Supreme Court of India
PRASAD SHRIKANT PUROHITversusSTATE OF MAHARASHTRA & ANR
- Citation
- 2015 INSC 325
- Decided
- 15 April 2015
- Disposal
- Disposed off
Holding
Cognizance of an offence taken by a Judicial Magistrate under Section 190 CrPC fulfills the "competent court" requirement of Section 2(1)(d) MCOCA, and for A‑7 the statutory definition of continuing unlawful activity is satisfied, precluding bail, while other appellants may be granted bail pending further evidence.
Summary
The Supreme Court examined whether the Maharashtra Control of Organized Crime Act (MCOCA) applied to a series of bomb blasts in Parbhani (2003), Jalna (2004) and Malegaon (2008) and whether bail could be denied under Section 21(4) of MCOCA. It held that cognizance of an offence taken by a Judicial Magistrate under Section 190 of the CrPC satisfies the "competent court" requirement of Section 2(1)(d) of MCOCA, and that for the accused identified as A‑7 (Rakesh Dattaray Dhawade) the definition of "continuing unlawful activity" and "organized crime" is met, justifying denial of bail. For the remaining appellants, the Court found insufficient material to establish a nexus with the earlier blasts and ordered that their bail applications be considered on merits. The Court dismissed the criminal appeals but set aside the lower court’s order denying bail to certain appellants, directing the Special Court to decide those applications.
Issues considered
- The meaning of "cognizance" under MCOCA's Section 2(1)(d) – whether it must be taken by a Sessions Court or can be by a Judicial Magistrate under Section 190 CrPC.
- Whether the three bomb blasts satisfy the definition of "continuing unlawful activity", "organized crime" and "organized crime syndicate" under MCOCA.
- Whether the requirement of two prior charge‑sheets within ten years is fulfilled for invoking MCOCA.
- Whether bail can be denied under Section 21(4) of MCOCA for the accused, particularly A‑7.
- Whether the Special Judge’s order of discharge under MCOCA was legally valid.
Legislation cited
- Code of Criminal Procedure, 1973s. 173(2), s. 173(8), s. 190(1)(b), s. 191, s. 192, s. 193, s. 200, s. 209
- Maharashtra Control of Organized Crime Act, 1999 (MCOCA)s. 11, s. 21(4), s. 2(1)(d), s. 2(1)(e), s. 2(1)(f), s. 22, s. 23(1)(a), s. 23(1)(b), s. 23(2), s. 3
Subjects
MCOCAcontinuing unlawful activityorganized crimeorganized crime syndicatecognizancebailCriminal Procedure Codebomb blastMaharashtra
Judgment
[2015] 8 S.C.R. 575
PRASAD SH RI KANT PU ROH IT , A
v.
STATE OF MAHARASHTRA&ANR
(Criminal Appeal Nos. 1969-1970 of 2010)
APRIL 15, 2015 B
[FAKKIR MOHAMED IBRAHIM KALIFULLA AND
ABHAY MANOHAR SAPRE, JJ.)
Maharashtra Control of Organized Crime Act, 1999: c
Object and reason of enactment - Discussed.
s.2(1)(d) - Continuing unlawful activity - Essential
ingredients to come within the definition of 'continuing
unlawful activity' - Discussed. D
s.2(1)(e) - Organized crime - Essential ingredients to
come within the definition of 'organized crime' - Discussed.
s.2(1)(e), (f)- Organized crime- Facts disclosed nexus E
of A-7 with the members of 'organized crime syndicate' and
nexus with offence in the nature of an 'organized crime' of
the two earlier cases namely Parbhani and Jalna and also
direct involvement in the present bomb blast at Malegaon -
Therefore, activity and involvement of A-7 in all three F
occurrences disclosed nexus in the crime and also with the
other accused involved in the crime and thereby the
satisfaction of the definition of 'continuing unlawful activity' of
an organized crime' on behalf of an organized crime
syndicate was sufficiently shown - Thus, by virtue of s.21 (4) G
A-7 not entitled to bail - In case of rest of the appellants for
invoking s.21 (4)(b), namely, to consider their claim for bail, it
can be held that for the present juncture with the available
575 H
576 SUPREME COURT REPORTS (2015] 8 S.C.R.
A materials on record, it is not possible to show any nexus of
the appellants who have been proceeded against for their
involvement in Malegaon blast with the two earlier cases,
namely, Parbhani and Jalna - There is considerable doubt
about their involvement in Parbhani and Jalna and, therefore,
B they are entitled for their bail applications to be considered
on merits.
ss.2(1)(d), (e), (f), 11 - Malegaon bomb blast case -
Special judge passed the order of discharge on the footing
C that cognizance of two earlier cases within preceding 10 years
from the date of third occurrence was not satisfied and
simultaneously ordered transfer of the case to regular court
- On appeal, Division Bench held that the Special court
misdirected himself by stating that the cognizance was with
D reference to the offender and not the offence which led to the
passing of such illegal order and that cognizance of offence
was taken as early as on 7.9.2006 in Parbani case and
30. 9. 2006 in Jalna case which were within the preceding 10
years from the date of Malegaon case and therefore the order
E of discharge was not sustainable - On appeal, held:
Cognizance is always of the offence and not the offender and
once the magistrate applies his judicial mind with reference
to the commission of an offence, the cognizance is taken at
F that very moment- The cognizance· of the offence taken into
account in respect of Parbhani and Jalna based on the
charge-sheets dated 07. 09. 2006 and 30. 09.2006 respectively
was perfectly in order to apply the definition of 'continuing
unlawful activity' for the purpose of invoking MCOCA with
G reference to Malegaon occurrence.
s.2(1)(d) -.Requirement offiling of charge-sheet in two
earlier cases before the competent court in respect of offence
uls.2(1)(d) can be held to be satisfied once cognizance is
H taken by a Judicial Magistrate of first class or for that matter
an empowered second class Magistrate in the event of filing
PRASAD SHRIKANT PUROHITv. STATE OF 577
MAHARASHTRA
of a police report as prescribed u/s. 173(2)(i) by virtue ofpower A
vested uls. 190(1)(b) - If ingredients of the said requirement
are fulfilled, it will have to be held that that part of the
requirement u/s.2(1)(d) namely the competent court taking
cognizance of offence as stipulated u/s.2(1 )(d) in respect of
two earlier cases will get fulfilled. B
s.2(1)(d) - Whether taking of cognizance of offence by
the competent court uls.2(1)(d) is referable only to the court
of sessions or even to a Magistrate of first class u/s. 190 -
Held: On fulfillment of s.190, when a Judicia/Magistrate of C
first class or an empowered second class Magistrate takes
cognizance of any offence that would fulfill the requirement
of s. 2(1 )(d) relating to the competent court.
s. 3(2) - Invocation of- Held: In_ order to invoke MCOCA o
even if a person may or may not have any direct role to play
as regards the commission of an organized crime, if a nexus
either with an accused who is a member of an 'organized
crime syndicate' or with the offence in the nature of an
'organized crime' is established that would attract the E
invocation of s. 3(2) of the Act.
Code of Criminal Procedure, 1973:
ss. 173(2), 190(1 )(b) - Scope of - Held: Reading F
s.173(2)(i) along with s.190(1)(b), a duty is cast upon the
officer in-charge of the police station mandatorily to forward
the report to the Magistrate who is empowered to take
cognizance of the offence on a police report - Under
s. 190(1)(b) any Magistrate empowered for taking cognizance G
under sub-section (1) can take cognizance of any offence
based on filing of a police report furnished with the facts as
stipulated uls.173(2)(i) (a to h).
s.173(8) - Filing of supplementary charge-sheet - H
Implication of - Held: It does not amount to taking
578 SUPREME COURT REPORTS [2015] 8 S.C.R.
A cognizance by the court afresh with reference to the vel)I same
offence.
Words and phrases:
Cognizance - Meaning of
B
Insurgency- Meaning of.
Disposing of the appeals, the Court
c HELD: 1.1 The Scheme of MCOCA disclose that
organized crime has been posing very serious threat to
our society for quite some years and it was also noted
that organized crime syndicates had a common cause
with terrorist gangs. In the Objects and Reasons, it was
o found that the existing legal framework, that is the penal
and procedural laws and the adjudicatory system, were
found to be inadequate to curb or control the menace of
'organized crime'. The Objects and Reasons also state
that such 'organized crimes' were filled by illegal wealth
E generated by contract killing, extrusion, smuggling in
contraband, illegal trade in narcotics, kidnapping for
ransom, collection of protection money, money
laundering etc. The definition of 'continuing unlawful
activity' under Section 2(1)(d) mainly refers to an activity
F prohibited by law. The said activity should be a
cognizable offence, punishable with imprisonment of
three years or more. The commission of such offence
should have been undertaken either by an individual
singly or by joining with others either as a member of an
G 'organized crime syndicate' or even if as an individual
or by joining hands with others even if not as a member
of a 'organized crime syndicate' such commission of an
offence should have been on behalf of such syndicate.
It further states that in order to come within the definition
H
of 'continuing unlawful activity' there should have been
PRASAD SHRIKANT PUROHITv. STATE OF 579
MAHARASHTRA
a
more than one charge-sheet filed before competent A
Court within the preceding period of 10 years and that
the said Court should have taken cognizance of such
offence. [Paras 38, 39] [618-E,F; 619-B-Hj'
Ajit Kumar Pa/it v. State of West Bengal Al R 1963 SC B
765: 1963 Suppl. SCR 953; R.R. Chari v. State of Uttar
Pradesh AIR 1951SC207: 1951SCR312; Darshan Singh
Ram Kishan v. State of Maharashtra AIR 1971SC2372: 1972
(1) SCR 571; CREF Finance Limited v. Shree Shanthi
Homes (P) Ltd. and Anr. 2005 (7) SCC 467: 2005 (2) Suppl. C
SCR 873 - relied on.
1.2. An 'organized crime' should be any 'continuing
unlawful activity' either by an individual singly or jointly,
either as a member of an 'organized crime syndicate' or o
on behalf of such syndicate. The main ingredient of the
said definition is that such 'continuing unlawful activity'
should have been indulged in by use of violence or threat
of violence or intimidation or coercion or other unlawful
means. Further, such violence and other activity should E
have been indulged in with an objective of gaining
pecuniary benefits or gaining undue economic or other·
advantage for himself or for any other person or for
promoting insurgency. The mere indulgence in a violent
actiyity etc. either for pecuniary gain or o~her advantage F
or for promoting insurgency as an individual, either
singly or jointly as a member of 'organized crime
syndicate' or on behalf of a such syndicate would be
sufficient for bringing the said activity within the four
corners of the definition of 'organized crime'. An G
'organized crime syndicate' is a group of two or more
persons who by acting singly or collectively as a
syndicate or gang indulge in activities of 'organized
crime'. By conspectus reading of the above three H
definitions, if in the preceding 10 years from the date of
580 SUPREME COURT REPORTS [2015] 8 S.C.R.
A third continuing unlawful activity if more than one
charge-sheet has been filed before a competent Court
which had taken cognizance of such offence which
would result in imposition of a punishment of three years
or more, undertaken by a person individually or jointly
B either as a member of an 'organized crime syndicate' or
on its behalf, such crime if falls within the definition of
'organized crime', the invocation of MCOCA would be
the resultant position. [Paras 40 to 42] [620-B-H; 621-A-
C BJ
1.3. Under Section 21 (4) notwithstanding anything
contained in the Code, no person· accused of an offence
punishable under MCOCA, when he is in custody, should
be released on bail on his own bond unless under sub-
D clause (b) of sub-section (4) even when the Public
Prosecutor opposes the application for bail, the Court
is satisfied that there are reasonable grounds for
believing that the said accused is not guilty of such
offence and that he is not likely to commit any offence
E while on bail. Under Section 22, there is a rebuttable
presumption of commission of organized crime
punishable under Section 3 unless the contrary is
proved. Under Section 23, a safeguard is provided to the
effect that under Section 23(1)(a) no information about
F the commission of an offence of organized crime under
MCOCA should be recorded by a police officer without
the prior approval of a police officer not below the rank
of Deputy Inspector General of Police. Further, under
Section 23(1)(b), no investigation of an offence under
G M'COCA shall be carried out by a police officer below the
rank of Deputy Superintendent of Police. Under sub-
section (2) of Section 23, no Special Court should take
cognizance of any offence under MCOCA without the
H previous sanction of the police offi-::;;r not below the rank
of Additional Director General of Police. The Act is thus
PRASAD SHRIKANT PUROHITv. STATE OF 581
MAHARASHTRA
very stringent in its operation when it comes to the A
question of dealing with an 'organized crime' committed
by an 'organized crime syndicate' in respect of a
'continuing unlawful activity'. [Paras 44 and 46] [622-D-
H; 623-A-B] .
B
2.1. The cognizance of the offence as stated to have
_been rightly taken into account in respect of Parbhani and
Jalna based on the charge-sheets dated 07.09.2006 and
30.09.2006 respectively was perfectly in order to apply the
definition of 'continuing unlawful activity' for the purpose c
of invoking MCOCA with reference to Malegaon
occurrence. Since Section 2(1 )(d) uses the expression 'an
activity' in the very opening set of expressions, which is
prohibited by law, the date of such activity, namely, the third
one can be taken as the relevant date for the purpose of o
finding out the two earlier charge-sheets in the preceding
10 years, in which event in the present case, the preceding
10 years will have to be counted from 29.09.2008 which
was the date when the third occurrence ofMalegaon bomb
blast took place.With reference to Malegaon bomb blast, E
A-7 is the key person. The contention put forward is that
the supplementary charge-sheet in respect of A-7 in
Parbhani case was filed only on 13.11.2008 and on
15.11.2008 in Jain a case and if those two dates with regard
toA-7 are taken.as the relevant dates, then the requirement F .
of two earlier cases as stipulated under Section 2(1)(d)
preceding 10 years period was not satisfied, inasmuch as,
the date of third occurrence was 29.09.2008 and the date
of charge-sheets as against the A-7 were subsequent to G
· that date and not earlier. [Paras 50 to 53] [625~0-E; 626-C-
D; 627-C-E]
2.2. A minute reference to Section 2(1 )(d) shows that
in the event of the fulfillment of the rest of the
requirements, namely, the nature of offence providing H
for punishment of three years and more, the involvement
582 SUPREME COURT REPORTS [2015) 8 S.C.R.
A of the offender as required under the said definition,
when it comes to the question of filing of the charge-
sheet, the requirement of such filing should be before a
competent court within a period preceding 10 years and
that such court has taken cognizance of such offence.
B Significantly, when it comes to the question of fulfillment
of the requirement of cognizance what is prescribed is
the cognizance of such offence and not the offender. As
far as the court is concerned, here again the specific
reference used is 'competent court' and not 'Sessions
C Court'. Therefore, keeping aside the rest of the
requirements to be fulfilled under Section 2(1 )(d) for the
present, when considering the requirement of filing of
the.charge-sheet before the Competent Court and such
Court taking cognizance of such offence, it can be stated
0
without any scope of controversy that two earlier cases
which would attract a punishment of more than three
years and prohibitetl by law, undertaken singly or jointly
as a member of an organized crime syndicate or on its
E behalf, if more than one charge-sheet is filed in respect
of such offence before the Competent Court and the said
Court had taken cognizance of such offence, the
definition of "continuing unlawful activity" would be
satisfied. Keeping the said prescription of the definition
F of "continuing unlawful activity" under Section 2(1 )(d)
in mind when examining the question as to taking of
cognizance and the Competent Court before whom more
than one charge-sheet to be filed, there is no other
provision under MCOCA which deals with or prescribes
G any stipulation for fulfillment of the said requirement.
[Paras 58 and 59] [630-A-H]
2.3. Under Section 173(2)(i), Cr.P.C., it is stipulated
that as soon as the investigation is completed, the officer
H in-charge of the Police Station should forward to the
f
PRASAD SH RI KANT PUROHIT v. STATE OF 583
MAHARASHTRA
Magistrate who is empowered to take cognizance of the A
offence on a police report in the form prescribed by the
State Government, which should contain among other
things the names of the parties, the nature of information,
the names of the persons who appear to be acquainted
with the circumstances of the case and various other . B
details. When reading Section 173(2)(i) along with Section
190 ofCr.P.C., it can be seen that any Magistrate of the
first class or any Magistrate of the second class specially
empowered as provided under sub-section (2) of the said
Section may take cognizance of any offence upon a C
police report of such facts. Therefore, reading Section
173(2)(i) along with Section 190(1)(b), a duty is cast upon
the officer in-charge of the police station mandatorily to
forward to the Magistrate who is empowered to take
0
cognizance of the offence on a police report. Under
Section 190(1)(b) any Magistrate of the first class and
for that matter any Magistrate of second class who is
empowered by the Chief Judicial Magistrate for taking
cognizance under sub-Section (1) can take cognizance E
of any offence based on filing of a police report furnished
with the facts as stipulated under Section 173(2)(i) (a to
h). A conjoint reading of Section 173(2)(i) and Section
190(1 )(b), therefore, makes the position crystal clear that
taking of cognizance of any offence by a Magistrate of F
the First Class ~r the Second Class subject to
empowerment created under sub-Section (2) of Section
190 can take cognizance upon a police report. Under
Section 190 (1) (b) where the Police Report as stated in
Section 173(2) (i) is filed before a Magistrate under G
Section 190(1) (b), irrespective of the nature of offence,
the said Magistrate has been invested with all the powers
to take cognizance by applying his judicial mind. Once
the Police Report is filed before a judicial Magistrate as
prescribed under Section 190(1)(b), who has been H
584 SUPREME COURT REPORTS [2015] 8 S.C.R.
A invested with the judicial authority to take cognizance
of any offence in the first instance, the requirement of
taking cognizance gets fulfilled at that very moment.
Further the very fact that proceedings pertaining to
Parbhani and Jalna were pending before the Magistrate
B where such proceedings were initiated by the filing of
the police report till the occurrence in Malegaon took
place itself was sufficient to demonstrate that judicial
mind was very much applied to the proceedings based
on the police report consequent upon cognizance taken.
