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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 ..... e 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 orga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 be arrested on the very same day and date of registration of the FIR i.e., 27.11.2020. The Respondent-Accused applied for bail before the Sessions Court at Surat by filing the Criminal Miscellaneous Application No. 6483 of 2020. The Sessions Court at Surat rejected the bail application vide order dated 21.01.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 under the Indian Penal Code and the Arms Act. For the offences punishable under MCOCA separate and independent charge sheets were filed against the Accused persons in which they were convicted by the Trial Court which conviction was reversed by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court." 8. By analyzing the expression "continuing unlawful activity", the Apex Court has held that the filing of more than on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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. Mr. Tushar Mehta, the Solicitor General vehemently submitted that the dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook, as the said dictum frustrates the very object of enacting the 2015 Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 registration of the new case. In such circumstances, the intention of the Legislature could not have been other than giving immediate effect to the 2015 Act by taking note of all the offences or chargesheets registered within ten years pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 to'. The statement of objects and reasons contains the reasons, which constitute the foundation for the legislature to step in: First, organised crime which is in existence for some years poses a serious threat to society; Secondl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion '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. The ingredients of a continuing unlawful activity are: a. The activity must be prohibited by law for the time being in force; b. The activity must be a cognizable act punishable with imprisonment of three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 harbour or conceal any member of an organised crime syndicate. Sub-section (4) covers any person who is a member of an organised crime syndicate. Sub-section (5) covers whoever holds any property derived or ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 own bond, unless- (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Special Court is satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted 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, his propensities and the nature and manner in which he is alleged to have committed the offence. xxx xxx xxx 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 specified in Section 2(d) during the period of preceding ten years. In other words, lodging of two charge-sheets in relation to the acts which are already declared under the law then in force as offences of the nature specified Under Section 2(d) during the preceding period of ten years is one of the requisites for the offence of organised crime under the said Act. (Emphasis supplied) 43. The Court then considered the challenge based on Article 20(1) of the Constitution of India. In paragraph 19 the Court observed as under: 19. There is lot of difference between the act or activity itself being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. The former situation has to satisfy the mandate of Article 20(1) of the Constitution, however, in case of latter situation, it stands on totally different footing. Undoubtedly, for the purpose of organised crime there has to be a continuing unlawful activity. There c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 times of an offence though acquitted on every occasion may yet be roped in as a person engaged in continuing unlawful activity. Whereas a person who is convicted for an offence for three years punishment cannot be touched by this definition if he is not charged with more than two of such offences. The definition therefore treats as equal persons who are hopelessly unequal that is to say a person who is a known criminal but charge-sheeted and convicted not more than once and Anr. who has been falsely charged with 10 fabricated charges and acquitted of all the 10 charges with a finding that the charges were fabricated yet merely because cognizance has been taken of that charge are treated as person engaged in continuous unlawful activity. The definition therefore arbitrary and liable to be struck down as violative of Article 14. The arguments appear to be attractive at the first blush, but deeper scrutiny reveals the hollowness of the argument. 45. Dealing with the objections to this definition the Court observed in paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in anyone charged more than once, irrespective of whether the charge resulted in an acquittal or conviction. The circumstances that followed the charge are not material. The provision only defines what is continued unlawful activities and refers to whether a person has been charged over a period of ten years for the purpose of seeing whether the person is charged for the first time or has been charged often. The circumstance of conviction or acquittal that followed the charge are not material. The limited purpose is to see antecedents of the person. Not to convict. (emphasis supplied) 34. Thus, Prafulla (supra) looked into paras 19, 25 and 27 of Bharat Shantilal Shah (supra). It may not be out of place to State that the High Court of Judicature at Bombay in Bharat Shantilal Shah (supra) held that Sections 3 and 4 of the MCOCA inherently contemplated mens rea. The High Court held that the provisions of MCOCA except those contained in Sections 13 to 16 to be valid and struck down the provisions of Sections 13 to 16 as beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity, 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 the provision defining 'continuing