Criminal Appeal @SLP(Crl.) No.5497 of 2015

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1750 of 2017 (  Arising out of Special Leave Petition   (  Criminal) No.5497 of 2015)

STATE (NCT OF DELHI)       ....Appellant(s)

Versus

BRIJESH SINGH @ ARUN KUMAR           AND ANR.     ...Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.   

1. The  Respondents  were  discharged  by  the  Special  Judge

MCOCA, New Delhi District, Patiala House, New Delhi in S.C.

No.139  of  2013  dated  5th February,  2014  pertaining  to

offences under Sections 3 and 4 of the Maharashtra Control

of  Organised  Crime  Act,  1999  (hereinafter  referred  to  as

‘MCOCA’).   The  Appellant- State of  NCT  of  Delhi filed  an

appeal under Section 12 of MCOCA before the High Court of

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Delhi which was dismissed on 16th April, 2015.  Aggrieved,

the Appellant-State has approached this Court by filing the

above Appeal.   

2. FIR No. 10 of 2013 was registered in the Special Cell (SB) PS

Special  Cell  (SB)  on  5th March,  2013  on  the  basis  of

information  received  from  Shri  S.K.  Giri,  Assistant

Commissioner  of  Police  (the  ACP  for  short).   The  ACP

prepared a proposal  for  registration and investigation of  a

case  under  Sections  3/4  of  MCOCA.   According  to  the

proposal,  the  first  Respondent  who  was  arrested  in

connection with the FIR No.69 dated 8th October, 2007 under

Sections 384, 387, 417, 419, 471, 506 and 34 of the Indian

Penal  Code (the ‘IPC’  for  short),  registered in  P.S.,  Special

Cell, New Delhi, was also involved in 20 cases of attempt to

murder, murder, extortion, rioting, cheating, forgery and for

offences under the Uttar Pradesh Gangsters and Anti-Social

Activities (Prevention) Act,  1986 (hereinafter referred to as

‘the UP Gangsters Act’).  Respondent No.1 was involved in

committing unlawful activities along with other members of a

crime syndicate since 1985 in an organized manner.   The

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particulars  of  eight  crimes,  the  cognizance  of  which  was

taken by the competent criminal Courts in and outside Delhi

were referred to.  It  was also mentioned that Respondents

manipulated a fake identity for themselves and have floated

several  companies  from  the  ill-gotten  wealth.   Several

properties were acquired by these companies, the details of

which have been specified in the proposal.  Considering the

magnitude of the criminal activities of the Respondents and

their organised crime syndicate, the informant felt that it was

necessary to invoke the stringent provisions of MCOCA.  The

particulars of 14 members of the syndicate was given in the

proposal and approval was sought for conducting a thorough

investigation into the role of each of them for offences under

Section 3 and 4 of MCOCA.   

3. A final report under Section 173(2) Cr.P.C. was filed on 26th

September, 2013.  Briefly, the contents of the charge sheet

are as follows:

I. The  first  Respondent  was  involved  in  39  crimes  of

different nature including murder, attempt to murder,

waging war  against  the State,  extortion,  rioting,  etc.

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between 1985 and 2008.  On several occasions, he was

booked under the UP Gangsters Act but had managed

to  evade  arrest.   He  was  finally  arrested  on  23rd

January,  2008  from Bhubaneswar  in  connection  with

FIR No.69 of 2007, PS Special Cell, Delhi.   

II. FIR No.69 of 2007 was registered on a complaint made

by Sudhir Singh who alleged that at 7.15 p.m. on 28th

July,  2007,  he  received a  call  from the  Respondents

who demanded payment of Rs.50 Lakhs as protection

money.   The  Respondents  threatened  him  of  dire

consequences in case the demand was not met.   

III. Another FIR bearing No.122 of 2010 was registered on

17th May, 2010 under Sections 341,506 r/w 34 of the

IPC  at  Subzi  Mandi  Police  Station,  Delhi  on  the

complaint filed by Sudhir Singh alleging that Narender

alias Mamu  and  Sushil  Singh,  MLA,  who  was  the

nephew  of  Respondent  No.1,  along  with  others

threatened him to withdraw the cases filed against the

Respondents.  This incident, according to Sudhir Singh,

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happened when he was attending proceedings in the

Tis Hazari Court Complex, Delhi.   

IV. There  is  a  reference  in  the  final  report  of  six  other

cases  against  the  Respondents,  cognizance  of  which

was  taken  up  by  the  competent  Courts  in  Uttar

Pradesh.  The details of the said six cases are as under:

Sr. No .

ST No. FIR No.,U/s, & PS Name  of  Court  & Date  of  cognizance & Charge

Name  of  Gang Member

1 303/0 9

26/91  &  98/91  dt.02/05/1991 U/s  147/148/149/302/307  IPC PS Bhavarcool, Distt. Gazipur

ASJ  Anupati  Ram Yadav, Distt. Gazipur (UP) 09/11/2012

Brijesh  Singh Tribhuvan  Singh Uma  Kant Salander @ Papu

2 165/9 8

120/95 U/s 3(1) Gangster Act, PS  Chobey  Pur  Varanasi (Original  FIR & Rukka Missing from Court.)

