Holding

The sanction order under MCOCA was valid as the authority satisfied the statutory criteria, and the appeal is dismissed.

Summary

The appellant Abhishek Singh was charged under several IPC offences, the Arms Act and MCOCA after a proclamation declared him an absconder. The Additional Director General of Police and Commissioner of Police granted sanction for prosecution under MCOCA, which the appellant challenged before the High Court and then the Supreme Court. The key issues were whether the sanctioning authority had satisfied the statutory requirements of Sections 2(1)(d), (e) and (f) of MCOCA, whether prior cases, acquittals or quashed proceedings affected the applicability of MCOCA, and whether the appellant’s status as an absconder barred any relief. The Supreme Court held that the authority had correctly applied its mind, that the definition of organised crime includes threat, intimidation and other unlawful means, and that "other advantage" is not limited to pecuniary gain. It also affirmed that confessional statements under Section 18 MCOCA are admissible for the purpose of sanction. Consequently, the Court dismissed the appeal, upholding the sanction order.

Issues considered

Whether the sanction under MCOCA was valid given the requirements of Sections 2(1)(d), (e) and (f) and Section 23(2).
Whether the sanctioning authority applied its mind and considered all relevant material, including prior cases and confessional statements.
Whether acquittals, quashed proceedings, or lack of explicit pecuniary benefit negate the applicability of MCOCA.
Whether the declaration of the appellant as an absconder precludes judicial intervention under Article 136.
Interpretation of the term "other advantage" in the context of organised crime.

Legislation cited

Arms Act, 1959s. 4/25
Code of Criminal Procedure, 1973s. 438, s. 82
Indian Evidence Act, 1872s. 25, s. 26
Indian Penal Code, 1860s. 363, s. 364A, s. 384, s. 386, s. 387, s. 397, s. 504
Maharashtra Control of Organised Crime Act, 1999s. 2(1)(d), s. 2(1)(e), s. 2(1)(f), s. 23(2), s. 3

Subjects

MCOCAsanction orderstrict constructionorganised crimeabsconderpecuniary benefitconfessional statementcriminal procedure

Judgment

1128 SUPREME COURT
[2022]REPORTS
4 S.C.R. 1128 [2022] 4 S.C.R.

A ABHISHEK
v.
STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 869 of 2022)
B MAY 20, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Penal Code, 1860 – ss. 363, 364A, 384, 386, 387, 397 and
504 – Sanction order – Challenge to – FIR was registered against
the appellant for offences u/s 363, 364A, 384, 386, 387, 397 and
C
504 IPC – The appellant having remained out of reach, a
proclamation was issued u/s 82 of the CrPC r/w. s.20(3) of MCOCA,
declaring him as an ‘absconder’ – ADGP and Commissioner of
Police after examining the proposal of Assistant Commissioner of
Police for according sanction in terms of s.23(2) of MCOCA,
D granted the sanction for prosecution of appellant under IPC, Arms
Act and MCOCA due to the previous involvement of the appellant
in other criminal cases – After the sanction, police filed the charge-
sheet against the accused persons including appellant – Appellant
approached the High Court challenging the sanctioning order –
The High Court examined the contents of sanction order and, after
E
finding no legal flaw or shortcoming therein, proceeded to dismiss
the writ petition – High Court rejected the contention raised by the
appellant that the sanctioning authority did not apply its mind – On
appeal, held: The suggestions on behalf of the appellant to limit the
activity only to the use of violence is obviously incorrect when it
F omits to mention the wide-ranging activities contemplated by clause
(e) of s.2(1) of MCOCA, i.e., threat or violence or intimidation or
coercion or other unlawful means – Actual use of violence is not
always a sine qua non for an activity falling within the mischief of
organised crime – The second part of the requirement of the nature
of activity, i.e., pecuniary benefit, has also not been projected
G
correctly on behalf of the appellant – The requirement of law is not
limited to pecuniary benefits but it could also be of ‘gaining undue
economic or other advantage – Sanctioning Authority, was
conscious of the requirement of law and indeed examined the matter
only with reference to such requirement and issued the sanction
H order in question only after arriving at the requisite satisfaction –
1128
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1129

Challenge to the judgment as passed by the High Court, and to the A
sanctioning order, required to be rejected when the appellant had
been declared absconder.
Maharashtra Control of Organised Crime Act, 1999 – ss.
2(1)(d), 2(1)(e), 3(1)(ii), 3(2), 3(4) & 23(2) – Object of – This
enactment is for making special provisions for dealing with the B
menace of organised crime causing serious threat to the society –
No doubt, the enactment makes stringent provisions with several
extraordinary measures but, the peculiar nature of the mischief
sought to be tackled, i.e., of organised crime, has obviously led to
such extraordinary measures, particularly when the existing legal
framework was found to be rather inadequate to control the menace. C

Dismissing the appeal, the Court
HELD: 1. A comprehensive look at the objects and reasons
for enactment of Maharashtra Control of Organised Crime Act,
1999 (MCOCA), its overall purpose signified in its Preamble, D
and the relevant definitions in Section 2 as also the punishments
provided in Section 3, leave nothing to doubt that this enactment
is for making special provisions for dealing with the menace of
organised crime causing serious threat to the society. No doubt,
the enactment makes stringent provisions with several
extraordinary measures but, the peculiar nature of the mischief E
sought to be tackled, i.e., of organised crime, has obviously led
to such extraordinary measures, particularly when the existing
legal framework was found to be rather inadequate to control the
menace. [Para 11][1151-G-H; 1152-A]
2. The provisions of MCOCA need to be strictly construed F
and for their application, an unlawful activity has to fall within the
periphery of organised crime. However, the question still remains
as to the import of the requirement of ‘strict construction’ of the
stringent provisions? A brief reference to the fundamental legal
principles in that regard shall be apposite. So far as the applicability G
of the rule of strict construction qua MCOCA is concerned, it
being a special penal statute, this much is clear that no one is to
be made subject to this law by implication or by presumption;
and all doubts concerning its application would, ordinarily, be
resolved in favour of the accused. However, the rule of strict
H
1130 SUPREME COURT REPORTS [2022] 4 S.C.R.

A construction cannot be applied in an impracticable manner so as
to render the statute itself nugatory. In other words, the rule of
strict construction of a penal statute or a special penal statute is
not intended to put all the provisions in such a tight iron cast that
they become practically unworkable, and thereby, the entire
purpose of the law is defeated. As regards application of MCOCA,
B
what is required to be seen is as to whether the basic and threshold
requirements, as per combined reading of clauses (d), (e) and (f)
of Section 2(1) thereof, are fulfilled. If they are not so fulfilled,
mere use of the expressions of the statute in the sanction order
would be of no effect but, on the other hand, if the requirements
C are fulfilled, mere want of any expression or word in a particular
passage in the sanction order would not take away the substance
of the matter. In other words, strict adherence by the authorities
concerned to the requirements of MCOCA also cannot be
stretched beyond common sense and practical requirements in
terms of the letter and spirit of the statute. [Paras 12.3, 12.6 and
D
12.7][1154-G-H; 1156-B-D; G-H; 1157-A-B]
3. A bare look at clause (e) of Section 2(1) of MCOCA
makes it clear that ‘organised crime’ means any unlawful activity
by an individual singly or jointly, either as a member of organised
crime syndicate or on behalf of such syndicate, by use of violence
E or threat of violence or intimidation or coercion or other unlawful
means. The suggestions on behalf of the appellant to limit the
activity only to the use of violence is obviously incorrect when it
omits to mention the wide-ranging activities contemplated by
clause (e) of Section 2(1) of MCOCA, i.e., threat or violence or
F intimidation or coercion or other unlawful means. Actual use of
violence is not always a sine qua non for an activity falling within
the mischief of organised crime, when undertaken by an individual
singly or jointly as part of organised crime syndicate or on behalf
of such syndicate. Threat of violence or even intimidation or even
coercion would fall within the mischief. This apart, use of other
G unlawful means would also fall within the same mischief. The
second part of the requirement of the nature of activity, i.e., its
objective, has also not been projected correctly on behalf of the
appellant. The requirement of law is not limited to pecuniary
benefits but it could also be of ‘gaining undue economic or other
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1131

advantage’. The frame of the proposition that the object ought to A
be gaining pecuniary benefit or other ‘similar’ benefit is not
correct as it misses out the specific phraseology of the enactment
which refers to undue economic or other advantage apart from
pecuniary benefit. The Full Bench of the High Court in Jagan
Gagansingh Nepali @ Jagya has rightly said that there could be
B
advantage to a person committing a crime which may not be
directly leading to pecuniary advantage or benefit but could be of
getting a strong hold or supremacy in the society or even in the
syndicate itself. As noticed above, the purpose of this enactment
is to be kept in view while interpreting any expression therein
and in the name of strict construction, its spirit and object cannot C
be whittled down. [Paras 14.1, 14.2 and 14.4][1158-H; 1159-A-E;
1161-G-H; 1162-A]
3. The common thread of “violence” or “threat of violence”
or “unlawful means” running through all of these cases is not a
matter requiring any analysis, for the same being apparent on D
the face of record. Significantly, the aforesaid had not been the
cases involving the appellant singularly; and more significantly,
the alleged team leader RS is the co-accused in at least three
previous cases. This is apart from the recurrence of other co-
accused persons in one case or the other. It has rightly been
pointed out on behalf of the respondent-State that in order to E
attract MCOCA, every previous case need not be of the object
of gaining pecuniary benefit alone. The cases in question, apart
from involving the offences against human body and property,
also include variety of other offences including those of rioting
while armed with deadly weapons; causing insult to provoke F
breach of peace; and criminal intimidation. They also include the
offence under the Arms Act. In all the referred cases, use of
violence has specifically been alleged. In the crime chart, the
nature of activities and the persons involved leave nothing to
doubt that the involvement of the appellant in such crimes and
unlawful activities which are aimed at gaining pecuniary G
advantages or of gaining supremacy and thereby, leading to other
unwarranted advantages is clearly made out. The criticism of the
impugned sanction order dated 05.11.2020, that it had been of
mere repetition of the expression of statute, is also difficult to be
accepted. The High Court, in the impugned order, has rightly H
1132 SUPREME COURT REPORTS [2022] 4 S.C.R.

