Citation Codes

Equivalent Citations

citation codes

Advocates

Judges

Mr. Justice A.H. Joshi

Acts

section 3(1)(ii) as well as section 3(4) of M.C.O.C. Act, 1999.
section 3(1)(ii) as well as section 3(4) of M.C.O.C. Act.
provisions of sections 16 and 17 of the M.C.O.C. Act.
provisions of section 23(2) of the M.C.O.C. Act
Clause (b) or sub-section (1) of section 23
section 3(i) and 3(4) of M.C.O.C. Act
section 23(1) of the M.C.O.C. Act
section 2(1) of the M.C.O.C. Act
section 2(d) of the M.C.O.C. Act,
section 16 of the M.C.O.C. Act
section 110(e) & (g) of Cri.P.C.
provisions of M.C.O.C. Act.
section 3(1)(ii) and 3(4)
M.C.O.C. Act, 1999,

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Smart Summary

Judgment Summary

Factual and Procedural Background

The appellants were tried before the Special Judge, Nagpur, constituted under the M.C.O.C. Act, 1999, in Special Case No. 2/2001. They were charged under section 3(1)(ii) and section 3(4) of the M.C.O.C. Act, 1999. The charge-sheet alleged that during the 10 years preceding 25-6-2001 the accused were named in multiple offences, each punishable with imprisonment for more than three years. The charge-sheet enumerated 17 cases against accused No.1, 11 cases against accused No.2 and 12 cases against accused No.3, and included two preventive measure cases under section 110(e) & (g) Cr.P.C. initiated by Sonegaon and Dhantoli Police Stations. Copies of charge-sheets and the fact that competent Judicial Magistrates had taken cognizance and issued process were placed on record.

After trial, the Special Judge convicted the three accused under section 3(1)(ii) and section 3(4) of the M.C.O.C. Act. Sentences imposed by the trial court (as recorded in the judgment) were: each accused awarded rigorous imprisonment for 10 years under section 3(1)(ii) and rigorous imprisonment for 7 years under section 3(4). The present appeal challenges the conviction and sentence.

Legal Issues Presented

Whether the trial Court's judgment holding the accused liable for offences under section 3(1)(ii) and section 3(4) of the M.C.O.C. Act is erroneous or vitiated due to the prosecution's alleged failure to prove the charges (as formulated by the Court).
Whether the prosecution proved the ingredients of section 3(1)(ii) and section 3(4) of the M.C.O.C. Act against the appellants, including proof that the appellants were members of an organised crime syndicate (relating to the applicability of section 2(1) and section 2(d) of the M.C.O.C. Act).
Whether the procedure mandated by section 23 (including section 23(1) and section 23(2)) of the M.C.O.C. Act was complied with before taking cognizance and filing charge-sheets under the Act.
Whether reliance on provisions such as sections 16 and 17 of the M.C.O.C. Act (noting that an assertion was made about a Bombay High Court decision striking down section 16) affects the validity of the convictions.
Whether the trial Court failed to consider the defence raised by the appellants adequately.
Whether, if conviction is upheld, the sentence should be moderated in view of the appellants' submissions about ongoing parallel trials and selective prosecution.

Arguments of the Parties

Appellants' Arguments

The prosecution failed to prove the ingredients of sections 3(1)(ii) and 3(4) of the M.C.O.C. Act against the appellants.
The prosecution did not prove that the appellants were members of an organised crime syndicate; therefore section 2(1) of the M.C.O.C. Act is not satisfied.
Mere presentation of charge-sheets is insufficient to prove "continuing unlawful activity" under section 2(d) of the M.C.O.C. Act; none of the parallel criminal cases had reached a conclusion or resulted in conviction.
The prosecution failed to comply with mandatory provisions of section 23(2) of the M.C.O.C. Act.
The Special Court relied on sections 16 and 17 of the M.C.O.C. Act, and it was contended that section 16 had been held invalid by the Bombay High Court.
The trial Court did not properly consider the defence put forward by the appellants.
On sentence, the appellants urged leniency because many parallel cases remained pending and because other co-accused who appeared jointly in documentary material were not prosecuted under the M.C.O.C. Act, suggesting selective prosecution.