Spl.  Judge  Gangster Act,  Varanasi 21/11/08

Brijesh Singh Hari Singh  @  Harday Narayar Singh

3 304/0 9

113/01  &  251/01/  U/s 147/148/149/307/302/427/120 -B IPC, 7 Criminal Law Act, PS Mohamedabad

ASJ-3 Distt. Ghazipur 11/01/13

Brijesh  Singh Tribhuvan Singh  

4 125/0 7

8/04  &  09/04  U/s 147/148/149/307/427 IPC,  2/3 UP Gunda Act, PS Cantt. Sadar Lucknow

Spl.  Judge  Gangster Act,  Lucknow 14/08/07

Brijesh  Singh Tribhuvan  Singh Ajay  @  Guddu Sunil  Rai  Anand Rai

5 523/1 0

62/09  &  81/09  U/s 147/148/149/307/120-B  IPC  7 Criminal  Law  Act.  PS  Lanka Varanasi

ASJ – 3 Varanasi Sh. Sanga  M  Lal 20/12/10

Tribhuvan  Singh Brijesh  Singh Sushil  Singh Narender  @ Mama Ajay  Singh @ Khain Ayak.

6 9/13 112/90  &  232/90  U/s 147/148/149/323/379/427 IPC, PS Saidpur, Varanasi

CJM Saidpur, Gazipur Sh.  Parksh  Chand Shukla 25/08/12

Brijesh  Singh Tribhuvan  Singh Vijay  Shankar Singh

4. The involvement of the Respondents and the other members

of  the  crime  syndicate  in  several  criminal  cases  was

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comprehensively  dealt  with  in  the  charge  sheet  dated

26.09.2013,  the  details  of  which  are  not  relevant  for  the

purpose of adjudication of this case.   Though investigation

was  still  in  progress  regarding  involvement  of  the  other

accused  persons,  the  charge  sheet  was  filed  against  the

Respondents.  After  obtaining  the  requisite  sanction  under

Section 23(2) of MCOCA from the competent authority, the

Special  Court  was  requested  to  take  cognizance  of  the

offences under Sections 3/4 of MCOCA.  

5. After hearing both sides, the Special Court held that it had no

jurisdiction  to  frame  charges  under  Sections  3  and  4  of

MCOCA and discharged the Respondents. The Special Court

recorded a finding that except FIR No.69 of 2010, there was

no  other  case  which  has  been  taken  cognizance  by  a

competent  Court  in  Delhi  for  application  of  MCOCA.   FIR

No.122  of  2010  registered  at  PS  Sabzi  Mandi  was  not

relevant as it was not a case where there is any allegation

against the members of the crime syndicate acquiring any

pecuniary benefits or other advantages.   

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6. The  Special  Court  held  that  the  criminal  cases  of  which

cognizance  was  taken  by  Courts  situated  outside  Delhi

cannot be taken into account for the purpose of satisfying

the ingredients of ‘continuing unlawful activity’ under Section

2(1)(d)  of  MCOCA.    Ignoring  that  six  cases  in  which

cognizance  was  taken  by  competent  Courts  outside  the

National Capital Territory of Delhi as well as FIR No.122 of

2010 registered at  police station Sabzi  Mandi,  the  Special

Court held that it had no jurisdiction to frame charges under

MCOCA against the Respondents only on the basis of one FIR

i.e. No.69 of 2007.  The Special Court further held that three

out of eight cases referred to in the charge sheet were at the

instance of Sudhir Singh and that the offences complained of

are in the nature of a gang war between the rival groups in

the State of Uttar Pradesh.   

7. The  Appellant-State  preferred  an  appeal  against  the

judgment of the Special Court discharging the Respondents

before the High Court of Delhi. The High Court rejected the

submissions made on behalf of the Appellant and held that

the  charge  sheets  filed  and  taken  cognizance  of  by  the

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Courts outside the National Capital Territory of Delhi are not

relevant for the purpose of registering a case under MCOCA.

The High Court approved the findings of the Special  Court

that FIR No.122 of 2010 was not in pursuance of activities of

organized  crime  syndicate  falling  within  the  purview  of

MCOCA.   As the requirement of a minimum of two charge

sheets being taken cognizance of by a competent Court in

Delhi was not satisfied, the High Court felt  that there was

nothing wrong with the decision of the Special Court.  

8. Mr. Sidharth Luthra, learned Senior Counsel appearing for the

Appellant submitted that organized crime is a serious threat

to  the  society  and that  statement  of  objects  and reasons

have  to  be  taken  into  account  for  interpretation  of  the

provisions  of  the  Act.   He  submitted  that  the  restriction

placed by the Courts below on the expression “Competent

Court” in the definition of continuing unlawful activity is not

correct.   According  to  him,  criminal  cases  in  which

cognizance was taken by Courts outside Delhi are relevant

for the purpose of proceeding against the respondents under

MCOCA.  He further submitted that organized crime is not

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restricted to territory within a State and a restrictive reading

of the word ‘Competent Court’ would defeat the purpose for

which the statute was enacted.  