A observed that the said order is required to be viewed in its totality,
and its substance cannot be ignored by isolated reference to a
particular line or expression. This Court has not an iota of doubt
that firstly, the approving authority, and then, the sanctioning
authority, were conscious of the requirement of law and indeed
examined the matter only with reference to such requirement;
B
and issued the orders in question only after arriving at the requisite
satisfaction. It has rightly been pointed out on behalf of the
respondent that in such matters, the competent authority has to
focus essentially on the factum whether the material in question
reveals the commission of crime, which is an organised crime,
C committed by the organised crime syndicate. [Para 15.1, 15.2
and 16][1162-G-H; 1163-AF]
4. The submissions about taking irrelevant factors into
account with reference to the said two cases resulting in acquittal
and discharge must fail for the simple reason that for the purpose
D of clause (d) of Section 2(1) of MCOCA, the result of a particular
matter is not decisive of the question as to whether the activity
in question answers to the description of ‘continuing unlawful
activity’ or not. These had not been offences committed single-
handed by the appellant and charge-sheets were indeed filed
therein. The matter of settlement because of cross-cases or a
E matter of acquittal because of the witnesses not turning up, could
hardly be of any relevance so far as clause (d) of Section 2(1) of
MCOCA is concerned. Therefore, it cannot be said that any
irrelevant matter has been taken into consideration by the
sanctioning authority. What is significant and pertinent for the
F purpose of Section 2(1)(d) is the involvement of the person
concerned in the referred activity and filing of charge-sheet and
taking of cognizance in the offence as predicated. Acquittal or
discharge is of no significance. The reference in the confessional
statements of the two co- accused persons in relation to the
appellant is not a factor entirely irrelevant for the appellant being
G a co-accused person with them. The detailed discussion by the
sanctioning authority to the substantial pieces of evidence
collected in the matter rather fortifies the conclusion that the
sanctioning authority has meticulously applied its mind to all the
relevant factors and has taken an overall view of the matter before
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1133

forming the final opinion in favour of granting the sanction. The A
contention in that regard also fails. Thus, challenge to the judgment
as passed by the High Court on 16.12.2021, and to the sanctioning
order dated 05.11.2020, was required to be rejected when the
appellant had indeed been declared absconder. However, as
observed hereinbefore, this Court has considered it proper to
B
first examine the matter on merits because notices had been
issued to the respondents and it had appeared serving the cause
of justice to deal with the matter on merits. As noticed, all the
contentions urged on behalf of the appellant remain baseless
and challenge herein ought to fail. [Paras 17.5, 18.1 and 22]
[1166-F-H; 1167-B; 1168-B-C; 1170-B-D] C
State of Maharashtra v. Jagan Gagansingh Nepali @
Jagya & Anr.: (2011) SCC OnLine Bombay 1049 –
approved.
Khaja Bilal Ahmed v. State of Telangana & Ors.: (2020)
13 SCC 632 : 2020 (1 ) SCALE 41 – held inapplicable. D

State of Maharashtra & Ors. v. Lalit Somdatta Nagpal
& Anr.: (2007) 4 SCC 171 : [2007] 2 SCR 473;
Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra & Anr.: (2005) 5 SCC 294 : [2005] 3 SCR
345; Jagannath Misra v. State of Orissa: (1966) 3 SCR E
134; Mohindhr Singh Gill & Anr. v. Chief Election
Commissioner, New Delhi & Ors.: (1978) 1 SCC 405 :
[1978] 2 SCR 272; State of Maharashtra v. Kamal
Ahmed Mohammed Vakil Ansari & Ors.: (2013) 12 SCC
17 : [2013] 5 SCR 128; Kavitha Lankesh v. State of F
Karnataka & Ors.: (2021) SCC OnLine 956; Vinod G.
Asrani v. State of Maharashtra: (2007) 3 SCC 633 :
[2007] 2 SCR 1023; Balram Kumawat v. Union of India
& Ors.: (2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24;
Prem Shankar Prasad v. State of Bihar and Anr.: (2021)
SCC OnLine SC 955 - referred to. G
Case Law Reference
[2007] 2 SCR 473 referred to Para 6.1
[2005] 3 SCR 345 referred to Para 6.2
H
1134 SUPREME COURT REPORTS [2022] 4 S.C.R.

A [1966] 3 SCR 134 referred to Para 6.4
[1978] 2 SCR 272 referred to Para 6.4
[2013] 5 SCR 128 referred to Para 7.4
[2007] 2 SCR 1023 referred to Para 7.6
B [2003] 3 Suppl. SCR 24 referred to Para 12.6
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
869 of 2022.
From the Judgment and Order dated 16.12.2021 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition
C
No.667 of 2020.
Vinay Navare, Sr. Adv., Mehul M. Gupta, R. P. Gupta, Advs. for
the Appellant.
Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms.
D Shwetal Shepal, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Leave granted.
E 2. By way of this appeal, the appellant has challenged the judgment
and order dated 16.12.2021, as passed by the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of
2020 whereby, the High Court has rejected his challenge to the order
dated 05.11.2020, as issued by the Additional Director General of Police
F and Commissioner of Police, Nagpur City1 under Section 23(2) of the
Maharashtra Control of Organised Crime Act, 19992 sanctioning
prosecution of the appellant with five other accused persons in Crime
No. 251 of 2020 of Sadar Police Station, Nagpur City for varying offences
under the Indian Penal Code, 18603, the Arms Act, 19594 as also MCOCA.
3. The genesis of the present appeal is in the complaint filed on
G
08.05.2020 at Police Station Sadar, Nagpur City. Therein, the complainant

1
Hereinafter also referred to as the ‘sanctioning authority’.
2
For short, ‘MCOCA’.
3
For short, ‘IPC’.
4
H Hereinafter also referred to as ‘the Arms Act’.
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1135
[DINESH MAHESHWARI, J.]

alleged that on 02.05.2019, he was forcefully kidnapped from Motimahal A
Restaurant, Sadar, Nagpur; and was intimidated with knife and a ransom
of Rs. 20 lakhs was demanded by the accused persons. The complainant
alleged that three of the accused persons were known to him, being the
present appellant Abhishek Singh, as also one Ankit Pali and another
Roshan Sheikh. The complainant also alleged that the accused persons
B
asked him to give them papers of his ancestral property and to hand
over the shop; threatened him from time-to-time to kill; forcefully took
his son in a vehicle; created terror of killing him and his son; and forcefully
took out an amount of Rs. 9,000 to Rs. 11,000 from his pocket. The
complainant further alleged that the accused persons visited his house
from time-to-time demanding money; and that out of fear, he had left his C
house and was staying at other places.
3.1. On the basis of the complaint aforesaid, the said Crime No.
251 of 2020 came to be registered for offences under Sections 363,
364A, 384, 386, 387, 397 and 504 IPC.
D
3.2. It is noticed that the appellant, apprehending arrest, applied
for pre-arrest bail and on 11.05.2020, the Sessions Judge, Nagpur granted
him ad interim bail.
3.3. However, on 02.06.2020, the Additional Commissioner of
Police (Crime), Crime Branch, Nagpur City examined the proposal
submitted by the Police Inspector, Crime Branch, Nagpur City for addition E
of Sections 3(1)(ii), 3(2) and 3(4) of MCOCA in the said Crime No. 251
of 2020 against six accused persons, including the appellant. The said
Additional Commissioner of Police, in his approval order dated 02.06.2020,
inter alia, observed that more than one charge-sheet had been filed
against the accused persons involving offences for which, punishment F
of three years or more of imprisonment had been prescribed; and the
previous record made out that the accused persons had committed
offences of very serious nature under IPC and related special enactments.
The Additional Commissioner of Police recorded his satisfaction while
granting approval in the following terms: -
G
“Previous preventive actions taken against the above mentioned
accused failed to show desired results. According to the record, it
seems that ultimate intention of the accused persons is to gain
pecuniary benefit, establishing supremacy in the locality, create
terror in the minds of the people in order to have pecuniary gain
H
1136 SUPREME COURT REPORTS [2022] 4 S.C.R.

A & other advantages by committing such serious offence. The
preventive actions taken against them on multiple occasions till
date have failed to produce desired results and also after taking
preventive actions on multiple times above named criminals in an
organized way committed serious offences. Hence, it is very much
clear that preventive actions taken against them failed to produce
B
desired results.
I am prima facie satisfied that every other time above mentioned
accused commit the offence with new offender thereby creates
crime syndicate and there is enough material evidence available
and record to give prior approval for investigation under the
C
provisions of section 3(1)(ii), 3(2) & 3(4) of M.C.O.C. Act, 1999
against the above mentioned accused as per authority vested in
me under section 23(1) (A) of the M.C.O.C. Act 1999.”
3.4. On the invocation of MCOCA in terms of the approval
aforesaid, the application for pre-arrest bail filed by the appellant was
D
rejected by the Sessions Judge, Nagpur. However, for the appellant having
remained out of reach, a proclamation was issued on 14.10.2020 under
Section 82 of the Code of Criminal Procedure, 19735 read with Section
20(3) of MCOCA, declaring him as an ‘absconder’.
3.5. On 05.11.2020, the Additional Director General of Police and
E Commissioner of Police, Nagpur City, examined the proposal of the
Assistant Commissioner of Police (Crime), Crime Branch, Nagpur dated
31.10.2020 for according sanction in terms of Section 23(2) of MCOCA
for prosecution of the accused persons in Crime No. 251 of 2020 for the
offences under IPC, Arms Act as also MCOCA; and proceeded to issue
F such sanction as per the proposal. This sanction order dated 05.11.2020
is the bone of contention in the present matter. Its relevant contents,
particularly in relation to the appellant, could be usefully noticed as under:-
“…It is also revealed that preventive actions have been taken
against the Team Leader and accused No. 5 Abhishek u/s 110 of
G the Cr. P.C. at Sitaburdi Police station. It is also revealed that the
Team leader continues to commit the heinous offences involving
different members of his crime syndicate mainly for pecuniary
benefit and other advantage.