C The requirement of filing of the charge-sheet in two earlier
cases before the competent court in respect of an
offence stipulated under Section 2(1)(d) can be held to
be satisfied once. cognizance is taken by a Judicial
Magistrate of first class or for that matter an empowered
0
second class Magistrate, in the event of filing of a police
report as prescribed under Section 173(2)(i) by virtue of
the power vested under Section 190(1 )(b) of Cr.P.C. If the
ingredients of the above requirements are fulfilled it will
E have to be held, that that part of the requirement under
Section 2(1)(d), namely, the competent court taking
cognizance of the offence as stipulated under Section
2(1 )(d) in respect of two earlier cases will get fulfilled.
[Paras 59 to 61] [631-A-H; 632-A-C]
F
2.4. Section 193 Cr.P.C. states "Cognizance of
offences by Courts of Session". The said Section is
negatively couched and states that except as otherwise
expressly provided by this Code or by any other law for
G the time being in force, no Court of Session shall take
cognizance of any offence as a Court of Original
Jurisdiction unless the case has been committed to it
by a Magistrate under this Code. Under Section 193, the
Court of Session can take hold of the case as a Court of
H Original Jurisdiction only after committal order is passed
PRASAD SH RI KANT PU ROH IT v. STATE OF 585
MAHARASHTRA
to it by a Magistrate under the provisions of Cr.P.C., A
whereas under Section 190(1 )(b), the power of a
Magistrate has been pithily stated to mean that he can
take cognizance of any offence subject to the fulfillment
of the requirements (a), (b) and (c) and no further. On
fulfill~ent of Section 190, when a Judicial Magistrate of B
first class or an empowered second class Magistrate,
takes cognizance of any offence that would fulfill the
requirement of Section 2(1)(d) relating to competent
court. The implication of MCOCA would come into play
only after the third occurrence takes pface a"nd only after C
that it will have to be seen whether on the earlier two
such occasions involvement of someone jointly or
singly, either as a member of an 'organized crime
syndicate' or on its behalf indulged in a crime iri respect
0
of which a charge-sheet has already been filed before
the Competent Court which Court had taken cognizance
of such offence. In the event of a Judicial first class
Magistrate or an empowered second Class Magistrate
having taken cognizance of an offence based on a police E
report as stipulated under Section 173(2)(i), such
cognizance of an offence would fulfill the requirement
of that part of the definition under Section 2(1)(d) of
MCOCA. [Paras 62 to 64}{632-G,H; 633-A-C, E-H; 634-A-
~ F
3. The filing of the supplementary charge-sheet does
not and will not amount to taking cognizance by the
Court afresh against whomsoever again with reference
to the very same offence. Section 173(8) states that by G
virtue of the supplementary charge-sheet further offence
may also be alleged and charge to that effect may be
filed. While cognizance is already taken of the main
offence against the accused already arrayed, the
supplementary charge-sheet may. provide scope for H
taking cognizance of additional charges or against more
586 SUPREME COURT REPORTS (2015] 8 S.C.R.
A accused with reference to the offence already taken
cognizance of and the only scope would be for the added
offender to seek for discharge after l:he filing of the
supplementary charge-sheet against the said offender.
[Para 75] [640-F-H; 641-A-B]
B
4. In Parbhani, the occurrence was on 21.11.2003.
and in Jalna it was on 27 .08.2004. In the Parbhani case,
the first charge-sheet was filed as early as on 07 .09.2006
before the Chief Judicial Magistrate and in Jalna it was
C filed on 30.09.2006 before the concerned Chief Judicial
Magistrate and in both the cases, cognizance was taken
and the proceedings before the respective Magistrates
concerned were continued. Therefore, the definition
under Section 2(1 )(d) relating to "continuing unlawful
D activity" in respect of more than one case of an offence
punishable for more than three years is fully satisfied.
Therefore, the submission that the cognizance was
taken by Sessions Court much later after its committal
E (i.e.) in the case of Parbhani only on 29.04.2009 that is
after the bomb blast in Malegaon and thereby the
definition of 'continuing unlawful activity' in respect of
more than one case under Section 2(1 )(d) is not satisfied
cannot be accepted. [Para 84] [644-E-H; 645-A-C]
F State of Karnataka v. Pastor P. Raju 2006 (6) SCC 728:
2006 (4) Suppl. SCR 269; S.K. Sinha, Chief Enforcement
Officer v. Videocon International Ltd. & Ors. (2008) 2 SCC
492: 2008 (2) SCR 36; Mona Panwar v. High Court of
Judicature at Allahabad Through its Registrar &Ors. (2011)
G 3 SCC 496: 2011 (2) SCR 413; Sarah Mathew v. Institute of
Cardio Vascular Diseases By its Director Dr. K.M. Cherian
& Ors. (2014) 2 SCC 62: 2013 (12) SCR 674- relied on.
5. A-7 has been charge-sheeted in Parbhani, Jalna
H as well as, the Malegaon bomb blast. The materials
PRASAD SHRIKANT PUROHIT v. STATE OF 587
MAHARASHTRA
available on record disclose that he furnished certain A
materials at the asking of the prime accused involved in
Parbhani and Jalna, which also related to bomb blasts
in both the places. Going by the charge-sheet filed
againstA-7 in Malegaon, his direct involvement has been
alleged. A conspectus consideration of th~ above facts B
discloses that insofar as A-7 was concerned, he had a
nexus with the member of an 'organized crime syndicate'
and also had every nexus with the offence in the nature
of an 'organized crime' of the two earlier cases, namely,
Parbhani and Jalna and also direct involvement in the C
present bomb blast at Malegaon. In such circumstances,
there is no difficulty in coming to a definite conclusion
that insofar as, A-7 is concerned, his activity and
involvement in all the three occurrences, namely,
0
Parbhani, Jalna and Malegaon disclose nexus with ~he
crime and also with the other accused involved in· the
crime and thereby the satisfaction of the definition' of
'continuing unlawful activity' of an 'organized crime; on
behalf of an 'organized crime syndicate' is satisfactorily E
shown. In such cir~umstances, by virtue of Section 21
(4) of MCOCA, he is not entitled for the grant of bail and
that he does not fall within the excepted category
stipulated in sub-clause (a) or (b) of the said sub-Section
(4) of Section 21. There is no dispute that in respect of F
other appellants, their involvement is with reference·to
the present occurrence, namely, Malegaon bomb blast.
Admittedly they are not proceeded against for the offence
relating to Parbhani and Jalna. But still at the present
juncture, with the materials available on record as on date, G
the involvement of the appellants either' by way of their
nexus with any accused who is a member of an
'organized crime syndicate' or such nexus with the
offence of an 'organized crime' ·which pertains to
Parbhani and Jalna cannot be ascertained. The H
588 SUPREME COURT REPORTS [2015] 8 S.C.R.
A possibility of the evidence based on the investigation
by the prosecuting agency to come out with reliable
materials in support of such nexus to be shown with an
accused or with the crime in respect of the earlier two
cases, namely, Parbhani and Jalna is also not ruled out.
B Therefore, it cannot be held that MCOCA was not
attracted. But, forthe purpose of the requirement under
Section 21(4)(b) having regard to the absence of any
material as on date to disclose any nexus with the
accused of an 'organized crime syndicate' or with the
C offence in the nature of an 'organized crime', in Parbhani
and Jalna as of now in respect of appellants other than
A-7, their application for bail can be considered by the
Special Court. [Paras 90, 91 and 92] [650-A-H; 651-A-E]
D 6. As per Section 2(1)(e), the use of violence etc.
should have been carried out with the object of either
gaining pecuniary benefits or for gaining undue
economic or other advantage for oneself or for any other
person or for promoting insurgency. The expected
E benefit for indulging in any violent or related activity
could be for any of the above purposes independently
and one such purpose may be for promoting insurgency.
The term 'insurgency' has been understood to mean
F raising an active revolt or rebellion in the common
par.lance. It is not necessary that promoting insurgency
should always be linked to pecuniary advantage ..
Whenever an organized gang indulges in a violent act,
such indulgence in violence or threat of violence or
G intimidation or coercion or other unlawful means can be
for promoting an insurgency. Indulging in any violent
or other related activity by an organized gang and
thereby an effort to promote insurgency i.e. to damage
the peace and tranquility in the State is made, that by
H itself would fall within the four corners of the definition
PRASAD SH RI KANT PUROHIT v. STATE OF 589
MAHARASHTRA
of "organized crime" under Section 2(1)(e). [Paras 94, A
· 97 and 98) [652-C-E; 656-G-H; 657-C]
La/it Somdatta Nagpa/ & Anr. (2007) 4 SCC 171 : 2007
(2) SCR 473; State of Mafwrashtra v. Bharat Shanti Lal Shah
and Ors. 2008 (13) SCC 5 : 2008 (12) SCR 1083; Ranjitsing B
Brahamjeetsing Sharma v. State of Maharashtra & Anr.
(2005) 5 SCC 294: 2005 (3) SCR 345; Zameer Ahmed
Latifur Rehman Sheikh v. State of Maharashtra & Ors. 2010
(5) SCC 246: 2010 (4) SCR 1042; State of u.p· Through
CBI v. Amarrnani Tripathi 2005 (8) SCC 21: 2005 (3) Suppl. C
SCR 454 - relied on.
Dilawar Singh v. Parvinder Singh @ Iqbal Singh & Anr.
2005 (12) sec 709: 2005 (5) Suppl. SCR 83; Fakhruddin
Ahmad v. State of Uttaranchal and Anr. (2008) 17 SCC 157: D
2008 (13) SCR 66; Central Bank of India v. State of Kera/a
and O~, (2009) 4 SCC 94: 2009 (3) SCR 735; Mahipal
Singh v. Central Bureau of/nvestigation &Anr. 2014 (11) SCC
282: 2014 (4) SCR 529; State ofMaharashtra & Ors. v.
Tolaram Re/umal &Anr. v. The State of Bombay AIR 1954 E
SC 496: 1955 SCR 439; Raghubans Dubey v. State of Bihar
AIR 1967 SC 1167: 1967 SCR 423; State of West Bengalv.
Salap Service station & Ors. 1994 (3) Suppl. SCC 318; State
of Maharashtra v. Jagan Gagansingh Nepali@ Jagya 2011
(5) Mh.L.J. 386; Gopal Marwari &Ors. v. Emperor AIR 1943 F
Patna 245; State of West Bengal &Anr. v. Mohd. Khalid & ·
Ors. (1995) 1 SCC 684: 1994 (6) Suppl. SCR 16; - referred
to.
Case Law Reference G
1963 Suppl. SCR 953 relied on Para 16
2005 (5) Suppl. SCR 83 referred to. Para 16
2008 (13) SCR 66 referred to. Para 17 H
590 SUPREME COURT REPORTS (2015] 8 S.C.R.
A 2009 (3) SCR 735 relied on. Para 20
2005 (3) SCR 345 referred to. Para 20
2014 (4) SCR 529 referred to. Para 23
B 2007 (2) SCR 473 relied on. Para 23
2008 (12) SCR 1083 relied on. Para 23
1955SCR 439 referred to. Para 23
c 1951 SCR 312 relied on . Para 25
.1967 SCR 423 referred to. Para 25
1972 (1) SCR 571 relied on. Para 25
D
1994 (3) Suppl. sec 318 referred to. . Para 25
2005 (2 ) Suppl. SCR 873 relied on. Para 25
2006 (4) Suppl. SCR 269 relied on. Para 25
E
2008 (2) SCR 36
._
relied on . Para 25 ·
2013 (12) SCR 674 relied on. Para 25
2010 (4) SCR 1042 relied on. Para 26
F
2011 (5) Mh.L.J. 386 referred to. Para 26
AIR 1943 Patna 245 referred to. Para 27
1994 (6) Suppl. SCR 16 referred to. Para 27
G
2011 (2) SCR 413 relied on. Para 27
2005 (3) Suppl. SCR 454 relied on. Para 100
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
H Nos.1969-1970of2010.
PRASAD SH RI KANT PUROHIT v. STATE OF 591
MAHARASHTRA
From the Judgment and Order dated 09.11.2011 of the A
High Court of Judicature at Bombay in Criminal Bail Application
No. 333 of 2011 with Criminal Application No. 464 of 2011.
WITH
B
Crl. A. Nos. 1971 and 1994-98 of 201 O
Crl. A. No. 58 of 2011
Crl. A. Nos. 636 and 639-40 of 2015
c
SIP (Crl.) Nos. 9303 and 9369 of 2011
Basava Prabhu Patil, Neela Gokhale, Shivaji M. Jadhav,
Vikas Mehta, Varun Singh, A. Menon, Amol Chitale, Pragya
Baghel, Nirnimesh Dube, R. C. Kohli, Anand, P. Khanna, J.P. D
. Sharma, Rajshree N. Reddy, Harendra Singh Rana, Ajay
Singh, Dr. Sushil Balwada, Triloki Nath _Razdan for the
Appellant.
Anil Singh, Tushar Mehta, ASGs, Aniruddha P. Mayee;
Ranjana Narayan, Sushma Suri, B. Krishna Prasad, Asha E
Gopalan Nair, Manoj Prasad for the Respondents.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave F
granted in SLP (Crl.) No.8132 of 2010 and SLP (Crl.)
Nos.93.70-71 of2011.
2. As in all the above appeals the issue that arises for
consideration is the applicability 9f the Maharashtra Control G
of Organized Crime Act, 1999 (hereinafter called "MCOCA"),
all these appeals are disposed of by this common judgment.
3. Criminal Appeal Nos.1969-70/2010 have be~n
H
592 SUPREME COURT REPORTS [2015] 8 S.C.R.
A preferred by Lt. Col. Prasad Shrikant Purohit challenging the
judgment in Criminal Appeal No.8&7 of 2009 which was
disposed of by the common order passed by the Division
Bench of the Bombay High Court in Criminal Appeal Nos.866,
867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the
B said order the Division Bench reversed the order of the Special
Judge dated 31.7.2009 passed in Special Case No.1 of 2009
wherein he held that the charges against the accused in
C.R.No.18 of 2008 registered with Anti-Terrorist Squad,
Mumbai (hereinafter referred to as "ATS") under the MCOCA
C do not survive and were discharged from the case. The Special
Court by invoking Section 11 of the MCOCA directed the case
to be tried by the regular Court. The Division Bench while
allowing the Criminal Appeal Nos.866 to 869 of 2009 set aside
the order of the Special Judge 31.07.2009 in Special Case
0
No.1 of 2009 as well as orders passed in Bail Application
Nos.40 to 42 of 2008, restored those applications to the file in
MCOCA Special Case No. 01 of 2009 for being decided on
merits by Special Judge himself. In Criminal Appeal No.1024
E of 2009 while allowing the said appeal, Bail Application No.41
of 2008 was directed to be restored in MCOCA Special Case
No. 01 of 2009 for being heard and decided on merits.
4. The appellant-Lt. Col. Prasad Shrikant Purohit is the
F first respondent in Criminal Appeal No.867 of 2009.
5. The appeals arising out of SLP (Crl.) No.9370-71/2011
have also been preferred by the very same appellant, namely,
I""
Lt. Col. Prasad Shrikant Purohit challenging the common order
passed in Criminal Bail Application No.333 of 2011 with
G Criminal Application No.464 of 2011 along with Criminal
Application No.556 of 2011 dated 9'h November 2011 by the
learned Single Judge of the Bombay High Court. By the said
order the learned Judge allowed the Criminal Application
H No.556 of 2011 filed by Ajay Ekanath Rahirkar by granting him
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 593
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
bail by imposing certain conditions. In the case of appellant A
herein, the challenge made in Criminal Application No.464 of
2011 was the order of the Special Judge after the order of
remand passed by the Division Bench dated 19.07.2010. The
Special Judge by the order dated 30.12.2010 rejected the
appellant's application for bail. The learned Single Judge after B
detailed discussion, dismissed the Criminal Bail Application
. No.333 of2011 as well as CriminalApplication.No.464 of2011
by the order impugned in these appeals. ·
6. The appeal arising out of SLP(Crl.) No.8132/2010 has C
been filed by one Pragyasinh Chandrapalsinh Thakur
challenging the common order dated 19.07.2010 passed by
the Division Bench of the Bombay High Court in Criminal
Appeal No.866 of 2009 which is identical to the case of the
appellant in Criminal Appeal Nos.1969-70 of 2010. D
7. Criminal Appeal No.1971 of 2010 is preferred by one
Rakesh Dattaray Dhawade challenging the order dated
19.07.2010 passed by the Division Bench of the Bombay High
Court in Criminal Appeal No.868 of 2009. E
8. The appeal arising out ofSLP (Crl.) No.9303/2011 is
preferred by one Sudhakar Dhar Dwivedi and Ramesh Shivji
Upadh.yay challenging the order dated 20.10.2011 of the
learned Single Judge of the Bombay High Court. By the said F
judgment, the learned Single Judge declined to interfere with
the order of Special Judge in Misc. Application No.98/2011
permitting police custody to the first respondent, namely,
National Investigation Agency (NIA) for 8 days from 22.07.2011
up to 30.07.2011. In fact, the said case was originally G
investigated by ATS and final report was submitted on
30.01.2009 and supplementary charge-sheet vide MCOCA
No.8/2011 was filed on 21.4.2011. Thereafter by order dated
1.4.2011 of the Ministry of Home Affairs, Government of India,
investigation was transferred to NIA and an FIR was registered H
'•
594 SUPREME COURT REPORTS [2015] 8 S.C.R.
A as Crime No.5/2011 by police station NIA on 13.4.2011.
Thereafter NIA sought for police custody which was grant~d
by order passed in Misc. Application No.98/2011 dated
19.07.2011. The said SLP is not argued before us and,
therefore, the same is delinked from this batch of cases and
B the same shall be heard separately.
9. We heard arguments of Mr. U.R. Lalit, learned senior
counsel who appeared before us for the appellants in Criminal
Appeal Nos.1969-70/2010 as well as Criminal Appeal
C Nos.1994-98/2010, Mr. Triloki Nath Razdan, learned counsel
for the appellant in appeal arising out of SLP (Crl.) No.9303/
2011, Mr. Basava"Prabhu S. Patil, learned senior counsel in
the appeal arising out of SLP (Crl.) No.8132/2010 and Mr.