9. Mr.  U.R.  Lalit,  learned  Senior  Counsel  appearing  for

Respondent No.1 urged that MCOCA is a special legislation

which deals with organized crime and unless the essential

ingredients of the offences under Sections 3 and 4 are made

out, a case under the said statute cannot be registered.  He

submitted  that  MCOCA operates  only  within  the  territorial

limits  of  National  Capital  Territory of  Delhi.   He submitted

that  there  is  no  offence  of  organized  crime  which  was

committed within the territory of Delhi.  He also argued that

it  is  clear  from  the  material  on  record  that  there  is  no

property belonging to the Respondents within the territory of

Delhi and hence, Section 4 of MCOCA is not attracted.  He

also  argued that  crime is  local  and anything that  is  done

outside the State cannot be subject matter of consideration

for registration of an offence under MCOCA.  Reliance was

placed on Articles 245 and 246 of the Constitution of India to

submit that MCOCA which extended to the National Capital

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Territory of Delhi cannot have extra territorial operation.  He

relied upon the judgment of the Bombay High Court in The

State of Bombay v. Narayandas Mangilal  Dayame1 in

support of the said submissions.  Mr. Lalit argued that the

complainant in FIR No.69 of 2007, Sudhir Singh, is a resident

of  Varanasi  and according to  him,  he came to Delhi  on a

business  trip  and  was  threatened  over  phone  by  the

Respondents.  After investigating into the said offence, it was

found that a call was made from a public telephone booth at

Varanasi,  U.P.   All  the  antecedent  events  that  were

mentioned in the said FIR pertain to activities in the State of

Uttar Pradesh.  He submitted that no organised crime was

committed in Delhi and FIR No.69 of 2007 cannot be taken

into  consideration for  proceeding against  the Respondents

under  MCOCA.   Referring  to  FIR No.122 of  2010,  Mr.  Lalit

submitted that Section 506 IPC was a non-cognizable offence

at the relevant time.  As there was no cognizable offence, FIR

No.122  of  2010  is  of  no  use  for  proceeding  against  the

Respondents under MCOCA.     

1 AIR 1958 Bom 68 (FB)  

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10. The menace of organized crime posed a serious threat to

civil  society  and  a  need for  making  special  provisions  for

prevention and control of criminal activities of the organized

crime  syndicates  and  gangs  was  recognised  by  the

Maharashtra  Legislature  which  passed  “the  Maharashtra

Control of Organized Crime Act, 1999 (hereinafter referred to

as  “MCOCA”).   It  was  brought  into  force  w.e.f.  24th April,

1999. It is clear from the statement of objects and reasons

that rapid increase in organised crime was causing serious

threat  to  public  order  apart  from  adversely  affecting  the

economy.   The  Government  was  of  the  opinion  that  the

existing  legal  regime  was  inadequate  to  deal  with  the

problem and hence, the necessity for a special law to curb

the menace of organised crime.  By a Notification dated 2nd

January,  2002 the Ministry of  Home Affairs,  Govt.  of  India

extended the provisions of  MCOCA to the National  Capital

Territory of Delhi.  

11. At this stage, it is necessary to refer to the provisions of

the Act which are relevant for adjudication of the dispute in

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this case.  Section 5 of the Act2 provides for constitution of

‘Special  Courts’  for  trying  offences  under  MCOCA.   These

Special Courts are competent to try all offences punishable

under  MCOCA  which  are  committed  within  its  local

jurisdiction as provided in Section 6 of the Act3.  An offence

of organized crime is punishable under Section 3 of the Act4.

2 5. Special Courts (1) The State Government may, by notification in the Official Gazette, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2)  Where any question arises as to the jurisdiction of  any Special  Court,  it  shall  be referred to the State Government whose decision shall be final. (3)  A Special  Court  shall  be presided over  by a judge to  be  appointed by the  State Government, with the concurrence of the Chief Justice of the Bombay High Court. The State Government may also appoint, with the concurrence of the Chief Justice of the Bombay High Court, additional judges to exercise jurisdiction in a Special Court- (4)A person shall not be qualified for appointment as a judge or an additional judge of a Special Court, unless he immediately before such a appointment, is a sessions judge or an additional sessions judge. (5) Where any additional judge is or additional judges are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order in writing, provide for the distribution of the business of the Special Court among himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judges.

3 6. Jurisdiction of Special Court Notwithstanding anything contained in the Code, every offence. punishable under this Act  shall,  be  triable  only  by  the  Special  Court  within  whose  local  jurisdiction  it  was committed  or  at  the  case  may  be,  by  the  Special  Court  constituted  for  trying  such offence under subsection (1) of section 5.

4 3. Punishment for organised crime- (1) Whoever commits an offence of organised 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. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised 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 of rupees five lacs.

