9911796707
TMI Blog2017 (10) TMI 1649X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2012 came up for consideration before this Court and Justice R.F. Nariman [ 2017 (7) TMI 1081 - SUPREME COURT ] held It is thus clear on a reading of English, U.S., Australian and our own Supreme Court judgments that the 'Lakshman Rekha' has in fact been extended to move away from the strictly literal Rule of interpretation back to the Rule of the old English case of Heydon, where the Court must have recourse to the purpose, object, text, and context of a particular provision before arriving at a judicial result. The commission of crimes like contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. by organised 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts in Delhi and charge sheets filed in Courts in other States can be taken into account for the purpose of constituting continuing unlawful activity - There cannot be a prosecution under MCOCA without an organised crime being committed within Delhi - The judgment of the High Court is upheld though for different reasons. Appeal disposed off. - Hon'ble Judges S.A. Bobde and L. Nageswara Rao, JJ. For the Petitioner : Mr. Sidharth Luthra, Sr. Adv. Mr. B.V. Balram Das, Adv. For the Respondent : Mr. Chandra Bhushan, Adv. Mr. K. N. Rai, AOR Mr. Sudhir Naagar, AOR JUDGMENT L. Nageswara Rao, J. Leave granted. 1. The Respondents were discharged by the Special Judge MCOCA, New Delhi District, Patiala House, New Delhi in S.C. No. 139 of 2013 dated 5th February, 2014 pertaining to offences Under Sections 3 and 4 of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as 'MCOCA'). The Appellant- State of NCT of Delhi filed an appeal Under Section 12 of MCOCA before the High Court of Delhi which was dismissed on 16th April, 2015. Aggrieved, the Appellant-State has approached this Court by fling the above Appeal. 2. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered on a complaint made by Sudhir Singh who alleged that at 7.15 p.m. on 28th July, 2007, he received a call from the Respondents who demanded payment of Rs. 50 Lakhs as protection money. The Respondents threatened him of dire consequences in case the demand was not met. III. Another FIR bearing No. 122 of 2010 was registered on 17th May, 2010 Under Sections 341, 506 r/w 34 of the Indian Penal Code at Subzi Mandi Police Station, Delhi on the complaint filed by Sudhir Singh alleging that Narender alias Mamu and Sushil Singh, MLA, who was the nephew of Respondent No. 1, along with others threatened him to withdraw the cases filed against the Respondents. This incident, according to Sudhir Singh, happened when he was attending proceedings in the Tis Hazari Court Complex, Delhi. IV. There is a reference in the final report of six other cases against the Respondents, cognizance of which was taken up by the competent Courts in Uttar Pradesh. The details of the said six cases are as under: Sr. No. ST No. FIR No., U/s, PS Name of Court Date of cognizance Charge Name of Gang Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged the Respondents. The Special Court recorded a finding that except FIR No. 69 of 2010, there was no other case which has been taken cognizance by a competent Court in Delhi for application of MCOCA. FIR No. 122 of 2010 registered at PS Sabzi Mandi was not relevant as it was not a case where there is any allegation against the members of the crime syndicate acquiring any pecuniary benefits or other advantages. 6. The Special Court held that the criminal cases of which cognizance was taken by Courts situated outside Delhi cannot be taken into account for the purpose of satisfying the ingredients of 'continuing unlawful activity' Under Section 2(1)(d) of MCOCA. Ignoring that six cases in which cognizance was taken by competent Courts outside the National Capital Territory of Delhi as well as FIR No. 122 of 2010 registered at police station Sabzi Mandi, the Special Court held that it had no jurisdiction to frame charges under MCOCA against the Respondents only on the basis of one FIR i.e. No. 69 of 2007. The Special Court further held that three out of eight cases referred to in the charge sheet were at the instance of Sudhir Singh and that the offences complained of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttracted. He also argued that crime is local and anything that is done outside the State cannot be subject matter of consideration for registration of an offence under MCOCA. Reliance was placed on Articles 245 and 246 of the Constitution of India to submit that MCOCA which extended to the National Capital Territory of Delhi cannot have extra territorial operation. He relied upon the judgment of the Bombay High Court in The State of Bombay v. Narayandas Mangilal Dayame AIR 1958 Bom 68 (FB) in support of the said submissions. Mr. Lalit argued that the complainant in FIR No. 69 of 2007, Sudhir Singh, is a resident of Varanasi and according to him, he came to Delhi on a business trip and was threatened over phone by the Respondents. After investigating into the said offence, it was found that a call was made from a public telephone booth at Varanasi, U.P. All the antecedent events that were mentioned in the said FIR pertain to activities in the State of Uttar Pradesh. He submitted that no organised crime was committed in Delhi and FIR No. 69 of 2007 cannot be taken into consideration for proceeding against the Respondents under MCOCA. Referring to FIR No. 122 of 2010, Mr. Lalit submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been taken cognizance of by competent Courts. 12. The points that arise for consideration in this case are: i) Whether charge sheets filed in competent Courts outside the National Capital Territory of Delhi can be taken into account for the purpose of constituting a continuing unlawful activity , and ii) Whether there can be prosecution under MCOCA without any offence of organised crime being committed within Delhi. 13. The principles of strict construction have to be adopted for interpretation of the provisions of MCOCA, which is a penal statute 9 . However, it is no more res integra that even a penal provision should be interpreted to advance the object which the legislature had in view 10 . The interpretation of Section 2(1)(d) of the Protection of Children from Sexual Offences Act, 2012 came up for consideration before this Court and Justice R.F. Nariman held as follows: 24. It is thus clear on a reading of English, U.S., Australian and our own Supreme Court judgments that the 'Lakshman Rekha' has in fact been extended to move away from the strictly literal Rule of interpretation back to the Rule of the old English case of Heydon, where the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the Colony of New South Wales. The laws made by the Colony of New South Wales would operate only within its territory. 16. Macleod's case (supra) was considered by the High Court of Australia in Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation (1933) 49 C.L.R. 220 wherein it was held that there is no legal restriction of legislative power on the so-called extra territorial ground. It was further held that the mere existence of non-territorial elements in any challenged legislation does not invalidate the law and that the legislation cannot be said to be invalid if the dominion has some real concern or interest in the matter, thing or circumstances dealt with by the legislation. 