Vikas Mehta, learned counsel in Criminal Appeal No.1971 of
D 2010.
10. Mr. U.R. Lalit, learned senior .counsel in his
submissions referred to the brief facts which led to the initiation
of the proceedings against the appellants under the provisions
E of MCOCA. As the narration goes, there was a bomb blast at
the place called Malegaon in Mumbai on 29.9.2008. With
reference to the said occurrence: FIR No.130/2008 was
registered in the Azad Nagar police station in Malegaon on
30.9.2008. On 26.10.2008, the said FIR was transferred and
F registered as C.R. No. 18/2008 and the investigation was taken
over by ATS. Thereafter the appellant in Criminal Appeal No.
1971/2010, namely, one Rakesh Dattaray Dhawade was
arrested by ATS on 02.11.2008. Subsequentto his arrest, the
appellant in Crl. Appeal Nos. 1969-1970/2010 was arrested
G on 05.11.2008. On 20.11.2008, approval was given as per
Section 23(1) (a) of MCOCA by DIG, ATS for recording of
information about the commission of an offence and for
applying the provisions of Section 3(1)(i),3(2) and 3(4) of
H MCOCA against all the accused in C.R. No. 18/2008.
PRASAD SH RI KANT PUROHIT v. STATE OF MAHARASHTRA 595
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
11. Be that as it may, earlier on 21.11.2003, there was a A
bomb explosion at Mohmedia Masjid, Nanalpeth, Parbhani
which was registered as C.R. No.161 of 2003/Parbhani. There
was another bomb explosion at Kaderia Masjid, Jalna during
Friday Namaz which was registered as C.R.No. 194 of 2004/
Jalna. B
12. In the case pertaining to Parbhani, the charge-sheet
was filed on 07 .09 .2006 against A 1-Sanjay Choudhary for the
offences punishable under Sections 302, 307, 324, 337, 338,
285, 286 and 295 read with 34, IPC and Sections 3, 4, 6 of C
the Explosives Act and Section 25( 1) and (3) of the Arms Act.
The case was registered as RCC No.467/2006. A
supplementary chargesheet-1 was filed in Parbhani case
against four accused forthe above referred to offences as
well as Sections 120-B & 153-A rear! with 34 of IPC on D
29.9.2006 .
. 13. In Jalna case, charge-sheet was filed againstA-1 for
the offences punishable under Sections 307, 436, 324, 323,
120-B, 153-A read with 34 of IPC and Sections 3,. 4, 6 of E
Explosives Act on 30.9.2006. In Jalna case, two supplementary
charge-sheets were filed on 7 .1.2008 against four additional
accused and against five accused on 14.1.2008 .. On
13.11.2008, supplementary charge-sheet-2 was filed against
the appellant in Crl. Appeal No.1971 of 2010-Rakesh Dattaray F
Dhawade. in Parbhani Case and a supplementary chargec
sheet-3 was filed against him in Jalna Case on•15.11.2008.
Thereafter, on 20.11.2008, charge-sheet in Malegaon Blast
Case was filed by ATS against the appellants herein under
the MCOCA. On 15.01.2009, sanction under Section 23(2) of G
MCOCA was also granted.
14. In the above stated background, Mr. U.R. Lalit, learned
senior counsel made as many as five submissions to contend
H
596 SUPREME COURT REPORTS [2015] 8 S.C.R.
A that MCOCA was not attracted as against the appellants and,
therefore, the orders impugned are liable to be set aside.
15. Mr. U.R. Lalit, learned senior counsel prefaced his
submissions by stating that appellants were all proceeded
B against based on the footing that they were members of an
organization called "Abhinav Bharat" which was registered in
2007 and that they were now being prosecuted under the
provisions of MCOCA. The learned senior counsel submitted
that in order to prosecute the appellants under the MCOCA,
C the definition of"continuing unlawful activity", "organized crime"
and :'organized crime syndicate" as defined under Section
2(1 )(d) ,(e) and (f) of MCOCA should be satisfied. The learned
senior counsel while referring to the above definitions submitted
that the prosecuting agency were relying upon the Parbhani
D case and Jalna case which occurred in 2003 and 2004 and
which were organized by RSS and Bajrang Dal with which
neither Abhinav Bharat nor the appellants were in anyway
connected and, therefore, the definition of"continuing unlawful
activity" or "organized crime" as well as "organized crime
E syndicate" was not fully established.
16. The next submission of Mr. U.R. Lalit, learned senior
counsel was that in order to attract Section 2(1 )(d) for an
offence to be a 'continuing unlawful activity' within a p~riod of
F · preceding ten years from the date of the third occurrence, two
prior cases falling under the said Section should have been
filed and taken cognizance of and that the date with reference
to which the preceding ten years is to be counted is the date
of third occurrence. The learned senior counsel, therefore,
G submitted that the Malegaon bomb blast occurred on
29.09.2008, the arrest of Rakesh Dattaray Dhawade was on
02.11.2008, supplementary charge-sheet against him was filed
in Parbhani case on 13.11.2008 and in Jalna case on
H 15.11.2008 and in Parbhani, the :dse was committed to
PRASAD SHRIKANT PUROHITv. STATE OF MAHARASHTRA 597
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Sessions Court only on 29.4.2009 i.e. not within the preceding A
10 years of the occurrence in Malegaon and, therefore, the
definition of Section 2(1) (d) was not satisfied. Even with
reference to Jalna, the learned senior counsel submitted that
the Express Order of cognizance was taken only on 28.11.2008
i.e. after tl:te occurrence in Malegaon, namely, 29.09.2008. B
Therefore, the requirement of preceding ten years in order to
bring the earlier two occurrences in Parbhani and Jalna within
the definition of 2(1 )(d) as continuing unlawful activities was
·not made ·out. The learned senior counsel in this context
submitted that the conclusion of the Division Bench that C
cognizance is always with reference to the offence and not the
offender, is not the correct legal position. The learned senior
counsel after referring to Sections 173(2)(i)(a), 190(1)(b) and
178 of the Code of Criminal Procedure (Cr.P.C.) submitted
0
that a close reading of the above Sections shows that the
cognizance will be with reference to the offender and not the
offence. The learned senior counsel, therefore, submitted that
in the case of Jalna the Express Order.of cognizance was
taken on 28. 11 .2008 after the supplementary charge-sheet E
dated 15.11.2008 against Rakesh Dattaray Dhawade, which
was long after the date of occurrence of Malegaon, namely,
29.09.2008, and, therefore, the requirement of two earlier
cases as stipulated under Section 2(1 )(d) was not satisfied.
The learned senior counsel relied upon the decisions in Ajit F
Kumar Palit v. State of West Bengal - AIR 1963 SC 765
and Dilawar Singh v. Parvinder Singh @ Iqbal Singh &
'
Anr. - 2005 (12) SCC 709 in support of his submissions.
17. Mr. U.R. Lalit, learned senior counsel then contended ..G
that the event of 9ognizance being taken as defined under
Section 2( 1) (d) can only be with reference to 'competent court'
and in the case of Parbhani and Jalna as the offences were
under Sections 302, 307/308 etc., Sessions Court was the
competent court and not the Chief Judicial Magistrate. The H
598 SUPREME COURT REPORTS [2015] 8 S.C.R.
A learned senior counsel pointed out that in the case of Parbhani,
the committal order was passed only on 29.04.2009 i.e. long
after the Mategaon case occurrence, namely, 29.09.2008.
Therefore, the requirement of two earlier cases which were
taken cognizance of by the competent court cannot be held to
B have been satisfied. In support of the said submission, learned
senior counsel relied upon Fakhruddin Ahmad v. State of
Uttaranchal and Anr. -(2008) 17 SCC 157.
18. The !earned senior counse.1 then contended that in
C order to attract the provisions of MCOCA, in all the three cases,
the same gang must have been involved. Elaborating his
submission, the learned senior counsel contended that Rakesh
Dattaray Dhawade who has been added asA-7 in Malegaon
case was arrested on 02.11.2008 and his arrest was shown
D in Parbhani and in Jalna on 13.11.2008 and 15.11.2008 as
. directed by the Additional Police Commissioner of ATS and
even going by the statement of A-7, he procured some
materials and gave them to one principal accused in Parbhani
and Jalna, namely, bevle and going by the said statement,
E there is no scope to link the appellant with the cases which
related to Parbhani and Jalna and, therefore, the requirement
of involvement of the same gang in all the three cases was not
satisfied. The learned senior counsel submitted that in any
F event, the appellants were not concerned with Parbhani and
Jalna, that they were not even aware of A-Ts involvement in
those two occurrences, as they were not members of those
gangs which were involved in Parbhani and Jalna and,
therefore, the invocation of MCOCA was not made out. The
G learned senior counsel further contended that it was all the
ff
more reason to hold that cognizance should be with reference
to the offender and not the offence which has to be mandatorily
satisfied.
19. The learned senior counsel lastly submitted that going
H by the definition of 'organized crime' under Section 2(1) (e),
.<: PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 599
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
there must have been a pecuniary gain accompanied by the A
act of violence, that the appellant had not taken any money
from anybody and when such pecuniary advantage should have
been present in all the three cases, it cannot be held that the
case against the appellant would come under the definition of .
'organized crime'. According to learned senior counsel, in the B
case of Parbhani and Jalna, only violence was the basis and
promoting insurgency was not even the case of prosecution
which may have a semblance of application in Malegaon case
and certainly not in Parbhani and Jalna. The learned senior
counsel, therefore, contended that the application of MCOCA C
as against the appellants was wholly inappropriate and
consequently, the order of the Division Bench and the
subsequent order of the Special Court in declining to grant
bail was liable to be set aside. The learned senior counsel
D
submitted that the appellants made out a case to show that
there were reasonable grounds for believing that he was not
guilty of such offence under MCOCA and as provided under
Section 21 (4)(b) of MCOCA and should have been granted
bail. The learned senior counsel further submitted that the E
appellant in Criminal Appeal Nos.1969-70 of 2010 as well as
in SLP (Crl.) Nos.9370-71 of 2011 has been in jail for more
than six years and he is entitled for grant of bail."-
20. Mr. Triloki Nath Razdan, learned counsel appearing F
for the appellants in the appeal arising out of SLP (Crl.)
No.9303/2011 while adopting the arguments of Mr. U.R. Lalit,
learned senior counsel for the appellant in Crl.ANo.1969-70/
2010 contended that the Objects and Reasons of MCOCA
shows that the very purport of the enactment was to curb the G
accumulation of illegal wealth, that in order to attract the
provisions of MCOCA, involvement in organized crime by an
organized crime syndicate in all the three cases must be
satisfied. By referring to the sanction order dated 15.01.2009,
learned counsel submitted that when the arrest of Rakesh H
600 >,
SUPREME COURT REPORTS [2015] 8 S.C.R.
A Dattaray Dhawade was in the month of November, 2008, the
requirement of Section 2( 1) (d) relating to two previous cases
of continuing unlawful activity was not satisfied. In other words,
according to learned counsel, as the requirement of continuing
unlawful activity in respect of an organized crime by the
B organized crime syndicate was not shown, MCOCA was not
attracted. The learned counsel relied upon in Central Bank
of India v. State of Kerala and others - (2009) 4 SCC 94
and Ranjitsing Brahamjeetsing Sharma v. State of
Maharashtra &Anr. - (2005) 5 SCC 294.
c
21. Mr. Patil, learned senior counsel appearing for the
appellant in SLP (Crl.) No.8132/2010 referred to the impugned
judgment of the Division Bench, in particular, paragraph 18
and submitted that the question which was posed for
D consideration by the Division Bench was limited to the extent
of examining the issue of taking cognizance of the offences by
the Chief.Judicial Magistrate at Parbhani and its counterpart
at Jalna. Sofaras the appellant in the present appeal was
concerned, learned senior counsel submitted that she became
E a Sanyasin after performing appropriate Hindu religious rites
and prayers on 30.01.2007, that she was residing in an ashram
at Jabalpur, Madhya Pradesh and that she owned a two
wheeler LML-Freedom which she sold out to one Sun ii Joshi
of Madhya Pradesh way back in October, 2004 for a sale
F
consideration of Rs.24,000/- and she also signed the
necessary transfer application Fornis in October, 2004 itself
and that thereafter she had no control over the said vehicle.
The learned senior counsel submitted that inspite of her
I
disclosing the above facts, the officials of ATS applied third
G
degree methods upon her and insisted that the said vehicle
was involved in Malegaon blast occurrence and, therefore, she
was also involved in the said occurrence. The learned senior
counsel submitted that she was implicated in the Malegaon
H case while she is innocent simply because the vehicle bearing
PRASAD SHRIKANT PUROHITv. STATE OF MAHARASHTRA 601
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
registration No. MH-15-P-4572, which she owned, was stated A
to have been involved in the Malegaon blast.
22. The learned senior counsel then submitted that if the
Objects and Reasons is read for interpreting Section 3, a strict
application of the Act should be maqe, in which event, in order B
to invoke the provisions of MCOCA Section 2(1)(d), (e) and (f)
should be satisfied. It was contended that for implicating a
person· it is to be mandatorily shown that he was involved in a
'continuing unlawful activity' as a member of crime syndicate
or on behalf of it on two earlier occasions, that the appellant c
was not involved in either the Parbhani case or in Jalna case
• and, therefore, the invocation of MCOCA against the appellant
was not maintainable. The learned senior counsel also
submitted that having regard to the relevant dates with
reference to the committal order in Jalna case, namely, D
11.8.2008, the subsequent charge-sheet against A-7 on
15.11.2008 on which date the case was registered afresh as
RCC No.648/2008 and on 28.11.2008 when committal order
was passed, the sanction order in Malegaon case being
20.11.2008, there was no scope to hold that there were two E
earlier cases falling within the definition of continuing unlawful
activity as defined under Section 2( 1)(d) of the Act. The learned
senior counsel, therefore, contended that the order of the trial
Court dated 31.07.2009 discharging all the accused was
F
justified and the Division Bench ought not to have interfered
with the said order.
23. The learned senior counsel also submitted that the
Division Bench having noted that the offence under Section
153A, IPC was not laid after getting prior sanction as required G
under Section 196 Cr.P.C. even as against A-7 Rakesh
Datta ray Dhawade, there was no valid cognizance taken by
the trial Court in respect of the earlier cases of Parbhani and
Jalna. The learned Senior Counsel, therefore, contended that
H
in the absence of the 'continuing unlawful activity' as defined
602 SUPREME COURT REPORTS [2015] 8 S.C.R.
A under Section 2(1)(d) of an 'organized crime' by 'organized
crime syndicate' shown, application of MCOCA was not
justified.As far as the preceding 10 years as prescribed under
Section 2(1 )(d) is concerned, learned senior counsel
submitted that Section 2(1 )(d) specifically refers to 'activity'
B for calculating the preceding 10 years and, therefore,
29.09.2008 would be the relevant date and calculated on that
basis the claim of the prosecution that there were two earlier
cases as stipulated under Section 2 (1 )(d) was not satisfied.
In support of this submission, learned senior counsel relied
C upon the decisions of this Court reported as Mahi pal Singh
v. Central Bureau of Investigation & Anr. - 2014 (11) SCC •
282, State of Maharashtra & Ors. v. La lit Somdatta Nagpal
&Anr. -(2007) 4 SCC 171, State of Maharashtra v. Bharat
D Shanti Lal Shah and Ors. - 2008 (13) SCC 5 and Tolaram
Relumal & Anr. v. The State of Bombay - AIR 1954 SC
496.
24. Mr. Vikas Mehta, learned counsel appearing for the
appellant in Criminal Appeal No.1971/2010, namely, Rakesh
E Datta ray Dhawade after making reference to the judgment in
Mahi pal Singh (supra) contended that prior to the registration
of FIR No.130 of 2008 on 30.09.2008 in the Malegaon blast
case, the appellant was not involved in any 'continuing unlawful
F activity'. According to him, if a strict interpretation is to be
placed on the definition of 'c<intinuing unlawful activity' as stated
in the said decision of this Court, the appellant having been
not involved in the commission of any offence prior to
registration of FIR No.130/2008 either singly or jointly as a
G member of an 'organized crime syndicate, invocation of
MCOCA was not justified. The learned counsel then contended
that in order to invoke MCOCA all the three definitions of
Section 2 (1) (d), (e) and (f) should be satisfied in which event
it should be by the same gang in all the three cases. The
H learned counsel then contended that since strict interpretation
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 603
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
is to be made as directed by this Court while upholding the A
validity of the Act, it should be construed only in that manner.
The learned counsel by relying upon the decisions in
Ranjitsing Brahamjeetsing Sharma (supra), Lalit
Somdatta Nagpal (supra) and Mahipal Singh (supra),
contended that the requirement of satisfaction of 'continuing B
unlawful activity' of an 'organized crime' by an 'organized crime
syndicate' insofar as it related to the appellant was not made
out and the application of the MCOCA was not justified. Mr.
S.S. Shamshery, learned counsel appearing for the appellant
in Criminal Appeal No.58/2011 submitted that he is adopJing C
the arguments of Mr. U.R. Lalit, learned senior counsel for
appellant in Criminal Appeal No.1969-70 of 2010 and the
judgment of the Division Bench is liable to be set aside.
25. As against the above submissions made on behalf of D
the appellants, Mr. Anil Singh, learned ASG for the respondent
State submitted that the Division Bench after formulating the
question in paragraph 18 ascertained the relevant dates when
cognizance was taken in Parbhani case and in Jalna case by E
the Committal Court and in both the cases cognizance was
taken as early as on 07.09.2006 in Parbhani and on 30.9.2006
in Jalna which were borne out by records and, therefore, the
Division Bench was justified in setting aside the order of the
Special Court. In support of his submission that taking a fresh F
cognizance is not a requirement of law in a case where
cognizance is already taken in respect of the same offence,
reliance was placed upon R.R. Chari v. State of Uttar
Pradesh -AIR 1951 SC 207, Raghubans Dubey v. State
ofBihar-AIR 1967SC1167, Darshan Singh Ram Kishan G
v. State of Maharashtra -AIR 1971 SC 2372, State of West
Bengal v. Salap Service Station & Ors. -1994 (3) Suppl.