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Section 45 of the Act provides for punishment for possessing

unaccountable wealth on behalf of a member of organized

crime syndicate.  ‘Organized crime’, as defined in Section 2

(1)(e)6 of the Act simply means a continuing unlawful activity

committed by use of violence for economic gain.  ‘Continuing

unlawful activity’ is defined in Section 2(1)(d)7 of the Act as

any activity prohibited by law for the time being in force if it (3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised 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) Any person who is a member of an organised 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 of obtained from commission of an organised crime or which has been acquired through the organised 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

5 4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate. If any person on behalf of a member of an organised crime syndicate is, or, at any time bus been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall  also be liable to fine, subject  to a  minimum fine of  rupees one lac and such property  shall  also liable for attachment and forfeiture, as provided by section 20. Organised criminals are undoubtedly hard core criminals. They have no derth of most modern weapons. Extorting money by spreading terrorism in society is their aim. They target elite class of society. Naturally, the money they recover is of unusual proportion. The money is  not  spent  on  just  causes  but  to  derail  state  economy.  It  is  therefore, essential to provide for strictest punishment. Punishment envisaged in the Act is 3 to 10 years of imprisonment which can be extended to life imprisonment. Death penalty can also be imposed on the criminals kill anyone. So also a fine of 3 to 10 lacs can also be imposed. It will be interesting to compare the criminals under this Act with criminals under recently repealed Tada Act. Criminals under both Acts differ in attitude and approach. Criminals under Tada aim at disruptive activities. They are threat to the sovereignty of Nation. On the contrary criminals under present law are extortionist. This  law  also  proposes  punishment  to  those  who  possess  any  type  of  property accumulated through illegal means.

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is  a  cognizable  offence  punishable  with  imprisonment  of

three years or more and if it is committed by a member of an

‘organized crime syndicate’8 either singly or jointly within the

preceding period of 10 years.   Another requirement is  the

existence of  at  least  two charge sheets  which  have  been

taken cognizance of by competent Courts.    

12. The points that arise for consideration in this case are:

i) Whether  charge  sheets  filed  in competent  Courts  outside  the  National Capital  Territory  of  Delhi  can  be taken  into account  for  the  purpose  of  constituting  a   

“continuing unlawful activity”, and   

ii) Whether there can be prosecution under MCOCA  without  any  offence  of  organised

crime being committed within Delhi.

6 (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 person or promoting insurgency;

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

8 (f) "organised crime syndicate" means a group of two or more persons who, acting either singly or  collectively,  as a syndicate of  gang indulge in activities of  organised crime;

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13. The principles of strict construction have to be adopted for

interpretation of the provisions of MCOCA, which is a penal

statute9.   However,  it  is  no  more  res  integra that  even a

penal provision should be interpreted to advance the object

which the  legislature  had in  view10.   The interpretation of

Section  2(1)(d) of  the  Protection  of  Children  from  Sexual

Offences  Act,  2012  came up  for  consideration  before  this

Court and Justice R.F. Nariman held as follows:   

“24.  It  is  thus clear on a reading of English,  U.S., Australian and our  own Supreme Court  judgments that  the  ‘Lakshman  Rekha’  has  in  fact  been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case  of  Heydon,  where  the  Court  must  have recourse to the purpose, object, text, and context of a  particular  provision  before  arriving  at  a  judicial result.  In  fact,  the  wheel  has  turned  full  circle.  It started out by the rule as stated in 1584 in Heydon’s case,  which  was  then  waylaid  by  the  literal interpretation  rule  laid  down  by  the  Privy  Council and the House of Lords in the mid 1800s, and has come back to restate the rule somewhat in terms of what was most felicitously put over 400 years ago in Heydon’s case.”11

9 Ranjitsing Brahamajeetsing Sharma v. Maharashtra (2005) 5 SCC 294  (Para 42); State of Maharashtra and ors. v. Lalit Somdutta Nagpal and anr. (2007) 4 SCC 171 (para 62)

10  Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684 ¶6

11 Ms. Eera through Dr. Manjula Krippendorf  v.  State (Govt. of NCT of Delhi) and Anr. in SLP (Crl.) Nos. 2640-42 OF 2016  at para 24 (concurring judgment of R.F. Nariman J.)

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14. The commission of crimes like contract killings, extortion,

smuggling  in  contrabands,  illegal  trade  in  narcotics,

kidnappings for ransom, collection of protection money and

money laundering, etc. by organised crime syndicates was

on the rise.  To prevent such organised crime, an immediate

need  was  felt  to  promulgate  a  stringent  legislation.   The

Government realized that organised crime syndicates have

connections with terrorist gangs and were fostering narcotic

terrorism  beyond  the  national  boundaries.   MCOCA  was

promulgated  with  the  object  of  arresting  organised  crime

which  was  posing  a  serious  threat  to  the  society.  The

interpretation of the provisions of MCOCA should be made in

a manner which would advance the object of MCOCA.   

