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TMI Blog2022 (12) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of 'continuing unlawful activity', as defined Under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019? To put it in other words: whether an FIR under the 2015 Act (Special enactment) is maintainable in law or can be registered if there is no FIR registered against the Accused after the promulgation of the 2015 Act for any offence under the Indian Penal Code or any other statute? 4. The aforesaid question arises especially in view of the fact that the last offence registered against the Respondent-Accused is of 2019 and the chargesheet in regard to the said FIR was filed on 21.01.2019 i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore, there is no FIR registered against the Respondent-Accused after the 2015 Act came into force w.e.f. 01.12.2019. FACTUAL MATRIX 5. On 27.11.2020 an FIR came to be registered against the Respondent Accused herein and thirteen other co-Accused for the offence punishable Under Sections 3(1)(i) and (ii), 3(2) and 3(4) of the 2015 Act. The Respondent-Accused came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and that court has taken cognizance of such offence; (f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime; The combined reading of the aforesaid provisions suggest that there has to be a continuing unlawful activity carried out by an organized crime syndicate, for which more than one charge sheets have been filed before a competent court within the preceding period of ten years, and that the court has taken cognizance of such offence. 7. The Supreme Court in the case of Shivaji Ramaji Sonawale (supra) while considering the pari materia provisions of Section 2(d) of the Maharashtra Control of Organised Crime Act, 1999 to that of Section 2(c) of the Gujarat Act, which defines "continuing unlawful activity" has held thus: 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 11. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he state has referred to the extension order dated 03.03.2019 also which is against the provisions of Section 2(c) of the Act. The Supreme Court has held that it is only if an organized crime is committed by the Accused after the promulgation of the Act that has to be considered in the light of the previous charge sheets. Thus, the state has misdirected itself with regard to the registration of offences against the applicant, hence the Applicant cannot be allowed to be further incarcerated in jail. 10. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the Accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. It is clarified that this Court has not expressed any opinion with regard to the Applicant not being a member or a member of the crime syndicate. 10. Being dissatisfied with the aforesaid impugned order passed by the High Court releasing the Respondent-Accused on bail, the State of Gujarat is here before this Court with the present appeal. SUBMISSIONS ON BEHALF OF THE APPELLANT STATE 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will surely get hampered. 14. In the aforesaid contest, the submission of Mr. Mehta is that if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) is to be treated as the final word so far as the law is concerned, then the first case under the 2015 Act can be registered, only after two cases of the nature described in the 2015 Act, had been registered against the person or against an organised syndicate after 01.12.2019. As the definition indicates, for making a crime punishable under the provisions of the 2015 Act, there has to be more than one case registered or in other words, it is the third case which can be registered for an offence Under Sections 3 and 4 of the 2015 Act. Such an interpretation would be in direct conflict with the very purpose of the 2015 Act. If such an interpretation is accepted then the State will have to wait and helplessly watch the organised crime taking place till it is the third time a person or a syndicate is found involved in the offence after the 2015 Act came into operation w.e.f. 01.12.2019 in the State of Gujarat. According to Mr. Mehta, the 'continuing unlawful activity' could have taken place ten years prior to the reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the past of which cognizance is taken. He would argue that if such a contention were to be accepted, it would amount to giving a free hand to the police to send anybody to a long term of imprisonment, merely by filing chargesheets in respect of more than one offence. 20. In such circumstances referred to above, the learned Counsel appearing for the Respondent-Accused prays that there being no merit in the present appeal, the same may be dismissed. ANALYSIS 21. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the decision rendered by a coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook and the issue be referred to a larger Bench. AN OVERVIEW OF THE GUJARAT CONTROL OF TERRORISM AND ORGANISED CRIME ACT, 2015 22. The Gujarat Control of Terrorism Act, 2015, as its long title indicates, is 'an Act to make special provisions for the prevention and control of terrorist acts and for coping with criminal activities by organised crime syndicates and for the matters connected therewith or incidental there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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; The expression 'organised crime' is defined with reference to a continuing unlawful activity. The definition is exhaustive since it is prefaced by the word 'means'. The ingredients of an organised crime are: a. The existence of a continuing unlawful activity; b. Engagement in the above activity by an individual; c. The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate; d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency. The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activity and an organised crime syndicate. Hence, it becomes necessary to understand the ambit of both those expressions. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs. (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 fine which shall not be less than rupees five lakhs. (5) Whoever holds any property derived, or obtained from commission of terrorist act or an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with imprisonment for 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 which shall not be less than rupees two lakhs. Sub-section (1) of Section 3 covers 'whoever commits an offence of organised crime'. Subsection (2) covers 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. Sub-section (3) covers whoever harbours or conceals or attempts to har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt wherein the provisions of the 2015 Act are made applicable, we deem it fit to reiterate the principles of grant of bail. 26. The considerations which normally weigh with the Court in granting bail in non-bailable offences are: (1) the nature and seriousness of the offences; (2) the character of the evidence; (3) circumstances which are peculiar to the Accused; (4) a reasonable possibility of the presence of the Accused not being secured at the trial; (5) reasonable apprehension of witnesses being tampered with; (6) the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. 27. However, if the provisions of the 2015 Act are invoked in a given case, then, in addition to the aforementioned broad principles, the limitations imposed in the provisions contained in Sub-section (4) of Section 20 of the 2015 Act should not be lost sight of while dealing with application for grant of bail. The relevant provision reads as under: 20.(4) Notwithstanding anything contained in the Code, no person Accused of an offence punishable under this Act shall, if in custody, be released on bail or on his ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be judged objectively. ... .. 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the Applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the Applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an Accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the Accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual convicts. The Accused persons therein were convicted for the offences punishable Under Section 3(4) of the MCOCA. Shiva alias Shivaji Ramaji Sonawane was also one of the Appellants in the batch of appeals before the High Court. 32. The High Court after referring to the various provisions of the MCOCA looked into its own decision delivered by a Division Bench in the case of Jaisingh Ashrfilal Yadav and Ors. v. State of Maharashtra and Another reported at 2003 All Mr. (Cri.) 1506. We quote paras 42 and 43 of the decision of the High Court in Prafulla (supra): 42. In Jaisingh Ashrfilal Yadav v. State of Maharashtra, reported at 2003 All Mr. (Cri.) 1506, to which the learned A.P.P. drew my attention, a Division Bench of this Court was considering the constitutionality of the provisions of MCOC Act. The Court observed in paragraph 9 as under: 9. The analysis of the definition of the organised crime, therefore, would reveal that continuing unlawful activity is one of its ingredients whereas in order to make an activity to be continuing unlawful one, it should disclose filing of minimum two charge-sheets in relation to the activity prohibited by law in force and of the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter in para 44 of Prafulla (supra) referred to its decision, rendered by a Division Bench in Bharat Shantilal Shah v. State of Maharashtra reported at 2003 All Mr. (Cri.) 1061. In Bharat Shantilal Shah (supra), the challenge was to the constitutional validity of MCOCA. We quote paras 44, 45 and 46: 44. In Bharat Shantilal Shah v. State of Maharashtra, reported at 2003 All Mr. (Cri.) 1061 the challenge to the constitutional validity of MCOC Act, was considered by another Division Bench. Definition of continuing unlawful activity in Section 2(1)(d) was sought to be attacked by advancing the following arguments: 19. Dealing with the next definitions in Section 2(1)(d) of 'continuing unlawful activity' it was submitted that it suffers from violation of Article 14 as it treats unequals as equals. It makes an activity continuing unlawful activity if more than one charges of cognizable offence punishable with imprisonment of three years or more are filed in competent Court, if does not touch an activity as continuing unlawful activity if undertaken by a person who is known to be a criminal but more than one charge sheets have not been filed against him. A person charged ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge-sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge-sheeted in such cognizable offences in the past makes the unlawful activity continuing unlawful activity. This Section only defines what the activity is. It does not itself provide for any punishment for that activity. Had punishment been provided the submission that it threats while punishing unequals as equals may carry weightage. That being not the case in the challenge to Section 2(1)(d) of the Act we see no vagueness or violation of Article 14 by the definition. We find that the provision treats all those covered by it in a like manner and does not suffer from the vice of class legislation. (emphasis supplied) 46. In paragraph 27 the Court then went on to observe as under: 27. We also do not find substance in the challenge that the equality Clause in the Constitution is violated because the definition ropes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the MCOCA. Therefore, this Court had no occasion to go into that question. This Court, however, observed that there was no vagueness as the definitions defined with clarity what was meant by continuing unlawful activity, organised crime and also organised crime syndicate. This Court specifically concluded that after examining the judgment of the High Court of Judicature at Bombay on the issue of the constitutional validity of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectively of the MCOCA, that the court was in accord with the finding arrived at by the High Court that the aforesaid provisions cannot be said to be ultra vires of the Constitution and this Court did not find any reason to take a different view than the one taken by the High Court of Judicature at Bombay while upholding the validity of the aforesaid provisions. 