5
H For short, ‘CrPC’.
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1137
[DINESH MAHESHWARI, J.]

The Team leader Roshan Sheikh has committed total 9 offences, A
out of which, he has committed 4 offences jointly with accused
No. 5 Abhishek, out of which charge sheets have been filed in the
court in 3 cases and one present offence is under investigation…
It is thus revealed that in total 4 cases charge sheets have been
filed in the court against the Team Leader, accused No. 5 Abhishek, B
accused no. 4 Irfan Khan jointly. Thus in total 4 cases charge
sheet have been filed jointly in respect of their crime syndicate
and court has also taken the cognizance. The Chart showing charge
sheets jointly filed in respect of their crime syndicate is annexed
herewith as Annexure-B.
C
*** *** ***
The Accused No. 5 Abhishek has committed total 7 offences, out
of which, he has committed 3 offences jointly with Team Leader
i.e. crime No. 482/15 of Nandanwan P.S., Crime No. 196/16
Sitaburdi P. S., and crime No. 83/17 Sitaburdi and one offence
D
jointly with their present crime syndicate. The accused no. 5 has
committed remaining 2 offences U/s 307 of IPC of Burdi P.S.
with other different members of their crime syndicate and one
offence under section 4/25 of Arms Act of Ambazari P. S. with
other different members of their crime syndicate and charge sheets
have been filed in all above cases against the accused No. 5. The E
accused No. 5 had obtained Anticipatory Bail on registration of
present FIR and after application of the MCOCA he is absconding.
The Chart showing total 7 offences committed by the accused
No. 5 is annexed herewith as Chart- F.
*** *** *** F
It is further revealed that the Preventive action also has been
taken against Team Leader and accused No. 5 Abhishek, but in
vain. Offences under Arms Act are also found registered against
the Team leader and accused No. 5 and 6 but could not deter
them from committing such offences for pecuniary benefit. It is G
thus appears that there is fulfillment of the essential ingredients of
the section 2 (d) and (e) of MCOCA.
EVIDENCE COLLECTED IN PRESENT OFFENCE: -
1. It is revealed that the Team Leader and accused No. 3 Sallim
Kaji have given Confession u/s 18 of MCOCA and disclosed H
1138 SUPREME COURT REPORTS [2022] 4 S.C.R.

A modus adopted for committing such serious offences punishable
under above said provisions for pecuniary benefit and for other
advantage.
2. It reveals that the accused No. 3 has disclosed in his Confession
about how and in what manner all other members of present crime
B syndicate are involved in the present crime and what is exact role
of each member and also the modus opted by the Team leader in
committing such heinous offences, by deceiving various victims
for pecuniary benefits.
3. The Team leader also has disclosed all his illegal acts, names of
C the victims, instances of extortion and modus of blackmailing
adopted by him for extortion for pecuniary benefits. The I. O. has
recorded statements of all such victims as evidence relating to
the illegal heinous acts of the Team leader. In all total 24 statements
of witnesses have been recorded by the I.O.
D *** *** ***
I am satisfied that the accused No. 1 to 6 are members of an
“Organized crime syndicate” and have jointly & singly committed
serious and violent offences for pecuniary benefit. I am satisfied
that the Team leader Roshan Sheikh and above named other co-
E accused No. 2 to 6 in the present crime No.251/2020 of Sadar
P.S., are involved in “Continuing Unlawful Activity”, defined in
section 2 (1) (d) and (e) of MCOCA i. e. they are indulging in use
of violence, threats of violence, intimidation to gain pecuniary
benefit or undue economic or other advantage for themselves or
any other person, by committing cognizable offences, punishable
F with imprisonment of 3 years or more, singly or jointly, and also
undertaken as members of syndicate, in respect of which more
than one charge sheets have been filed in competent Court.
*** *** ***”
G 3.6. In view of the above, the sanctioning authority recorded its
satisfaction that all the essential ingredients of Sections 2(1)(d) and
2(1)(e) of MCOCA were fulfilled and hence, proceeded to grant sanction
in terms of Section 23(2) of MCOCA for prosecution of the six accused
persons including the appellant for the aforesaid offences, inclusive of
the offences under MCOCA.
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1139
[DINESH MAHESHWARI, J.]

3.7. After the sanction aforesaid, the police filed the charge-sheet A
on 07.11.2020 in the said Crime No. 251 of 2020. This led the appellant
to file Writ Petition No. 667 of 2020 in the High Court, questioning the
sanction order dated 05.11.2020.
4. As noticed from the contents of the impugned sanction order
dated 05.11.2020, the previous involvement of the appellant in other B
criminal cases with at least three of them jointly with the alleged team
leader, had been the part of consideration in the sanctioning authority
ultimately issuing sanction for prosecution in relation to the offences
under MCOCA alongwith the other offences in Crime No. 251 of 2020.
The involvement of the appellant in other cases had gone into
C
consideration of the High Court too. As shall be noticed hereafter, the
nature of other cases and the results of a couple of them forms a part of
the submissions in support of this appeal. It would, therefore, be
appropriate to take note of the cases in which the appellant is, or had
been, involved. The particulars and status of these cases with the nature
of offences and the names of accused persons are as follows: - D
Serial number 1
Police Station: Sitabuldi
Crime No. & Date: 3283/2012, dated 15.07.2012
E
Accused persons: 1. Abhishek Singh 2. Keval Patel
Offences: Sections 4/25 of Arms Act and 135 of
Maharashtra Police Act
Status: Pending before JMFC, Nagpur.
Serial number 2 F

Police Station: Sitabuldi
Crime No. & Date: 13/2012, dated 11.01.2012
Accused persons: 1. Abhishek Singh 2. Harsh Modi
G
Offences: Sections 307, 34 IPC
Status: The appellant Abhishek and co-accused
were acquitted by the Sessions Court on
09.05.2017.
H
1140 SUPREME COURT REPORTS [2022] 4 S.C.R.

A Serial number 3
Police Station: Nandanvan
Crime No. & Date: 482/2015, dated 20.12.2015
Accused persons: 1. Shashank Chaudhari, 2. Roshan Sheikh,
3. Pankaj Dharwal, 4. Abhishek Singh
B 5. Divyam Samrit, 6. Harsh Modi
Offences: Sections 143, 147, 148, 149, 294, 324, 325
IPC
Status: This was a cross-case with Crime No. 481
of 2015 and the parties having arrived at
C settlement, the High Court, by its order
dated 13.04.2016, quashed the
proceedings.
Serial number 4
Police Station: Sitabuldi
D
Crime No. & Date: 196/2016, dated 06.05.2016
Accused persons: 1. Sameer Sharma, 2. Kammu @ Kamlesh
Yadav, 3. Abhishek Singh 4. Roshan Sheikh,
5. Jaiprakash @ Vinod @ Pande Shukla
Offences: Sections 143, 147, 148, 149, 294, 323, 326,
E
324 IPC.
Status: Charge-sheet has been filed and the case
is said to be pending.
Serial number 5
F Police Station: Sitabuldi
Crime No. & Date: 517/2016, dated 18.11.2016
Accused persons: 1. Sameer Sharma, 2. Abhishek Singh 3.
Shrikant Wanwe 4. Shubham Jaiswal 5.
Rakesh Samrutwar 6. Vishnu Tripathi 7.
G Rajlannan Pande 8. Ramashankar Mishra
9. Mohd. Wasim
Offences: Sections 143, 147, 148, 149, 307 IPC and
3/25 Arms Act.
Status: Charge-sheet has been filed and the case
H is said to be pending.
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1141
[DINESH MAHESHWARI, J.]

Serial number 6 A
Police Station: Sitabuldi
Crime No. & Date: 83/2017, dated 08.03.2017
Accused persons: 1. Roshan Sheikh, 2. Sunil Kuril, 3.
Kamlesh Yadav, 4. Divyam Samit, 5.
Rudram Samrit, 6. Abhishek Singh B

Offences: Sections 143, 147, 148, 149, 323, 294 and
506 IPC.
Status: Charge-sheet has been filed and the case
is said to be pending.
C
Serial number 7
Police Station: Sadar
Crime No. & Date: 251/2020, dated 08.05.2020
Accused persons: 1. Roshan Sheikh, 2. Sohil Khan, 3. Salim
Kazi, 4. Irfan Khan, 5. Abhishek Singh, 6. D
Ankit Pali
Offences: Sections 363, 364A, 384, 386, 387, 397, 504,
506 IPC, 4/25 Arms Act, and 3(1)(ii), 3(2)
and 3(4) MCOCA.
Status: It is the present case where charge-sheet E
has been filed.
5. Having taken note of the relevant background aspects, we may
now refer to the submissions made before, and considerations of, the
High Court.
F
5.1. In challenge to the sanction order dated 05.11.2020, it was
urged on behalf of the appellant before the High Court that the sanctioning
authority had not recorded specific satisfaction about the existence of
‘organised crime syndicate’ in terms of Section 2(1)(f) of MCOCA; and
mere satisfaction about the alleged existence of the ingredients of Section
2(1)(d), which defines ‘continuing unlawful activity’ and Section 2(1)(e), G
which defines ‘organised crime’, was not sufficient for according
sanction. In other words, the contention had been that there was no
question of granting sanction in terms of Section 23(2) of MCOCA, for
the vital predicate, being the existence of ‘organised crime syndicate’,
as defined by Section 2(1)(f) of MCOCA, having not been fulfilled.
H
1142 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 5.2. The High Court took note of the background aspects, including
the facts pertaining to the appellant and his involvement in various other
cases, some of them in league with the team leader Roshan Sheikh and
other persons. The High Court also examined the contents of sanction
order dated 05.11.2020 and, after finding no legal flaw or shortcoming
therein, proceeded to dismiss the writ petition while, of course, making it
B
clear that any observations occurring in the order would not influence or
prejudice the trial or pre-empt any legitimate defence of the appellant.
The High Court, inter alia, observed, held and concluded as follows: -
“13. It is only after the record of satisfaction in the aforesaid
terms that the sanctioning authority, in terms of Section 23 (2) of
C
the said Act, has proceeded to record further satisfaction in terms
of focus by Mr. Mishra, learned Senior Advocate and quoted at
para no. 5 of this order. Even the quotation makes it clear that
satisfaction about the existence of the essential ingredients is “in
view of the forgoing observations”. The satisfaction is not
D restricted to the ingredients of Section 2(d) and 2(e) of the said
Act but to the ingredients of the said Act in general though,
particular reference may have been made in the above-quoted
portion to Section 2(d) and 2(e) of the said Act.
14. Therefore, based upon the reading of only the above-quoted
E portion, it will not be proper to hold that the sanctioning authority
has either not applied its mind and failed to record any satisfaction
about the existence of “organized crime syndicate” as defined
under Section 2(f) of the said Act or satisfaction that these accused
persons including the petitioner herein are a part of or are the
members of this organized crime syndicate. The impugned sanction
F
order is to be read in its entirety and based on some truncated
portion, no contention can be advanced or at least sustained about
any alleged non-application of mind by the sanctioning authority
to the requirements of Section 2(1) of the said Act. Besides, the
contention raised by Mr. Mishra, learned Senior Advocate not
G only over focusses on the above-quoted portion but tends to
completely ignore the specific satisfaction recorded in the
impugned sanction order about not only the existence of an
organized crime syndicate in terms of Section 2(f) of the said Act
but, also that the accused persons including the petitioner are
members of such syndicate and further, have singly or jointly
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1143
[DINESH MAHESHWARI, J.]

committed serious and violent offenses for pecuniary and other A
benefits. Therefore, we are satisfied that the impugned sanction
order warrants no interference on the ground now urged before
us.
15. At the request of Mr. Mishra, learned Senior Advocate, however,
we clarify that observations in this order are only prima facie and B
nothing in this order is even remotely intended to either influence
or prejudice the trial and merits or to preempt any legitimate
defenses that the petitioner may have in the course of such trial.
16. This petition is therefore dismissed. The rule is discharged.
There shall be no order as to costs.” C

6. Assailing the judgment and order of the High Court as also the
sanction order dated 05.11.2020, the learned senior counsel for the
appellant has taken us through the scheme of the Maharashtra Control
of Organised Crime Act, 1999, as also the record of the case and has
put forth a variety of submissions for consideration, which could be D
summarised as follows:
6.1. Learned senior counsel, with reference to various provisions
of MCOCA, has made the opening submissions that this enactment is of
drastic consequences where not only minimum period of sentence is
E
provided under Section 3, several measures of extraordinary nature have
been provided, like interception of communications (Section 14); special
rules of evidence overriding ordinary rules as contained in CrPC and the
Indian Evidence Act, 18726, with converse burden of proof on the accused
(Section 17); use of confessions made to the police officer (Section 18);
forfeiture and attachment of property (Section 20) and modified F
application of CrPC with several protections being overridden. The
learned counsel would submit that looking to the drastic and serious
consequences, this Court has clearly provided that the provisions of
MCOCA have to be strictly construed by the Courts; and the authorities
concerned must strictly adhere to the same. The learned counsel has G
referred to the decision in the case of State of Maharashtra & Ors. v.
Lalit Somdatta Nagpal & Anr.: (2007) 4 SCC 171, particularly
paragraph 62 thereof.

