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

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.BackgroundAdditional 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.ContentionsOne 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 MCOCAAs 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 mannerThe 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 crimeA 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 advantageThe 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 ...

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

Ashok KM

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