37. The High Court of Judicature at Bombay had specifically held as affirmed by a three-Judge Bench decision of this Court that had punishment been provided for continuing unlawful activity, the submission that while punishing, it treats unequals as equals may carry weightage. The High Court, as affirmed by this Court, upheld the validity of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to follow. 49. It is not necessary to go into the implications of the expression "prosecuted and punished" used in Article 20(2) of the Constitution. Section 300 of the Code of Criminal Procedure itself clearly bars a fresh trial for the same offence. Section 21 of MCOCA which prescribes modified applications of the Code to offences under MCOCA does not make provisions of Section 300 of the Code of Criminal Procedure inapplicable. Therefore, since the previous criminal history of the applicants denotes that they had been or are being separately charged/tried for those offences before competent Courts, there is no question of such offences constituting offence of organised crime. 50. In Appa @ Prakash Haribhau Londhe v. State of Maharashtra, reported at 2006 All Mr. (Cri.) 2804 : ((2006) 6 AIR Bom R 401), a Division Bench of this Court was considering the challenge to the applicability of MCOC Act. The Court observed as under in paragraph 10 of the judgment: 10. For the purpose of organised crime there has to be a continuing unlawful activity and there cannot be continuing unlawful activity unless at least two charge-sheets are to be found to have been lodged in relation to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, the learned Judge, Special Court, would have charged Accused No. 1/I Shiva of offence punishable Under Section 3(1)(i) of MCOCA and not one punishable Under Section 3(1)(ii) of the MCOCA, since Shiva had been charged once of murder (Sr. No. 9 in the chart) and acquitted. Same would hold good about the other gangsters. Advocate Tiwari, the learned Counsel for Mehmood and Ors. relying on judgment of the Supreme Court in Dilip Singh v. State of Punjab, reported at (1997) 3 Current Criminal Journal 223, that charge-sheets cannot be made the basis of guilt or innocence of an Accused. Therefore, it is clear that the offences referred to in various charge-sheets are not "such offence(s)" and consequently an offence, punishable Under Section 3 of the MCOCA has to be different from those for which such Accused had been charge-sheeted in the past. Past criminal activity only aggravates the continued activity amounting to an offence and attracts provisions of MCOCA. 53. In view of this, since the Appellants are not shown to have indulged in any crime which can be said to be continuation of past criminal activity provisions of Section 3(1) of the MCOCA are not attracted. It cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the past activities, prior to 1999 may not be of any help for registering any FIR only on the basis of such past activities. Further, if two or more illegal activities are committed after 1999, then the past activities can be taken into consideration in order to show the continuity. 41. The State of Maharashtra being dissatisfied with the aforesaid judgment of the High Court of Judicature at Bombay challenged the same before this Court. It is the said challenge which culminated in the decision titled as Shiva alias Shivaji Ramaji Sonawane (supra). 42. We now proceed to look into the relevant observations made by this Court as contained in paras 9, 10 and 11: 9. It was in the above backdrop that the High Court held that once the Respondents had been acquitted for the offences punishable under Indian Penal Code and the Arms Act in Crimes Nos. 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 Arms Act in MCOCA Crimes Nos. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder MCOCA. The High Court was, therefore, right in holding that Section 3 of 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. (Emphasis supplied) 43. Thus, in Shiva alias Shivaji Ramaji Sonawane (supra), this Court took the view that there are two essential ingredients to constitute an offence under MCOCA. First, the registration of cases, filing of chargesheets and taking of cognizance by the competent court in relation to the offences alleged to have been committed by the Accused in the past and secondly, continuation of unlawful activities. In other words, it is only if an organised crime is committed by the Accused after the promulgation of the MCOCA that he may, on the basis of the previous chargesheets and the cognizance taken by the competent court, be said to have committed an offence Under Section 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and Anr. v. State of Bombay reported in AIR 1954 SC 496, is that "if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty. It is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature...." In State of Jharkhand and Ors. v. Ambay Cements and Another reported in (2005) 1 SCC 368, this Court held that it is a settled Rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. The basic Rule of strict construction of a penal statute is that a person cannot be penalised without a clear letter of the law. Presumptions or assumptions have no role in the interpretation of penal statutes. They are to be construed strictly in accordance with the provisions of law. Nothing can be implied. In such cases, the courts are not so much concerned with what might possibly have been intended. Instead, they are concerned with what has actually been said. 48. We are of the view and the same would be in tune wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siders two chargesheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said 2015 Act. 51. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions of the Act, the same would indicate that the offence of 'organised crime' could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. We say so keeping in mind the following: (a) If 'organised crime' was synonymous with 'continuing unlawful activity', two separate definitions were not necessary. (b) The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of 'continuing unlawful activity', but find place only in the definition of 'organised crime'. (c) What is made punisha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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