Extra Territoriality and Territorial nexus:

15. It  was  submitted  on  behalf  of  the  Respondents  that

MCOCA is applicable only within the territories of Delhi as per

Section 1(2) of the Act.  Therefore, according to the learned

senior counsel for the Respondents, the charge sheets filed

in a competent Court  outside the NCT of  Delhi  cannot be

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taken into account for satisfying the requisites of continuing

unlawful activity.   Support was sought from a judgment of

the Privy Council in Macleod v. Attorney General for New

South Wales12.   The Appellant in that case married Mary

Manson  in  the  Colony  of  New  South  Wales.   During  her

lifetime, the Appellant married another lady at St. Louis in

the  State  of  Missouri,  United  States  of  America.   He  was

indicted,  tried  and  convicted  in  the  Colony  of  New South

Wales for the offence of bigamy under the Section 54 of the

Criminal Law Amendment Act of 1883. Section 54 provided

for  servitude  for  seven  years  for  bigamy  ‘wheresoever’  it

takes place.  Lord Halsbury, Lord Chancellor, held that the

Appellant  was not  liable  for  prosecution as  the  offence of

bigamy was not committed by him within the Colony of New

South Wales.  The laws made by the Colony of New South

Wales would operate only within its territory.  

 16. Macleod’s case (supra) was considered by the High Court

of Australia in Trustees Executors and Agency Co. Ltd. v.

Federal Commissioner of Taxation13 wherein it was held 12 (1891) A.C. 455

13 (1933) 49 C.L.R. 220  

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that there is no legal restriction of legislative power on the

so-called extra territorial ground.  It was further held that the

mere existence of non-territorial elements in any challenged

legislation  does  not  invalidate  the  law  and  that  the

legislation cannot be said to be invalid if the dominion has

some  real  concern  or  interest  in  the  matter,  thing  or

circumstances dealt with by the legislation.

17. Macleod’s  case (supra) was again considered in a later

judgment  of  the  High  Court  of  Australia  in  Union

Steamship Co. of Australia PTY. Ltd. v. King14 wherein it

was held that a power to make laws for the peace, order and

good governance for the territory was, initially, understood

to be limited to the area of the territory.  The objection taken

by  the  employer  to  an  award  passed  by  a  compensation

Court to the jurisdiction of the Courts under Section 46 of the

Workers’  Compensation Act, 1926 (State Act of New South

Wales)  was  rejected  by  following  an  earlier  judgment  in

Broken  Hill  South  Limited  (Public  Officer)  v.  The

14 (1988) 166 CLR 1

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Commissioner of Taxation (New South Wales)15 in which

it was held as follows:  

“… … .  But it is within the competence of the State  Legislature  to  make  any  fact, circumstance,  occurrence  or  thing  in  or connected with the territory the occasion of the  imposition  upon  any  person  concerned therein  of  a  liability  to  taxation  or  of  any other  liability.   It  is  also  within  the competence  of  the  legislature  to  base  the imposition  of  liability  on  no  more  than  the relation of  the person to the territory.   The relation may consist  in  presence within  the territory,  residence,  domicile,  carrying  on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of  its  powers.  As  in  other  matters  of jurisdiction or authority courts must be exact in  distinguishing  between  ascertaining  that the  circumstances  over  which  the  power extends  exist  and  examining  the  mode  in which  the  power  has  been  exercised.   No doubt there must be some relevance to the circumstances in exercise of the power.  But it is  of  no  importance  upon  the  question  of validity that the liability imposed is, or may be,  altogether  disproportionate  to  the territorial connection or that it includes many cases  that  cannot  have  been  foreseen.” (emphasis supplied)

18. In Christopher Strassheim v. Milton Daily 16 (supra), a

question arose whether the Respondent was liable to be tried 15 50 C.L.R. 337

16 221 U.S. 280 (1911)

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in the State of Michigan for an offence committed outside the

State.  Justice O.W. Holmes held that the State of Michigan is

justified in punishing the Respondent for acts done outside

its jurisdiction which were intended to produce a detrimental

effect within the State. It was held that:

“Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within  it,  justify  a  State  in  punishing  the cause of the harm as if he had been present at the effect, if the State should succeed in getting him within its power”.

19. The  Judgment  of  Justice  Holmes  was  followed  by  the

United States Courts of Appeal in Chua Han Mow v. United

States17 where the Petitioner’s contention that the United

States  of  America  lacked  subject-matter  jurisdiction  to

prosecute him for unlawful acts committed in Malaysia was

rejected.   Prosecution  of  the  Petitioner  was  held  justified

under the objective territorial and protective principles as the

Petitioner  intended  to  create  detrimental  effects  in  the

United States and commit acts which resulted in such effect

when heroin was unlawfully brought into the United States.   

17 730 F.2D. 1308 (1984) (p. 1312) cert. denied, 470 U.S.1031(1985)

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20. The Indian Federal  Court  considered the extra territorial

powers of the Union Legislature in  The Governor General

in Council v. The Raleigh Investment Co. Ltd.18 and held

that  the  provisions  of  the  impugned legislation  cannot  be

vitiated on the ground of extra territoriality in view of the

concern or interest the dominion had with the subject matter.

