
in Criminal Case No.1 of 2001 and PW-20 in Criminal Case No.2 of
2001. According to this witness, investigation in both the cases
was made over to him on 21st March, 2001 when Shiva was in jail.
The custody of accused Shiva was secured by him in terms of a
production warrant on 28th March, 2001 and his house searched on
10th April, 2001 leading to the seizure of a sword. As regards
respondent Mehmood Khan Pathan, he was arrested on 8th May,
2001 and his house searched on 30th May, 2001 resulting in the
recovery of a sword and a ‘Hattimar’ knife which was seized. After
completion of investigation in both the crimes, the Deputy
Superintendent of police filed two separate and independent
charge sheets one each against the two gangs for offences
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punishable under Section 3(i)(ii) of the MCOCA and Section 4 read
with Section 25 of the Arms Act.
7. The significant feature of the two cases is that for Crimes
No.37 of 2001 and 38 of 2001 the respondents were separately
tried and acquitted on 18th January, 2008 in the case of Shiva and
on 28th February, 2006 in the case of Mehmood Khan Pathan. In
the said charge sheets, the respondents were accused of
committing offences only under the IPC and the Arms Act. For the
offences punishable under MCOCA separate and independent
charge sheets were filed against the accused persons in which they
were convicted by the Trial Court which conviction was reversed by
the High Court as noticed earlier.
8. It was in the above backdrop that the High Court held that
once the respondents had been acquitted for the offence
punishable under the IPC and Arms Act in Crimes No.37 and 38 of
2001 and once the Trial Court had recorded an acquittal even for
the offence punishable under Section 4 read with Section 25 of the
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Arms Act in MCOCA Crimes No.1 and 2 of 2002 all that remained
incriminating was the filing of charge sheets against the
respondents in the past and taking of cognizance by the competent
court over a period of ten years prior to the enforcement of the
MCOCA. The filing of charge sheets or taking of the cognizance in
the same did not, declared the High Court, by itself constitute an
offence punishable under Section 3 of the MCOCA. That is because
the involvement of respondents in previous offences was just about
one requirement but by no means the only requirement which the
prosecution has to satisfy to secure a conviction under MCOCA.
What was equally, if not, more important was the commission of an
offence by the respondents that would constitute “continuing
unlawful activity”. So long as that requirement failed, as was the
position in the instant case, there was no question of convicting the
respondents under Section 3 of the MCOCA. That reasoning does
not, in our opinion, suffer from any infirmity. The very fact that
more than one charge sheets had been filed against the
respondents alleging offences punishable with more than three
years imprisonment is not enough. As rightly pointed out by the
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High Court commission of offences prior to the enactment of
MCOCA does not by itself constitute an offence under MCOCA.
Registration of cases, filing of charge sheets and taking of
cognizance by the competent court in relation to the offence
alleged to have been committed by the respondents in the past is
but one of the requirements for invocation of Section 3 of the
MCOCA. Continuation of unlawful activities is the second and
equally important requirement that ought to be satisfied. It is only
if an organised crime is committed by the accused after the
promulgation of MCOCA that he may, seen in the light of the
previous charge sheets and the cognizance taken by the competent
court, be said to have committed an offence under Section 3 of the
Act.
9. In the case at hand, the offences which the respondents are
alleged to have committed after the promulgation of MCOCA were
not proved against them. The acquittal of the respondents in
Crimes No.37 and 38 of 2001 signified that they were not involved
in the commission of the offences with which they were charged.
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Not only that the respondents were acquitted of the charge under
the Arms Act even in Crimes Case No.1 and 2 of 2002. No appeal
against that acquittal had been filed by the State. This implied that
the prosecution had failed to prove the second ingredient required
for completion of an offence under MCOCA. The High Court was,
therefore, right in holding that Section 3 of the MCOCA could not
be invoked only on the basis of the previous charge sheets for
Section 3 would come into play only if the respondents were
proved to have committed an offence for gain or any pecuniary
benefit or undue economic or other advantage after the
promulgation of MCOCA. Such being the case, the High Court was,
in our opinion, justified in allowing the appeal and setting aside the
order passed by the Trial Court.
10. In the light of what we have said above, it is not necessary for
us to go into the question whether the competent authority had
duly and properly applied its mind while granting permission to the
registration of the information under MCOCA or sanctioning the
prosecution of the respondents under Section 3(2) of the Act. It is
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also unnecessary for us to examine whether the expression “any
other advantage” appearing in Section 2(e) can be read ejusdem
generis which aspect is left open to be decided in an appropriate
case.
11. These appeals accordingly fail and are hereby dismissed.
………………………………….…..…J. (T.S. THAKUR)
………………………………….…..…J. (R. BANUMATHI)
New Delhi; 24th July, 2015
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ITEM NO.1E-For Judgment COURT NO.2 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 458-460/2009 STATE OF MAHARASHTRA Appellant(s) VERSUS SHIVA @SHIVAJI RAMAJI SONAWANE & ORS. Respondent(s) WITH Crl.A. No. 461-464/2009 Date : 24/07/2015 These appeals were called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. Nishant Ramakantrao Katneshwarkar,Adv. Mr. Ravindra Keshavrao Adsure,Adv. For Respondent(s) Dr. J. P. Dhanda,Adv.
Mr. N.A. Usmani, Adv. Mrs. Raj Rani Dhanda, Adv.
Mr. Irshad Ahmad,Adv.
Hon'ble Mr. Justice T.S. Thakur pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mrs. Justice R. Banumathi.
The appeals are dismissed in terms of the Signed Reportable Judgment.
(VINOD KR.JHA) (VEENA KHERA) COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
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