Note: The opinion does not contain a detailed account of the respondent-State's separate submissions in opposition to these specific points beyond the fact that the Respondent-State was represented (A.D. Sonak, A.P.P.).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court examined the material placed on record and proceeded in a sequential manner:

Documentary evidence: The Court reviewed certified copies of FIRs, final reports/charge-sheets, istegashas and bonds placed on record (with exhibit numbers listed). These documents established that the accused were named in numerous cases across several police stations and that competent Magistrates had issued process in those matters.
Grouping and overlap of offences: The Court analysed the grouping of offences to show that all three accused were commonly named in several crimes, while in other matters two of them were jointly named with additional persons not tried in the M.C.O.C. case. A detailed list of crimes and the names of other accused (including Rakesh and several others) who were not respondents in the M.C.O.C. trial was set out in the judgment and considered by the Court.
Oral evidence: The prosecution examined 18 witnesses, including two eyewitnesses (P.W.1 and P.W.4), complainants for various offences (P.W.2 and P.W.7 to P.W.10) and official witnesses who proved procedural aspects and certified documents.
Confrontation with documents and accused's replies: The Court noted that all relevant documents were put to the accused during the trial and again during their examination under section 313 Cr.P.C.; the accused uniformly responded that the allegations and documents were "false."
Evaluation of the defence: The Court characterised the defence as a general denial that the lodged cases were false. The Court observed that such denials, while legally permissible, were unsustainable on the facts when weighed against documentary evidence that established the accused had been repeatedly named and were aware of the cases against them.
Conclusion on proof: The Court held that the documentary and testimonial evidence adequately proved the ingredients of sections 3(1)(ii) and 3(4) of the M.C.O.C. Act (i.e., membership of an organized criminal syndicate and use of organised crime as a device of livelihood). The trial Court's conclusion was described as essentially compelled by the objective evidence—an "arithmetical equation" leaving the trial Court no real option.
Sentence and selective prosecution concerns: In considering sentence mitigation, the Court acknowledged submissions about pending parallel prosecutions and that several other persons who appeared in documentary material were not prosecuted under the M.C.O.C. Act. The Court found substance in the appellant's factual contention about other accused (names and number of cases were enumerated) and considered this as a matter warranting administrative attention.
Administrative direction: While upholding the convictions and sentences, the Court directed its Registry to bring the matter to the attention of the Commissioner of Police and Director General of Police, asking them to examine whether appropriate action (including under the M.C.O.C. Act, if legally tenable) should be taken against other persons named in the documentary material. The Court requested that such action be taken expeditiously and within one month from receipt of the judgment copy.

Holding and Implications

Holding: The appeal is dismissed. The trial Court's conviction of the appellants under section 3(1)(ii) and section 3(4) of the M.C.O.C. Act is affirmed and there are no grounds to interfere with the sentence as imposed by the trial Court.

Implications:

The direct legal consequence is that the appellants' convictions and the sentences recorded by the Special Judge stand as affirmed by this Court.
The Court did not set aside or alter the sentences; it expressly found no error in the convictions and refused to interfere with the sentence.
The Court did not cite any binding judicial precedents in support of its decision in this opinion (see Precedents section above).
Administratively, the Court ordered that the Registry notify the Commissioner of Police and Director General of Police about the Court's observations concerning other persons who appeared in the documentary material but were not proceeded against under the M.C.O.C. Act, and requested that appropriate action be considered within one month. This is a directional administrative request rather than a judicial modification of prosecution choices.
No new legal principle or precedent was announced; the decision applies the evidence-on-record to the statutory provisions and affirms the trial Court's objective-evidence-based conclusion.

Relief and Miscellaneous Directions

The Court directed that copies of the judgment be supplied to the appellants, their counsel and the Public Prosecutor free of costs. The Registry was directed to bring the Court's observations about other named accused to the attention of the Commissioner of Police and Director General of Police for appropriate action within one month.

Disposition

Appeal dismissed.

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Amarsingh S/O. Kisansingh Thakur Others v. State Of Maharashtra

Advocates appeared :

K.S. Nikhade, for appellants.

A.D. Sonak, A.P.P., for respondent-State.

JOSHI A.H., J.: - The appellants were tired by the Special Judge, Nagpur, constituted under M.C.O.C. Act, 1999, in Special Case No. 2/2001 for offence punishable under section 3(1)(ii) as well as section 3(4) of M.C.O.C. Act, 1999.