6
Hereinafter also referred to as ‘the Evidence Act’. H
1144 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 6.2. The learned senior counsel has further submitted that by virtue
of Section 2(1)(d) read with Sections 2(1)(e) and 2(1)(f) of MCOCA, to
invoke its provisions, a minimum of two charge-sheets are required to
have been filed with twin allegations, i.e., of a) violence and b) the object
being of gaining pecuniary benefit or other similar benefit. The learned
counsel would submit that in view of these twin requirements, the
B
prosecution cannot rely upon the cases where the allegations only relate
to violence but not to the object of gaining pecuniary or other benefit.
The learned counsel has particularly referred paragraph 24 of the decision
of this Court in the case of Ranjitsing Brahmajeetsing Sharma v.
State of Maharashtra & Anr.: (2005) 5 SCC 294.
C
6.3. With reference to the facts of the present case, learned senior
counsel for the appellant has strongly contended that even as per the
stand of the respondents, the allegations concerning pecuniary benefit
occur only in the present case of Crime No. 251 of 2020 and not in other
cases. Therefore, according to the learned counsel, the threshold
D requirement of involvement of the appellant in two or more cases involving
the object of gaining pecuniary or similar benefit being not existing, even
if those cases are taken on their face value, the provisions of MCOCA
are inapplicable to the present case.
6.4. With reference to the contents of the sanction order and the
E stand of the respondents, the learned senior counsel has submitted that
the cases forming the basis of the sanction order did not relate to any
pecuniary benefit nor any such consideration had occurred in the order
impugned but, in the concluding part, the sanctioning authority had
mechanically used the expressions ‘to gain pecuniary benefit or undue
economic or other advantage’. According to the learned counsel, the
F
use of alternative, i.e., “or” has no basis whatsoever and thus, the order
impugned remains baseless where the propositions of the sanctioning
authority do not meet with the threshold requirements of Section 2(1)(f)
of MCOCA. The learned counsel has referred to the decision in the
case of Jagannath Misra v. State of Orissa:(1966) 3 SCR 134 and
G has submitted that mere use of the expressions of the statute without
proper application to the facts is not countenanced, particularly in the
matters where the question of liberty of a person is involved. Thus,
according to the learned counsel, there being no such element of ‘other
advantage’ and these words having been used in an arbitrary and formal
manner, the prosecution is not entitled to rely upon the same. It has also
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1145
[DINESH MAHESHWARI, J.]

been contended that, in fact, the plea of ‘other advantage’, as taken A
before this Court, is rather an afterthought and is of an attempt at
improvement over the reasons recorded in the sanction order, which is
entirely impermissible in view of the decision of this Court in the case of
Mohindhr Singh Gill & Anr. v. Chief Election Commissioner, New
Delhi & Ors.: (1978) 1 SCC 405.
B
6.5. In other limb of submissions, the learned senior counsel has
particularly referred to the cases pertaining to Crime Nos. 13 of 2012
and 482 of 2015 and has submitted that these cases could not have been
considered at all for the reason that in the case relating to Crime No. 13
of 2012, the appellant was, in fact, acquitted by the Trial Court whereas
in the case relating to Crime No. 482 of 2015, the proceedings were C
quashed by the High Court. It has been submitted that the order impugned
ought to have given specific reasons for placing reliance on such cases
despite acquittal and quashing. Therefore, again, learned counsel would
submit that the order issuing sanction deserves to be set aside.
6.6. Learned senior counsel has further submitted that the D
sanctioning authority has placed reliance on the confessions recorded
under Section 18 of MCOCA and this could not have been done as self-
serving exercise. In any case, according to the learned counsel, without
meeting the threshold requirement of two charge-sheeted cases with
the allegations applicable to MCOCA, no number of confessions in one E
case could be taken as sufficient. The learned counsel has submitted
that any order having drastic consequences like those of application of
MCOCA, if proceeding on the basis of irrelevant material, while ignoring
the relevant considerations, cannot be approved and has referred to the
decision of this Court in the case of Khaja Bilal Ahmed v. State of
Telangana & Ors.: (2020) 13 SCC 632. The learned counsel would F
submit that when the irrelevant material is excluded in the present case,
the sanction order falls to the ground and deserves to be set aside.
6.7. As regards the allegations of the respondents that the appellant
was an absconder, it has been submitted that the appellant had no intention
to abscond or not to face the judicial process and he has always been G
available in Nagpur; and had travelled to Delhi to swear the affidavit
before this Court. It has been contended that the appellant, like in other
cases in the past, would fully cooperate with the investigation and with
the Trial Court but the arbitrary, illegal and mala fide invocation of the
drastic provisions of MCOCA, severely impinging the fundamental rights H
1146 SUPREME COURT REPORTS [2022] 4 S.C.R.

A of the appellant, could not stand validated by the alleged absconsion of
the appellant; and the State was only trying to create false prejudice and
to justify its arbitrary and illegal sanctioning order.
7. Learned counsel for the respondent-State has countered the
submissions made on behalf of the appellant and, after a detailed reference
B to the fact-sheet has, inter alia, contended as follows:
7.1. The learned counsel for the State has, in the first place,
emphatically argued that the appellant is not entitled for any relief from
this Court under Article 136 of the Constitution of India in view of the
fact that he has been declared an absconder under Section 82 CrPC
C read with Section 20(3) MCOCA. Learned counsel would submit that
all the submissions concerning personal liberty with the application of
MCOCA deserve to be rejected when the appellant himself has chosen
not to submit to the law.
7.2. Moving on to the conditions prescribed for invocation of
D MCOCA, the learned counsel has referred to the aforesaid three cases
in Crime No. 482 of 2015 (Police Station Nandanwan), Crime No. 196
of 2016 (Police Station Sitabuldi) and Crime No. 83 of 2017 (Police
Station Sitabuldi) and has submitted that the charge-sheets have been
filed in all these matters and, therefore, the essential condition of more
than one charge-sheet, in terms of Section 2(1)(e), has been duly met.
E Learned counsel would further contend that the facts about one of the
crime cases having been quashed and another ending in acquittal, are
not material considerations for deciding the question as to whether the
appellant was indulging in ‘continued unlawful activity’ in terms of Section
2(1)(d) of MCOCA.
F 7.2.1. In regard to the case ending in acquittal, learned counsel
for the State has also pointed out the facts that therein, one witness
turned hostile and other witnesses did not come forward; and has
submitted that in fact, MCOCA seeks to curb such a menace where the
offenders get a reprieve because of the witnesses not standing with the
G prosecution. This, according to the learned counsel, is sufficient to show
that MCOCA has rightly been invoked in the present case.
7.3. The learned counsel for the State has further contended that
the arguments about the appellant not being involved in the crime referable
for invocation of MCOCA are not correct and the suggested interpretation
on behalf of the appellant of the expression ‘other advantage’ is also not
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1147
[DINESH MAHESHWARI, J.]

correct. The learned counsel for the respondent-State has referred to A
the decision of the Full Bench of the Bombay High Court in the case of
State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr.:
(2011) SCC OnLine Bombay 1049 to submit that therein, the Bombay
High Court has held that crimes of bodily offence could be the crimes
committed with an intention to establish supremacy and which could
B
lead to gains other than pecuniary benefit or advantage.
7.4. The learned counsel has also referred to the decision of this
Court in the case of State of Maharashtra v. Kamal Ahmed
Mohammed Vakil Ansari & Ors.: 2013 (12) SCC 17 to submit that
the confessional statement could definitely be considered when granting
sanction under Section 23(2) of MCOCA. Learned counsel would submit C
that the confessional statements of the gang leader and other co-accused
person directly disclose the role of the appellant as an active member of
the ‘organised crime syndicate’. Thus, in the present case, the confessional
statements are limited to the confessor and to the co-accused; and their
use in the sanction order cannot be faulted at. Learned counsel has also D
submitted that there is no prohibition in MCOCA in using the confessional
statements while according sanction and, in any case, they could be
pressed into service by the sanctioning authority when forming a prime
facie view of the matter and examining the question of according sanction.
The learned counsel has also added that the question of reliability of
confessional statement cannot be adjudged at the stage of granting E
sanction and could only be decided during trial when the witnesses are
examined.
7.5. The learned counsel has submitted that when the material
placed before the sanctioning authority reveals presence of credible
information regarding commission of an offence or organised crime, the F
same could always be relied upon; and has referred to the decision of
this Court in the case of Kavitha Lankesh v. State of Karnataka &
Ors.: (2021) SCC OnLine 956.
7.6. In yet another limb of submissions, learned counsel for the
State would argue that the validity of the sanction could always be G
determined by the Trial Court during the course of trial where the
sanctioning authority could be examined with an opportunity of cross-
examination to the accused. Learned counsel has relied upon the decision
of this Court in the case of Vinod G. Asrani v. State of Maharashtra:
(2007) 3 SCC 633 and has contended that for this opportunity being H
1148 SUPREME COURT REPORTS [2022] 4 S.C.R.