SCC 318, CREF Finance Limited v. Shree Shanthi Homes
(P) Ltd. and another - 2005 (7) SCC 467,_ State of
Karnataka v. Pastor P. Raju - 2006 (6) SCC 728, S.K. H
604 SUPREME COURT REPORTS [2015] 8 S.C.R.
A Sinha, Chief Enforcement Officer v. Videocon
International Ltd. & Ors. - (2008) 2 SCC 492, Fakhruddin
Ahmad (supra) and Sarah Mathew v. Institute of Cardio
Vascular Diseases By its Director Dr. K.M. Cherian &
ors.- (2014) 2 sec 62.
B
26. According to learned ASG, in respect of an offence
under MCOCA, for invoking its provisions, cognizance of the
offence taken as provided under Section 190 Cr.P.C. was
• sufficient. The learned ASG then submitted that in order to
C ascertain a 'continuing unlawful activity' as defined under
Section 2 (1) (d) of the MCOCAwhatis required is commission
of such an offence as a member of either 'organized crime
syndicate' or on behalf of 'organized crime syndicate' would
mean any 'organized crime syndicate' and not the same
D 'organized crime syndicate'. As far as the contention relating
to two earlier cases in the preceding 10 years, the learned
ASG submitted that in the Malegaon case, the occurrence was
on 29.09.2008 and in the preceding 10 years i.e. on
07.09.2006 cognizance was taken in the Parbhani case and
E in Jalna case cognizance was taken on 30.09.2006 and,
therefore, the same was sufficient to hold that the appellants
were involved in a 'continuing unlawful activity' and thereby
satisfied the requirement of 2 (1) (d) (e) and (f) of MCOCA.
F The learned ASG sought to distinguish the case in Mahipal
Singh (supra). The learned ASG by relying upon Zameer
Ahmed Latifur Rehman Sheikh v. State of Maharashtra
& Ors. - 2010 (5) SCC 246 submitted that insurgency is a
grave disturbance of public order and, therefore, the question
G of pecuniary advantage was not needed where promotion of
insurgency formed the basis for prosecuting the appellants
under MCOCA. On 'other advantage', learned ASG relied upon
State of Maharashtra v. Jagan Gagansingh Nepali @
Jagya -2011 (5) Mh.L.J. 386.
H
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 605
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
27. Mr. Mariaarputham, learned senior counsel appearing A
for the State of Maharashtra and NIA after referring to the
accusations against the accused submitted ttiat going by the
allegations and the gravity of the offence, they are not entitled
for bail. The learned senior counsel also submitted that apart
from offences under the MCOCA, the appellants are also B
proceeded under the Unlawful Activities (Prevention) Act, 1967,
in particular, offences under Sections 13, 15, 16, 17, 18, 188,
20, 23 etc. and the maximum penalty for offences under
Sections 15 to 23 is the death penalty and that under Section
430(5) for grant of bail, severe restrictions have been imposed C
and, therefore, both because the question raised about the
implications of MCOCA, as well as, having regard to the
offences for which the appellants are proceeded against, they
are not entitled for grant of bail. The learned senior counsel
0
then contended that in order to constitute an offence as an
'organized crime' under Section 2 (1 )(e) of MCOCA, it is not
necessary that for the commission of such aggressive
offences, there should be allegation of pecuniary advantage
also. According to learned senior counsel, insofar as, E
promotion of insurgency is concerned, even without any
allegation of pecuniary gain, the said act by itself would
constitute an 'organized crime'. The learned senior counsel,
therefore, contended that even in the absence of any allegation
of pecuniary gain, the offence alleged would fall under the F
category of 'organized crime'. The learned senior counsel
further contended that in any event there were materials to
show that the appellant,in Criminal Appeal 1969-70/2010 as
well as the appellant in Criminal Appeal No.1971/2010 had
pecuniary advantage. The learned senior counsel then G
contended that cognizance of the offence was taken by the
Magistrate based on the charge-sheet and when once there
was application of judicial mind with a view to proceed with
the matter, the requirement of cognizance was fulfilled. Insofar
as the offences pertaining to Parbhani and Jalna were H
606 SUPREME COURT REPORTS (2015] 8 S.C.R.
A concerned, the learned senior counsel contended that they
were all IPC offences and, therefore, taking cognizance of
those offences need not be tested on the anvil of the provisions
of MCOCA. The learned senior counsel placed reliance upon
the decisions in Go pal Marwari & Ors. v. Emperor -AIR 1943
B Patna 245 which was affirmed by this Court in R.R. Chari
(supra). He also placed reliance upon Darshan Singh Ram
Kishan (supra), State of West Bengal & Anr. v. Mohd.
Khalid & Ors.- (1995) 1 SCC 684, CREF Finance Limited
(supra), Pastor P. Raju (supra), Mona Panwar v. High
C Court of Judicature at Allahabad Through its Registrar
& Ors. - (2011) 3 SCC 496 and Sarah Mathew (supra).
28. On the submissi-on relating to competent Court,
learned senior counsel submitted that in Parbhani and Jalna
D reference needs to be made only to Sections 190, 200, 201,
202 read with Section 4 Cr.P.C. and when. on a complaint filed
by the prosecution, the CJM having taken cognizance, the
same was sufficient for the fulfillment of requirement of the
'continuing unlawful activity' as defined under Section 2 (1) (d)
E of the MCOCA. According to learned senior counsel, for the
purpose of taking cognizance under the above provisions, the
presence of the accused was not necessary. As far as the
relevant date is concerned, according to learned senior
F counsel, even if the date of occurrence of Malegaon blast,
namely, 29.9.2008 is taken as the relevant date, the committal
Court having taken cognizance by receipt of the charge-sheet
dated 07.09.2006 in respect of Parbhani and on 30.09.2006
in the case of Jalna and the committal order was on 12.02.2007
G in Jalna, the cognizance was well before 29.09.2008 and,
therefore, there was nothing lacking for the purpose of invoking
the provisions of MCOCA. The learned senior counsel further
contended that as long as all the three incidents were
committed by a group of persons and one common individual
H was involved in all the three incidents, that would attr~t
PRASAD SH RI KANT PUROHIT v. STATE OF MAHARASHTRA 607
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
invocation of MCOCA. A
29. Mr. Tushar Mehta, learned ASG also appearing for
NIA submitted that in the event of granting bail, having regard
to the nature of offence alleged to have been indulged in by
the appellants, severe conditions should be imposed and that B
the agency is entitled for custodial interrogation and also the
presence of the accused at the time of trial should be ensured!•
........
30. Byway of reply Mr. U.R. Lalit, learned senior counsel c
submitted that the prosecution has not shown involvement of
'Abhinav Bharat' in the Parbhani case or Jalna case in which
event if 'Abhinav Bharat' is to be excluded, the linking of the
appellants by making reference to Abhinav Bharat will also
entitle them to contend that MCOCA cannot be invoked. The o
learned senior counsel submitted that since MCOCA has been
invoked for the purpose of ascertaining the cognizance of the
offence, reference to Section 2(1)(d) would alone be made
and not under Section 190 Cr.P. C. The learned senior counsel
further contended that cognizance by the competent Court in E
the facts and the nature of offence alleged in Parbhani and
Jalna would only mean the Sessions Court under Section 209
Cr.P.C. and, therefore, there is a serious doubt as to the
application of MCOCA. The learned senior counsel, therefore,
contended that such doubt should be held in favour of the F
appellants under Section 21(4)(b) of MCOCA and the
appellants should be granted bail._
31. Mr. Patil, learned senior counsel for the appellant in
appeal arising out of SLP(Crl.) No.8132/2010 submitted that G
when the case of the said appellant is considered with reference
to additional charge-sheet, appellant being a lady suffering
from cancer and her implication was because of sale of her
two wheeler four years before the occurrence, applying the
decision in Sa lap Service Station (supra), she is entitled for H
608 SUPREME COURT REPORTS [2015] 8 S.C.R.
A the grant of bail.
32. Having noted the submissions of respective counsel,
at the outset, we want to note the specific challenges made in
these appeals. As far as the appellant in Criminal Appeal
B No.1969-70 of 2010 is concerned, he along with the other
appellants is aggrieved by the common judgment of the
Division Bench of the Bombay High Court in Crl.A. Nos.866,
867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the
said judgment, the Division Bench set aside the order of the
C Special Judge dated 31.07.2009 in Special Case No.1/2009.
While setting aside the said order of the Special Judge, the
Division Bench directed the Special Judge to consider the bail
applications in Bail Application Nos.40-42 of2008 and pass
orders on merits. In fact, the Special Judge in his order dated
D 31. 07 .2009 took the view that MCOCA was not applicable to
Special Case No.1/2009 and consequently by invoking
Section 11 of MCOCA, directed the case to be tried by the
regular Court. Therefore, when we examine the correctness
of the judgment of the Division Bench dated 19.07.2010 in
E Crl. A Nos.866/2009 and connected appeals, if the said
judgment is to be upheld, the consequence would be to the
consideration of the bail applications under Section 21 of the
MCOCA.
F 33. It is relevant to note that after the order of the Division
Bench dated 19. 7 .2010, the Special Judge dealt with the Bail
Applications Nos. 40-42 of 2008 and dismissed all the
applications. Thereafter, those orders were the subject matter
of challenge in Criminal Bail Application No.333/2011 with
G Criminal Application No.464/2011 insofar as the appellant in
Criminal Appeal No.1969-70/2010 is concerned. One other
appellant namely, Ajay Eknath Rahirkar filed Criminal
Application No.556/2011 which was allowed by the Bombay
H High Court and he was granted bail by imposing certain
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 609
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
conditions. As far as Criminal Application No.333/2011 was A
concerned, the said application was rejected and the main
Criminal Application No.464/2011 was disposed of by the High
Court.
34. The appellant in Criminal Appeal No.1971 of 2010 B
was one of the respondents in Criminal Appeal No.868 of 2009
which was disposed of by the Division Bench of the Bombay
High Court by its order dated 19.07.2010 along with the.
connected appeals preferred by the State of Maharashtra
through ATS which is the prosecuting agency in respect of the C
Special Case No.1 of 2009 on the file of the Special Judge
under MCOCA. The said appellant was also aggrieved by the
order of the Division Bench referred to above in having set
aside the order of the Special Judge dated 31.07.2009. The
appellant in the appeal arising out of SLP (Crl.) No.8132/2010 D
is also similarly placed like that of the appellants in Criminal
Appeal Nos.1969-70/2010 and Criminal Appeal No.1971/
2010.
35. Having thus noted the grievances of the appellants in E
the above referred to appeals as against the order of the
Division Bench dated 19.07 .2010 as. well as the subsequent
order of the learned Single Judge in ha.ving decl[ned to grant
bail by confirming the order of the Special Court in Bail
Application No.42 of 2008, from the above referred to details F
gathered from the appeal papers as well as the orders
impugned in these appeals the scope for consideration in these
appeals pertains to the questions:-
(a) Whether the common order of the Division Bench G
dated 19.07.2010 in havin·g set aside the order of the
Special Judge in Special Case No.1 of 2009 discharging
the appellants from the said case on the ground that
MCOCA was not applicable to the said case and
consequently the case was to be tried by the Regular H
610 SUPREME COURT REPORTS (2015] 8 S.C.R.
A Court under Section 11 of MCOCAcalls for interference?
(b) If answer to question No. (a) is in the negative, whether
forthe purpose of grant of bail under Section 21 (4)(b) of
MCOCA, can it be held that the application of the said
B Act is not made out against the appellants and
consequently the rejection of bail by the trial Court and
as confirmed by the learned Single Judge of the Bombay
High Court is justified?
c 36. Having thus ascertained the scope involved in these
appeals by virtue of the orders impugned herein, when we
consider the submissions of learned eounsel for the appellants,
we find that the sum and substance of the submissions can be
summarized as under:
D
"That the definition of 'continuing unlawful activity',
'organized crime' or 'organized crime syndicate' as
defined under Section 2(1)(d)(e) and (f) of MCOCAwas
not cumulatively satisfied in order to proceed with the
E Special Case No.1 of 2009 for the alleged commission
of offence of organized crime under Section 3 of
MCOCA."
37. In order to find an answer to the said question a
F detailed reference to some of the provisions of MCOCA, its
Objects and Reasons and some other provisions of the Cr. P. C.
are required to be noted. The prime provisions which are
relevant under MCOCA are Sections 2(1) (d), (e) & (f), 3, 21
(4) (b), 23 (1) & (2) of MCOCA. As far as the Cr.P.C. is
G concerned, reference will have to be made to Sections 4,
173(2) & (8), 190, 191, 192, 193, 200, 201and209. In order
to appreciate the said provisions the same are extracted as
under:
"The Maharashtra Control of Cfganized Crime Act,
H
1999
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 611
[FAKKIR MOHAMED IBRAHIM KALIFULlA, J.]
Section 2 (1 )(d) "Continuing unlawful activity" means an A
activity prohibited by law for the time being in force, which
is a cognizable offence punishable with imprisonment of
three years or more, undertaken either singly or jointly,
as a member of an organized crime syndicate or on
behalf of such syndicate in respect of which more than B
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;
(e) "organized crime" means any continuing unlawful C
activity by an individual, singly or jointly, either as a
member of an organized 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 D
undue economic or other advantage for himself or any
other person or promoting insurgency;
(f) "Organised crime syndicate" means a group of two or
more persons who, acting either singly or collectively, as E
a syndicate or gang indulge in activities of organized
crime;
3. Punishment for organized crime. - (1) Whoever
·commits an offence of organized crime shall - F
(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; G
(ii) in any other case, 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 H
612 SUPREME COURT REPORTS [2015] 8 S.C.R.
A lacs.
(2) Whoever conspires or attempts to commit or
advocates, abets or knowingly facilitates the commission
of an organized crime or any act preparatory to organized
B 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.
c (3) Whoever harbours or conceals or attempts to harbour
or conceal, any member of an organized 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,
D subject to a minimum fine of rupees five lacs.
(4) A person who is a member of an organized crime
syndicate shall be punishable with imprisonment for a
term which shall not be less than five years but which
E may extend to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees five
lacs.
(5) Whoever holds any property derived or obtained from
commission of an organized crime or which has been
F
acquired through the organized 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
G fine of rupees two lacs.
21.(4)(b) Where the Public Prosecutor opposes the
application, the Court is satisfied that there are
reasonable grounds for believing that he is not guilty of
such offence and that he is l"Ct iikely to commit any
H
offence while on bail.
PRASAD SHRIKANT PUROHITv. STATE OF MAHARASHTRA 613
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
23. Cognizance of, and investigation into, an A
offence.-(1) Notwithstanding anything contained in the
Code,-
(a) no information about the commission of an offence
of organized crime under this Act, shall be recorded by a B
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 C
of this Act shall be carried out by a police officer below
the rank of the Deputy Superintendent of Police.
(2) No Special Court shall take cognizance of any offence
under this Act without the previouf! sanction of the police D
officer not below the rank of Additional Director General
of Police."
Code of Criminal Procedure, 1973
4. Trial of offences under the Indian Penal Code and· E
other laws.- (1) All offences under the Indian Penal Code
(45 of 1860) shall be investigated, inquired into, tried,
and otherwise dealt with according to.the provisions
hereinafter contained.
F
(2)All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according
to the same provisions, but subject to any enactment for
the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing G
with such offences.
173. Report of police officer on completion of
investigation:
H
(1)Xxx
614 SUPREME COURT REPORTS [2015] 8 S.C.R.
A (2) (i) As soon as it is completed, the officer in charge of
the police station shall forward to a Magistrate
empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State
Government, stating -
B
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
c acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed
and, if so, by whom;
D (e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under
E Section 170;
(h) whether the report of medical examination of the
woman has been attached where investigation relates
to an offence under Section 376, 376A, 3768, 376C,
F Section 3760 or Section 376E of the Indian Penal Code
(45of1860)
(ii) the officer shall also communicate, in such manner
as may be prescribed by the State Government, the
G action taken by him, to the person, if any, by whom the
information relating to the commission of offence was
first given.
(8) Nothing in this section shall be deemed to preclude
H further investigation in respect of an offence after a report
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 615
[FAKKIR MOHAMED IBRAH JM KALIFULLA, J.]
u11der sub-section (2) has been forwarded to the A
Magistrate and, whereupon such investigation, the officer
in charge of the police station obtains further evidence,
oral or documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in the
. form prescribed; and the provisions of sub-section (2) to B
(6) shall, as far as may be, apply in relation to such report
or reports as they apply in relation to a report forwarded
under sub-section (2).
190. Cognizance of offences by Magistrates.-(1) C
Subject to the provisions of this Chapter, any Magistrate
of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2),
may take cognizance of any offence-
D
(a) upon receiving a complaint of facts which constitute
such offence,
(b) upon a police report of such facts, and
(c) upon information received from any person otherthan E
a police officer, or upon his own knowledge, that such
offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under F
sub-section (1) of such offences as are within his
competence to inquire into or try.
(a) upon receiving a complaint offacts which constitutes·
such offence: G
(b) upon a police report of such fact~:
(c) upon information received from any person other than
a police officer, or upon his own knowledge, that such H
616 SUPREME COURT REPORTS [2015] 8 S.C.R.
A offence has been committed.
191. Transfer on application of the accused.- When
a Magistrate takes cognizance of an offence under
clause (c) of sub-section (1) of section 190, the accused
B shall, before any evidence is taken, be informed that he
is entitled to have the case inquired into or tried by
another Magistrate, and if the accused or any of the
accused, if there be more than one, objects to further
proceedings before the Magistrate taking cognizance,
c the case shall be transferred to such other Magistrate as
may be specified by the Chief Judicial Magistrate in this
behalf.
192. Making over of cases to Magistrates.-(1) Any
D Chief Judicial Magistrate may, after taking cognizance
of an offence, make over the case for inquiry or trial to
any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this
E behalf by the Chief Judicial Magistrate may, after taking
cognizance of an offence, make over the case for inquiry
or trial to such other competent Magistrate as the Chief
Judicial Magistrate may, by general or special order,
specify, and thereupon such Magistrate may hold the
F inquiry or trial.