2. The charge contained imputations namely that, the accused were during the period of 10 years preceding 25-6-2001, named as accused in various offences, each amongst those was punishable with sentence for a period more than 3 years. The charge-sheet narrates 17 cases against accused Nos. 1, 11 cases against accused Nos. 2 and 12 cases against accused No. 3. The charge-sheet also consists of 2 preventive measure cases under section 110(e) & (g) of cri.p.c. against all the 3 accused persons initiated first by Sonegaon Police Station and another by Dhantoli Police Station under 2 different istegasha, each relating to one of the chapter cases, and accused have been ordered to execute bond for maintaining peace and order. These two chapter cases are relied upon as additional circumstance.

3. It is seen from the record that the copies of charge-sheet and fact that competent Judicial Magistrate has taken cognizance of these offences and issued process, was brought on record.

4. After completion of the trial, the learned Special Judge, has reached the conclusion of holding the accused persons guilty of offence punishable under section 3(1)(ii) as well as section 3(4) of M.C.O.C. Act.

5. After hearing the learned Advocate for the accused persons on the point of sentence, the learned Special Judge ordered different sentences as follows :-

for order for order

under sec- under sec-

tion 3(1)(ii) tion 3(4)

Accused No. 1 R.I. for 10 R.I. for 7

years; years

Accused No. 2 R.I. for 10 R.I. for 7

years; years

Accused No. 3 R.I. for 10 R.I. for 7

years; years

6. The present appeal is against the said judgment and order of conviction and sentence.

7. Heard the learned Advocate for the appellants in support of appeal. The learned Advocate for the appellant had made it clear that the grounds of appeal as incorporated in the memo would be amplified duting the course of submissions and there would be no other points to be urged.

8. In order to have the points of submission ready at hand it would be useful to draw the grounds contained in memo of appeal for ready reference. Those are quoted below :-

(i) That, the prosecution has failed to prove the ingredients of section 3(1)(ii) and 3(4) against the present appellants.

(ii) That, the prosecution has failed to prove that the appellants are members of an organised crime syndicate. Therefore, the provisions as envisaged in section 2(1) of the M.C.O.C. Act is not satisfied.

(iii) That, mere presentation of the charge-sheets against the appellants is not sufficient to prove that their acts falls within the meaning of section 2(d) of the M.C.O.C. Act, which speaks about "continuing unlawful activity".

It is submitted that the appellants are not convicted in any of the criminal cases registered against them and, therefore, launching of various prosecution against them cannot be treated for holding them guilty.

(iv) That, moreover the prosecution has utterly failed to follow provisions of section 23(2) of the M.C.O.C. Act which is a mandate.

(v) That, the special Court has also relied on the provisions of sections 16 and 17 of the M.C.O.C. Act. It is submitted that recently the Bombay High Court has held that section 16 of the M.C.O.C. Act needs to be struck down from the Act.

(vi) That, the trial Court has not considered the defence put forth by the appellants and therefore, the impugned judgment needs to be set aside.

9. In order to amplify the submissions, the learned Advocate for the appellant further urged the following :-

(i) while it is true that accused persons were subjected to trial in various offences, the fact requires this Courts consideration, is that neither of the offences have reached a conclusion and amongst those in no case the accused have been convicted and sentenced so far;

(ii) there were certain other offences in relation to which trials have parallely proceeded, in which these accused persons have been acquitted, and the details thereof can be placed on record.

(iii) that the procedure required to be followed under section 23(1) of the M.C.O.C. Act before taking cognizance has not been complied with, learned Advocate for the appellant was not in a position to substantiate as to how any non-compliance as to Clause (b) or sub-section (1) of section 23 had occurred.

(iv) Record does not disclose objectively reached satisfaction as to the manner of reaching the opinion which has led to filing of charge-sheet under the provisions of M.C.O.C. Act.

10. The learned Advocate for the appellant then took this Court through the judgment.

11. After considering the submissions and perusal of judgment and testing the submissions to the documentary evidence on record, what this Court has to find out as point to be considered is as follows :-

Whether the judgment of the trial Court holding the accused liable for sentence under the provisions of M.C.O.C. Act is liable to be regarded as erroneous or vitiated on account of failure of the prosecution to prove any of the charge under section 3(1)(ii) and section 3(4) of the M.C.O.C. Act?