A available to the appellant during trial, no interference in the sanctioning
order is called for.
8. We have given anxious consideration to the rival submissions
and have examined the material placed on record with reference to the
law applicable.
B 9. While dealing with the rival submissions, pertinent it is to take
note of the Statement of Objects and Reasons as also the Preamble of
the Maharashtra Control of Organised Crime Act, 1999 and the relevant
provisions under reference.
9.1. The Statement of Objects and Reasons for this enactment
C reads as under: -
“STATEMENT OF OBJECTS AND REASONS
Organised crime has been for quite some years now come up as
a very serious threat to our society. It knows no national boundaries
D and is fueled by illegal wealth generated by contract, killing,
extortion, smuggling in contrabands, illegal trade in narcotics
kidnappings for ransom, collection of protection money and money
laundering, etc. The illegal wealth and black money generated by
the organised crime being very huge, it has had serious adverse
effect on our economy. It was seen that the organised criminal
E syndicates made a common cause with terrorist gangs and foster
narco terrorism which extend beyond the national boundaries.
There was reason to believe that organised criminal gangs have
been operating in the State and thus, there was immediate need to
curb their activities.
F It was also noticed that the organized criminals have been making
extensive use of wire and oral communications in their criminal
activities. The interception of such communications to obtain
evidence of the commission of crimes or to prevent their
commission would be an indispensable aid to law enforcement
and the administration of justice.
G
2. The existing legal framework i. e. the penal and procedural
laws and the adjudicatory system were found to be rather
inadequate to curb or control the menace of organised crime.
Government, therefore, decided to enact a special law with stringent
and deterrent provisions including in certain circumstances power
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1149
[DINESH MAHESHWARI, J.]

to intercept wire, electronic or oral communication to control the A
menace of the organised crime.
It is the purpose of this Act to achieve there objects.”
9.2. Relevant part of the Preamble of MCOCA, that substituted
its predecessor Ordinance, reads as under: -
B
“An Act to make Special Provisions for Prevention and Control
of Organised Crime and for coping with, Criminal Activity by
Organized Crime Syndicate or Gang, and for matters connected
therewith or incidental thereto.”
9.3. The relevant definitions and meanings assigned to the C
expressions “continuing unlawful activity”, “organised crime” and
“organised crime syndicate”, respectively in clauses (d), (e) and (f) of
Section 2(1) read as under: -
“2. Definitions. (1) In this Act, unless the context otherwise
requires, - D

*** *** ***
(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 E
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 filed before a competent Court within
the preceding period of ten years and that Court has taken
cognizance of such offence;
F
(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 other person G
or promoting insurgency;
(f) “organised crime syndicate” means a group of two or more
persons who, acting either singly of collectively, as a syndicate or
gang indulge in activities of organised crime.”
H
1150 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 9.4. Different punishments for organised crime with respect to
the nature of offence and the nature of involvement of the offender are
specified in Section 3 of MCOCA, which reads as under: -
“3. Punishment for organised crime. - (1) Whoever commits
an offence of organised crime shall, -
B (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
C 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
D any act preparatory to organised crime, shall be punishable with
imprisonment for a term which shall be not 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.
(3) Whoever harbours or conceals or attempts to harbour or
E conceal, any 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 extent to imprisonment for life, and
shall also be liable to a fine, subject to a minimum fine of rupees
five lacs.
F (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.
G (5) Whoever holds any property derived or 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.”
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1151
[DINESH MAHESHWARI, J.]

9.5. The approval for investigation and sanction for prosecution A
have been granted in terms of Section 23 of MCOCA, which reads as
under: -
23. Cognizance of, and investigation into, an offence. - (1)
Notwithstanding anything contained in the Code, -
(a) no information about the commission of an offence of B
organised crime under this Act, shall be recorded by a police
officer without the prior approval of the police officer not below
the rank of the Deputy Inspector General of Police;
(b) no investigation of an offence under the provisions of
this Act shall be carried out by a police officer below the rank C
of the Deputy Superintendent of Police.
(2) No Special Court shall take cognizance of any offence
under this Act without the previous sanction of the police officer
not below the rank of Additional Director General of Police.”
D
10. As noticed, learned counsel for the State has emphatically
argued in the very first place that the appellant has been declared as an
‘absconder’ in terms of Section 82 CrPC and Section 20(3) MCOCA
and hence, his case deserves no consideration. The appellant’s answer
to this plea of the respondent has been that he had no intention to abscond
or not to face the judicial process; and that the illegal and mala fide E
invocation of MCOCA, impinging upon his fundamental rights, could not
stand validated by the alleged absconsion. Though we cannot ignore the
submissions on behalf of the State altogether in this regard; and it remains
seriously questionable if the appellant deserves indulgence under Article
136 of the Constitution of India but, in totality of the circumstances, F
where notices had been issued to the respondents, we have considered
it proper to first examine the matter on merits; and to advert to this
aspect of absconsion in the last.
11. A comprehensive look at the objects and reasons for enactment
of MCOCA, its overall purpose signified in its Preamble, and the relevant
G
definitions in Section 2 as also the punishments provided in Section 3,
leave nothing to doubt that this enactment is for making special provisions
for dealing with the menace of organised crime causing serious threat to
the society. No doubt, the enactment makes stringent provisions with
several extraordinary measures but, the peculiar nature of the mischief
sought to be tackled, i.e., of organised crime, has obviously led to such H
1152 SUPREME COURT REPORTS [2022] 4 S.C.R.

A extraordinary measures, particularly when the existing legal framework
was found to be rather inadequate to control the menace.
12. A long deal of arguments has been advanced before us on
behalf of the appellant that looking to the drastic and serious consequences,
the provisions have to be strictly construed and the authorities are bound
B to strictly adhere to the same. The question is as to what are the
connotations of ‘strict construction’ by the Courts and ‘strict adherence’
by the authorities in the context of an enactment like MCOCA? For
determination of this question, apposite it shall be to refer to the cited
decisions and the applicable legal principles.
C 12.1. The case of Lalit Somdatta Nagpal(supra) was one
involving questions relating to the application of MCOCA in respect of
the offences alleged to have been committed under Sections 3 and 7 of
the Essential Commodities Act, 1955. Having particular regard to the
enactment of Essential Commodities (Special Provisions) Act, 1981,
which was to remain in force for 15 years only and therein, the power to
D impose punishment was limited upto 2 years, this Court held that even
when power of the Court to impose punishment was limited to 2 years,
the offence continued to remain punishable upto a maximum period of 7
years, so as to attract the provisions of MCOCA. Having said that and
having disapproved the views of the High Court, this Court, of course,
E agreed with the other submissions on behalf of the respondents as regards
strict interpretation of the provisions and strict observance by the
authorities while observing as under: -
“62. However, we are in agreement with the submission that
having regard to the stringent provisions of mcoca, its provisions
F will have to be very strictly interpreted and the authorities
concerned would have to be bound down to the strict observance
of the said provisions. There can be no doubt that the provisions
of mcoca have been enacted to deal with organised criminal activity
in relation to offences which are likely to create terror and to
endanger and unsettle the economy of the country for which
G stringent measures have been adopted. The provisions
of mcoca seek to deprive a citizen of his right to freedom at the
very initial stage of the investigation, making it extremely difficult
for him to obtain bail. Other provisions relating to the admission of
evidence relating to the electronic media have also been provided
H for. In such a situation it is to be seen whether the investigation
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1153
[DINESH MAHESHWARI, J.]

from its very inception has been conducted strictly in accordance A
with the provisions of the Act.”
12.1.1. In relation to the particular fact situation concerning the
individual accused persons, this Court found that the sanction had been
granted with complete non-application of mind and hence, disapproved
the same in the following words: - B
“67. In the instant case, though sanction had been given by the
Special Inspector General of Police, Kolhapur Range, on 31-8-
2004, granting permission under Section 23(1)(a) of mcoca, 1999
to apply its provisions to the alleged offences said to have been
committed by Anil Nagpal, Lalit Nagpal and Vijay Nagpal, such C
sanction reveals complete non-application of mind as the same
appears to have been given upon consideration of an enactment
which is non est. Even if the subsequent approval order of 22-8-
2005 is to be taken into consideration, the organised crime referred
to in the said order is with regard to the alleged violation of sales
D
tax and excise laws, which, in our view, was not intended to be
the basis for application of the provisions of mcoca, 1999. To apply
the provisions of mcoca something more in the nature of coercive
acts and violence is required to be spelt out so as to bring the
unlawful activity complained of within the definition of “organised
crime” in Section 2(1)(e) of MCOCA. E
68. In our view, both the sanctions which formed the very basis
of the investigation have been given mechanically and are vitiated
and cannot be sustained. In taking recourse to the provisions
of mcoca, 1999, which has the effect of curtailing the liberty of
an individual and keeping him virtually incarcerated, a great F
responsibility has been cast on the authorities in ensuring that the
provisions of the Act are strictly adhered to and followed, which
unfortunately does not appear to have been done in the instant
case.”
12.2. In the case of Ranjitsing Brahmajeetsing Sharma (supra), G
during the tenure of the appellant as Commissioner of Police, Pune, fake
stamp papers worth Rs. 2.91 lakhs were seized, whereupon an FIR for
offences under Sections 120-B, 255, 249, 260, 263(a) and (b), 478, 472
and 474 read with Section 34 IPC was registered. Prior to that, one
Abdul Karim Ladsa Telgi was arrested and proceeded against for the H
1154 SUPREME COURT REPORTS [2022] 4 S.C.R.

A alleged offences of printing counterfeits stamps and forgery. The
provisions of MCOCA were invoked against the said Telgi and therein,
the role of the appellant was said to be of rendering help and support to
the organised crime syndicate while functioning as the Commissioner of
Police at different places. Therein, this Court was essentially concerned
with the operation of Section 24 of MCOCA, providing for punishment
B
of public servants failing in discharge of their duties. Taking an overall
view of the matter with reference to its facts, this Court formed the
prima facie opinion that the High Court might not have been entirely
correct in coming to the conclusion that the appellant committed an
offence under Sections 3(2) as well as 24 of MCOCA and thus, the
C interim bail granted to the appellant was continued.
12.2.1. In the said case, this Court referred to the objects and
reasons for the enactment and the connotations of the expression “any
unlawful means” in the following words: -
“24. The Statement of Objects and Reasons clearly states as to
D
why the said Act had to be enacted. Thus, it will be safe to presume
that the expression “any unlawful means” must refer to any such
act which has a direct nexus with the commission of a crime
which MCOCA seeks to prevent or control. In other words, an
offence falling within the definition of organised crime and
E committed by an organised crime syndicate is the offence
contemplated by the Statement of Objects and Reasons. There
are offences and offences under the Penal Code, 1860 and other
penal statutes providing for punishment of three years or more
and in relation to such offences more than one charge-sheet may
F be filed. As we have indicated hereinbefore, only because a person
cheats or commits a criminal breach of trust, more than once, the
same by itself may not be sufficient to attract the provisions of
MCOCA. Furthermore, mens rea is a necessary ingredient for
commission of a crime under MCOCA.”

