TMI Blog2015 (4) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 2(1)(d) of MCOCA. Once we are able to ascertain 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. 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 and Jalna and, therefore, they are entitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 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 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. The appellant-Lt. Col. Prasad Shrikant Purohit is the first respondent in Criminal Appeal No.867 of 2009. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch of cases and the same shall be heard separately. 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. Mr. U.R. Lalit, learned senior counsel in his submissions referred to the brief facts which led to the initiation of the 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, therefore, the definition of continuing unlawful activity or organized crime as well as organized crime syndicate was not fully established. 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 submitted that the question which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cases falling within the definition of continuing unlawful activity as defined under Section 2(1)(d) of the Act. The learned senior 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -70 of 2010 and the judgment of the Division Bench is liable to be set aside. 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 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. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld attract invocation of MCOCA. 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. 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal 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. 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 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. Having thus noted the grievances of the appellants in the above referred to appeals as against the order of the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Xxx (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 - the names of the parties; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence 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 Sess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. 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 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 min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogether 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 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently the definition of 'continuing unlawful activity' is satisfied. 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, the exclusion of A-7 as member of 'Abhinav Bharat' there was no scope to invoke MCOCA. 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 prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 30.09.2006. Reliance was placed upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, if the offence would attract a punishment of three years or more that would 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acquainted with the circumstances of the case and various other details. 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 polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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. 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other - 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence qua that person. (Emphasis added) 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipulated under Section 190(1) of Cr.P.C. 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) The above passage referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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. Again in a recen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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? 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. 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 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 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 that in order to come within the said expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [pic](Emphasis added) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 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. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 judicio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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