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2022 (12) TMI 1103 - SC - Indian LawsContinuing unlawful activity - Offence of organised crime - 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? HELD THAT - It is plain from a bare reading of the non-obstante Clause in the Sub-section that the power to grant bail by the High Court or Court of Sessions is not only subject to the limitations imposed by Section 439 of the Code but is also subject to the limitations placed by Section 20(4) of the 2015 Act. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions are the satisfaction of the court that there are reasonable grounds for believing that the Accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the Accused being not guilty has to be based on reasonable grounds. The expression 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the Accused is not guilty of the alleged offence. The reasonable belief contemplated in the provisions requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the Accused is not guilty of the alleged offence. Thus, recording of findings under the said provision is a sine qua non for granting bail under the 2015 Act. If the decision of the coordinate Bench of this Court in the case of STATE OF MAHARASHTRA VERSUS SHIVA @ SHIVAJI RAMAJI SONAWANE ORS. ETC. AND MEHMOOD KHAN YAKUB KHAN PATHAN ETC. ETC. 2015 (7) TMI 1420 - SUPREME COURT 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. If 'organised crime' was synonymous with 'continuing unlawful activity', two separate definitions were not necessary. 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'. What is made punishable Under Section 3 is 'organised crime' and not 'continuing unlawful activity'. If 'organised crime' were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that 'if any one of such offence has resulted in the death', since continuing unlawful activity requires more than one offence. Reference to 'such offence' in Section 3(1) implies a specific act or omission. The dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane does not require any relook. The dictum in Shiva alias Shivaji Ramaji Sonawane is the correct exposition of law. The appeal stands disposed of.
Issues Involved:
1. Whether the requirement of 'continuing unlawful activity' under Section 2(1)(c) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (2015 Act) necessitates a separate FIR to be registered against a purported gang member after the promulgation of the 2015 Act. 2. Whether an FIR under the 2015 Act is maintainable if no FIR has been registered against the accused post-promulgation of the 2015 Act. Detailed Analysis: Issue 1: Requirement of 'Continuing Unlawful Activity' The core issue for consideration was whether the requirement of 'continuing unlawful activity' under Section 2(1)(c) of the 2015 Act necessitates a separate FIR to be registered against any purported gang member after the promulgation of the 2015 Act. High Court's Interpretation: The High Court granted bail to the Respondent-Accused, relying on the Supreme Court's decision in State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane. The High Court noted that the 2015 Act came into force on 01.12.2019 and no FIR had been registered against the Respondent-Accused for any substantive offence after this date. The High Court concluded that the five FIRs registered in the past for different offences under the IPC could not be construed as 'continuing unlawful activity' to prosecute the Respondent under the 2015 Act. Supreme Court's Analysis: The Supreme Court upheld the High Court's interpretation, emphasizing that the 'continuing unlawful activity' must involve an activity prohibited by law, which is a cognizable offence punishable with imprisonment for three years or more, undertaken either singly or jointly, as a member of an organized crime syndicate, in respect of which more than one charge-sheet has been filed before a competent court within the preceding ten years, and the court has taken cognizance of such offence. The Court reiterated that mere filing of charge-sheets in the past is not enough. The continuation of unlawful activities is a second and equally important requirement. The Court emphasized that it is only if an organized crime is committed by the accused after the promulgation of the 2015 Act that he may, in 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. Issue 2: Maintainability of FIR under the 2015 Act The question was whether an FIR under the 2015 Act is maintainable if no FIR has been registered against the accused post-promulgation of the 2015 Act. High Court's Interpretation: The High Court observed that the last offence registered against the Respondent-Accused was in 2019, and no FIR had been registered after the 2015 Act came into force on 01.12.2019. Therefore, the High Court concluded that the Respondent-Accused could not be prosecuted under the 2015 Act based on past FIRs alone. Supreme Court's Analysis: The Supreme Court agreed with the High Court's interpretation, stating that the provisions of the 2015 Act should be strictly construed. The Court highlighted that the substantive law should be construed strictly to protect substantive rights unless the statute otherwise intends. The Court emphasized that the 2015 Act seeks to deprive a citizen of his right to freedom at the very initial stage of the investigation, making it extremely difficult to obtain bail. Therefore, it must be ensured that the investigation is conducted strictly in accordance with the provisions of the 2015 Act. The Court clarified that there must be some act or omission amounting to organized crime after the 2015 Act came into force, in respect of which the accused is sought to be tried for the first time in the special court. The Court concluded that the decision in Shiva alias Shivaji Ramaji Sonawane does not require a relook and is the correct exposition of law. Conclusion: The Supreme Court upheld the High Court's decision to grant bail to the Respondent-Accused, emphasizing that the requirement of 'continuing unlawful activity' under the 2015 Act necessitates an act or omission amounting to organized crime after the Act's promulgation. The Court affirmed that the provisions of the 2015 Act should be strictly interpreted, and the decision in Shiva alias Shivaji Ramaji Sonawane is the correct exposition of law.
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