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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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