12. In order to address upon the point formulated in foregoing para, it becomes necessary to refer to the imputations in relation to which the accused were tried.

13. On perusal of the charge, it is seen that all the 3 accused are named common in some crimes, two amongst them in same cases and either of two with other accused not tried in M.C.O.C. case subject-matter. This classification is as follows :-

Grouping of accused Nos. 1 to 3 named common in crimes mentioned below :

(I) Crimes in which accused 1, 2 and 3 together are involved.

Sonegaon Police Crime Nos. 130/00

Station & 5/00

Ambazari Police Crime No. 104/00

Station

Dhantoli Police Crime Nos. 100/01 Station & 21/00

Ranapratap NagarCrime Nos. 109/00

Police Station & 79/00 & 101/00

(II) Crimes in which accused Nos. 1 and 2 only or along with other accused who are not named as accused in M.C.O.C. case are involved :-

Dhantoli Police Crime No. 14/00

Station

Ranapratap NagarCrime Nos. 135/97

Police Station & 164/97

(III) Crimes in which only accused Nos. 1 and 3, along with accused who are not named as accused in M.C.O.C. case are involved

Ajni Police Station Crime Nos. 132/00

& 100/00

Ambazari Police Crime No. 96/00 &

Station 103/00

Apart from the crimes mentioned above, accused No. 1 i.e. Amarsing was also involved, with other accused, other than A-2 & A-3 in crimes mentioned below :-

Ajni Police Station Crime Nos. 190/ 96 & 212/96

14. It is seen that one more accused named Rakesh who was not named and tried in subject-matter trial was involved as accused in various cases of offences including offence punishable for over 3 years R.I. The table showing accused Rakesh being tried with either or all appellants is as follows :

Sr. Crime Accused Po Sec- Exh.

No. No. alongwith lice tions No.

Rakesh Sta-

1. 132/00 A-1 Amar Ajni Indian 126

A-3 Shalik Penal

Code

Secs.

392,

342, 34

2. 100/00 A-1 Amar Ajni Indian 128

A-3 Shalik Penal

Code

Secs.

457,

380, 34

3. 96/00 A-1 Amar Ajni Indian 129

A-3 Shalik Penal

Code

Secs.

379, 34

4. 130/00 A-1 Amar Son- Indian 130

ega- Penal

on Code

A-2 Prem- Secs.

singh 457,

A-3 Shalik 380 r/w,

34 & 411

5. 104/00 A-1 Amar Amb- Indian 131

A-2 Prem azari Penal

A-3 Shalik Code

Secs.

307,

332, 353

r/w 34

Arms Act

Sec. 4

B.P. Act-

Sec. 135

6. 103/00 A-1 Amar Amb- Indian 132

A-3 Shalik azari Penal

Code

Secs.

332, 336

353, 427

r/w sec.

Arms Act-

Sec. 4

7. 100/01 A-1 Amar Dha- Indian 107

A-2 Prem ntoli Penal

A-3 Shalik Code

Secs. 332,

336, 353,

427 r/w

Sec. 34

Arms Act-

Sec. 4

8. 79/00 A-1 Amar Rana Indian 137

A-2 Prem Pra- Penal

A-3 Shalik tap Code

Na- Secs.

gar 454, 457,

380 r/w

Sec. 34

9. 101/00 A-1 Amar Rana Indian 138

A-2 Prem Pra Penal

A-3 Shalik tap Code

Na- Secs.

gar 454, 457,

380 r/w

Sec. 34

This aspect shall be dealt with at appropriate place in this judgment as regards accused Rakesh is concerned.

15. During the trial, prosecution examined 18 witnesses 2 amongst them P.W. 1 Mohini Prashant Patek (Exh. 84) and P.W. 4 Prashant Gujar (Exh. 89) are the eye-witnesses.

16. P.W. 2 Nilesh Jog (Exh. 85) and P.W. 7 to 10 are the complainants in various cases of house breaking, theft of motor cycle etc. Other witnesses are official witnesses of police Department who have proved the procedure as to procurement of certified copies etc., filed as evidence in the trial.