The Federal Court took note of the judgments subsequent to

Macleod  (supra) in  which  the  limitation  imposed  by  a

doctrine forbidding extra territorial legislation was held to be

a ‘doctrine of somewhat obscure extent’.  

21. In  State of Bombay  v. RMD Chamarbaugwala19,  this

Court  considered  the  point  whether  the  legislature

overstepped  the  limits  of  its  legislative  field  when  the

impugned act purported to affect men residing and carrying

on business outside the State.  It was held that on the basis

of  the doctrine of  territorial  nexus between the State and

activities of the Petitioners which are not in the State, the

impugned  legislation  cannot  be  held  to  be  beyond  the

competence of  the  legislature.   This  Court  recognized the 18 (1944) FCR 229

19 [1957] SCR 874 (p.901)

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existence of two elements to establish territorial nexus which

are:  

a. The connection must be real and not illusory, and  

b. The liabilities sought to be imposed must be pertinent

to that connection.   

22. The  doctrine  of  territorial  nexus  applied  in  the

Chamarbaugwala case (supra) which was concerned with

tax on crossword competitions,  was extended to sales tax

legislation  in  The Tata  Iron  & Steel  Co.,  Ltd.   v. The

State Of Bihar20 .   This Court found that the doctrine of

territorial nexus which was applied in Income Tax legislation

can be extended to Sales Tax legislation as well.  However,

this  Court  did  not  consider  the  broad  proposition  as  to

whether the theory of nexus, as a principle of legislation, is

applicable  to  all  kinds  of  legislation.   The  doctrine  of

territorial nexus was also applied by this Court in  State of

Bihar v. Charusila Dasi21 which dealt with trust properties.   

20  [1958] SCR 1355 (p.1375)

21 (1959) Supp. 2 SCR 619

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23. As stated above, the doctrine forbidding extra territorial

legislation  as  held  in  Macloed’s case  (supra)  was

subsequently  held  to  be  of  somewhat  obscure  extent.

Statutes made by a Sovereign States cannot be said to be

invalid on the ground of extra territoriality subject to certain

conditions as is clear from the judgments referred to supra.

The same principle was applied to State legislations in the

United States of America.  There is no distinction between

the applicability of the aforesaid principle to civil or criminal

statutes.   

24. In  the present  case,  it  is  sufficient  to  examine whether

there is a territorial nexus between the charge sheets filed in

competent Courts within the State of Uttar Pradesh and the

State  of  NCT  of  Delhi  where  the  Respondents  are  being

prosecuted.   The  prosecution  of  the  Respondents  under

MCOCA cannot be said to be invalid on the ground of extra

territoriality in case the nexus is sufficiently established.         

25. Organised  crime  which  is  an  offence  punishable  under

Section  3  of  MCOCA means  a  continuing  unlawful  activity

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committed by the use of force or violence for economic gain.

One relevant pre-condition which has to be satisfied before

any  activity  can  be  considered  as  a  continuing  unlawful

activity is that there should be at least two charge sheets

filed against the members of an organised crime syndicate

within the previous 10 years and a ‘competent Court’  has

taken cognizance of such charge sheets.  In the instant case,

there are eight charge sheets filed against the Respondents,

six  out  of  which  are  in  the  State  of  Uttar  Pradesh.   The

submission of the Respondents, which was accepted by the

Courts below, is that such charge sheets which are filed in

the State of Uttar Pradesh are not relevant for the purpose of

determining  whether  the  Respondents  have  indulged  in  a

continuing unlawful activity.  The Courts below held that only

charge sheets filed in competent Courts within Delhi have to

be taken into account.  We are not in agreement with the

Courts below.  

26. Organised crime is not an activity restricted to a particular

State which is apparent from a perusal of the Statement of

Objects  and  Reasons.   A  restrictive  reading  of  the  words

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“competent Court” appearing in Section 2  (1)(d) of MCOCA

will  stultify  the  object  of  the  Act.   We  disagree  with  the

learned  senior  counsel  for  the  Respondents  that  it  is

impermissible  for  the  Special  Courts  to  take  into  account

charge sheets filed outside the National Capital Territory of

Delhi as that would result in giving extra territorial operation

to MCOCA.  A perusal of the charge sheets filed against the

Respondents in the State of Uttar Pradesh which are relied

upon by the prosecution to prove that organised crime was

being committed by them shows clear nexus between those

charge  sheets  and  the  National  Capital  Territory  of  Delhi

where  prosecution  was  launched  under  MCOCA.  The  twin

conditions  to  establish  territorial  nexus  in  RMD

Chamarbaugwala’s  case (supra) are fulfilled.  If members

of  an  organised  crime  syndicate  indulge  in  continuing

unlawful activity across the country, it cannot by any stretch

of  imagination  said,  that  there  is  no  nexus  between  the

charge sheets filed in Courts in States other than Delhi and

the offence under MCOCA registered in Delhi. In such view,

we are unable to accept the submission of the Respondents

that charge sheets filed in competent Courts in the State of

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Uttar Pradesh should be excluded from consideration.   We

hold that ‘competent Courts’ in the definition of ‘continuing

unlawful activity’ is not restricted to Courts in Delhi alone.    