193. Cognizance of offences by Courts of Session.-
Except as otherwise. expressly provided by this Code or
by any other law for the time being in force, no Court of
G Session shall take cognizance of any offence as a Court
of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code.
200. Examination of complainant.- A Magistrate
taking cognizance of an offence on complaint shall
H
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 617
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
examine upon oath the complainant and the witnesses A
present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
B
Provided. that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting .to act in the c
discharge of his official duties or a court has made the
complaint; or
(b) ifthe Magistrate makes over the.case for inquiry or
trial to another Magistrate under section 192:
D
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examined them.
E
201. Procedure by Magistrate not competent to take
cognizance of the case.-(1) If the complaint is made
to a Magistrate who is not competent to take cognizance
of the offence, he shall.-
F
(a) if the complaint is in writing, return it for presentation
to the proper Court with an endorsement to that effect; ·
(b) if the complaint is not in writing; direct the complainant
to the proper Court. G
209. Commitment of case to Court of Session when
offence is triable exclusively by it.-when in a case
instituted on a police report or otherwise, the accused
appears or is brought before the Magistrate and it H
618 SUPREME COURT REPORTS [2015] 8 S.C.R.
A appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of Section
207 or Section 208, as the case may be, the case to the
B Court of Sessions, and subject to the provisions of this
Code relating to bail, remand the qCcused to custody
until such commitment has been made; .
(b) subjecttothe provisions of this Code relating to bail,
c remand the accused to custody, and until the conclusion
of, the trial;
(c) send to that Court the record of the case and the
documents and articles, if any, which are to be proguced
in evidence;
D
(d) notify the Public Prosecutor of the commitment of the
case to the Court of Session.
38. In the first instance, it will be profitable to examine the
E scheme of MCOCA by making a cursory glance to the Objects
and Reasons and thereafter to make an intensive reading of
the above referred to provisions. When we peruse the Objects
and Reasons, it discloses that organized crime has been
posing very serious threat to our society for quite some years
F and it was also noted that organized crime syndicates had a
common cause with terrorist gangs. In the Objects and
Reasons, the foremost consideration was the serious threat
to the society by those who were indulging in organized crimes
in ,the recent years apart from organized crime criminals
G operating hand in glove with terrorist gangs. It is common
knowledge that for the terrorist gangs, the sole object is to
create panic in the minds of peace loving members of the
society and in that process attempt to achieve some hidden
H agenda which cannot be easily identified, but certainly will not
be in the general interest or well being of the society. Those
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 619
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
who prefer to act in such clandestine manner and activities A
will formulate their own mind-set and ill-will towards others and
attempt to achieve their objectives by indulging in unlawful
hazardous criminal activities unmindful of the serious
consequences and in majority of such cases it results in severe
loss of life of innocent people apart from extensive damage to B
the properties of public at large. It was further found that the
existing legal framework, that is the penal and procedural laws
and the adjudicatory system, were found to be inadequate to
cur~ or control the menace of 'organized crime', The Objects
and Reasons also states that such 'organized crimes' were C
filled by illegal wealth generated by contract killing, extrusion,
smuggling in contraband, illegal trade in narcotics, kidnapping
for ransom, collection of protection money, money laundering
etc. Keeping the above serious repercussions referred to in
0
the Objects and Reasons, when we examine Section
· 2(1)(d)(e)&(f), which defines 'continuing unlawful activity',
'organized crime' or 'organized crime syndicate', we find that
the three definitions are closely interlinked.
39. The definition of 'continuing unlawful activity' under E
Section 2(1)(d) mainly refers to an activity prohibited by law:
The said activity should be a cognizable offence, punishable
with imprisonment of three years or more. The commissioh of
such offence should have been undertaken either by an F
individual singly or by joining with others either as a member
of an 'organized crime syndicate' or even if as an individual or
by joining hands with others even if not as a member'6f a
'organized crime syndicate' such commission of an offence
should have been on behalf of such syndicate. It further states G·
that in orcjer to come within the definition of 'continuing unlawful
activity' there should have been more than one charge-sheet
filed before a competent Court within the preceding period of
10 years and that the said Court should have taken cognizance
of such offence. H
620 SUPREME COURT REPORTS [2015) 8 S.C.R.
A 40. Before getting into the nuances of the said definition
of 'continuing unlawful activity', it will be worthwhile to get a
broad idea of the definition of 'organized crime' under Section
2(1)(e) and 'organized crime syndicate' under Section 2(1 )(f).
An 'organized crime' should be any 'continuing unlawful activity'
B either by an individual singly or jointly, either as a member of
an 'organized crime syndicate' or on behalf of such syndicate.
The main ingredient of the said definition is that such
'continuing unlawful activity' should have been indulged in by
use of violenCE:) or threat of violence qr intimidation or coercion
C or other unlawful means. Further such violence and other
activity should have been indulged in with an objective of
gaining pecuniary benefits or gaining undue economic or other
advantage for himself or for any other person or for promoting
insurgency. Therefore, an 'organized crime' by nature of violent
0
action indulged in by an individual singly or jointly either as a
member of an 'organized crime syndicate' or on behalf of such
syndicate should have been either with an object for making
pecuniary gains or undue economic or other advantage or for
E promoting insurgency. If the object was for making pecuniary
gains it can be either for himself or for any other person. But
we notice for promoting insurgency, there is no such
requirement of any personal interest or the interest of any other
person or body. The mere indulgence in a violent activity etc.
F either for pecuniary gain or other advantage or for promoting
insurgency as an individual, either singly or jointly as a member
of 'organized crime syndicate' or on behalf of a such syndicate
would be sufficient for bringing the said activity within the four
corners of the definition of 'organized crime'.
G
41. An 'organized crime syndicate' is a group of two or
more persons who by acting singly or collectively as a syndicate
or gang indulge in activities of 'organized crime'.
42. By conspectus reading of the above three definitions,
H
PRASAD SHRIKANT PUROHITv. STATE OF MAHARASHTRA 621
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
if in the preceding 10 years from the date of third continuing A
unlawful activity if more than one charge-sheet has been filed
before a competent Court which had taken cognizance of such
offence which would result in imposition of a punishment of
three years or more, undertaken by a person individually or
jointly either as a member of an 'organized crime syndicate' B
or on its behalf, such crime if falls within the definition of
'organized crime', the invocation of MCOCA would be the
resultant position.
43. Keeping the above broad prescription as the outcome C
of the definition of Section 2(1)(d)(e)&(f) in mind, when we refer
to Section 3, we find that it is a penal provision under which,
the various punishments for the commission of 'organized
crime' have been set out and such punishment can be up to
life imprisonment and even death. apart from fine subject to D
· minimum of Rupees one lakh to maximum of Rupees five
lakhs. The imprisonment ranges from five years to life
imprisonment and can also result in imposition of death penalty.
Section 17 prescribes Special Rules of evidence
notwithstanding anything contrary contained in Cr.P.C. or the E
Indian Evidence Act for the purposes of trial and punishment
for offences under MCOCA. Section 18 of the Act is again a
non-obstanfe clause which states that irrespe'ctive of any
provision in the Code or in the Indian Evidence Act, and subject F
to the provisions of said Section, a confession ma.de by a
person before a police officer not below the rank of
Superintendent of Police and recorded by such police officer
either in writing or in any mechanical devices like cassettes,
,, '
tapes or sound tracks from which sounds or images can be G
reproduced shall be admissible in the trial of such person or
co-accused abettor or conspirator provided they are charged
and tried in the same case together with the accused. Section
20 is yet another provision under MCOCA which prescribes
that where a person is convicted of any of the. offence H
622 SUPREME COURT REPORTS [2015] BS.C.R.
A punishable under MCOCA, the Special Court may in addition
to 'awarding any punishment, by order in writing declare that
any property, movable or immovable or both, belonging to the
accused and specified in the order shall stand forfeited to the
State Government free from all encumbrances etc. Under
B Section 21, · which again is a non-obstante clause, the
provisions of the Act notwithstanding anything contained in the
Code or any other law shall be deemed to be a cognizable
offence within the meaning of clause (c) of Section 2 of the
Code and "cognizable case" as defined in that clause should
C be constructed accordingly.
44. Under Section 21(4) notwithstanding anything
contained in the Code, no person· accused of an offence
punishable under MCOCA, when.he is in custody, should be
D released on bail on his own bond unless under sub-clause (b)
of sub-section (4) even when the Public Prosecutor opposes
the application for bail, the Co~rt is satisfied that there are
reasonable grounds for believing that the said accused is not
guilty of such offence and that he is not likely to commit any
E offence while on bail.
45. Under Section 22 there is a rebuttable presumption
· of commission of organized crime punishable under Section
3 unless the contrary is proved. Under Section 23 a safeguard
F is provided to the effect that under Section 23(1)(a) no
information about the commission of an offence of orgahized
crime under MCOCA should be recorded by a police officer
witho'ut the prior approval of a police officer not below the rank
of Deputy Inspector General of Police. Further under Section
G 23(1){b) no investigation of an offence underMCOCA shall be
carried out by a police officer below the rank of Deputy
Superintendent of Police. Under sub-Section (2) of Se.ction
23, no Special Court should take cognizance of any offence
H under MCOCA without the previous sanction of the police
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 623
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
officer not below the rank of Additional Director General of A
Police.
'\'
46. Reference to the above provisions thus discloses that
the Act is very stringent in its operation when it comes to the
question of dealing with an 'organized crime' committed by an B
'organized crime syndicate' in respect of a 'continuing unlawful
activity'. With the above salient features of the provisions of
MCOCA in mind, when we consider the various submissions
of the learned counsel, the main submissions of the learned
counsel for the appellants were five-fold. C
47. The first submission was that the present appellants
were all alleged to have been involved in a bomb blast which ·
occurred on 29.09.2008 at a place called 'Malegaon' .•
According to the prosecuting.agency, the appellants were either o
member of an organization called 'Abhinav Bharat' which was
· registered in the year 2007 or the commission of the offence
was jointly with the members of the said organization for and
on its behalf. The contention in the foremost was that in order
to rope in the appellants on the above footing, the requirement E
of Section 2(1)(d), namely, 'continuing unlawful activity' must
have been satisfied. ln order to demonstrate such compliance,
it was contended on behalf of the prosecuting agency that there
were two earlier occurrences of bomb blasts one in Parbhani'
ori 21.11.2003 and another at Jalna on 27.08.2004, that on F
those two earlier occurrences A-7, namely, Rakesh Datta ray
Dhawade was involved who is also a member of the present
.gang and consequently the definition of 'continuing unlawfuJ
activity' is satisfied. .'
G
48. The learned counsel for the appellants on the other
hand contended thatA-7 was not a member of the so-called
'Abhinav Bharat', that 'Abhinav Bharat' as an organization was
not indisputably involved in the two earlier oceurrences in the
year 2003 and 2004, therefore, when such clear demarcation H
624 SUPREME COURT REPORTS (2015] 8 S.C.R.
A existed as between the appellants, the so-called members of
Abhinav Bharat and the earlier occurrences of 2003 and 2004,
as well as, the exclusion ofA-7 as member of 'Abhinav Bharat'
there was no scope to invoke MCOCA.
B 49. We are, in the first instance, concerned with the
appellant's challenge to the order of the Division Bench dated
19.07 .2010 wherein the sole question considered pertains to
the application of MCOCA based on the definition of 'continuing
unlawful activity' under Section 2(1 )(d) forthe purpose of grant
C of bail under Section 21 (4)(b) ofMCOCA. To recapitulate the
background of this litigation, it was the order of discharge
passed by the Special Judge in Special Case No.1 of 2009
dated 31.07 .2009 on the footing that cognizance of two earlier
cases within preceding 10 years from the date of third
D occurrence dated 29.09.2008 was not satisfied and based
on the said conclusion the Special Judge passed the order of
discharge and also simultaneously passed aa order under
Section 11 for the transfer of the Special Case No.1 of 2009
to the Regular Court which went before the Division Bench at
E the instance of the State and the prosecuting agency. The
Division Bench while dealing with the said conclusion of the
Special Court took a contrary view holding that the Special
Judge misdirected himself by stating that the cognizance was
F with reference to the offender and not the offence which led to
the passing of such an illegal order dated 31.07.2009. The
Division Bench took the view that going by the provisions
contained in Section 2(1)(d} read along with Sections 190 and
173(3) of the Cr.P.C., as well as the settled principles in the
G various decisions of this Court, the cognizance of offence was
taken as early as on 07.09.2006 in the Parbhani case and
30.09.2006 in the Jalna case, which were within the preceding
10 years from the date of the occurrence of Malegaon case,
namely, 29.09.2008 and therefore, the order of discharge
H passed by the Special Judge was not sustainable and valid in
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 625
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
law. A
50. Having recapitulated the background to the above
extent when we examine the contentions raised, it must be
stated that the conclusion of the Division Bench as regards
the cognizance aspect cannot be held to be totally erroneous B
when it struck down the order of the Special Judge dated
31.07 .2009. Keeping aside for the presentthe various other
submissions and considering the opening submission of the
counsel while assailing the order of Division Bench wherein
we confine to the question relating to taking cognizance of the C
offence as set out apparently in Section 2( 1)( d) of MCOCA. In
that perception, on the opening submission of the learned
counsel for the appellants we too have no hesitation to hold
thatthe cognizance of the offence as stated to have been rightly
taken into account in respect of Parbhani and Jalna based on D
the charge-sheets dated 07.09.2006 and 30.09.2006
respectively was perfectly in order to apply the definition of
· 'continuing unlawful activity' for the purpose of invoking MCOCA
with reference to Malegaon occurrence. We, however, wish to
examine in detail the justification for our above cc;mclusion when E
we deal with the other contentions where submissions were
made in extenso with particular reference to the involvement
of A-7 in the alleged occurrences of Parbhani and Jalna, more
particularly with reference to the date of supplementary charge- F
sheet, arrest made and the arrest made with reference to
Malegaon occurrence and the alleged nexus as between the
appellants and A-7 in order to find out whether application of
MCOCA could still be held to be validly made by the
prosecuting agency. For the present by reaching our conclusion G
as above on the first submission, we proceed to deal with the
next submission of learned counsel for the appellants.
51. The submission of the learned counsel for the
appellants was that under Section 2(1 )(d), in order to construe H
626 SUPREME COURT REPORTS [2015] 8 S.C.R.
A a 'continuing unlawful activity' two earlier charge-sheets in the
preceding 10 years should exist and that such charge-sheets
should have been taken cognizance by the competent court
within the said period of 10 years and it must have been
accomplished. It was also contended that for ascertaining the
B said position, the date of the third occurrence should be the
relevant date for counting the preceding 10 years. Insofar as
that claim is concerned, it can be straight away accepted that
since Section 2(1)(d) uses the expression 'an activity' in the
very opening set of expressions, which is prohibited by law,
C the date of such activity, namely, the third one can be taken as
the relevant date forthe purpose of finding outthe two earlier
charge-sheets in the preceding 10 years, in which event in the
present case, the preceding 10 years will have to be counted
from 29.09.2008 which was the date when the third occurrence
0
of Malegaon bomb blast took place.
52. With reference to Malegaon bomb blast, A-7 is the
key person to be noted as it was with reference to his
involvement in the earlier two bomb blast cases, namely,
E Parbhani and Jalna the whole case of the prosecution for
invoking MCOCA was developed. Even while examining the
various other submissions, we want to once again reiterate
that our present endeavour is for examining the correctness of
F the order of the Division Bench which stems from the first order
of the Special Judge dated 31.07 .2009 by which the appellants
w~re discharged and the consequential order under Section
11 transferring the case to the Regular Court. It must also be
stated that our endeavour in this respect is also for the purpose
G of finding an answer to the prescription contained in Section
21(4)(b) ofMCOCA.
53. Therefore, what all to be examined is whether
cognizance of the earlier two offences as mentioned in the
H definition of Section 2(1 )(d) was duly t~:..en within the preceding
PRASAD SHRIKANT PUROHIT v. STATE OF MAHARASHTRA 627
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
period of 10 years. Having stated. in uncontroverted terms that A
29.09.2008 is the relevant date, namely the date of third
occurrence (i.e.) Malegaon bomb blast, when we go back, the
question is whether in respect
. of the bomb blastin
. ...... Parbhani
~
on 21.11.2003 and similar bomb blast in Jalna on 27.08.2004
the charge-sheets were filed and cognizance ~as taken by B
the competent court within the said period of preceding 10
years. There is no controversy as to the date of occurrence of
the above two bomb blasts. There is also no dispute that the
very first charge-sheet in Parbhani as againstA-1 was filed on
07. 09.2006 before the Chief JudicialMagistrate. Similarly, the C
filing of the first charge-sheet on 30.09.2006 in Jalna case is
also not in dispute. The contention put forward_is that the
supplementary charge-sheet in respect ofA-7 in Parbhani case
was filed only on 13.11.2008 and on 15.11.2008 in Jalna case
0
and if those two dates with regard to A-7 are taken as the
relevant dates, then the requirement of two earlier cases as
stipulated under Section 2(1 )(d) preceding 10 years period
was not satisfied, inasmuch as, the date of third occurrence
was 29.09.2008 and the date of charge-sheets as against the E
A-7 were subsequent to that date and not earlier. The said
crucial factor is required to be determined to decide the
contention raised on behalf of the appellants. In this context
reliance was placed upon the decisions in Ajit Kumar Palit
(supra) and Dilawar Singh (supra) on behalf of the F
appellants. That apart, reference was also made to Section
173(2)(i)(a) and 173(8) to contend that cognizance referred to
in context of MCOCA would only relate to the offender and not
to the offence as prescribed under Section 190(1')(b).
G
54. As against the above submissions Mr. Anil Singh,
learned ASG appearing for respondent-State and Mr.
Mariarputham, learned Senior Counsel appearing for the State
of Maharashtra and NIA contended that the relevant dates are
the first charge-sheet filed in Parbhani case on 07 .09.2006 H
•
628 SUPREME COURT REPORTS (2015] 8 S.C.R.
A and in Jalna case on 30.09.2006. Reliance was placed upon
the decisions in R.R. Chari (supra), Raghbans Dubey
(supra), Darshan Singh Ram Kishan (supra), Salap
Service Station (supra), CREF Finance Limited (supra),
Pastor P. Rafu (supra), Videocon International L,.td.