G 12.3. It is, thus, not in doubt that the provisions of MCOCA need
to be strictly construed and for their application, an unlawful activity has
to fall within the periphery of organised crime. However, the question
still remains as to the import of the requirement of ‘strict construction’
of the stringent provisions? A brief reference to the fundamental legal
principles in that regard shall be apposite.
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1155
[DINESH MAHESHWARI, J.]

12.4. In the Principles of Statutory Interpretation by Justice A
G.P. Singh7, the rule of construction applicable to a penal statute has,
inter alia, been stated in the following terms: -
“Story, J. in agreeing to the rule in its “true and sober sense”
stated the same as follows: “Penal statutes are not to be enlarged
by implication or extended to cases not obviously within their words B
and purport. But where the words are general, and include various
classes of persons, I know of no authority, which would justify the
court in restricting them to one class, or in giving them the
narrowest interpretation, where the mischief to be redressed by
the statute is equally applicable to all of them. And where a word
is used in a statute, which has various known significations, I know C
of no rule, that requires the court to adopt one in preference to
another, simply because it is more restrained, if the objects of the
statute equally apply to the largest and broadest sense of the word.”
12.5. The meaning and import of the expression “strict
construction” have also been explained in Advanced Law Lexicon by D
P. Ramanatha Aiyar8, as follows: -
“Strict construction. “Strict construction of a statute is that which
refuses to expand the law by implications or equitable
considerations, but confines its operation to cases which are clearly
within the letter of the statute, as well as within its spirit or reason, E
not so as to defeat the manifest purpose of the Legislature, but so
as to resolve all reasonable doubts against the applicability of the
statue to the particular case. William M. Life et. al., Brief Making
and the Use of Law Books, 343 (3d ed. 1914).
“Strict interpretation is an equivocal expression, for it means either F
literal or narrow. When a provision is ambiguous, one of its meanings
may be wider than the other, and the strict (i.e. narrow) sense is
not necessarily the strict (i.e. literal) sense.” John Salmond,
Jurisprudence 171 n(t) (Glanville L. Williams ed., 10th ed., 1947).
“Strict construction” is that which refuses to expand the law by G
implications or equitable considerations, and confines its operation
to cases which are clearly within the letter of the statute, as well

7
14th Edition p. 978.
8
5th Edition p. 4956. H
1156 SUPREME COURT REPORTS [2022] 4 S.C.R.

A as within its spirit or reason. When the sense of the law is manifest,
and leads to nothing absurd, there can be no reason not to adopt
it. Statutes exercising the power of taxation in any of its forms, or
delegating the power to political sub-divisions, are to be strictly
construed.”
B 12.6. So far as the applicability of the rule of strict construction
qua MCOCA is concerned, it being a special penal statute, this much is
clear that no one is to be made subject to this law by implication or by
presumption; and all doubts concerning its application would, ordinarily,
be resolved in favour of the accused. However, the rule of strict
construction cannot be applied in an impracticable manner so as to render
C the statute itself nugatory. In other words, the rule of strict construction
of a penal statute or a special penal statute is not intended to put all the
provisions in such a tight iron cast that they become practically unworkable,
and thereby, the entire purpose of the law is defeated. At this juncture,
we may profitably refer to a decision of this Court in the case of Balram
D Kumawat v. Union of India & Ors.:(2003) 7 SCC 628, that the
purpose of law is not to allow the offender to sneak out of the meshes of
law. This Court said, inter alia, as under: -
“23. Furthermore, even in relation to a penal statute any narrow
and pedantic, literal and lexical construction may not always be
E given effect to. The law would have to be interpreted having regard
to the subject-matter of the offence and the object of the law it
seeks to achieve. The purpose of the law is not to allow the
offender to sneak out of the meshes of law. Criminal jurisprudence
does not say so.”

F Therein, this Court, after reference to a large number of decisions,
ultimately exposited as follows: -
“36. These decisions are authorities for the proposition that the
rule of strict construction of a regulatory/penal statute may not be
adhered to, if thereby the plain intention of Parliament to combat
G crimes of special nature would be defeated.”
12.7. As regards application of MCOCA, what is required to be
seen is as to whether the basic and threshold requirements, as per
combined reading of clauses (d), (e) and (f) of Section 2(1) thereof, are
fulfilled. If they are not so fulfilled, mere use of the expressions of the
statute in the sanction order would be of no effect but, on the other hand,
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1157
[DINESH MAHESHWARI, J.]

if the requirements are fulfilled, mere want of any expression or word in A
a particular passage in the sanction order would not take away the
substance of the matter. In other words, strict adherence by the
authorities concerned to the requirements of MCOCA also cannot be
stretched beyond common sense and practical requirements in terms of
the letter and spirit of the statute.
B
12.8. In the case of Kavitha Lankesh (supra), this Court has
exposited on the fundamentals for invocation of similar provisions of
Karnataka Control of Organised Crime Act, 2000, inter alia, in the
following words: -
“21. What is crucial in this provision is the factum of recording of C
offence of organized crime and not of recording of a crime against
an offender as such. Further, the right question to be posed at this
stage is : whether prior approval accorded by the competent
authority under Section 24(1)(a) is valid? In that, whether there
was discernible information about commission of an offence of
organized crime by known and unknown persons as being members D
of the organized crime syndicate? Resultantly, what needed to be
enquired into by the appropriate authority (in the present case,
Commissioner of Police) is : whether the factum of commission
of offence of organized crime by an organized crime syndicate
can be culled out from the material placed before him for grant of E
prior approval? That alone is the question to be enquired into even
by the Court at this stage. It is cardinal to observe that only after
registration of FIR, investigation for the concerned offence would
proceed — in which the details about the specific role and the
identity of the persons involved in such offence can be unravelled
and referred to in the chargesheet to be filed before the competent F
Court.
*** *** ***
27. At the stage of granting prior approval under Section 24(1)(a)
of the 2000 Act, therefore, the competent authority is not required G
to wade through the material placed by the Investigating Agency
before him along with the proposal for grant of prior approval to
ascertain the specific role of each accused. The competent
authority has to focus essentially on the factum whether the
information/material reveals the commission of a crime which is
an organized crime committed by the organized crime syndicate. H
1158 SUPREME COURT REPORTS [2022] 4 S.C.R.

A In that, the prior approval is qua offence and not the offender as
such. As long as the incidents referred to in earlier crimes are
committed by a group of persons and one common individual was
involved in all the incidents, the offence under the 2000 Act can
be invoked…”
B 13. Having taken note of the relevant principles, we may proceed
with their application to the present case.
14. The main plank of the case argued on behalf of the appellant
has been that the threshold requirement of his involvement in two or
more cases, involving the object of gaining pecuniary or similar benefits
C is not existing and, therefore, even if the referred cases are taken on
their face value, the provisions of MCOCA are not applicable. While
examining this line of arguments, we are constrained to observe that the
submissions on behalf of the appellant are rather premised on an
incorrectly framed question which has, obviously, led to incorrectly framed
contentions. The wrong premise of the contentions of the appellant could
D be noticed from the very opening paragraph in the written submissions
which reads as under: -
“1. The only issue that arises for the kind consideration of this
Hon’ble Court in the present matter is:

E “Whether the minimum threshold laid down in Section 2(d) of
the Act viz. minimum two charge-sheeted cases with allegations
of violence for pecuniary benefit has been fulfilled in the
present matter?”
Yet further, it has been submitted in paragraph 3 about the essential
F ingredients to invoke MCOCA as under: -
“3. By virtue of Section 2(d) read with Sections 2(e) and 2(f)
of the Act, to invoke the provisions of MCOCA two chargesheets
are required to have been filed with the following allegations:
a. Violence; and
G b. The object of gaining pecuniary benefit or other similar benefit.”
Neither the question aforesaid is correct nor the suggested
ingredients are in conformity with the plain provisions of the statute.
14.1. A bare look at clause (e) of Section 2(1) of MCOCA makes
H it clear that ‘organised crime’ means any unlawful activity by an individual
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1159
[DINESH MAHESHWARI, J.]

singly or jointly, either as a member of organised crime syndicate or on A
behalf of such syndicate, by use of violence or threat of violence or
intimidation or coercion or other unlawful means. The suggestions on
behalf of the appellant to limit the activity only to the use of violence is
obviously incorrect when it omits to mention the wide-ranging activities
contemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat or
B
violence or intimidation or coercion or other unlawful means. Actual use
of violence is not always a sine qua non for an activity falling within the
mischief of organised crime, when undertaken by an individual singly or
jointly as part of organised crime syndicate or on behalf of such syndicate.
Threat of violence or even intimidation or even coercion would fall within
the mischief. This apart, use of other unlawful means would also fall C
within the same mischief.
14.2. The second part of the requirement of the nature of activity,
i.e., its objective, has also not been projected correctly on behalf of the
appellant. The requirement of law is not limited to pecuniary benefits but
it could also be of ‘gaining undue economic or other advantage’. The D
frame of the proposition that the object ought to be gaining pecuniary
benefit or other ‘similar’ benefit is not correct as it misses out the specific
phraseology of the enactment which refers to undue economic or other
advantage apart from pecuniary benefit.
14.3. This aspect has gone into consideration of the Full Bench of E
Bombay High Court in the case of Jagan Gagansingh Nepali @ Jagya
(supra), wherein the Court examined precisely the connotations of the
expression “other advantage” occurring in Section 2(1)(d) of the Act.
The question formulated had been as under: -
“2. The question, therefore, that we are called upon to answer is F
“as to whether the term “other advantage” has to be read
as ejusdem generis with the words “gaining pecuniary benefits,
or gaining undue economic advantage” or whether the said term
“other advantage” is required to be given a wider meaning””.
14.3.1. The Full Bench of the Bombay High Court gave the G
answer to the question formulated as under: -
“42. For the reasons aforesaid, we answer the issue that the term
“other advantage” cannot be read as ejusdem generis with the
words “pecuniary benefits” and “undue economic”.
H
1160 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 14.3.2. While giving answer aforesaid, the High Court took note
of the principles applicable and exposited, inter alia, as under: -
“31. Applying these principles, it can be seen that the existing
legal framework i.e. the penal and procedural laws and the
adjudicatory system were found to be inadequate to curb or control
B the menace of organised crime. It was found that the organised
crime had become a serious threat to the society beyond national
boundaries and is fuelled by the illegal wealth achieved by contract,
killing, extortion, smuggling in contrabands, illegal trade in narcotics,
kidnapping for ransom, collection of protection money and money
laundering etc. It was found that the illegal wealth and black money
C generated by the organised crime being very huge, it had serious
adverse effect on the economy. It was further seen that the
organised criminal syndicates made a common cause with terrorist
gangs and foster narco terrorism which extend beyond the national
boundaries. It was further found that the organised criminals have
D been making extensive use of wire and oral communications in
their criminal activities. In this background, it was found necessary
to enact a special law with stringent and deterrent provisions
including in certain circumstances power to intercept wire,
electronic or oral communication to control the menace of the
organised crime.
E
32. The Preface would show that it was also found that the criminal
activities like murders of tycoons related to film industry as well
by builders, extortion of money from businessmen, abduction etc.
showed that criminal gangs are active in the State. It can, thus, be
seen that it was hoped that with the passing of this law, unlawful
F elements spreading terrorism in the society can be controlled to a
great extent and it will go a long way in minimizing the feeling of
fear spread in the society.
33. It is pertinent to note that in both Statement of Objects and
Reasons and the Preface, though certain activities have been
G mentioned the same are followed by the term “etc”. It is, thus,
clear that the activities mentioned in the Statement of Objects
and Reasons and the Preface are only illustrative in nature and
not exhaustive. It is, thus, clear that the legislative intent is not
only to curb only the activities mentioned in the Statement of
H Objects and Reasons or Preface but to curb various other activities
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1161
[DINESH MAHESHWARI, J.]