CRIME  IS  LOCAL  

27. The  learned  senior  counsel  for  the  Respondents  relied

upon  the  judgment  of  a  full  Bench  of  the  High  Court  of

Bombay  in  Narayandas  Mangilal  Dayame case  (supra)

wherein the constitutional  validity  of  Section 4 of  Bombay

Prevention of Hindu Bigamous Marriage Act was considered.

A  second  marriage  contracted  outside  the  State  was  a

bigamous marriage and void as per Section 4 of the said Act

and  was  also  made  punishable  under  Section  5  with  an

imprisonment  which  may  extend  to  seven  years.   The

Petitioner  was  tried  for  contracting  a  second  marriage  at

Bikaner and was found guilty for committing an offence of

bigamy.   Chief  Justice  Chagla  following  Macleod’s  case

(supra) held that crime is local and that Section 4 was ultra

vires the Bombay legislature as it suffered from the vice of

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extraterritoriality.   It was further held that the principle of

territorial  nexus  is  not  applicable  to  cases  of  marriage  or

crime.   

28. According to us, the said principle is not applicable to the

facts  of  this  case.   The  offences  alleged  to  have  been

committed  by  the  Respondents  beyond  the  territories  of

Delhi are not being tried within the National Capital Territory

of Delhi.  The existence of filing of the charge sheets, as a

matter  of  fact,  is  taken  into  consideration  merely  for  the

purpose  of  determining  the  antecedents  of  the

Respondents.22  The Respondents would still be liable to face

trial in competent Courts where the charge sheets are filed.   

29. Even if a crime is committed in one State, the accused can

be tried in another State if the detrimental effect is in that

State -  Christopher Strassheim v.  Milton Daily(supra)

followed by the Federal Court of Appeals in Rocha23 and Chua

22 Bharat Shanti Lal Shah v. State of Maharashtra (2003) Bom. L.R. (Cri.)947 (para 25-27) (to  which  Justice  Bobde  was  a  party)  subsequently  approved  in   State  of Maharashtra v. Bharat Shanti Lal Shah & Ors.  (2008) 13 SCC 5 (Para 29-33); Om Prakash Shrivastava v. State of NCT of Delhi 164 (2009) DLT 218 (Para 33-36); Jaisingh v. Maharashtra (2003)BomCR(Cri) 1606 (para 19)

23 Rocha v. United States 288 F.2d. 545 (1961) (p. 548), cert. denied 366 U.S.  948(1961)

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Han Mow24.   It is also relevant to refer to the judgment of the

House  of  Lords  in  Director  of  Public  Prosecutions  v.

Stonehouse25.  A well known politician who was in financial

difficulties  simulated  his  death  by  drowning  to  start  life

afresh  with  a  new  identity  in  Australia.   He  made

arrangement with five British insurance companies to issue a

policy in his wife’s name which would be payable to her on

his death.  After creating the circumstance of his drowning in

Miami,  he  fled  to  Australia  on  a  false  passport.   He  was

extradited to England where he was prosecuted in respect of

several  offences  including  attempt  to  obtain  property  by

deception.  It was held by the House of Lords that the English

Courts  had  jurisdiction  to  try  the  offences  against  the

Appellant on the ground that the instant consequences of the

physical acts of the accused in United States of America was

in England.   

30. In Lawson v. Fox & ors.26 the House of Lords decided the

following points of law of general importance: 24 Chua Han Mow v. United States 730 F.2D. 1308 (1984) (p. 1312) cert. denied, 470  U.S.1031(1985)

25 [1977] 2 All ER 909)

26 [1974] 1 All ER 783

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'Whether  in  deciding if  an offence has been committed under section 96 (1) and 96 (3) (a) of the Transport Act 1968 it  is  right  to  take into  account  hours  of  work  and hours  of  driving  done  and  hours  of  rest  taken  outside Great Britain which if done or taken inside Great Britain would  fall  to  be  taken  into  account  for  the  purpose  of computing a driver's working day and hours of driving.   

The Respondent/ driver was convicted for the offence of

driving a vehicle for more than 10 hours in a working day,

contrary to Section 96(1) of the 1968 Act and for working as

a driver of a goods vehicle for a working day which exceeded

11 hours, contrary to Section 96(3)(a) of the 1968 Act.  The

Respondent was driving a goods vehicle on round trips by

channel ferry between his employer’s depot in England and a

destination in  France.  The Respondent  contended that  the

period during which he drove outside England i.e. in France,

cannot  be  taken  into  account.   It  was  held  that  this

presumption based on international comity that Parliament,

while enacting a penal statute, unless it uses plain words to

the contrary, did not intend to make it an offence in English

Law to do acts in places outside the territorial jurisdiction of

the English Courts- unless the act is one which has harmful

consequences in England.  The Respondent was not charged

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with anything that he did in France but the fact that he was

on  duty  in  the  course  of  his  employment  was  taken  into

consideration for trying him in England.   

