'Continuing Unlawful Activity' For Gaining Advantages Other Than Economic Or Pecuniary Is Also An "Organised Crime" Under MCOCA: Supreme Court

Update: 2022-05-22 14:24 GMT

The Supreme Court observed that continuing unlawful activity with the objective of gaining advantages other than economic or pecuniary is also an "organised crime" under Maharashtra Control of Organised Crime Act, 1999.

There could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself, the bench of Justices Dinesh Maheshwari and Aniruddha Bose said.

Background

Additional Director General of Police and Commissioner of Police, Nagpur City under Section 23(2) of the MCOCA sanctioning prosecution of the appellant with five other accused persons. As the Bombay High Court rejected the challenge against these actions, the appellant approached the Apex Court.

Contentions

One of the main contentions raised in appeal was that in order to invoke MCOCA, a minimum of two charge-sheets are required to have been filed with twin allegations, i.e., of a) violence and b) the object being of gaining pecuniary benefit or other similar benefit. It was contended in view of these twin requirements, the prosecution cannot rely upon the cases where the allegations only relate to violence but not to the object of gaining pecuniary or other benefit. The State, on the other hand, relied on a decision of the Full Bench of the Bombay High Court in the case of State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr.: (2011) SCC OnLine Bombay 1049 to submit that crimes of bodily offence could be the crimes committed with an intention to establish supremacy and which could lead to gains other than pecuniary benefit or advantage.

To address these contentions, the bench referred to the following relevant provisions of MCOCA :

Organised Crime under MCOCA

As per Section 2(e), "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.

Section 2(d) defines "continuing unlawful activity" as an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.

Rule of strict construction cannot be applied in an impracticable manner

The court observed that the provisions of MCOCA need to be strictly construed and for their application, an unlawful activity has to fall within the periphery of organised crime.

"However, the rule of strict construction cannot be applied in an impracticable manner so as to render the statute itself nugatory. In other words, the rule of strict construction of a penal statute or a special penal statute is not intended to put all the provisions in such a tight iron cast that they become practically unworkable, and thereby, the entire purpose of the law is defeated.", the court said.

Referring to Section 2(1)(e0, the bench noted as follows:

Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime

A bare look at clause (e) of Section 2(1) of MCOCA makes it clear that 'organised crime' means any unlawful activity by an individual singly or jointly, either as a member of organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means. The suggestions on behalf of the appellant to limit the activity only to the use of violence is obviously incorrect when it omits to mention the wide-ranging activities contemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat or violence or intimidation or coercion or other unlawful means. Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate. Threat of violence or even intimidation or even coercion would fall within the mischief. This apart, use of other unlawful means would also fall within the same mischief.

'Gaining undue economic or other advantage

The second part of the requirement of the nature of activity, i.e., its objective, has also not been projected correctly on behalf of the appellant. The requirement of law is not limited to pecuniary benefits but it could also be of 'gaining undue economic or other advantage'. The frame of the proposition that the object ought to be gaining pecuniary benefit or other 'similar' benefit is not correct as it misses out the specific phraseology of  the enactment which refers to undue economic or other advantage apart from pecuniary benefit.

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The court noted that the Bombay High Court in the case of Jagan Gagansingh Nepali @ Jagya has examined the issue whether the term "other advantage" has to be read as ejusdem generis with the words "gaining pecuniary benefits, or gaining undue economic advantage" or whether the said term "other advantage" is required to be given a wider meaning? It was held that the term "other advantage" cannot be read as ejusdem generis with the words "pecuniary benefits" and "undue economic". Upholding this view, the court observed:

"Looking to the object and purpose of this enactment, the expression 'other advantage' cannot be read in a restrictive manner and is required to be given its full effect. The High Court has rightly said that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself. As noticed above, the purpose of this enactment is to be kept in view while interpreting any expression therein and in the name of strict construction, its spirit and object cannot be whittled down."

The court, referring to the cases alleged against the appellant, noted that his involvement in such crimes and unlawful activities which are aimed at gaining pecuniary advantages or of gaining supremacy and thereby, leading to other unwarranted advantages is clearly made out.

Dismissing the appeal by rejecting other contentions raised by the appellant, the bench upheld the sanctioning order.

Case details

Abhishek vs State of Maharashtra | 2022 LiveLaw (SC) 516 | CrA 869 OF 2022 | 20 May 2022

Coram: Justices Dinesh Maheshwari and Aniruddha Bose


Headnotes

Maharashtra Control of Organised Crime Act, 1999 ; Section 2(1)(e) - The expression 'other advantage' cannot be read in a restrictive manner and is required to be given its full effect. The High Court has rightly said that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself. (Para 14.2-14.4)

Maharashtra Control of Organised Crime Act, 1999 ; Section 2(1)(e) - Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate. Threat of violence or even intimidation or even coercion would fall within the mischief. (Para 14.1)

Maharashtra Control of Organised Crime Act, 1999 ; Section 2(1)(d) - The matter of settlement because of cross-cases or a matter of acquittal because of the witnesses not turning up, could hardly be of any relevance so far as Section 2(1)(d) of MCOCA is concerned - What is significant and pertinent is the involvement of the person concerned in the referred activity and filing of charge-sheet and taking of cognizance in the offence as predicated. Acquittal or discharge is of no significance. (Para 17.5)

Maharashtra Control of Organised Crime Act, 1999 ; Section 18 - The value attached to the confessional statement, while overriding the provisions of CrPC and the Evidence Act in terms of Section 18 of MCOCA, cannot be gainsaid and cannot be ignored. (Para 18)

Maharashtra Control of Organised Crime Act, 1999 ; Section 2(1)(d) - The threshold requirement in terms of clause (d) is that of the activity/activities undertaken by the accused persons either singly or jointly, as a member of an organized crime syndicate, which involves a cognizable offence punishable with imprisonment of 3 years or more and in respect of which, more than one charge-sheets have been filed before the competent Court within 10 years and cognizance had been taken. (Para 17.1)

Criminal Trial - Sanction - The validity of sanction could always be determined by the Trial Court during the course of trial where sanctioning authority could be examined and the appellant will have sufficient opportunity to contest the same, including that of cross-examining the sanctioning authority. (Para 18.2)

Constitution of India, 1950 ; Article 136 - Code of Criminal Procedure, 1973 ; Section 438 - When an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC. What has been observed and said in relation to Section 438 CrPC applies with more vigour to the extraordinary jurisdiction of this Court under Article 136 of the Constitution of India. (Para 21)

Interpretation of Statutes - Penal Statutes - The rule of strict construction of a penal statute or a special penal statute is not intended to put all the provisions in such a tight iron cast that they become practically unworkable, and thereby, the entire purpose of the law is defeated. (Para 12.4-12.6)

Interpretation of Statutes - Maharashtra Control of Organised Crime Act, 1999 - the provisions of MCOCA need to be strictly construed and for their application, an unlawful activity has to fall within the periphery of organised crime. (Para 12-12.3)

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