Summary
The respondent was booked in November 2020 under the Gujarat Control of Terrorism and Organised Crime Act, 2015, which came into force on 1 December 2019. The FIR relied on five earlier FIRs, the latest charge-sheeted in January 2019, and no offence was alleged after the Act. The Gujarat High Court granted bail, applying State of Maharashtra v. Shiva Sonawane under the MCOCA. The State asked for that ruling to be reconsidered. The Supreme Court declined. Past charge-sheets within ten years only show the antecedents that make up a 'continuing unlawful activity'. An organised-crime offence requires at least one act after the Act's commencement for which the accused is tried for the first time, but the State need not wait for two fresh charge-sheets. The Court also reiterated the twin bail conditions in Section 20(4).
Issues
- Whether 'continuing unlawful activity' under Section 2(1)(c) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 can rest solely on charge-sheets filed before the Act came into force, or requires some act of organised crime after 01.12.2019, and whether Shiva alias Shivaji Ramaji Sonawane needs reconsideration or reference to a larger Bench.
- What limitations Section 20(4) of the 2015 Act places on the grant of bail.
Provisions considered
- Sections 2(1)(c), 2(1)(e), 2(1)(f) and 3, Gujarat Control of Terrorism and Organised Crime Act, 2015Continuing unlawful activity, evidenced by more than one charge-sheet in the preceding ten years, is only one ingredient of organised crime; what Section 3 punishes is organised crime, which needs a further act with violence or unlawful means for gain after the Act came into force. (¶¶ 22, 23, 24, 48, 50, 51)
- Section 20(4), Gujarat Control of Terrorism and Organised Crime Act, 2015In addition to ordinary bail considerations, the Public Prosecutor must be heard and the court must record satisfaction, on reasonable grounds amounting to more than a prima facie case, that the accused is not guilty and not likely to commit an offence on bail. (¶¶ 26, 27, 28, 29)
- Article 20(1), Constitution of IndiaTaking past charge-sheets into account as a requisite for identifying continuing unlawful activity does not make pre-Act conduct an offence under the Act, as the Bombay High Court held of the MCOCA in Jaisingh Ashrfilal Yadav. (¶¶ 32, 49, 50)
Held
- Following Shiva alias Shivaji Ramaji Sonawane, filing of past charge-sheets and taking of cognizance is one requirement, but there must also be some act or omission amounting to organised crime after the Act came into force, for which the accused is tried for the first time in the Special Court; a stringent penal statute curtailing liberty must be construed strictly (Tolaram Relumal, Lalit Somdatta Nagpal). (¶¶ 43, 44, 45, 46, 47, 48)
- If organised crime were synonymous with continuing unlawful activity, two definitions would be unnecessary; the elements of violence and pecuniary gain appear only in 'organised crime', Section 3 punishes organised crime and refers to 'such offence', and as held in State of Maharashtra v. Bharat Shanti Lal Shah the past charge-sheets serve to show antecedents, not to convict. (¶¶ 37, 51)
- Clarifying Shiva, a person who commits no unlawful act after the Act cannot be prosecuted under it for earlier offences, but if he continues his unlawful activities he may be tried under the Act, and the State need not wait until two fresh charge-sheets are filed after its commencement; Shiva is the correct exposition of law and needs no reconsideration. (¶¶ 51, 52)
- Bail under the 2015 Act is subject both to Section 439 CrPC and to the cumulative twin conditions of Section 20(4), which require findings on reasonable grounds; the Solicitor General fairly did not press for setting aside the bail granted. (¶¶ 25, 28, 29)
Result
Criminal Appeal No. 2291 of 2022 against the Gujarat High Court order dated 06.05.2021 in R/Criminal Misc. Application No. 3819 of 2021 granting bail disposed of with the clarification that Shiva alias Shivaji Ramaji Sonawane correctly states the law and requires no reference.