B (supra) and Fakhruddin Ahmad (supra) in support of the
submission. Reliance was also placed upon Section 190
Cr.P.C. to contend that cognizance of offence is relevant and
not the offender and, therefore, the initial date of cognizance
taken by the Chief Judicial Magistrate on the above dates in
C respect of Parbhani and Jalna will hold_ good for invoking
MCOCA.
55. It was also contended that c9gnizance is an act which
a Court when first apply its judicial mind with a view to proceed
D with the matter and, therefore, when in Parbhani and Jalna by
virtue of Section 190 read along with Section 173 based on
the report of the police when the first charge-sheet was filed
on 07.09.2006 and 30.09.2006 respectively in Parbhani and
Jalna, the requirement of taking cognizance by the Competent
E Court in respect of offences under the Indian Penal Code which
alone was relevant in respect of the two earlier cases was
satisfied and nothing more was required to be shown. Further
reliance was placed upon R.R. Chari (supra), Darshan
F Singh Ram Kishan (supra), Mohd. Khalid (supra), Mona
Panwar (supra) and Sarah Mathew (supra) in support of
the above submissions.
56. Keeping the respective submissions of the learned
counsel in mind when we examine the said issue, in the first
G instance we wish to refer to relevant provisions touching upon
this issue, namely, Section 2(1)(d) of MCOCA and Section
173(2) and (8) as well as Sections 190 and 193 of Criminal
Procedure Code. When we refer to Section 2( 1)( d) of MCOCA
H the definition of'continuing unlawful activity' is defined to mean
•
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 629
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
an activity prohibited by law and that it should be a cognizable A
offence punishable with imprisonment of three years or more.
For the purpose of ascertaining the issue relating to
cognizance, the other part of the said definition which requires
to be noted is that more than one charge-sheet should have
been filed before a Competent Court within the ..preceding B
period of 10 years and that Court should have taken
cognizance of such offence. The offence should alleged to have
been committed either singly or jointly as a member of an
organized crime syndicate or on its behalf. In so far as the
offences are concerned, if the offence would attract a C
punishment of three years or more that would suffice for falling
within the said definition. The charge-sheet should have been
filed before a Competent Court with reference to such offence
against the offenders.
D
57. One of the contentions raised and. which was
countered by the respondents was that such two earlier
offences should also satisfy the other requirements stipulated
under MCOCA, namely, as a' member of an organized crime
syndicate or on behalf of an organized crime syndicate either E
singly or jointly. A strict interpretation of Section 2(1)(d) would
definitely mean the fulfillment of such requirement since the
definition specifically reads to the effect 'undertaken either
singly or jointly as a member of an organized crime syndicate F
or on behalf of such syndicate'. Therefore, even if the earlier
offences were not initiated under the provisions of MCOCA
sucb initiations should have been capable of being brought
within the provisions of MCOCA, namely, as part of an activity
of an organized crime syndicate either by its own members G
either singly or jointly or though not as a member but such
participation should have been on behalf of an 'organized crime
syndicate'. As far as filing of the charge-sheet is concerned
what all it refers to is such filing before a Competent Court and
that Court should have taken cognizance of such offence. H .
630 SUPREME COURT REPORTS [2015] 8 S.C.R.
A 58. A minute reference to the said Section, therefore,
shows that in the event of the fulfillment of the rest of the
requirements, namely, the nature of offence providing for
punishment of three years and more, the involvement of the
offender as required under the said definition, when it comes
B to the question of filing of the charge-sheet, the requirement of
such filing should be before a competent court within a period
preceding 10 years and that such court has taken cognizance
of such offence. Significantly, when it comes to the question of
fulfillment of the requirement of cognizance what is prescribed
C is the cognizance of such offence and not the offender. As far
as the court is concerned, here again the specific reference
used is 'competent court' and not 'Sessions Court'. Therefore,
keeping aside the rest of the requirements to be fulfilled under
Section 2(1 )(d) for the present, when we consider the
0
requirement of filing of the charge-sheet before the Competent
Court and such Court taking cognizance of such offence, it
can be stated without any scope of controversy that two earlier
cases which would attract a punishment of more than three
E years and prohibited by law, undertaken singly or jointly as a
member of an organized crime syndicate or on its behalf, if
more than one charge-sheet is filed in respect of such offence
before the Competent Court and the said Court had taken
cognizance of such offence, the definition of "continuing
F unlawful activity" would be satisfied.
59. Keeping the said prescription of the definition of
"continuing unlawful activity'' under Section 2(1 )(d) in mind when
we examine·the question as to taking of cognizance and the
G Competent Court before whom more than one charge-sheet
to be filed, there is no other provision under MCOCA which
deals with or prescribes any stipulation for fulfillment of the
said requirement. We have to, therefore, necessarily fall back
upon the provisions contained in the Criminal Procedure Code.
H For that purpose reference to Sections 173, 190 and 193 have
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 631
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
to be noted. Under Section 173(2)(i), it is stipulated that as A
soon as the investigation is completed, the officer in-charge
of the Police Station should forward to the Magistrate who is
empowered to take cognizance of the offenc~;on a police
report in the form prescribed by the State Government, which
should contain among other things the names of the parties, B
the nature of information, the names of the persons who appear
to be acquainted with the circumstances of the case and
variOJ.Js other details.
60. When we read the said Section 173(2)(i) along with C
Section 190 of Cr.P.C., it can be seen that any Magistrate of
the first class or any Magistrate of the second class specially
empowered as provided under sub-section (2)° of the said
Section may take cognizance of any offence upon a police
report of such facts. Therefore, reading Section 173(2)(i) along D
with Section 190(1 )(b), a duty is cast upon the officer in-charge
of the police station mandatorily to forward to the Magistrate
who is empowered to take cognizance of the offence on a
police report. Under Section 190(1 )(b) any Magistrate of the
first class and for that matter any Magistrate of second class E
who is empowered by the Chief Judicial Magistrate for taking
cognizance under sub-Section ( 1) can take cognizance of any
offence based on filing of a police report furnished with the
facts as stipulated under Section 173(2)(i) (a to h). A conjoint F
reading of Section 173(2)(i) and Section 190(1)(b), therefore,
makes the position crystal clear that taking of cognizance of
any offence by a Magistrate of the First Class or the Second
Class subject to empowerment created under sub-Section (2)
of Section 190 can take cognizance upon a police report. It G
can be emphasized herethi;it under Section 190 (1) (b) where
the Police Report as stated in Section 173(2) (i) is filed before
a Magistrate under Section 190(1) (b), irrespective of the nature
of offence, the said Magistrate has been invested with all the
powers to take cognizance by applying his judicial mind. To H
632 SUPREME COURT REPORTS [2015] 8 S.C.R.
A be more precise, once the Police Report is filed before a
judicial Ma9istrate as prescribed under Section 190(1) (b),
who has been invested with the judicial authority to take
cognizance of any offence in the first instance, the requirement
of taking cognizance gets fulfilled atthat very moment. Further
B the very fact that proceedings pertaining to Parbhani and Jalna
were pending before the Magistrate where such proceedings
were initiated by the filing of the police report till the occurrence
in Malegaon took place itself was sufficient to demonsirate
that judicial mind was very much applied to the proceedings
C based on the police report consequent upon cognizance taken.
61. Keeping the said prescription of law in mind, when
we apply the requirement as stipulated under Section 2(1)(d)
of MCOCA, without straining any further on this question, it
D can be safely held thatthe requirement of filing of the charge-
sheet in two earlier cases before the competent court in respect
of an offence stipulated under Section 2(1 )(d) can be held to
be satisfied once cognizance is taken by a Judicial Magistrate
of first class or for that matter an empowered second class
E Magistrate, in the event of filing of a police report as prescribed
under Section 173(2)(i) by virtue of the power vested under
Section 190(1 )(b) of Cr.P.C. If the ingredients of the above
requirements are fulfilled it will have to be held, that that part of
F the requirement underSection2(1)(d), namely, the competent ·
court taking cognizance of the offence as stipulated under
Section 2(1 )(d) in respect of two earlier cases will get fulfilled.
62. Once we steer clear of the said legal position, to
emphasize further, we also wish to refer to Section 193 Cr.P. C.
G the caption of which specifically states "Cognizance of offences
by Courts of Session". The said Section is negatively couched
and states that except as otherwise expressly provided by this
Code or by any other law for the time being in force, no Court
H of Session shall take cognizance of any offence as a Court of
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 633
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Original Jurisdiction unless the case has been committed to it A
by a Magistrate under this Code. For our purpose of
ascertaining the requirement of competent court and
cognizance stipulated under Section 2(1 )(d) of MCOCA, we
find that under Section 193, the Court of Session can take
hold of the case as a Court of Original .Jurisdiction only after B
committal order is passed to it by a Magistrate under the
provisions of Cr.P.C., whereas under Section 190(1 )(b), the
power of a Magistrate has been pithily stated to mean that he
can take cognizance of any offence subject to the fulfillment of
the requirements (a), (b) and (c) and no further. C
63. We are now pitted with the question as to whether the
taking of cognizance of the offence by the Competent Court
under Section 2( 1)(d) of MCOCA is referable only to the Court
of Sessions or even to a Magistrate of first class under Section D
190. In this context, when we read Section 2(1 )(d) along with
190 and 193 in the absence of any specific stipulation either
under Section 2(1 )(d) of MCOCA or any other provision under
the said Act in the ordinary course of interpretation it can be
validly stated that on fulfillment of Section 190, when a Judicial E
Magistrate of first class or an empowered second class
Magistrate, takes cognizance of any offence that would fulfill
the requirement of Section 2(1 )(d) relating to competent court.
We have noted under MCOCA that beyond what has been F
stipulated under Section 2( 1){d) there is no other provision
dealing with the matter relating to a Competent Court for the
purpose of taking cognizance. When .under the provisions of
Cr. P.C., Judicial Magistrate offirst class has been empowered
to take cognizance of any offence based on a Police Report, G
we fail to see any hurdle to state that on taking cognizance in
that manner, the said court should be held to be the competent .
court for satisfying the requirement of Section .2(1)(d) of
MCOCA. In this respect, we will have to bear in mind that the
implication of MCOCA would come into play only after the third H
634 SUPREME COURT REPORTS [2015] 8 S.C.R.
A occurrence takes place and only after that it will have to be
seen whether on the earlier two such occasions involvement
of someone jointly or singly, either as a member of an
'organized crime syndicate' or on its behalf indulged in a crime
in respect of which a charge-sheet has already been filed
B before the Competent Court which Court had taken cognizance
of such offence.
64. Therefore, we are able to state the legal position
without any ambiguity to the effect that in the event of a Judicial
C first class Magistrate or an empowered second class
Magistrate having taken cognizance of an offence based on a
police report as stipulated under Section 173(2)(i), such
cognizance of an offence would fulfill the requirement of that
part of the definition under Section 2( 1)(d) of MCOCA. Once
D we are able to ascertain the said legal position by way of strict
interpretation, without any ambiguity, we also wish to refer to
various decisions relied upon by either party to note whether
there is any scope of contradiction with reference to said legal
position.
E
65. Mr. Lalit, learned counsel in the course of his
submissions relied upon Ajit Kumar Palit v. State of West
Bengal and another-AIR 1963 SC 765. In the said decision
with reference to the expression 'cognizance' a three-Judge
F Bench of this Court has explained what is really meant by the
said expression in the following words in paragraph 19:
" ...... The word "cognizance" has no esoteric or mystic
significance in criminal law or procedure. It merely
G means-become aware of and when used with reference
to a court or Judge. to take notice of judicially. It was stated
in Gopal Marwari v. Emperor, AIR 1943 PAT 245 (SB)
by the learned Judges of the Patna High Court in a
passage quoted with approval by this Court in R.R. Chari
H v. State of Uttar Pradesh, 1951SCR312 at page 320:
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 635
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
(AIR 1951 SC 207 at page 210) that the word A
"cognizance" was used in the Code to indicate the point
when the Magistrate or Judge takes judicial notice of an
offence and that it was a word of indefinite import, and is
not perhaps always used in exactly the same sense. As
observed in Emperorv. Sourindra Mohan ,Chuekorbutty, B
ILR 37 CAL 412 at page 416, "taking cognizance does
not involve any formal action: or indeed action of any kind.
but occurs as soon as a Magistrate. as such. applies his
mind to the suspected commission of an offence". Where
the statute proscribes the materials on which alone the C
judicial mind shall operate before any step is taken,
obviously the statutory requirement must be fulfilled ...... "
(Emphasis added)
D
66. In the above extracted portion the reference made to
the earlier judgment in R.R. Chari's case reported in R.R. Chari
(supra) at page 210 that the word 'cognizance' was used in
the Court to indicate the point when the Magistrate or Judge
takes judicial notice of an offence throws sufficient light to state E
that at that very moment when a Magistrate takes judicial notice
of an offence, the requirement of cognizance of such offence
will getfulfilled. Therefore, the said decision also fully supports
our conclusion on the question of taking cognizance by the
competent Court. F
67. Reliance was then placed upon the decision in Dilawar
Singh (supra) in particular paragraph 8. The said paragraph
8 reads as under:
G
"8. The contention raised by learned counsel for the
respondent that a court takes cognizance of an offence
and not of an offender holds good when a Magistrate
takes cognizance of an offence under Section 190 CrPC.
The observations made by this Court in Raghubans H
636 SUPREME COURT REPORTS (2015) 8.S.C.R.
A Dubey v. State of Biharwere also made in that context.
The Prevention of Corruption Act is a special statute and
as the preamble shows, this Act has been enacted to
consolidate and amend the law relating to the prevention
of corruption and for matters connected therewith. Here.
B the principle expressed in the maxim generalia
specialibus non derogantwould apply which means that
if a special provision has been made on a certain matter,
that matter is excluded from the general provisions. (See
Godde Venkateswara Rao v. Govt. ofA.P., State of Bihar
c v. Dr. Yogendra Singh and Mabarashtra State Board of
Secondary and Higher Secondary Education v. Paritosh
Bhupeshkumar Sheth.) Therefore. the provisions of
Section 19 of the Act will have an overriding effect over
the general provisions contained in Section 190 or 319
D
CrPC. A Special Judge while trying an offence under the
Prevention of Corruption Act, 1988, cannot summon
another person and proceed against him in the purported
exercise of power under Section 319 CrPC if no sanction
has been granted by the appropriate authority for
E
prosecution of such a person as the existence of a
sanction is sine qua non for taking cognizance of the
offence qua that person."
(Emphasis added)
F
68. By relying upon the said part of the decision it was
contended that taking 'cognizance of an offence' cannot be
the universal rule and that under special circumstances such
cognizance of offence would be qua that person, namely, the
G offender. It is true that in the said decision while dealing with
the requirement of sanction under Section 19 of the Prevention
of Corruption Act with reference to an offence under Section
13(2) of the said Act, this Court did say that in the absence of
H a sanction under Section 19 the taking of cognizance of the
offence qua that person cannot be held to have been made
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 637
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
out. When we apply the said decision, it must be stated that it A
was laid in the context of an offence under Section 13(2) of the
Prevention of Corruption Act which Act specifically stipulates
the requirement of prior sanction under Section 19 for
proceeding against a public servant by way of a sanction and,
therefore, it was held that Section 19 of the Act will have an B
overriding effect over the general provisions contained in
Section 190 or 319 of Cr.P.C. For the fulfillment of the
requirement to be complied with under Section 2(1)(d) of
MCOCA, for ascertaining a 'continuing unlawful activity' in the
absence of any such restriction as stipulated under Section C
19 of the Prevention of Corruption Act under the provisions of
MCOCA we have found that Section 190 will have every effect
insofar as taking of cognizance by a competent Court is
concerned as stipulated under Section 2(1)(d) and, therefore,
0
as held by us on compliance of the said requirement under
Section 190, namely, cognizance of the offence by the
competent Magistrate, that part of the requirement under
Section 2(1 )(d) will get automatically fulfilled.
69. Reliance was then placed upon the decision in E
Fakhruddin Ahmad (supra), in particular paragraph 17. The
said paragraph 17 reads as under:
"17. Nevertheless, it is well settled that before a
Magistrate can be said to have taken cognizance of an F
offence, it is imperative that he must have taken notice
of the accusations and applied his mind to the
allegations made in the complaint or in the police report
or the information received from a source other than a
police report, as the case may be, and the material filed G
therewith. It needs little emphasis that it is only when the
Magistrate applies his mind and is satisfied that the
allegations. if proved. would constitute an offence and
decides to initiate proceedings against the alleged H
638 SUPREME COURT REPORTS [2015] 8 S.C.R.
A offender. that it can be positively stated that he has taken
cognizance of the offence. Cognizance is in regard to
the offence and not the offender."
(emphasis added)
B
70. Even here this Court has stated in uncontroverted terms
that once the Magistrate applies his mind to the offence alleged
and decides to initiate proceedings against the alleged
offender, it can be stated that he has taken cognizance ofthe
c offence and by way of reiteration. It is further stated that
cognizance is in regard to the offence and not the offender.
This decision, therefore, reinforces the position that cognizance
is mainly of the offence and not the offender.
71. In R.R. Chari (supra), in paragraph 8, this Court made
0
it clear that the word 'cognizance' is used by the Court to
indicate the point when the Magistrate or a Judge first takes
judicial notice of an offence. Therefore, primarily cognizance
of an offence takes place when a Judicial Magistrate applies
E his mind and takes judicial notice of the offence. In fact that is
what has been even statutorily stipulated under Section 190(1)
ofCr.P.C.
72. In Darshan Singh Ram Kishan (supra), in
F paragraph 8, with particular reference to Section 190, this Court
has held as under:
"8. As provided by Section 190 of the Code of Criminal
Procedure, a Magistrate may take cognizance of an
offence either, (a) upon receiving a complaint, or (b) upon
G a police report, or (c) upon information received from <!
person other than a police officer or even upon his own
information or suspicion that such an offence has been
committed. As has often been held. taking cognizance
does not involve any formal action or indeed action of
H
PRASAD SHRIKANT PUROHIT v. STATE OF MAHARASHTRA 639
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
any kind but occurs as soon as a Magistrate applies his A
mind to the suspected commission of an offence.