31. The judgments of the House of Lords pertain to offences

committed  outside  the  country  being  tried  when  the

consequences of such offences are within the country.  We

have referred to these judgments only to explain that the

principle  of  ‘Crime  is  local’  is  not  applicable  where  the

detrimental  effect  is  in  another  State  which  can  try  the

offender.  In any event, the Respondents are not being tried

for the offences which are subject matter of charge sheets

filed  in  the  State  of  Uttar  Pradesh.   The  cases  in  which

charge sheets  are filed in  competent  Courts  outside Delhi

shall be tried in those Courts and are taken into account only

for  determining  the  antecedents  of  the  Respondents.

Therefore, the submission on behalf of the Respondents that

the  crimes  committed  outside  the  State  cannot  be

considered for  any  purpose whatsoever  is  rejected.    The

upshot  of  the  above discussion  is  that  there  should  be  a

minimum of two charge sheets of organized crime registered

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against the members of the syndicate either separately or

jointly for the purpose of constituting a continuing unlawful

activity.  Charge sheets filed outside Delhi can also be taken

into account.   

32. However, we are in agreement with the submission of the

learned Senior Counsel for the Respondents that an activity

of organized crime in Delhi is a sine qua non for registration

of a crime under MCOCA.  In the absence of an organized

crime  being  committed  in  Delhi,  the  accused  cannot  be

prosecuted on the basis of charge sheets filed outside Delhi.  

33. FIR No.122 of 2010 is registered under Sections 341, 506

read  with  Section  34  of  the  IPC.   Section  341  IPC  is

punishable with a maximum sentence of one month, though

it is cognizable offence.  Section 506 IPC is a non-cognizable

which was made a cognizable offence by a notification issued

by the Delhi Government.   This notification was quashed by

the  High  Court  of  Delhi  on  13.01.2003.     A  second

notification for  the same purpose was issued by the Delhi

Government on 31.03.2004 which was challenged in W.P. (C)

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Criminal Appeal @SLP(Crl.) No.5497 of 2015

No.2596 of 2007. The High Court of Delhi initially stayed and

ultimately  struck  down  the  second  notification  on

18.01.2016. As such, Section 506 IPC was a non-cognizable

offence at the date of registration of the FIR and filing of the

charge sheet.  Only an unlawful activity which is a cognizable

offence punishable with minimum sentence of three years or

more would be a continuous unlawful activity under section

2(1)(d) of the Act.  Hence, the FIR No.122 of 2010 cannot be

taken into account.   

34. FIR  No.69  of  2007  was  registered  on  the  basis  of

information given by one Sudhir Singh, who is admittedly a

resident  of  Plot  No.103,  Saket  Nagar,  Varanasi,  Uttar

Pradesh.  He is a politician and a businessman and when he

was  on  a  trip  to  Delhi,  he  was  threatened  by  the

Respondents  due  to  their  business  rivalry.   Several  facts

pertaining to the illegal activities of the Respondents in Uttar

Pradesh  have  been  mentioned  in  the  FIR.   Sudhir  Singh

complained of extortion by the Respondents for payment of

Rs.50  Lakhs  as  protection  money.   During  the  course  of

investigation, it was found that the call that was made on the

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mobile phone of Sudhir Singh was from a PCO at Varanasi.  It

appears from a close reading of the FIR and the charge sheet

in  FIR  No.69  of  2007,  that  there  was  no  criminal  activity

pertaining to organised crime within the territory of Delhi and

the complaint was filed by the informant at Delhi only for the

purpose of invoking MCOCA.  We have thoroughly examined

the material placed on record by the prosecution including

the charge sheet and found that there is no mention of any

property belonging to the Respondents in Delhi.   We gave

sufficient time to Shri Sidharth Luthra to show us anything

from the record pertaining to possession of property by the

Respondents  in  Delhi.   After  making  enquiries  with  the

authorities  concerned,  Mr.  Luthra  fairly  submitted that  the

Respondents are not in possession of any property in Delhi.

As  there  is  no  organised  crime  committed  by  the

Respondents within the territory of Delhi, there is no cause of

action for initiation of proceedings under MCOCA.

35. The Appeal is disposed of as follows:-

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(a) The  words  ‘competent  Court’  in  Section  2(d) of

MCOCA is  not  restricted  to  Courts  in  Delhi  and  charge

sheets filed in Courts in other States can be taken into

account  for  the  purpose  of  constituting  continuing

unlawful activity;

(b) There cannot be a prosecution under MCOCA without  

an organised crime being committed within Delhi; and  

(c) The judgment of the High Court is upheld though for  

different reasons.   

                                                  .................................J.                                          [S.A. BOBDE]

 ..................................J.

                                  [L. NAGESWARA RAO] NEW DELHI;  OCTOBER 09, 2017  

34