of the organised crime syndicate so that unlawful elements A
spreading terrorism in the society can be controlled to a great
extent, with an intention that the feeling of fear spread in the
society is minimised.
34. It can, thus, clearly be seen that the purpose behind enacting
the MCOCA was to curb the activities of the organised crime B
syndicates or gangs. The perusal of the Preamble and the
Statement of Objects and Reasons and Preface, in our considered
view, does not lead to any narrower meaning that MCOCA has
been enacted only for the purpose of curbing activities which
involve pecuniary gains or undue economic advantages. The
mischief which is sought to be cured by enactment of MCOCA is C
to curb and control menace of organised crime. The law has been
enacted with the hope that the elements spread by the organised
crime in the Society can be controlled to a great extent and for
minimizing the fear spread in the society. If a narrower meaning
as sought to be placed is accepted, it will frustrate the object D
rather than curing the mischief for which the Act has been enacted.
35. For appreciating this issue, it would also be relevant to refer
to sub-section (4) of section 3 of MCOCA. It can be seen that
the said provision also provides for punishment only by virtue of a
person being a member of the organised crime syndicate. If the E
contention advanced by the respondents is to be accepted, sub-
section (4) of section 3 will be rendered redundant. We are also
of the considered view that there could be various “unlawful
continuing activities” by a member of “organised crime syndicate”
or by any person on behalf of such a syndicate which can be for
the advantages other than economic or pecuniary...” F

14.4. We have no hesitation in endorsing the views of Full Bench
decision of Bombay High Court in the case of Jagan Gagansingh
Nepali @ Jagya (supra). Looking to the object and purpose of this
enactment, the expression ‘other advantage’ cannot be read in a
restrictive manner and is required to be given its full effect. The High G
Court has rightly said that there could be advantage to a person
committing a crime which may not be directly leading to pecuniary
advantage or benefit but could be of getting a strong hold or supremacy
in the society or even in the syndicate itself. As noticed above, the
purpose of this enactment is to be kept in view while interpreting any H
1162 SUPREME COURT REPORTS [2022] 4 S.C.R.

A expression therein and in the name of strict construction, its spirit and
object cannot be whittled down.
15. A chart has been placed before us on behalf of the appellant
in relation to the aforesaid seven cases with certain comments. As regards
the case at Serial No. 1, it is submitted that no pecuniary benefit or
B undue economic gain was alleged in the matter where it was alleged
that during house search, the police found a sword from the house of
Keval Patel and the appellant was staying there as a tenant. As regards
the case at Serial No. 2, it is submitted that the allegation against the
appellant had been of giving blow with knife to the complainant due to
previous enmity and quarrel on account of friendship with a girl. Again,
C
it is submitted that none of the members of the alleged crime syndicate
are accused persons and no pecuniary benefit or other advantage is
alleged. The said case resulted in acquittal with one witness turning
hostile and other witnesses not turning up. As regards the case at Serial
No. 3, it is contended that this was the first joint offence with the accused
D Roshan Sheikh and in fact, it had been the matter of cross FIRs; and the
same were quashed by the High Court on 13.04.2016. It is submitted
that it had been a matter of clash between two groups of people and no
elements of pecuniary benefit or undue economic gain or other advantage
was alleged. As regards the case at Serial No. 4, it is submitted that the
incident took place in a bar because of some argument between the
E
waiter and the customer and no such element of pecuniary benefit or
undue economic gain or other advantage is shown. As regards the case
at Serial No. 5, it is submitted that this has also been a matter of counter
FIRs where first FIR was lodged by Sameer Sharma and the appellant
is an eye-witness therein; and no pecuniary benefit or undue economic
F gain or other advantage to the accused is shown in this crime. As regards
the case at serial No. 6, it is submitted that the charge-sheet does not
disclose any act committed by any syndicate, or any crime for pecuniary
gain; that during investigation, offences under Section 3/25 of Arms Act
was deleted; and taking this case also into account was not correct.
G 15.1. The common thread of “violence” or “threat of violence” or
“unlawful means” running through all of these cases is not a matter
requiring any analysis, for the same being apparent on the face of record.
Significantly, the aforesaid had not been the cases involving the appellant
singularly; and more significantly, the alleged team leader Roshan Sheikh
is the co-accused in at least three previous cases. This is apart from the
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1163
[DINESH MAHESHWARI, J.]

recurrence of other co-accused persons in one case or the other. It has A
rightly been pointed out on behalf of the respondent-State that in order
to attract MCOCA, every previous case need not be of the object of
gaining pecuniary benefit alone. The cases in question, apart from
involving the offences against human body and property, also include
variety of other offences including those of rioting while armed with
B
deadly weapons; causing insult to provoke breach of peace; and criminal
intimidation. They also include the offence under the Arms Act. In all
the referred cases, use of violence has specifically been alleged.
15.2. The crime chart aforesaid, the nature of activities and the
persons involved leave nothing to doubt that the involvement of the
appellant in such crimes and unlawful activities which are aimed at gaining C
pecuniary advantages or of gaining supremacy and thereby, leading to
other unwarranted advantages is clearly made out.
16. The criticism of the impugned sanction order dated 05.11.2020,
that it had been of mere repetition of the expression of statute, is also
difficult to be accepted. The High Court, in the impugned order, has D
rightly observed that the said order is required to be viewed in its totality,
and its substance cannot be ignored by isolated reference to a particular
line or expression. We have reproduced the relevant contents of the
order dated 05.11.2020 particularly those concerning the present
appellant; and we have not an iota of doubt that firstly, the approving E
authority, and then, the sanctioning authority, were conscious of the
requirement of law and indeed examined the matter only with reference
to such requirement; and issued the orders in question only after arriving
at the requisite satisfaction. It has rightly been pointed out on behalf of
the respondent that in such matters, the competent authority has to focus
essentially on the factum whether the material in question reveals the F
commission of crime, which is an organised crime, committed by the
organised crime syndicate.
16.1. In view of above, reference to the decision of this Court in
Jagannath Misra (supra), which essentially related to a matter of
preventive detention, hardly makes out any case for interference. The G
question of arriving at satisfaction has been dealt with by this Court in
the following: -
“Now we have pointed out that the order of detention in this
case refers to six out of eight possible grounds on which a person
can be detained under Section 3(2)(15). Of these eight grounds H
1164 SUPREME COURT REPORTS [2022] 4 S.C.R.

A under Section 3(2)(15) one refers to foreigners i.e., of being of
hostile origin. Therefore in the present case the order really
mentions six out of seven possible grounds which can apply to an
Indian whose detention is ordered under Section 3(2)(15). We do
not say that it is not possible to detain a citizen on six out of seven
possible grounds under Section 3(2)(15); but if that is done it is
B
necessary that the authority detaining a citizen should be satisfied
about each one of the grounds that the detention is necessary
thereon. But if it appears that though the order of detention mentions
a large number of grounds the authority concerned did not apply
its mind to all those grounds before passing the order, there can in
C our opinion be no doubt in such a case that the order was passed
without applying the mind of the authority concerned to the real
necessity of detention. In the present case as we have already
pointed out six grounds out of possible seven grounds on which a
citizen can be detained have been mentioned in the order; but in
the affidavit of the Minister we find mention of only two of those
D
grounds, namely, safety of India (which may be assumed to be
the same as public safety) and the maintenance of public order.
In these circumstances there can be little doubt that the authority
concerned did not apply its mind properly before the order in
question was passed in the present case. Such discrepancy
E between the grounds mentioned in the order and the grounds stated
in the affidavit of the authority concerned can only show an amount
of casualness in passing the order of detention against the
provisions of Section 44 of the Act. This casualness also shows
that the mind of the authority concerned was really not applied to
the question of detention of the petitioner in the present case. In
F
this view of the matter we are of opinion that the petitioner is
entitled to release as the order by which he was detained is no
order under the Rules for it was passed without the application of
the mind of the authority concerned.
There is another aspect of the order which leads to the same
G conclusion and unmistakably shows casualness in the making of
the order. Where a number of grounds are the basis of a detention
order, we would expect the various grounds to be joined by the
conjunctive “and” and the use of the disjunctive “or” in such a
case makes no sense. In the present order however we find that
H the disjunctive “or” has been used, showing that the order is more
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1165
[DINESH MAHESHWARI, J.]

or less a copy of Section 3(2)(15) without any application of the A
mind of the authority concerned to the grounds which apply in the
present case.”
16.2. In the said case, where there was discrepancy in the detention
order and the affidavit of the Minister as regard the grounds of detention,
this Court found that the authority concerned did not apply its mind B
properly. In the present case, on the contrary, the meticulously drawn
sanction order dated 05.11.2020 leaves nothing to doubt that the
sanctioning authority had indeed applied its mind to all the material and
relevant aspects. Therefore, this contention on behalf of the appellant
must fail.
C
17. A long deal of arguments on behalf of appellant before us had
also been about the sanctioning authority purportedly taking the irrelevant
factors into account and for that matter, acquittal in relation to Crime
No. 13 of 2012 and of quashing the proceedings in Crime No. 482 of
2015 have been referred. In our view, this line of arguments also remains
D
bereft of substance.
17.1. The threshold requirement in terms of clause (d) of MCOCA
is that of the activity/activities undertaken by the accused persons either
singly or jointly, as a member of an organized crime syndicate, which
involves a cognizable offence punishable with imprisonment of 3 years
or more and in respect of which, more than one charge-sheets have E
been filed before the competent Court within 10 years and cognizance
had been taken.
17.2. Crime No. 13 of 2012 was registered on 11.01.2012 and
involved two accused persons including the appellant and related to the
offence under Section 307 IPC read with Section 34 IPC. Thus, the F
prescribed period and nature of offence with reference to prescribed
punishment were met. Cognizance had also been taken in the said case
and that is how it went to trial. The prosecution therein could examine
only one person as the alleged eye-witness but, he turned hostile and did
not support the case of the prosecution. The prosecution failed to examine G
the other witnesses including the complainant and the injured and even
the non-bailable warrant issued in their relation were returned unserved
with the report that they were not traceable. Thus, the prosecution failed
to substantiate the charges. We shall comment on the said nature of
acquittal a little later but, relevant it is to observe for the present purpose
H
1166 SUPREME COURT REPORTS [2022] 4 S.C.R.