unlawful activity' only because the Act did not provide any punishment for that activity. In para 27 of Bharat Shantilal Shah (supra), the High Court made it explicitly clear that the limited purpose of continuing unlawful activity was to see the antecedents of the person and not to convict. Section 2 defines, not only the offence of 'organised crime' but also the other terms used in the MCOCA. What is material is the definition of offence of 'organised crime' and not the definitions of other terms included in Section 2. Had the term 'continuing unlawful activity' been synonymous with 'organised crime', it would not have been necessary for the Legislature to include or provide for two definitions. It would have been sufficient to provide for only one definition of continuing unlawful activity and make that activity punishable. The definitions in clauses (d) and (e) of subsection (1) clearly indicate that one of the components of organised crime is cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the offence punishable with three years' imprisonment during the period of ten years. If no illegal activity as contemplated by MCOC Act are committed after 1999, then the past activities prior to 1999 may not be of any help for registering any FIR only on the basis of those past activities as has been observed by the Division Bench (R.M.S. Khandeparkar and P.V. Kakade, JJ.) of this Court in Writ Petition No. 689 of 2005 and other petitions, but 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. We are therefore not in agreement with the submissions made by Mr. Pradhan that on the date of registration of FIR against the Petitioners they had not committed any act, as contemplated. 51. While offences committed prior to 24-2-1999 cannot amount to "organised crime", since this offence was not on statute book then, even post-24-2-1999 crimes could be tried as "organised crime" only if information i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. 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 said that the Appellants have committed the offence of organised crime. 39. It may not be out of place to state at this stage that in Prafulla (supra), the High Court also referred to and relied upon its own decision in the case of Altaf Ismail Sheikh v. State of Maharashtra, 2005 Cri. LJ 3584 : (2006) 1 CCR 391, more particularly para 24 therein, which reads thus: 24. The Section 23 of the MCOC Act which opens with non-obstante Clause and further clothed with negative words clearly discloses the mandate of the legislature that the cognizance of the offences under the MCOC Act should not be in routine course, but only upon the facts disclosing the applicability thereof and satisfaction of the officer of the high rank, the minimum being of the rank of Deputy Inspector General of Police, in that regard. In fact, the officer of such high rank is required to decide about the approval even for recording of FIR in relation to any offence under the MCOC Act. This obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead 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 over a period of ten years prior to the enforcement of MCOCA. The filing of charge-sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable Under Section 3 of MCOCA. That is because the involvement of the Respondents in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an offence by the Respondents that would constitute "continuing unlawful activity". So long as that requirement failed, as was the position in the instant case, there was no question of convicting the Respondents Under Section 3 of MCOCA. That reasoning does not, in our opinion, suffer from any infirmity. 10. The very fact that more than one charge-sheets had been filed against the Respondents alleging offences punishable with more than three years' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the MCOCA. 44. Indisputably, in Shiva alias Shivaji Ramaji Sonawane (supra), the Accused persons stood acquitted in connection with two of the crimes and considering the same, this Court took the view that the Accused persons could not be said to have committed the alleged crime after the promulgation of MCOCA, as the allegations could not be proved against them. However, this Court, in no uncertain terms, has observed that what is important is the commission of an offence by the Accused that would constitute 'continuing unlawful activity' and the unlawful activities could be said to have continued only if the Accused are found to have indulged in an organised crime after the promulgation of the MCOCA. 45. The learned Counsel appearing for the Respondent-Accused is right in his submission that having regard to the stringent provisions of the 2015 Act, its provisions should be very strictly interpreted and the authorities concerned would be obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 with the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) that there would have to be some act or omission which amounts to organised crime after the 2015 Act came into force i.e., 01.12.2019 in respect of which, the Accused is sought to be tried for the first time in the special court. 49. We are in agreement with the view taken by the High Court of Judicature at Bombay in the case of Jaisingh (supra) that neither the definition of the term 'organised crime' nor of the term 'continuing unlawful activity' nor any other provision therein declares any activity performed prior to the enactment of the MCOCA to be an offence under the 1999 Act nor the provision relating to punishment relates to any offence prior to the date of enforcement of the 1999 Act, i.e., 24.02.1999. However, by referring to the expression 'preceding period of ten years' in Section 2(1)(d), which is a definition Clause of the term 'contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 punishable Under Section 3 is 'organised crime' and not 'continuing unlawful activity'. (d) 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. (e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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