17. Prosecution placed on record copies of charge-sheets/final report along with order of issue of process thereon and copy of istegasa and bond which are for convenience grouped together and are as follows :-

Certified copies of F.I.R.

Page Date Police Exh.

Nos. Station No.

136 to 13-1-2000 Dhantoli 86

138

246 to 18-4-2001 Dhantoli 98

253

307 to 17-1-2000 Dhantoli 118-A

312

317 to 25-6-2001 Dhantoli 122

328

159 to 2-3-2000 Ajni 92

164

149 to 5-3-2000 Ajni 90

155

170 to 23-3-2000 Ajni 94

175

199 to 26-5-1996 Ajni 100

202

206 to 12-5-1996 Ajni 102

208

181 to 2-3-2000 Sonegaon 96

187

191 to 13-1-2000 Sonegaon 98

195

440 to 23-9-1997 Sonegaon 139

442

443 to 4-10-1997 Sonegaon 140

446

214 to 17-3-2000 Ambazari 104

218

265 to 16-3-2000 Ambazari 113

269

Certified copies of Final Report/Charge-Sheet.

230 to 31-5-2001 Dhantoli 106

245

278 to 11-4-2000 Dhantoli 116

285

286 to 12-4-2000 Dhantoli 117

294

295 to 22-4-2000 Sonegaon 118

306

372 to 24-7-2000 Sonegaon 130

380

345 to 6-7-2000 Ajni 126

352

356 to 6-5-2000 Ajni 128

365

366 to 24-5-2000 Ajni 129

371

381 to 14-6-2000 Ambazari 131

392

393 to 27-5-2000 Ambazari 132

401

410 to 6-6-2000 Ranapratap 136

419 Nagar

420 to 5-6-2000 Ranaprarap 137

429 Nagar

430 to 5-6-2000 Ranapratap 138

439 Nagar

353 to 31-7-96 Ajni 127

335

402 to 4-8-96 Ajni 133

403

404 to 30-12-97 Rana Pratap 134

406 Nagar

407 to 30-12-97 Rana pratap 135

409 Nagar

Certified copies of Istegasha

447 to 14-4-2000 Sonegaon 141

449 P.S.

451 to 24-4-2000 Dhantoli 143

454 P.S.

Certified copy of Bond

450 16-9-2000 142

455 20-7-2001 144

18. It can be seen that in all these offences either of the accused persons jointly with one amongst the three and some amongst the outside offender are subject-matter of charge-sheet and further process of taking cognizance thereon has occurred. The evidence so brought before the Court adequately proves the charge framed against the accused section 3(i) and 3(4) of M.C.O.C. Act of being a member of organized criminal syndicate and remaining thereof as a device of livelihood.

19. The fact that the accused have been so named for these offences as accused persons, is a fact borne on record. These documents are within their knowledge as they have appeared in all these cases and are facing the trial in all these cases. In the trial, subject-matter of appeal, all sheets in respect of cases were again put to them. All these documents were again put to the accused appellant by way of opportunity of defence and lastly in the statement under section 313 by incorporating each one of the offence (under different questions put to the accused under section 313). The answer to all those questions by the appellant is that, "it is false".

20. Now, in this situation, the critical position arose before the learned Special Judge was almost like an arithmetical equation. The imputations put against the accused were proved by documentary evidence and accused had pleaded in reply saying "it is false". This defence of denial though permissible in law, is unsustainable on facts of the case, in case subject-matter of document put to them as documentary evidence against them since the accused were facing the trial could hardly have stated before any Court of law that, "the lodgment of such cases is false", though it is open to them to say that cases are false, nevertheless they have preferred to plead so.

21. This Court, therefore, holds that finding of trial Court holding the accused guilty was like an infalliable conclusion based on an arithmetic equation about which trial Court was rendered optionless. Conviction is based on objective evidence. No subjective element is at all involved. The conviction under appeal, therefore, cannot be faulted as erroneous or an unavailable conclusion. The appeal, therefore, reveals to have no merit.

22. When this Court considered the merits of the case and found that the conviction is maintained, the learned Advocate for the appellant urged on the point of sentence and prayed for lenience, more particularly in the background that it cannot be anticipated as to how many more years it would be taken to reach the pending cases to a logical conclusion.