Cognizance. therefore. takes place at a point when 'a
Magistrate first takes iudicial notice of an offence. This
is the position whether the Magistrate takes cognizance
of an offence on a complaint, or on a police report, or B
upon information of a person other than a police officer.
Therefore. when a Magistrate takes cognizance of an
offence upon a police report. prima facie he does so of
the offence or offences disclosed in such report."
c
(emphasis added)
73. The above passage referred to in the said decision
makes the position explicitly clear that cognizance would take
place at a point when a Magistrate first takes judicial notice of D
the offence either on a complaint or on a police report or upon
information of a person other than the police officer. Taking
judicial notice is nothing but pursuing the report of the police
officer, proceeding further on that report by opening the file
and thereafter taking further steps to ensure the presence of E
the accused and all other consequential steps including at a
later stage depending upon the nature of offence alleged to
.
pass necessary order of committal to Court of Sessions.
.
74. In Salap Service Station (supra), the question as to F
what is the implication of a supplementary report filed by the
investigating agency under Section 173(8) Cr.P.C. was
considered. While dealing with the same, it has been stated
as under in paragraph 2:
G
2..... It may be mentioned here th~t in the supplementary
charge-sheet allegations are to the effect that there was
violation of Direction 12 of the Control Order. The
question of taking cognizance does not arise at this stage
since cognizance has already been taken on the basis H
640 SUPREME COURT REPORTS [2015] 8 S.C.R.
A of the main charge-sheet. What all Section 173(8) lays
down is that the investigating agency can carry on further
investigation in respect of the offence after a report under
sub-section (2) has been filed. The further investigation
may also disclose some fresh offences but connected
B with the transaction which is the subject-matter of the
earlier report .............. The purpose of sub-section (8)
of Section 173 CrPC is to enable the investigating
agency to gather further evidence and that cannot be
frustrated. If the materials incorporated in the
c supplementary charge-sheet do not make out any
offence. the question of framing any other charge on the
basis of that may not arise but in case the court frames a
charge it is open to the accused persons to seek
discharge in respect of that offence ·also as they have
D
done already in respect of the offence disclosed in the
main charge-sheet. The rejection of the report outright at
that stage in our view is not coffect."
(emphasis added)
E
75. The above statement of law with particular reference
to Section 173(8) Cr.P.C. makes the position much more clear
to the effect that the filing of the supplementary charge-sheet
does not and will not amount to taking cognizance by the Court
F afresh against whomsoever again with reference to the very
same offence. What all it states is that by virtue of the
supplementary charge-sheet further offence may also be
alleged and charge to that effect may be filed. In fact, going by
Section 173(8) it can be stated like in our case by way of
G supplementary charge-sheet some more accused may also
be added to the offence with reference to which cognizance is
already taken by the Judicial Magist~ate. While cognizance is
already taken of the main offence against the accused already
H arrayed, the supplementary charge-sheet may provide scope
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 641
[FAKKIR MOHAMED IBRAHIM KALIFU~LA, J.]
for taking cognizance of additional charges or against more A
accused with reference to the offence already taken
cognizance of and the only scope would be for the added
offender to seek for discharge after the filing of the
supplementary charge-sheet against the said offender.
B
76. In CREF Finance Limited (supra) paragraph 1Ois
relevant wherein this Court has held as under:
10 ... ... Cognizance is taken of the offence and not of the
offender and, therefore, once the court on perusal of the c
complaint is satisfied that the complaint discloses the
commission of an offence and there is no reason to reject
the complaint at that stage, and proceeds further in the
matter, it must be held to have taken cognizance of the
offence. One should not confuse taking of cognizance D
with issuance of process. Cognizance is taken at the
initial stage when the Magistrate 12eruses the comglaint
with a view to ascertain whether the commission of any
offence is disclosed ...... "
E
(emphasis added)
77. The said statement of law reinforces the legal position
that cognizance is always of the offence and not the offender
and once the Magistrate applies his judicial mind with reference
F
to the commission of an offence the cognizance is taken at
that very moment.
78. To the very same effect is the judgment in Pastor P.
Raju (supra). Paragraph 13 is relevantfor our purpose, which
reads as under: G
"13. It is necessary to mention here that taking
cognizance of an offence is not the same thing as •
issuance of process. Cognizance is taken at the initial
stage when the Magistrate applies his judicial mind tq H
642 SUPREME COURT REPORTS [2015] 8 S.C.R.
A the facts mentioned in a complaint or to a police report
or upon information received from any other person that
an offence has been committed. The issuance of process
is at a subsequent stage when after considering the
material placed before it the court decides to proceed
B against the offenders against whom a prima facie case
is made out."
(emphasis added)
c 79. The above principle has been reiterated again in
Videocon International Ltd. (supra) in paragraph 19.
Paragraph 19 can be usefully extracted, which reads as under:
"19. The expression "cognizance" has not been defined
in the Code. But the word (cognizance) is of indefinite
D
import. It has no esoteric or mystic significance in
criminal law. It merely means "become aware of' and
when used with reference to a court or a Judge, it
connotes "to take notice of judicially". It indicates the point
E when a court or a Magistrate takes judicial notice of an
offence with a view to initiating proceedings in respect
of such offence said to have been committed by
someone."
(emphasis added)
F
80. In Mona Panwar (supra) at paragraph 19 what is
meant by 'taking cognizance' has been explained as under:
"19. The phrase "taking cognizance of" means
G cognizance of an offence and not of the offender. Taking
cognizance does not involve any formal action or indeed
action of any kind but occurs as soon as a Magistrate
applies his mind to the suspected commission of an
offence. Cognizance, therefore, takes place at a point
H when a Magistrate firsttakes judicial notice of an offence.
PRASAD SH RI KANT PUROHIT v. STATE OF MAHARASHTRA 643
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
This is the position whether the Magistrate takes A
cognizance of an offence on a complaint or on a police
report or upon information of a person other than a police
officer. Before the Magistrate can be said to. have taken
cognizance of an offence under Section 190(1)(b) of the
Code, he must have not only applied his mind to the B
contents of the complaint presented before him, but must
have done so for the purpose .of proceeding under
Section 200 and the provisions following.that section.
However, when the Magistrate had applied his mind only
for ordering an investigation under Section 156(3) of the c
Code or issued a warrant for the purposes of
investigation, he cannot be said to have taken
cognizance of an offence."
(emphasis added) D
81. The above statement of lawmakes the position amply
clear that cognizance is of an offence and not of the offender,
that it does not involve any formal action and as soon as the
Magistrate applies his judicial mind to the suspected E
commission of offence, cognizance t;akes place.
82. Again in a recent decision of this Court in Sarah
Mathew (supra) in paragraph 34, the position has been
reiterated as under: F
"34. Thus, a Magistrate takes cognizance when he
applies his mind or takes judicial notice of an offence
with.a view to initiating proceedings in respect of offence
-·
which is said to have been committed. This is the special
connotation acquired by the term "cognizance" and it has
G/
•
to be given the same meaning wherever it appears ,. in
Chapter XXXVI. It bears repetition to state that taking '\
cognizance is entirely an act of the Magistrate. Taking
.
cognizance may be delayed because of several ..
reasons. H
644 SUPREME COURT REPORTS [2015] 8 S.C.R.
A It may be delayed because of systemic reasons. It may
be delayed because of the Magistrate's personal
reasons."
83. Therefore, having regard to the overwhelming
B decisions of this Court in having repeatedly expressed what
is meant by cognizance and in majority of the decisions by
making specific reference to Section 190, we are clear that
the interpretation has to be to the cognizance of the offence to
be taken note of by the "Judicial Magistrate as prescribed under
C Section 190 and if it takes place that would satisfy and fulfill
the requirement of cognizance of offence by the filing of more
than one charge-sheet before the Competent Court as
stipulated in Section 2(1 )(d) of MCOCA.
o 84. Having considered the scope of the definition of
"continuing unlawful activity" as defined under Section 2(1 )(d)
with reference to the competent court and the cognizance of
more than one earlier case, when we apply the said principles
. to the facts of this case, as noted in the initial part of this
E judgment, the two earlier cases were the bomb blast in
Parbhani and Jalna. In Parbhani, the occurrence was on
21.11.2003 and in Jalna it was on 27.08.2004. In the Parbhani
case, the first charge-sheet was filed i;is early as on 07.09.2006
before the Chief Judicial Magistrate and in Jalna it was filed
F on 30.09.2006 before the concerned Chief Judicial Magistrate
and in both the cases, cognizance was taken and the
proceedings before the respective Magistrates concerned
were continued. Therefore, having regard to our conclusion
that the cognizance taken by the Judicial Magistrate under
G Section 190(1) of Cr.P.C. based on the police report under
Section 173(2)(i) of Cr:P.C. the same would fulfill the
requirement of 'cognizance' as well as, the 'competent court'.
It will have to be, therefore, held that to that extent, the definition
H under Section 2(1)(d) relating to "r,0;1tinuing unlawful activity"
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 645
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
in respect of more than one case of an offence punishable for A
more than three years is fully satisfied. Once we come to the
in
said conclusion, we do not find any substance .the third
submission of the appellants that cognizance by competent
court would only mean cognizance of such offences which can
be dealt with only by the Sessions Court and not by a Judicial B
Magistrate. Therefore, the said submission that the
cognizance was taken by Sessions Court much later after its
committal (i.e.) in the case of Parbhani only.on 29.04.2009
that is after the bomb blast in Malegaon and thereby the
definition of 'continuing unlawful activity' in respect Ot more than C
one case under Section 2(1 )(d) is not satisfied cannot be
accepted. The said submission, therefore, deserves to be
rejected.
85. The next submission made on behalf of the appellants D
was that in order to constitute the earlier two offences to fall
within the definition of 'continuing unlawful activity"for invoking
the provisions of MCOCA after the third occurrence, the
involvement of the accused must-have been by the same gang.
In other words, even if it were to be held that a member of an E
'organized crime syndicate' singly or jointly participated or on
behalf of an 'organized crime syndicate' with reference to such
participation taken place, what is to be ensured is that in all
the three cases the same gang, namely, the 'organized crime F
syndicate' must have been involved. Based on the said
contention it was submitted that in the case on hand after A-7
was arrested on 02.11.2008 he was produced Parbhani 'in
case on 11.11.2008 and supplementary charge-sheet was filed
against him on 13.11.2008 and in Jalna case a supplementary G
.charge-sheet was filed on 15.11.2008while none of the other
accused had any role to play either in Parbhani or in Jalna, nor
was the so-called 'Abhinav Bharat' was involved in either
Parbhani or Jalna occurrences. The contention was that though
A-7 was implicated both in Parbhani and Jalna such implication H
646 SUPREME COURT REPORTS [2015] 8 S.C.R.
A was not in pursuance of his role as a member of an 'organized
crime syndicate' pertaining to Malegaon bomb blast nor was
the position that the gang involved in Malegaon blast was also
responsible for the bomb blast in Parbhani and Jalna. It is,
therefore, contended that even as regards toA-7 he only alleged
B to have gathered certain materials and procured at the request
of one Devle who was the prime accused in Parbhani and
Jalna. It was contended that even as per the counter affidavit
of the second respondent herein there was no nexus shown
for the involvement of any of the accused in the Malegaon bomb
C blast case to do an~hing with Parbhani or Jalna bomb blast
either individually or jointly as a member of gang or on behalf
of the gang.
86. In this context, reliance was placed upon the decision
D in La lit Somdatta Nag pal &Anr. (supra). A similar contention
was raised before this Court in that case to the effect that
isolated incidents spread over a period of 10 years involving
different types of offences would not attract the provisions of
MCOCA and that such activity must be such as to have a link
E from the first to the last offence alleged to have been
undertaken in an organized manner by an organized crime
syndicate. The contention was that continuing unlawful activity
would necessarily mean continuous engagement in unlawful
F activity where there would be a live link between all the different
offences alleged. The said contention was refuted on behalf
of the State in the said case by contending that no live link
need exist between the different cases for the application of
MCOCA and that such nexus theory was not contemplated by
G the legislature. While dealing with the said contention, this Court
in ttie facts of that case held as under in paragraph 63:
"63. As has been repeatedly emphasised on behalf of
all the parties, the offence under MCOCA must comprise
continuing unlawful activity relating to organised crime
H
undertaken by an individual singly or jointly, either as a
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 647
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
member of the organised crime syndicate or on behalf A
of such syndicate by use of coercive or other unlaWful
means with the objective of gaining pecuniary benefits
or gaining undue economic or other advantage for himself
or for any other person or for promoting insurgency. !n
the instant case, both Lalit Somdatta Nagpal and Anil B
Somdatta Nagpal have been shown to have been
involved in several cases of a similar nature which are
pending trial or are under investigation. As far as Kapil
Nagpal is concerned, his involvement has been shown
only in respect of CR No. 25 of 2003 of Rasayani Police C
Station, Raigad, under Sections 468, 420 and 34 of the
Penal Code and Sections 3; 7, 9 and 10 of the Essential
Commodities Act. In our view, the facts as disclosed
justified the application of the provisions of MCOCA to
0
Lalit Nagpal and Anil Nagpal. However, the said
ingredients are not available as far as Kapil Nagpal is
concerned, since he has not been shown to be involved
in any continuing unlawful activity. Furthermore, in the
approval that was given by the Special Inspector General E
of Police, Kolhapur Range, granting approval to the
Deputy Commissioner of Police (Enforcement), Crime
Branch, CID, Mumbai to commence investigation under
Section 23(1) of MCOCA, Kapil Nagpal has not been
mentioned. It is only at a later stage with the registering F
of CR No. 25 of 2003 of Rasayani Police Station, Raigad,
that Kapil Nagpal was roped in with Lalit Nagpal and
Somdatta Nagpal and permission was granted to apply
the provisions of MCOCA tQ him as well by order dated
22-8-2005." G
(underlining is ours)
"'
87. When we refer to the said line of reasoning stated
therein, we find that in the case of one accused, namely, one H
Kapil Nagpal, since he was not shown _to be involved in any of
648 SUPREME COURT REPORTS [2015] 8 S.C.R.
A the earlier cases, his case required to be dealt with differently
and he cannot be said to have been involved in any continuing
unlawful activity. We do not find any other specific reason for
excluding him.
B 88. In this context a three Judge Bench decision of this
Court, which throws much light on this issue is Ranjitsing
Brahamjeetsing Sharma (supra). Paragraphs 31, 36 and
37 are relevant for our purpose which read as under.
c "31. The High Court does not say that the appellant has
abetted Telgi or had conspired with him. The findings of
the High Court as against the appellant are attributable
to allegations of abetting Kamat and Mulani. Both Kamat
and Mulani were public servants. They may or may not
D have any direct role to play as regards commission of
an organised crime but unless a .nexus with an accused
who is a member of the organised crime syndicate or an
offence in the nature of organised crime is established.
only by showing some alleged indulgence to Kamat or
E Mulani. the appellant cannot be said to have conspired
or abetted commission of an organised crime. Prima
facie, therefore, we are of the view that Section 3(2) of
MCOCA is not attracted in the instant case.
F 36. Does this statute require that before a person is
released on bail, the court. albeit prima facie. must come
to the conclusion that he is not guilty of such offence? Is it
necessary forthe court to record such a finding? Would
there be any machinery available to the court to ascertain
G that once the accused is enlarged on bail. he would not
commit any offence whatsoever?
37. Such findings are required to be recorded only for
the purpose of arriving at an objective finding on the basis
H of materials on record only for grant of bail and for no
PRASAD SHRIKANT PUROHIT v. STATE OF MAHARASHTRA 649
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
other purpose." A
(emphasis added)
89. A reading of paragraph 31 shows that in order to
invoke MCOCA even if a person may or may not have any
8
direct role to play as regards the commission of an organized
crime, if a nexus either with an accused who is a member of
an 'organized crime syndicate' or with the offence in the nature
of an 'organized crime' is established that would attract the
invocation of Section 3(2) of MCOCA. Therefore, even if one c
may not have any direct role to play relating to the commission
of an 'organized crime', but when the nexus of such person
with an accused who is a member of the 'organized crime
syndicate' or such nexus is related to the offence in the nature
of 'organized crime' is established by showing his involvement o
with the accused or the offence in the nature of such 'organized
crime', that by itself would attract the provisions of MCOCA.
The said statement of law.by this Court, therefore, makes the
position clear as to in what circumstances MCOCA can be
applied in respect of a person depending upon his involvement E
in an organized crime in the manner set out in the said
paragraph. In paragraphs 36 and 37, it was made further clear
that such an analysis to be made to ascertain the invocation of
MCOCA against a person need not necessarily go to the extent
for holding a person guilty of such offence and that even a F
finding to that extent need not be recorded. But such findings
have to be necessarily recorded for the purpose of arriving at
an objective finding on the basis of materials on record only
for the limited purpose of grant of bail and not for any other
purpose. Such a requirement ls, therefore, imminent under G
Section 21 (4)(b) of MCOCA.
90. Having regard to the said legal position with reference
to the requirement to be fulfilled in respect of an 'organized
crime' with particular reference to the past two instances and H
650 SUPREME COURT REPORTS [2015] 8 S.C.R.
A the present one in order to find out as to whether a person was
involved in a 'continuing unlawful activity', when we refer to the
facts before us, in the case on hand insofar as A-7 Rakesh
Dattaray Dhawade is concerned, he has been charge-sheeted
in Parbhani, Jalna as well as, the Malegaon bomb blast. The
B materials available on· record disclose that he furnished certain
materials at the asking of the prime accused involved in
Parbhani and Jalna, which also related to bomb blasts in both
the places. Going by the charge-sheet filed against A-7 in
Malegaon his direct involvement has been alleged. A
C conspectus consideration of the above facts discloses that
insofar asA-7 was concerned, he had a nexus with the member
of an 'organized crime syndicate' and also had every nexus
with the offence in the nature of an 'organized crime' of the two
earlier cases, namely, Parbhani and Jalna and also direct
0
involvement in the present bomb blast at Malegaon. In such
circumstances, there is no difficulty in coming to a definite
conclusion that insofar as, A-7 is concerned, his activity and
involvement in all the three occurrences, namely, Parbhani,
E Jalna and Malegaon disclose nexus with the crime and also
with the other accused involved in the crime and thereby the
satisfaction of the definition of 'continuing unlawful activity' of
an 'organized crime' on behalf of an 'organized crime syndicate'
is satisfactorily shown. In such circumstances, by virtue of
F Section 21 (4) ofMCOCA he is not entitled forthe grant of bail
and that he does not fall within the excepted category stipulated
in sub-clause (a) or (b) of the said sub-Section (4) of Section
21.