17. Macleod's case (supra) was again considered in a later judgment of the High Court of Australia in Union Steamship Co. of Australia PTY. Ltd. v. King (1988) 166 CLR 1 wherein it was held that a power to make laws for the peace, order and good governance for the territory was, initially, understood to be limited to the area of the territory. The objection taken by the employer to an award passed by a compensation Court to the jurisdiction of the Courts Under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's contention that the United States of America lacked subject-matter jurisdiction to prosecute him for unlawful acts committed in Malaysia was rejected. Prosecution of the Petitioner was held justified under the objective territorial and protective principles as the Petitioner intended to create detrimental effects in the United States and commit acts which resulted in such effect when heroin was unlawfully brought into the United States. 20. The Indian Federal Court considered the extra territorial powers of the Union Legislature in The Governor General in Council v. The Raleigh Investment Co. Ltd. (1944) FCR 229 and held that the provisions of the impugned legislation cannot be vitiated on the ground of extra territoriality in view of the concern or interest the dominion had with the subject matter. The Federal Court took note of the judgments subsequent to Macleod (supra) in which the limitation imposed by a doctrine forbidding extra territorial legislation was held to be a 'doctrine of somewhat obscure extent'. 21. In State of Bombay v. RMD Chamarbaugwala [1957] SCR 874 (p.901), this Court considered the point whether the legislature overstepped the limits o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity committed by the use of force or violence for economic gain. One relevant pre-condition which has to be satisfied before any activity can be considered as a continuing unlawful activity is that there should be at least two charge sheets filed against the members of an organised crime syndicate within the previous 10 years and a 'competent Court' has taken cognizance of such charge sheets. In the instant case, there are eight charge sheets filed against the Respondents, six out of which are in the State of Uttar Pradesh. The submission of the Respondents, which was accepted by the Courts below, is that such charge sheets which are filed in the State of Uttar Pradesh are not relevant for the purpose of determining whether the Respondents have indulged in a continuing unlawful activity. The Courts below held that only charge sheets filed in competent Courts within Delhi have to be taken into account. We are not in agreement with the Courts below. 26. Organised crime is not an activity restricted to a particular State which is apparent from a perusal of the Statement of Objects and Reasons. A restrictive reading of the words competent Court appearing in Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case. The offences alleged to have been committed by the Respondents beyond the territories of Delhi are not being tried within the National Capital Territory of Delhi. The existence of fling of the charge sheets, as a matter of fact, is taken into consideration merely for the purpose of determining the antecedents of the Respondents. 22 The Respondents would still be liable to face trial in competent Courts where the charge sheets are filed. 29. Even if a crime is committed in one State, the Accused can be tried in another State if the detrimental effect is in that State-Christopher Strassheim v. Milton Daily(supra) followed by the Federal Court of Appeals in Rocha 23 and Chua Han Mow 24 . It is also relevant to refer to the judgment of the House of Lords in Director of Public Prosecutions v. Stonehouse [1977] 2 All ER 909). A well known politician who was in financial difficulties simulated his death by drowning to start life afresh with a new identity in Australia. He made arrangement with five British insurance companies to issue a policy in his wife's name which would be payable to her on his death. After creating the circumstance of his drowning in Miami, he fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offender. In any event, the Respondents are not being tried for the offences which are subject matter of charge sheets filed in the State of Uttar Pradesh. The cases in which charge sheets are filed in competent Courts outside Delhi shall be tried in those Courts and are taken into account only for determining the antecedents of the Respondents. Therefore, the submission on behalf of the Respondents that the crimes committed outside the State cannot be considered for any purpose whatsoever is rejected. The upshot of the above discussion is that there should be a minimum of two charge sheets of organized crime registered against the members of the syndicate either separately or jointly for the purpose of constituting a continuing unlawful activity. Charge sheets filed outside Delhi can also be taken into account. 32. However, we are in agreement with the submission of the learned Senior Counsel for the Respondents that an activity of organized crime in Delhi is a sine qua non for registration of a crime under MCOCA. In the absence of an organized crime being committed in Delhi, the Accused cannot be prosecuted on the basis of charge sheets filed outside Delhi. 33. FIR No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties concerned, Mr. Luthra fairly submitted that the Respondents are not in possession of any property in Delhi. As there is no organised crime committed by the Respondents within the territory of Delhi, there is no cause of action for initiation of proceedings under MCOCA. 35. The Appeal is disposed of as follows: (a) The words 'competent Court' in Section 2(d) of MCOCA is not restricted to Courts in Delhi and charge sheets filed in Courts in other States can be taken into account for the purpose of constituting continuing unlawful activity; (b) There cannot be a prosecution under MCOCA without an organised crime being committed within Delhi; and (c) The judgment of the High Court is upheld though for different reasons. Notes:- 2 5. Special Courts (1) The State Government may, by notification in the Official Gazette, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification. (2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government whose decision shall be final. (3) A Special Court shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 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. (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 a fine, subject to a minimum fine of rupees five lacs. (5) Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with 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, subject to a minimum fine of rupees two lacs 5 4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate. If any person on behalf of a member of an organised crime syndicate is, or, at any time bus been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years but which may ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
