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TMI Blog2017 (10) TMI 1649X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Salander @ Papu 2 165/98 120/95 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 @ HardayNarayar Singh 3 304/09 113/01 & 251/01/U/s 147/148/149/307/302/427/120-B IPC, 7 Criminal Law Act, PS Mohamedabad ASJ-3Distt. Ghazipur11/01/13 Brijesh Singh Tribhuvan Singh 4 125/07 8/04 & 09/04 U/s 147/148/149/307/427 IPC, 2/3 UP Gunda Act, PS Cantt. SadarLucknow Spl. Judge Gangster Act, Lucknow 14/08/07 Brijesh Singh Tribhuvan Singh Ajay @ Guddu Sunil RaiAnandRai 5 523/10 62/09 & 81/09 U/s 147/148/149/307/120-B IPC 7 Criminal Law Act. PS Lanka Varanasi ASJ - 3 VaranasiSh. Sanga M Lal 20/12/10 Tribhuvan Singh Brijesh Singh Sushil Singh Narender @ Mama Ajay Singh @ KhainAyak. 6 9/13 112/90 & 232/90 U/s 147/148/149/323/379/427 IPC, PS Saidpur, Varanasi CJM Saidpur, GazipurSh. ParkshChandShukla25/08/12 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 comprehensively dealt with in the charge sheet dated 26.09.2013, the details of which are not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 unlawf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Wales (1891) A.C. 455. The Appellant in that case married Mary Manson in the Colony of New South Wales. During her lifetime, the Appellant married ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 221 U.S. 280 (1911) (supra), a question arose whether the Respondent was liable to be tried 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: Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax legislation in The Tata Iron & Steel Co., Ltd. v. The State of Bihar [1958] SCR 1355 (p.1375). 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 Dasi (1959) Supp. 2 SCR 619 which dealt with trust properties. 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 with anything that he did in France but the fact that he was on duty in the course of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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 sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minals 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. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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