Summary
On a complaint of kidnapping, intimidation with a knife and a Rs. 20 lakh ransom demand at Nagpur, the appellant and five others were charged under the IPC and Arms Act; MCOCA was then added and the Commissioner of Police sanctioned prosecution under Section 23(2) on 05.11.2020, relying on the appellant's earlier charge-sheeted cases, three with the alleged team leader, and on co-accused confessions under Section 18. The appellant, declared an absconder after MCOCA was invoked, challenged the sanction; the Bombay High Court dismissed his writ petition. The Supreme Court dismissed the appeal: 'organised crime' is not confined to violence for pecuniary gain, 'other advantage' is not ejusdem generis with economic benefit, acquittal or quashing in earlier charge-sheeted cases is irrelevant to 'continuing unlawful activity', and an absconder deserves no indulgence under Article 136.
Issues
- Whether invocation of MCOCA requires at least two earlier charge-sheeted cases each alleging violence committed with the object of pecuniary benefit, or whether 'organised crime' under Section 2(1)(e) covers threats, intimidation, coercion or other unlawful means with the object of pecuniary benefit, undue economic advantage or 'other advantage'.
- Whether the expression 'other advantage' in Section 2(1)(e) of MCOCA is to be read ejusdem generis with 'pecuniary benefits' and 'undue economic advantage'.
- Whether earlier charge-sheeted cases that ended in acquittal or were quashed on settlement can be counted towards 'continuing unlawful activity' under Section 2(1)(d), and whether a sanctioning authority may rely on confessions recorded under Section 18 when granting sanction under Section 23(2).
- What 'strict construction' of a special penal statute such as MCOCA requires, and whether an accused declared an absconder deserves indulgence under Article 136 of the Constitution.
Provisions considered
- Sections 2(1)(d), 2(1)(e), 2(1)(f), 3, 18, 20(3) and 23, Maharashtra Control of Organised Crime Act, 1999The threshold for invoking MCOCA is the combined reading of clauses (d), (e) and (f) of Section 2(1): cognizable offences punishable with three years or more, undertaken singly or jointly as a member of or on behalf of a syndicate, with more than one charge-sheet filed and cognizance taken within ten years, by violence, threat, intimidation, coercion or other unlawful means, for pecuniary benefit, undue economic or other advantage. The appellant's cases — four with common co-accused including the team leader — met these requirements; the sanction order of 05.11.2020 reflected due application of mind and the use of Section 18 confessions as part of the material was not improper. (¶¶ 9.3, 9.4, 9.5, 12.7, 14.1, 14.2, 14.4, 15.1, 15.2, 16, 17.1, 17.5, 18, 18.1)
- Article 136, Constitution of IndiaA person declared an absconder under Section 82 CrPC read with Section 20(3) MCOCA, who remains out of reach of the investigating agency, ordinarily deserves no concession under Article 136; the Court nonetheless examined the merits since notice had been issued, and found the challenge baseless in any event. (¶¶ 10, 21, 22)
- Sections 82 and 438, Code of Criminal Procedure, 1973What has been said about denying anticipatory bail to a proclaimed offender applies with greater vigour to the extraordinary jurisdiction under Article 136; the appellant's claim to fundamental rights could not be made without submitting to the process of law. (¶¶ 3.4, 21)
Held
- MCOCA, a special penal statute with stringent provisions, must be strictly construed and strictly adhered to by the authorities (Lalit Somdatta Nagpal; Ranjitsing Brahmajeetsing Sharma): no one is to be subjected to it by implication and doubts are ordinarily resolved in favour of the accused. But strict construction cannot be applied so impracticably as to render the statute nugatory or let the offender sneak out of the meshes of the law (Balram Kumawat). If the threshold requirements of Section 2(1)(d), (e) and (f) are not met, mere recital of statutory expressions in a sanction order is of no effect; if they are met, the want of a particular word in a passage does not take away the substance. (¶¶ 12.3, 12.6, 12.7, 12.8)
- The appellant's premise that MCOCA requires two charge-sheeted cases alleging violence for pecuniary benefit misreads Section 2(1)(e): actual violence is not a sine qua non, since threat of violence, intimidation, coercion or other unlawful means suffice, and the object may be pecuniary benefit, undue economic advantage or 'other advantage'. Endorsing the Full Bench of the Bombay High Court in Jagan Gagansingh Nepali, 'other advantage' is not to be read ejusdem generis with pecuniary or economic benefit and includes gaining a stronghold or supremacy in society or within the syndicate; the spirit and object of the Act cannot be whittled down in the name of strict construction. (¶¶ 14, 14.1, 14.2, 14.3, 14.3.1, 14.4)
- Every previous case need not have the object of pecuniary gain. Violence, threat of violence or unlawful means ran through all the appellant's cases, which included rioting with deadly weapons, criminal intimidation and Arms Act offences and were committed jointly, the alleged team leader being co-accused in at least three; involvement in unlawful activities aimed at pecuniary advantage or supremacy was clearly made out. (¶¶ 15, 15.1, 15.2)
- The sanction order of 05.11.2020 must be read in its totality; it was meticulously drawn and showed application of mind to all relevant material, and the sanctioning authority's focus is rightly on whether the material reveals an organised crime committed by an organised crime syndicate (Kavitha Lankesh). Jagannath Misra, a preventive-detention case turning on a discrepancy between the detention order and the Minister's affidavit, does not help the appellant. (¶¶ 16, 16.1, 16.2)
- For Section 2(1)(d) what matters is the accused's involvement in the referred activity, filing of a charge-sheet and taking of cognizance within ten years; the result of the earlier case is not decisive. Acquittal because witnesses turned hostile or did not appear, or quashing on settlement of cross-cases, is of no significance, so the authority took no irrelevant factor into account. Indeed an acquittal caused by hostile or absent witnesses fortifies the case for MCOCA, whose avowed objects include witness protection (Section 19). (¶¶ 17.1, 17.2, 17.3, 17.4, 17.5, 20)
- The confessional statements of co-accused under Section 18 were not the sole basis of the sanction but part of the evidence collected (phones, vehicles, pen drive, weapons); their value overriding Sections 25 and 26 of the Evidence Act cannot be ignored (Kamal Ahmed Mohammed Vakil Ansari), and the reference to a co-accused in them is not irrelevant. The validity of sanction can in any event be tested at trial with cross-examination of the sanctioning authority (Vinod G. Asrani). (¶¶ 18, 18.1, 18.2)
- A person declared an absconder who remains out of reach of the investigating agency stands in direct conflict with law and ordinarily deserves no concession or indulgence; the rule denying anticipatory bail to proclaimed offenders applies with more vigour under Article 136, and a claim to fundamental rights cannot be made without submitting to the process of law. (¶¶ 21, 22)
Result
Appeal dismissed; the Bombay High Court (Nagpur Bench) judgment of 16.12.2021 in Criminal Writ Petition No. 667 of 2020 upholding the sanction of 05.11.2020 under Section 23(2) of MCOCA affirmed.