STATE OF MAHARASHTRAversusSHIVA@ SHIVAJI RAMAJI SONAWANE & ORS. ETC.

                        [2015] 9 S.C.R. 211


                    STATE OF MAHARASHTRA                            A
                                  v.
      SHIVA@ SHIVAJI RAMAJI SONAWANE & ORS. ETC.
              (Criminal Appeal Nos. 458-460 of2009)
                                                                    B
                           JULY24, 2015
            [T.S. THAKUR AND R. BANUMATHI, JJ.]
           Maharashtra Control of Organised Crime Act, 1999 : s. 3
    - Requirement under- Mere charge sheets in the past not         c
    enough to hold the persons accused in such charge sheets
    guilty for offence of organised crime uls. 3 - It is also required
    to prove that the accused continued such unlawful activities
    - It is only if an organised crime is committed by the accused
    after promulgation of MCOCA that he may, seen in the .light D
    of previous charge sf:Jeets and the cognizance taken bythe
    competent court be said to have committed an offence uls. 3 ·
    of the Act- Organised crime.

         Dismissing the appeals, the Court                          E
         HELD: 1. The filing of charge sheets or taking of
    the cog11izance in the same did not by itself constitute
    an offence punishable under Section 3 of the MCOCA.
    That is because the involvement of respondents in F
    previous offences was just about one requirement but
    by no means the only requirement which the
    prosecution has to satisfy to secure a conviction under
    MCOCA. What was equally, if not, more important was ·
    the commission of an offence by the respondents that G
    would constitute "continuing unlawful activity". The very
-   fact that more than one charge sheets had been filed
    against the respondents alleging offences punishable
    with more than three years imprisonment is not enough.
    Continuation of unlawful activities is the second and H
                                211
212        SUPREME COURT REPORTS              [2015] 9 S.C.R.


A equally important requirement that ought to be satisfied.
  It is only if an organised crime is committed by the
  accused after the promulgation of MCOCA that he may,
  seen in the light of the previous charge sheets and the
  cognizance taken by the competent court, be said to have
B committed an offence under Section 3 of the Act._ [Para
  8] [217-D-H; 218-A-C]

        2. In the case at hand, the offences which the
   respondents are alleged to have committed after the
c promulgation of MCOCA were not proved against them.
   The acquittal of the respondents in c·rimes No.37 and
   38 of 2001 signified that they were not involved in the
   commission of the offences with which they were
   charged. Not only that the respondents were acquitted
D of the charge under the Arms Act even in Crimes Case
   No; 1 and 2 of 2002. No appeal against that acquittal was
   filed by the State. This implied that the prosecution had
   failed to prove the second ingredient required for
   completion of an offence under MCOCA. The High Court
E was, therefore, right in holding that Section 3 of the
   MCOCA could not be invoked only on the basis of the
  ,previous charge sheets for Section 3 would come into
   play only if the respondents were proved to have
   committed an off~nce for gain or any pecuniary benefit
F
   or undue. economic or other advantage after the
   promulgation of MCOCA. [Para 9] [218-D-G]

          CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
      Nos. 458-460 of 2009
G
          From the Judgment and Order dated 18.11.2008 of the
      High Court of Judicature at Bombay, Bench at Nagpur in    '
      Criminal Appeal Nos. 717, 664 and 665 of2002

H                             WITH
     STATEOFMAHARASHTRA v. SHIVA@SHIVAJI                             213
            RAMAJI SONAWANE & ORS.

Crli.A. Nos. 461-464 of2009                                          A

    Dr. R. R. Deshpande, Aniruddha P. Mayee, Yuvraj
Gaikwad, Prachiti Deshpande, Asha Gopalan Nair and
Ravindra KeshavraoAdsure, for the Appellant.
                                                                     B
   Dr. J.P. Dhanda., Raj Rani Dhanda, Vineet Dhanda, N.A.
Usmani and Irs had Ahmad for the Respondents.

     The Judgment of the Court was delivered by

      T. S. THAKUR, J. 1. High Court of Bombay has, by a             C
common order dated 181h November, 2008, impugned in these
appeals, set aside orders passed by the Special Court under
Maharashtra Control of Organised Crime Act, 1999 and
acquitted the respondents of the charges framed against them.
The High Court has relying upon several earlier                      D
pronouncements on the subject, held that mere proof of filing
of charge sheets in the past was not enough to hold the persons
accused in such charge sheets to be guilty of the offences of
committing organised crime punishable under Section 3 of
MCOCA for such charge sheets satisfy but one of the                  E
requirements under the said Act. What is according to the High
Court equally important is to prove that the accused were guilty
of committing the offence of organised crime by reason of their
continuing unlawful activities. The High Court further held that     F
any such unlawful activity should be by use of threat of violence,
intimidation, coercion or other unlawful means with the objective
of "gaining pecuniary or other advantages", and that the
provisions of MCOCA can be invoked only by strictly complying
with the provisions of Section 23 of the Act. The competent          G
authority was, declared the High Court, duty bound to apply its
mind to the attendant facts while permitting registration of an
FIR under MCOCA or granting sanction for prosecution. The
High Court held that the competent authority, in the case at
hand, had not applied its mind 'properly which rendered the          H
214         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A  registration of the cases and the filing of the charge sheets
   against the responden.ts legally unsustainable. The High Court
   further held that the respondents were, in the facts of the cases
   before it, not shown to have committed any offence for
   pecuniary, economic or similar other advantage which was one
 B of the requirements to be satisfied before they could be held
   guilty of an organised crime. The orders of conviction recorded
   by the Special Court, and the sentences awarded to the
   respondents were on those findings set aside.

