'GUJCOCA' - Offence Of 'Organised Crime' Is Constituted By At Least One Instance Of Continuation, Apart From 'Continuing Unlawful Activity': Supreme Court

The Supreme Court observed that the offence of 'organised crime' under Gujarat Control of Terrorism and Organised Crime Act, 2015 is constituted by at least one instance of continuation, apart from 'continuing unlawful activity'.In this case, the State of Gujarat had approached the Apex Court challenging the Gujarat High Court judgment that the five FIRs, which were registered in the past for different offences under the Indian Penal Code (IPC) cannot be construed as a 'continuing unlawful activity' of the accused so as to prosecute him under the provisions of the 2015 Act. The High Court had followed the law laid down by the Apex Court in State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane reported in (2015) 14 SCC 272.In Shiva alias Shivaji Ramaji Sonawane (surpa), the court held that there are two essential ingredients to constitute an offence under MCOCA. (1) the registration of cases, filing of chargesheets and taking of cognizance by the competent court in relation to the offences alleged to have been committed by the accused in the past (2) continuation of unlawful activities. It is only if an organised crime is committed by the accused after the promulgation of the MCOCA that he may, on the basis of the previous chargesheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the MCOCA, it was held.The issues raised in the Apex Court were (1) whether the requirement of 'continuing unlawful activity', as defined under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019? (2) whether an FIR under the 2015 Act (Special enactment) is maintainable in law or can be registered if there is no FIR registered against the accused after the promulgation of the 2015 Act for any offence under the IPC or any other statute?The Solicitor General Tushar Mehta, who appeared for the State, contended that this dictum in Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook, as it frustrates the very object of enacting the 2015 Act. According to him, the term 'continuing unlawful activity' does not refer to any 'continuing unlawful activity' to be committed only after the promulgation of the 2015 Act and the same could be said to have been committed prior to the enactment of the 2015 Act. The counsel for the accused contended that only if an accused commits an organised crime after the promulgation of the 2015 Act, then the accused can be prosecuted under the provisions of the 2015 Act with the aid of the charge sheets that might have been filed in last ten preceding years.Disposing the appeals, the bench comprising Justices S. Abdul Nazeer and J B Pardiwala refused to refer the issue to larger bench and made the following observations:(a) If 'organised crime' was synonymous with 'continuing unlawful activity', two separate definitions were not necessary.(b) The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of 'continuing unlawful activity', but find place only in the definition of 'organised crime'. (c) What is made punishable under Section 3 is 'organised crime' and not 'continuing unlawful activity'.(d) If 'organised crime' were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) resply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that 'if any one of such offence has resulted in the death', since continuing unlawful activity requires more than one offence. Reference to 'such offence' in Section 3(1) implies a specific act or omission. (e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment.(f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere).(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if...

'GUJCOCA' - Offence Of 'Organised Crime' Is Constituted By At Least One Instance Of Continuation, Apart From 'Continuing Unlawful Activity': Supreme Court

Ashok KM

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