A that the said case answers to all the requirements of clause (d) of Section
2(1) of MCOCA.
17.3. As regards the other case, being Crime No. 482 of 2015
dated 20.12.2015, the offences had been of Sections 143, 147, 148, 149,
294, 324, 325 IPC. The co-accused person of the previously referred
B Crime No. 13 of 2012 was the co-accused person in this case too, apart
from the other co-accused persons, including Roshan Sheikh, said to be
the team leader. The said case also answers to all the requirements of
clause (d) of Section 2(1) of MCOCA. In the said case, there had been
a cross FIR in Crime No. 481 of 2015 and it appears that there was a
settlement for which, the High Court, by its order dated 13.04.2016,
C considered it appropriate to quash the proceedings. We would refer to
the implications of such quashing of proceedings also a little later. Suffice
it to notice for the present purpose that the said case too answers to all
the requirements of clause (d) of Section 2(1) of MCOCA.
17.4. There is no dispute to the fact that at least two more cases,
D being of Crime No. 196 of 2016 and of Crime No. 83 of 2017, both of
Sitabuldi Police Station, are also pending wherein charge-sheets have
been filed and they include varying offences, including those of Sections
148 and 326 IPC, clearly meeting with all the essential requirements. In
both these cases, the appellant is an accused person alongwith a few
E common co-accused persons, including the alleged team leader Roshan
Sheikh. It is not the case of the appellant that cognizance had not been
taken in those cases.
17.5. The submissions about taking irrelevant factors into account
with reference to the said two cases resulting in acquittal and discharge
F must fail for the simple reason that for the purpose of clause (d) of
Section 2(1) of MCOCA, the result of a particular matter is not decisive
of the question as to whether the activity in question answers to the
description of ‘continuing unlawful activity’ or not. These had not been
offences committed single-handed by the appellant and charge-sheets
were indeed filed therein. The matter of settlement because of cross-
G cases or a matter of acquittal because of the witnesses not turning up,
could hardly be of any relevance so far as clause (d) of Section 2(1) of
MCOCA is concerned. Therefore, it cannot be said that any irrelevant
matter has been taken into consideration by the sanctioning authority.
The case of Khaja Bilal Ahmed (supra) as relied upon on behalf of the
H appellant, even otherwise, has no direct application for being related to a
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1167
[DINESH MAHESHWARI, J.]

preventive detention matter. In any case, there is no quarrel with the A
proposition therein that for a detaining authority, it is incumbent that its
satisfaction must not be based on irrelevant or invalid grounds but, we
are clearly of the view that in the present case, the authority cannot be
said to have proceeded on any irrelevant consideration. What is significant
and pertinent for the purpose of Section 2(1)(d) is the involvement of the
B
person concerned in the referred activity and filing of charge-sheet and
taking of cognizance in the offence as predicated. Acquittal or discharge
is of no significance.
18. As regards the use of confessional statement by the sanctioning
authority, we are unable to find any fault therein. In the first place,
noticeable it is that the confessional statements of the co-accused persons, C
including the alleged team leader, have not been used by the sanctioning
authority as the only basis of the sanction order. Those have been referred
as the part of evidence collected in the present offence, which included
various other pieces of evidence, i.e., mobile phones, vehicles, pen drive,
weapons etc. In any case, the value attached to the confessional D
statement, while overriding the provisions of CrPC and the Evidence
Act in terms of Section 18 of MCOCA, cannot be gainsaid and cannot
be ignored. This Court has, in the case of Kamal Ahmed Mohammed
Vakil Ansari (supra), observed and held, inter alia, as under: -
“71. Section 18 of Mcoca through a non obstante clause overrides E
the mandate contained in Sections 25 and 26 of the Evidence Act,
by rendering a confession as admissible, even if it is made to a
police officer (not below the rank of Deputy Commissioner of
Police). Therefore, even though Sections 25 and 26 of the Evidence
Act render inadmissible confessional statements made to a police
officer, or while in police custody, Section 18 of Mcoca overrides F
the said provisions and bestows admissibility to such confessional
statements, as would fall within the purview of Section 18
of Mcoca.
72. It is however relevant to mention that Section 18
of Mcoca makes such confessional statements admissible only G
for “the trial of such person, or co-accused, abettor or conspirator”.
Since Section 18 of Mcoca is an exception to the rule laid down
in Sections 25 and 26 of the Evidence Act, the same will have to
be interpreted strictly, and for the limited purpose contemplated
thereunder. The admissibility of a confessional statement would H
1168 SUPREME COURT REPORTS [2022] 4 S.C.R.

A clearly be taken as overriding Sections 25 and 26 of the Evidence
Act for purposes of admissibility, but must mandatorily be limited
to the accused confessor himself, and to a co-accused (abettor or
conspirator).”
18.1. The reference in the confessional statements of the two co-
B accused persons in relation to the appellant is not a factor entirely
irrelevant for the appellant being a co-accused person with them. The
detailed discussion by the sanctioning authority to the substantial pieces
of evidence collected in the matter rather fortifies the conclusion that
the sanctioning authority has meticulously applied its mind to all the
C relevant factors and has taken an overall view of the matter before
forming the final opinion in favour of granting the sanction. The contention
in that regard also fails.
18.2. The learned counsel for the State has fairly and rightly
indicated, with reference to the decision of this Court in the case of
D Vinod G. Asrani (supra), that the validity of sanction could always be
determined by the Trial Court during the course of trial where sanctioning
authority could be examined and the appellant will have sufficient
opportunity to contest the same, including that of cross-examining the
sanctioning authority. In fact, the High Court has also taken care in its
impugned order to make it clear that the observations were only prima
E facie and nothing in the order would influence or prejudice the trial or
pre-empt any legitimate defence of the appellant. In Vinod G. Asrani
(supra), this Court has observed and held as under: -
“9. …The scheme under Section 23 of MCOCA is similar and
Section 23(1)(a) provides a safeguard that no investigation into
F
an offence under mcoca should be commenced without the
approval of the authorities concerned. Once such approval is
obtained, an investigation is commenced. Those who are
subsequently found to be involved in the commission of the
organised crime can very well be proceeded against once sanction
G is obtained against them under Section 23(2) of MCOCA.
10. As to whether any offence has at all been made out against
the petitioner for prosecution under MCOCA, the High Court has
rightly pointed out that the accused will have sufficient opportunity
to contest the same before the Special Court.”
H
ABHISHEK v. STATE OF MAHARASHTRA & ORS. 1169
[DINESH MAHESHWARI, J.]

18.3. For what has been discussed hereinabove, this appeal must A
fail on merits.
19. Having said so, we deem it appropriate to revert to the two
aspects of the matter which we had partly left for discussion at a later
stage: one being of acquittal and discharge in the respective criminal
cases; and second being the effect of the fact that the appellant has B
been declared as an ‘absconder’.
20. As noticed, in the case relating to Crime No. 13 of 2012, the
appellant and the co-accused person were acquitted by the Trial Court
for the only private witnesses examined in the matter turning hostile and
all other witnesses including the complainant and the injured person not C
turning up at all. The enactment in question, i.e., MCOCA, essentially
intends to deal with the criminal activities by an organised crime syndicate
or gangs; and protection of witnesses is also one of the avowed objectives
of this enactment. It has rightly been contended on behalf of the
respondents that MCOCA seeks to curb such menace, where a criminal
case cannot be taken to its logical conclusion because of the witnesses D
either turning hostile or not turning up at all. The provision for witness
protection, as contained in Section 19 of MCOCA is one of those steps.
Having examined the judgment of the Sessions Court dated 09.05.2017,
as placed on record on behalf of the appellant, we could only say that
the very reason of acquittal in the said case rather fortifies the E
requirements of invocation of MCOCA against the appellant, of course,
when other requirements of Sections 2(1)(d), (e) and (f) are fulfilled.
They are indeed fulfilled, as noticed above.
21. As regards the implication of proclamation having been issued
against the appellant, we have no hesitation in making it clear that any F
person, who is declared as an ‘absconder’ and remains out of reach of
the investigating agency and thereby stands directly at conflict with law,
ordinarily, deserves no concession or indulgence. By way of reference,
we may observe that in relation to the indulgence of pre-arrest bail in
terms of Section 438 CrPC, this Court has repeatedly said that when an
accused is absconding and is declared as proclaimed offender, there is G
no question of giving him the benefit of Section 438 CrPC.9 What has
been observed and said in relation to Section 438 CrPC applies with

9
For example, Prem Shankar Prasad v. State of Bihar and Anr.: (2021) SCC OnLine
SC 955. H
1170 SUPREME COURT REPORTS [2022] 4 S.C.R.

A more vigour to the extraordinary jurisdiction of this Court under Article
136 of the Constitution of India. The submissions on behalf of the appellant
for consideration of his case because of application of stringent provisions
impinging his fundamental rights does not take away the impact of the
blameworthy conduct of the appellant. Any claim towards fundamental
rights also cannot be justifiably made without the person concerned himself
B
adhering to and submitting to the process of law.
22. Thus, challenge to the judgment as passed by the High Court
on 16.12.2021, and to the sanctioning order dated 05.11.2020, was required
to be rejected when the appellant had indeed been declared absconder.
However, as observed hereinbefore, we have considered it proper to
C first examine the matter on merits because notices had been issued to
the respondents and it had appeared serving the cause of justice to deal
with the matter on merits. As noticed, all the contentions urged on behalf
of the appellant remain baseless and challenge herein ought to fail. Thus,
we need not say any more in the present case as regards the effect of
D absconsion.
23. Accordingly, and in view of the above, this appeal fails and is,
therefore, dismissed.

Ankit Gyan Appeal dismissed.
E (Assisted by : Rahul Rathi, LCRA)

F

G

H