G 91. Having stated the said.position relating toA-7, when
we come to the case of others, there is no dispute that in
respect of other appellants, their involvement is with reference
to the present occurrence, namely, Malegaon bomb blast.
Admittedly they are not proceeded against for the offence
H relating to Parbhani and Jalna. But still at the present juncture,
PRASAD SHRIKANT PUROHIT v. STATE OF MAHARASHTRA 651
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
with the materials available on record as on date, we are not A
in a position to ascertain as to the involvement of the appellants
either by way of their nexus with any accused who is a member
of an 'organized crime syndicate' or such nexus with the
offence of an 'organized crime' which pertains to Parbhani and
Jalna. We cannot also rule out the possibility of the evidence B
based on the investigation by the prosecuting agency to come
out with reliable materials in support of such nexus to be shown
with an accused or with the crime in respect of the earlier two
cases, namely, Parbhani and Jafna. We cannot, therefore,
declare to the extent as was done by the Special Judge in the C
order dated 31.07.2009 to straightway reach at a conclusion
to the effect that MCOCA was not attracted and, therefore,
they should be discharged.
92. But, for the purpose of the requirement under Section D
21 (4) (b) having regard to the absence of any material as on
date to disclose any nexus with the accused of an 'organized
crime syndicate' or with the offence in the nature of an
'organized crime', in Parbhani and Jalna as of now we can
state that in respect of appellants otherthanA-7 i.e. appellant E
in Criminal Appeal No.1971/2010, their application for bail can
be considered by the Special Court. Therefore, on this issue,
namely, in all cases same gang must be involved, our answer
is to the above limited extent based on the earlier statement F
of law as declared in Ranjitsing Brahamjeetsing Sharma
J ~· '
1
(supra) in paragraph 31.
"
93. With that when we come to the next submission, namely,
that in order to characterize the past occurrence as well as the
present occurrence as an 'organized crime' falling under G
section 2 (1) (e) of MCOCA. in each of such occurrence,
violence should have played a key role and that such violence
etc. should have been for pecuniary gain. The submission
was made on behalf of the appellants that there was no material H
652 SUPREME COURT REPORTS [2015] 8 S.C.R.
A to show that any of the appellants had any pecuniary advantage
from anybody. The contention was that all the attributes of
Section 2(1)(e), namely, an 'organized crime' must be present
in all the three cases. It was further contended that in the
occurrence relating to Parbhani and Jalna, there was no
B allegation of pecuniary advantage and they were all just mere
cases of violence. It was, also contended that 'promoting
insurgency' was also not the specific case of the prosecution
in all the three cases, even assuming it may arise in Malegaon
blast, the same was not present in Parbhani or Jalna.
c
94. To appreciate the said contention, it will be necessary
to make a detailed reference to Section 2(1)(e) of MCOCA.
As far as the nature of activity is concerned, in Section 2(1)(e),
it is stated that 'organized crime' means continuing unlawful
D activity by use of violence or threat of violence or intimidation
or coercion or other unlawful means with the object of gaining
pecuniary benefits or gaining undue economic or other
advantage for himself or for any other person or for promoting
insurgency. If we make a detailed reference to the said
E provision, the use of violence etc. should have been carried
out with the object of either gaining pecuniary benefits or for
gaining undue economic or other advantage for oneself or for
any other person or for promoting insurgency. We find that the
F violent activity need not necessarily be for pecuniary advantage
in all acts of 'continuing unlawful activity'. Indulging in such
violent activity can be for gaining pecuniary advantage or for
gaining any other undue economic or other advantage or for
promoting insurgency. Therefore, at the very outset, we do not
G find any scope to interpret Section 2(1)(e), namely, an
'organized crime' to mean that in order to come within the said
expression indulging in such violent or other activity should
always be for pecuniary gain. On the other hand, we can safely
hold that such indulgence in violent activity can be either for
H pecuniary gain or for economic advantage or for any other
PRASAD SH RI KANT PU ROH IT v. STATE OF MAHARASHTRA 653
[FAKKIR MOHAMED IBRAHIM KAUFULLA, J.]
'" "(
advantage eitherforthe person who indulged in such activity A
or for any other person or for promoting insurgency. In that
respect, we find that expected benefit for indulging in any violent
or related activity could be for any of the above purposes
independently and one such purpose may be for promoting
insurgency. 8
95. When once we are able to state· the definition of
'organized crime' under Section 2(11 (e) with such clear
precision, the other question is what is meant by 'promoting
insurgency'. In fact, the said expression has already be.en C
considered by some of the judgments of this Court, and,
therefore, we can make useful reference to those judgments
to understand what is insurgency and whether there was any
act of insurgency prevalent in the case on hand when the
alleged activity of violence etc. alleged against the appellants. D
The dictionary meaning of expression 'insurgent' is raising an
active revolt or a revolutionary. Therefore, going by the dictionary
meaning, promoting insurgency would mean creating a
revolution and thereby disturb the peaceful atmosphere ..In
fact, in the decision of this Court in Zameer Ahmad Latifur E
Rehman Sheikh (supra) a reference has been made to this
very expression and has been dealt with in a detailed fashion
in paragraphs 26 to 29. We can usefully refer to the said
paragraphs to understand the expression insurgency. F
Paragraphs 26 to 29 are as under: r ' •,
"26. The term "insurgency" has not been defined eith'er
under MCOCA or any other statute. The word
"insurgency" does not find mention ih UAPA even after
the 2004 and 2008 Amendments. The definition as G
submitted by !\!fr Salve also does not directly or
conclusively define the term "insurgency" and thus
reliance cannot be placed upon it. The appellants would
contend that the term refers to rising in active revolt or
H
654 SUPREME COURT REPORTS [2015] 8 S.C.R.
A rebellion. Webster defines it as a condition of revolt
against the Government that does net reach the
proportion of an organised revolution.
27. In Sarbananda Sonowalv. Union of India this Court
has held that insurgency is undoubtedly a serious form
B
of internal disturbance which causes grave threat to the
life of people. creates panic situation and also hampers
the growth and economic prosperitv of the State.
28. We feel inclined to adopt the aforesaid definition for
c the current proceedings as there does not appear to exist
any other satisfactory source.
29. Although the term "insurgency" defies a precise
definition, yet. it could be understood to mean and cover
breakdown of peace and tranquility as also a grave
D
disturbance of public order so as to endanger the securitv
of the State and itssovereigntv."
(Emphasis added)
E 96. It has been more succinctly described in paragraphs
· 45 to 4 7 which can also be usefully referred to:
"45. Now that we have examined under what
circumstances a State law can be said to be encroaching
F upon the law-making powers of the Central Government,
we may proceed to evaluate the current issue on merits .
. Let us once again examine the provisior:i at the core of
this matter:
"2. (1)(e) 'organised crime' means any continuing unlawful
G
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
H the objective of gaining pecuniary benefits, or gaining
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 655
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
'
undue economic or other advantage for himself or any A
other person or promoting insurge:ncy;"
After examining this provision at length, we have come
to the conclusion that the definition of "organised crime"
contained in Section 2(1)(e) of MCOCA makes it clear B
that the phrase "promoting insurgency'' is used to denote
a possible driving force for "organised crime". It is evident
that MCOCA does not punish "insurgency" per se. but
punishes those who are guilty of running a crime
organisation, one of the motives of which may be the C
promotion of insurgency.
46. We may also examine the Statement of Objects and
Reasons to support the conclusion arrived at by us. The
relevant portion of the Statement of Objects and Reasons o
is extracted hereinbelow:
"1. Organised crime has for quite some years now come
up as a very serious threat to our society. It knows no
national boundaries and is fuelled by illegal wealth E
generated by contract, killing, extortion, smuggling in
cohtrabands, 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 F
has had serious adverse effect on our economy. It was
seen that the organised criminal syndicates made a
common cause with terrorist gangs and foster
narcoterrorism which extends .beyond the national
boundaries. There was reason to believe that organised G
criminal gangs have been operating in the State and thus,
there was immediate need to curb their activities.
2. The existing legal framework i.e. the penal and
procedural laws and the adjudicatory system are found H
656 SUPREME COURT REPORTS [2015] 8 S.C.R.
A to be rather inadequate to curb or control the menace of
organised crime. The Government has, therefore,
decided to ena'ct a special law with stringent and
deterrent provisions including in certain circumstances
power to intercept wire, electronic or oral communication
B to control the menace of organised crime."
47. We find no merit in the contention that MCOCA, in
any way, deals with punishing insurgency directly. We are
of the considered view that the legislation only deals with
c "insurgency" indirectly only to bolster the definition of
"organised crime". However, even if it be assumed that
"insurgency" has a larger role to play than pointed out by
us above in MCOCA, we are of the considered view that
the term "promoting insurgency" as contemplated under
D Section 2(1)(e) of MCOCA comes within the concept of
public order."
(Emphasis added)
E 97. Therefore, 'insurgency' has been understood to mean
raising an active revolt or rebellion in the common parlance. It
is also stated that it could be understood to mean and cover
breakdown of peace and tranquility as also a grave
disturbance of public order so as to endanger the security of
F the State and its sovereignty. While making specific reference
to Section 2(1 )(e), it was pointed out that MCOCA though does
not punish insurgency per se, punishes those who are guilty of
running a crime organization and one of the motive of which
may be the promotion of insurgency. Therefore, it is not
G necessary that promoting insurgency should always be linked
to pecuniary advantage. Whenever an organized gang
indulges in a violent act, such indulgence in violence or threat
of violence or intimidation or coercion or other unlawful means
can be for promoting an insurgency.
H
PRASAD SH RI KANT PUROHIT v. STATE OF MAHARASHTRA 657
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
98. In the light of such line of thinking already expressed A
by this Court with particular reference to Section 2(1 )(e), we
do not find any different meaning to. be attributed to the
definition of 'organized crime', much less to the extent to which
the appellants seek to interpr~t the said definition and state
that the indulgence in any .violent and related activity for B
promoting insurgency, the element of pecuniary advantage
should be present. We, therefore, reject such a contention
and hold that indulging in any violent or other related activity by
an organized gang and thereby an effort to promote insurgency
i.e. to damage the peace and tranquility in the State is made, . C
that by itself would fall within the four corners of the definition
of"organized crime" under Section 2(1)(e) . ..;;,;;;; ....
.
99. In the light of our above conclusions on the various
submissions, we are convinced that in respect of the appellant D
in Criminal Appeal No.1971/2010, namely, A-7, there is no
scope even for the limited purpose of Section 21 (4)(b) to hold
that application of MCOCA is doubtful. We have held that the
said appellantA-7 had every nexus with all the three crimes, .
namely, Parbhani, Jalna and Malegaon and, therefore, the bar E
for grant of bail under Section 21 would clearly operate against
him and there is no scope for granting any bail. Insofar as the
rest of the appellants are concerned, for the purpose of
invoking Section 21 (4)(b), namely, to consider their claim for F
bail, it can be held that for the present juncture with the available
materials on record, it is not possible to show any nexus of the
appellants who have been proceeded against for their
involvement in Malegaon blast with the two earlier cases,
namely, Parbhani and Jalna. There is considerable doubt about G
their involvement in Parbhani and Jalna and, therefore, they
are entitled for their bail applications to be considered on
merits. . · ..
100. When once we are able to steer clear of the said H
658 SUPREME COURT REPORTS [2015] 8 S.C.R.
A position, the other question to be considered is the grant of
bail on its own merits. For which purpose, the submission of
Mr. Mariarputham, learned senior counsel who appeared for
the State of Maharashtra and NIA based on the decision relied
upon by him in State of U.P, Through CBI v. Amarmani
B Tripathi -2005 (8) SCC 21 should be kept in mind, in particular
paragraph 18, which reads as under:
"18. It is well settled that the matters to be considered in
an application for bail are (t) whether there is any prima
c facie or reasonable ground to believe that the accused
had committed the offence; (it) nature and gravity of the
charge; (iit) severity of the punishment in the event of
conviction; (iv) danger of the accused absconding or.
fleeing, if released on bail; (v) character, behaviour,
D means, position and standing of the accused; (vt)
likelihood of the offence being repeated; (vit) reasonable
apprehension of the witnesses being tampered with; and
(viit) danger, of course, ofjustice being thwarted bygrant
of bail [see Prahlad Singh Bhati v. NCT, Delhi and
E Gurcharan Singh v. State (Delhi Admn.)]. While a vague
allegation that the accused may tamper with the evidence
or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at
large would intimidate the witnesses or if there is material
F
to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused. We
may also refer to the following principles relating to grant
or refusal of bail stated in Kalyan Chandra Sarkar v.
G Rajesh Ranjan: (SCC pp. 535-36, para 11)
11. The law in regard to grant or refusal of bail is very
well settled. The court granting bail should exercise its
discretion in a judicious mann~r and not as a matter of
course. Though at the stage of granting bail a detailed
H
PRASAD SHRIKANT PUROHIT v. STATE OF MAHARASHTRA 659
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
examination of evidence and elaborate documentation A
of the merit of the case need not be undertaken, there is
a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where
the accused is charged of having committed a serious
offence. Any order devoid of such reasons Would suffer B
from non-application of mind. It is also necessary for the
·court granting bail to consider among other
circumstances, the following factors also before granting
bail; they are: _,~.
c
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the o
witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the
charge. (See Ram Govind Upadhyay v. Sudarshan
Singh and Puran v. Rambilas.)" E
101. Even the other contentions submitted by the learned
senior counsel that the appellants are not entitled for bail, are
all matters which the prosecuting agency will have to place
before the Special Court for consideration while considering F
the appellants' application for bail. For the same reason, the
various other contentions rai_sed on behalf of the appellant in
Criminal Appeal Nos.1969-70/2010 as well as the appeal
arising out of SLP(Crl.) No.8132 of 2010 by making reference
to their personal grievances are all matters which will have to G
be placed before the Special Judge for consideration. We are
not expressing any opinion on those aspects and we leave it
for the Special Judge to consider the bail application on merits
and pass appropriate orders.
H
102. Accordingly, on question No.(a) in paragraph 35, we
660 SUPREME COURT REPORTS (2015] 8 S.C.R.
A hold that the judgment of the Division Bench in holding that
cognizance is of the offence and not of the offender is perfectly
justified and the same does not call for any interference.
Therefore, Criminal Appeal Nos.1969-70 of 2010, Criminal
Appeal No.1971 of 2010, Criminal Appeal Nos.1994-98 of
B 2010, appeal arising out of SLP(Crl) No.8132 of 2010 and
Criminal Appeal No.58 of 2011 are dismissed. As far as the
order dated 30.12.2010, rejecting bail, passed by the learned
Special Judge, which was also confirmed by the learned Single
Judge of the Bombay High Court by order dated 09.11.2011
C in Criminal Bail Application No.333 of 2011 with Criminal
Application No.464 of 201 t of the appellant in appeals arising
out of SLP (Crl.) Nos.9370-71 of2011, the said orders are set
aside with the observation that there is enough scope to doubt
as to the application of MCOCA under Section 21(4)(b) for
0
the purpose of grant of bail and consequently the Special Judge
is directed to consider the application for bail on merits keeping
in mind the observations in paragraphs 100 and 101 of this
judgment and pass orders. Consequently, the appeals arising
E outofSLP(Crl.) Nos.9370-71 of2011 are partly allowed. The
order impugned in these appeals is set aside and the
application for bail in Bail Application No.42 of 2008 is restored
to the file of the Special Judge for passing orders on merits.
Similarly, for the reasons stated in paragraph 99, we hold that
F the appellant in appeal arising out of SLP(Crl.) No.8132 of
201 O is also entitled for the same relief as is granted to the
appellant for consideration for grant of bail in the appeals
arising out of SLP(Crl.) Nos.9370-71 of 2011. We thus answer
question No.(b) of paragraph 35 and the trial Court is, therefore,
G directed to apply the same principle and consider the bail
application pending or filed afresh, if so advised, by the
appellant in the appeal arising out of SLP(Crl.) No.8132 of
2010 and pass orders on merits. Consequently, Criminal
Appeal No.1971 of 2010, Criminal Jl.;:;peal Nos.1994-98 of
H.
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 661
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
2010 and Criminal Appeal No.58 of 2011 are dismissed. A
103. Since the occurrence is of the year 2008 and nearly
seven years have gone by, it is imperative thatlhe Special
Court commence the trial at the earliest and conclude the same
expeditiously. We direct the Prosecuting Agency to ensure B
that the necessary evidence i.e. oral, documentary as well as
other form of evidence placed before the Court to enable the
Special Court to commence the trial early and conclude the
same expeditiously. It is stated that no officer has been posted
for the Special Court as on date. We, therefore, request the C
Chief Justice of the High Court of Bombay to pass appropriate
orders either for posting these cases before a lea!ned Judge
by way of special order or appoint a Presiding Officer
exclusively for deciding these cases in order to ensure speedy
trial. We also direct the Presiding Officer of the Special Court D
to dispose of the bail applications expeditiously, preferably
within one month from the date of his/her assumption of Office
as Special Judge. The Registry is directed to transmit the
records forthwith.
E
104. Since, we have not heard arguments on the question
as to the claim of NIA in seeking custody covered by SLP (Crl.)
No.9303 of 2011 and SLP (Crl.) No.9369 of 2011 the same
are delinked and shall be listed in due course.
F
Devika Gujral Appeals disposed-of.
~ljj •,,
. 01
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