C          2. We have heard learned counsel for the parties at
      considerable length. We have also been taken through the
      record including the judgments of the trial court and that passed
      by the High Court. The factual matrix in which the respondents
      were prosecuted and found guilty for offences punishable under
D     MCOCA, have been set out at great length by the Trial Court
      and even by the High Court. Recapitulation of the same all
      over again would, therefore, serve no useful purpose. All that
      need be mentioned is that the respondent Shiva @ Shivaji
      Sonwane, accused in Special Criminal Case No.1 of 2001
E     and Mehmood Khan Pathan, accused in Special Case No.2
      of 2001 started off as partners in crimes which they committed
      with the help of other gangsters in the industrial town of
      Khaparkheda situate on the outskirts of the city of Nagpur. The
 F    gang, in due course, appears to have split into two, one each
      led by Shivaji Ramaji Sonwane and Mehmood Khan Pathan.

       3. The prosecution case is that the twp gangs have over
  ten years prior to the enactment of MCOCA been involved in
  commission of several crimes which constitutes "continuing·
G unlawful activity'' within the meaning of Section 2(d) of MCOCA.
  This, according to the prosecution, was evident from the fact
  that a very large number of charge sheets had been filed
  against them in which the competent jurisdictional Courts had
H taken cognizance. To be precise, as many as 42 charge-sheets
     STATEOFMAHARASHTRA v. SHIVA@SHIVAJI                            215
      RAMAJI SONAWANE & ORS. [T. S. THAKUR, J.]

had been filed against the gang led by Shiva Sonwane, A
whereas 30 similar charge-sheets were presented against the
rival gang led by Mehm9od Khan Pathan. What led to the
invocation of MCOCA in Criminal Case No.1 of 2002 against
the gang led by Shiva Sonwane is an incident that took place
on 16th March, 2001 at about 9.15 a,m. when Shiva Sonwane B
is alleged to have gone to the shop of one Rameshwar
Bawankar in which one Sun ii Bante PW-8/1 was working as an
employee. Respondent-Shiva and his companion gangsters
are alleged to have beaten up Sunil Bante and set the shop on
fire resulting in a loss of 1.5 lacs to the owner. Crime No.37 of C
2001 for several offences punishable under the Indian Penal
Code and the Arms Act was registered with the police station
Khaparkheda, in connection with the incident.

     4. So also MCOCA was invoked against respondents               D
Mehmood Khan Pathan, Sanjay Girhe and Samad Pathan on
the basis and in connection with Crime Case No.38 of 2001
registered at· police station Khaparkheda for offences
punishable under the l.P.C. and the Arms Act. Interestingly, this
crime (Criminal Case No.38 of 2001) was registered on a             E
complaint made by Shiva Sonwane the rival gangster in which
the latter alleged that on 161h March, 2001 the accused had
barged into the complainant's house, demanded a gold chain,
beat up the complainant's father and set the house on fire.
                                                                    F
      5. The prosecution version is that PW-13/1, Pl Abdul
.Razzak, Investigating Officer in Crime No.37 of 2001, had on
 the basis of his investigation come to the conclusion that Shiva
 had formed and was heading an organised crime syndicate.
 He, therefore, prepared a proposal for invocation of the           G
 provisions of MCOCA in connection with Crime No.37/2001
 and requested for permission to record information and register
 a case under Sections 3(1)(ii) and 3(4) of MCOCA. The
 proposal was forwarded to the Special Inspector General of         H
216         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A P-once examined at the trial as PW-15/1. The proposal was
      upon consideration, accepted and registration of information
      under MCOCA in terms of Section..23 of the Act permitted.
      The information relating to the commission of the offence under
      MCOCA was accordingly registered against Shiva Sonwane
 B    and his gang on 21s1 March, 2001 which eventually is
      presented to this Court as Crime Case No.1 of 2001 under
      MCOCA.