23. The learned Advocate further pressed into service one more submission on the point of lenience, while the police have taken recourse to the M.C.O.C. Act against the present appellants which in spirit till operates as preventive measure though certain conduct has been defined as an offence. The learned Advocate further contended that even when the accused are found guilty of offence of being a member of a syndicate for organized crime, the conclusion which is irresistable is that the prosecution was not fair since it did not book and subject to trial all other accused persons "who are jointly named as accused" in various criminal trials which are subject-matter of documentary evidence used against the appellants. These accused persons and the offences in which they are involved along with either of the appellants herein are shown as follows :-

Names of persons accused but not tried in M.C.O.C. case subject-matter along with present appellants

Sr. Name Sections Crime Police Exh.

No. of Nos. Sta- No.

other tion

accu-

sed

1. Rakesh I.P.C. 132/00 Ajni, 126,

Secs. 454, 100/00 Sone- 128,

457, 380, 96/00, aon, 129,

427, 332, 130/00, Amba- 120,

336, 353, 104/00, zari, 131,

411, 379, 103/00, Dhan- 132,

392 100/01, toli, 107,

79/00, Pratap 137

Arms Act 100/00 Na

Sec. 4 gar

B.P. Act Total 9

Sec. 135 crimes

2. Lakhan I.P.C. 5/00, Sone- 116,

singh Secs. 14/00 gaon,

379, 457,

380/34,

411

3. Munna Total 2 Dhan 118

Uike crimes toli

4. Suren- I.P.C. 190/96 Ajni 127

dra Sec. 380,

454/34, 212/96 133

411 Total 2

crimes

5. Gaja- I.P.C. 135/97 Rana- 134,

nan Secs. 164/97 pratap 135 454, 457, Nagar

380 Total 2

crimes

6. Rajesh I.P.C. 109/00, Ranap 136

Secs. 454, ratap

380/34 Total 1 Na-

crimes gar

7. Ratna I.P.C. 5/00 Sone 118

kar Secs. gaon

Gurav 457, 380

411

Total 1

crime

The learned Advocate for appellant, therefore, contended that while persons similarly placed are enjoying liberty and are given immunity from M.C.O.C. Act, the question as to how for the same circumstances, the appellants could have their liberties fortified needs to be addressed.

24. Upon scrutiny of documents, this Court finds that there is substance in the factual aspect and the submissions advanced by the learned Advocate that other accused namely Rakesh (accused in 9 crimes), Lakhansingh along with Munna Uikey (accused in 2 cases), Surendra (accused in 2 cases), Gajanan (Accused in 2 cases) are the persons involved in at least two crimes each along with the accused who are appellants herein.

25. This Court can while deciding the case of the appellants on merit as well, bring it to the notice of the competent authority who have initiated the proceedings and their higher authorities to look into the matter and examine the case of these accused persons named in paras 23 and 24 above, who are seen involved in various other cases along with appellants herein and take appropriate action against those accused including under M.O.C.A. Act, if such action fits into the frame of law, which would eliminate trick and choose and victimization policy being adopted by police.

26. The result, that ensues in the given situation is that the offence charged against the accused was duly proved. The judgment answers the ingredients of proof of fact as required within the four corners of the M.C.O.C. Act. In the result, appeal fails. There are no grounds made out to interfere in the sentence. The appeal is, therefore, dismissed.

27. This Court cannot part with the judgment without reiterating what it has observed in para 25 above, by directing the Registry of this Court to bring to the notice of Commissioner of Police and Director General of Police the points of submissions advanced by the learned Advocate for the appellant and noted by this Court in relation to the other accused namely Rakesh, Lakhansingh, Munna Uike, Surendra and Gajanan, who are involved in more than two cases along with either of the appellants and take appropriate decision as expeditiously as possible and within the period of one month from the date of receipt of the copy of the judgment.

28. The copies of this judgment be supplied to the appellants and their learned Advocates, and Public Prosecutor free of costs.

Appeal dismissed.

Amarsingh S/O. Kisansingh Thakur Others v. State Of Maharashtra

Judgment Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Relief and Miscellaneous Directions

Disposition

Amarsingh S/O. Kisansingh Thakur Others v. State Of Maharashtra

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