           6. In Crime Case No.2 of 2001 also under MCOCA a
C     similar version has been put forth by the prosecution. The
      proposal for invoking MCOCA was moved even in that case
      by Pl Abdul Razzak resulting in grant of approval for invocation
      and registration of information under Section 3(i)(ii) read with
      Section 3(4) of MCOCA. According to the prosecution,
D     investigation into the cases was entrusted to Deputy
      Superintendant of Police examined as PW-16 in Criminal
      Case No.1 of 2001 and PW-20 in Criminal Case No.2 of 2001.
      According to this witness, investigation in both the cases was
      made over to him on 21st March, 2001 when Shiva was in jail.
E     The custody of accused Shiva was secured by him in terms of
      a production warrant on 28th March, 2001 and his house
      searched on 1Oth April, 2001 leading to the seizure of a sword.
      As regards respondent Mehmood Khan Pathan, he was
 F    arrested on 9th May, 2001 and his house searched on 30th
      May, 2001 resulting in the recovery of a sword and a 'Hattimar'
      knife which was seized. After completion of investigation in
      both the crimes, the Deputy Superintendent of police filed two
      separate and independent charge sheets one each against
G     the two gangs for offences punishable under Section 3(i)(ii) of
      the MCOCA and Section 4 read with Section 25 of the Arms
      Act.

          7. The significant feature of the two cases is that for Crimes
H     No:37 of2001 and 38 of2001 the respondents were separately
    STATE OF MAHARASHTRA v. SHIVA@SHIVAJI                          217
     RAMAJI SONAWANE & ORS. [T. S. THAKUR, J.]

tried and acquitted on 18th January, 2008 in the case of Shiva A
and on 28th February, 2006 in the case of Mehmood Khan
Pathan. In the said charge sheets, the respondents were
accused of committing offences only under the IPC and the
ArmsAct. For the offences punishable under MCOCAseparate
and independent charge sheets were filed against the accused B
persons in which they were convicted by the Trial Court which
conviction was reversed by the High Court as noticed earlier.

      8. It was in the above backdrop that the High Court held
that once the respondents had been acquitted for the offence       C
punis)1ableunderthe IPC andArmsActin Crimes No.37 and
38 of 2001 and once the Trial Court had recorded an acquittal
even for the offence punishable under Section 4 read with
Sectipn 25 of the Arms Act in MCOCA Crimes No.1 and 2 of
2002 all that remained incriminating was the filing of charge      D
sheets against the respondents in the past and taking of
cognizance by the competent court over a period of ten years
prior to the enforcement of the MCOCA. The filing of charge
sheets or taking of the cognizance in the same did not, declared
the High Court, by itself constitute an offence punishable under   E
Section 3 of the MCOCA. That is because the involvement of
respondents in previous offences was just about one
requirement but by no means the only requirement which the
prosecution has to satisfy to secure a conviction under            F
MCOCA. What was equally, if not, more important was the
commission of an offence by the respondents that would
constitute "continuing unlawful activity". So long as that
requirement failed, as was the position in the instant case,
there was no question of convicting the respondents under          G.
Section 3 of the MCOCA. That reasoning does not, in our
opinion, suffer from any infirmity. The very fact that more than
one charge sheets had been filed against the respondents
alleging offences punishable with more than three years
imprisonment is not enough. As rightly pointed out by the High     H
218          SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A  Court commission of offences prior to the enactment of
 · MCOCA does not by itself constitute an offence under
   MCOCA. Registration of cases, filing of charge sheets and
   taking of cognizance by the competent court in relation to the
   offence alleged to have been committed by the respondents
B in the past is but one of the requirements for invocation of
   Section 3 of the MCOCA. Continuation of unlawful activities is
   the second and equally important requirement that ought to be
   satisfied. It is only if an organised crime is committed by the
   accused after the promulgation of MCOCA that he may, seen
C in the light of the previous charge sheets and the cognizance
   taken by the competent court, be said to have committed an
   offence under Section 3 of the Act.

       9. In the case at hand, the offences which the respondents
D are alleged to have committed after the promulgation of
  MCOCA were not proved against them. The acquittal of the
  respondents in Crimes No.37 and 38 of 2001 signified that
  they were not involved in the commission of the offences with
  which they were charged. Not only that the respondents were
E acquitted of the charge under the Arms Act even in Crimes
  Case No.1 and 2 of 2002. No appeal against that acquittal
  had been filed by the State. This implied that the prosecution
  had failed to prove the second ingredient required for
F completion of an offence under MCOCA. The High Court was,
  therefore, right in holding that Section 3 of the MCOCA could
  not be invoked only on the basis of the previous charge sheets
  for Section 3 would come into play only if the respondents were
  proved to have committed an offence for gait"} or any pecuniary
G benefit or undue economic or other advantage after the
  promulgation of MCOCA. Such being the case, the High Court
  was, in our opinion, justified in allowing the appeal and setting
  aside the order passed by the Trial Court.

H         10.       In the light of what we have said above, it is not
      necessary for us to go into the question whether the competent
     STATE OF MAHARASHTRA v.• SHIVA@SHIVAJI                       219
      RAMAJI SONAWANE & ORS. [T. S. THAKUR, J.]

authority had duly and properly applied its mind while granting A
permission to the registration of the information under MCOCA
or sanctioning the prosecution of the respondents under
Section 3(2) of the Act. It is also unnecessary for us to examine
whether the expression "any other advantage" appearing in
Section 2(e) can be read ejusdem generis which aspect is B
left open to be decided in an appropriate case.

    11. These appeals accordingly fail and are hereby
dismissed.
                                                                  c
Devika Gujral                                Appeals dismissed.