The State of Gujarat v. Sandip Omprakash Gupta
J. B. PARDIWALA, J.
1. Leave granted.
2. This appeal is at the instance of the State of Gujar at and is
directed against the order passed by the High Court of Gujarat dated
06.05.2021, in R/Criminal Miscellaneous Application No. 3819 of 2021
by which the High Court ordered release of the respondent accused
herein on bail in connection with the First Information Report being C.R.
No. 11210015200100 of 2020 registered with the D.C.B. Police Station,
Surat City, District Surat for the offences punishable under Sections
3(1)(i) and (ii), 3(2) and 3(4) resply of the Gujarat Control of Terrorism
and Organised Crime Act, 2015 (for short, ‘the 2015 Act’).
3. The question that falls for our consideration is: whether t he
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? To put it in oth er
words: whether an FIR under the 2015 Act (Special enact ment) is
maintainable in law or can be registered if there is no F IR registered
against the accused after the promulgation of the 2015 Act for any
offence under the IPC or any other statute?
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
4. The aforesaid question arises especially in view of the fact that
the last offence registered against the respondent-accused is of 2019
and the chargesheet in regard to the said FIR was filed on 2 1.01.2019
i.e., indisputably prior to the promulgation of the 2015 Act. Furthermore,
there is no FIR registered against the respondent-accused after the 2015
Act came into force w.e.f. 01.12.2019.
FACTUAL MATRIX
5. On 27.11.2020 an FIR came to be registered agains t the
respondent accused herein and thirteen other co-accused for the offence
punishable under Sections 3(1)(i) and (ii), 3(2) and 3(4) resp ly of the
2015 Act. The respondent-accused came to be arrested on the ve ry
same day and date of registration of the FIR i.e., 27 .11.2020. The
respondent-accused applied for bail before the Sessions Court at Surat
by filing the Criminal Miscellaneous Application No. 6483 of 2020. The
Sessions Court at Surat rejected the bail application vide order dated
21.01.2021.
6. The respondent-accused thereafter, preferred bail application
before the High Court by way of the Miscellaneous Criminal Application
No. 3819 of 2021. The High Court allowed the bail application and ordered
release of the respondent-accused on bail subject to certa in terms and
conditions.
7. The High Court granted bail to the respondent-acc used,
essentially relying on the dictum as laid by this Court in the case of State
of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane reported in
(2015) 14 SCC 272. The High Court took notice of the fact that the 2015
Act came into force w.e.f. 01.12.2019 in the State of Gujarat and no
FIR had been registered against the respondent-accu sed for any
substantive offence after 01.12.2019.
8. In such circumstances referred to above, the High Court took
the view relying on the decision of this Court in the case of Shiva alias
Shivaji Ramaji Sonawane (supra) 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
respondent-accused so as to prosecute him under the provisions of the
2015 Act.
9. We must look into the relevant observations of the High Court,
made in its impugned order as under:
771
“6. In order to curb and control organized crime and terrorist
activities in the State of Gujarat the Legislature has
promulgated “the Gujarat Control of Terrorism and Organized
Crime Act, 2015” vide Notification. The Act has com e into
force from 01.12.2019. Sections 2(c) and (f) which define
“continuing unlawful activity” and “organized crime
syndicate” read as under:
(c) “continuing unlawful activity” means an activit y
prohibited by law for the time being in force, which is a
cognizable offence punishable with imprisonment for a term
of three years or more, undertaken either singly or jointl y,
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 c ourt
within the preceding period of ten years and that c ourt
has taken cognizance of such offence;
(f) “organised crime syndicate” means a group of two or m ore
persons who, acting either singly or col-lectively, as a
syndicate or gang indulging in activities of organised crime;
The combined reading of the aforesaid provisions suggest that
there has to be a continuing unlawful activity carried out by
an organized crime syndicate, for which more than one charge
sheets have been filed before a competent court wit hin the
preceding period of ten years, and that the court ha s taken
cognizance of such offence.
7. The Supreme Court in the case of Shivaji Ramaji Sonawale
(supra) while considering the parimaterial provisio ns of
section 2(d) of the Maharashtra Control of Organised Crim e
Act, 1999 to that of section 2(c) of the Gujarat Ac t, which
defines “continuing unlawful activity” has held thus:
“9. The significant feature of the two cases is tha t for
Crimes No.37 of 2001 and 38 of 2001 the respondents
were separately tried and acquitted on 18th January, 2008
in the case of Shiva and on 28th February, 2006 in the
case of Mehmood Khan Pathan. In the said charge sheets,
the respondents were accused of committing offences onl y
under the IPC and the Arms Act . For the offences
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
punishable under MCOCA separate and independent
charge sheets were filed against the accused person s in
which they were convicted by the Trial Court which
conviction was reversed by the High Court as notice d
earlier. It was in the above backdrop that the High Court
held that once the respondents had been acquitted for the
offence punishable under the IPC and Arms Act in Crimes
No.37 and 38 of 2001 and once the Trial Court had
recorded an acquittal even for the offence punishab le
under Section 4 read with Section 25 of the Arms Act in
MCOCA Crimes No.1 and 2 of 2002 all that remained
incriminating was the filing of charge sheets agains t the
respondents in the past and taking of cognizance by the
competent court over a period of ten years prior to the
enforcement of the MCOCA. The filing of charge sheets or
taking of the cognizance in the same did not, declared the
High Court, by itself constitute an offence punisha ble
under Section 3 of the MCOCA. That is because the
involvement of respondents in previous offences was j ust
about one requirement but by no means the only requirement
which the prosecution has to satisfy to secure a conviction
under MCOCA. What was equally, if not, more important
was the commission of an offence by the respondents that
would constitute “continuing unlawful activity”. So l ong
as that requirement failed, as was the position in the ins tant
case, there was no question of convicting the respondents
under Section 3 of the MCOCA. That reasoning does not,
in our opinion, suffer from any infirmity.
10. The very fact that more than one charge sheets had
been filed against the respondents alleging offence s
punishable with more than three years imprisonment is not
enough. As rightly pointed out by the High Court
commission of offences prior to the enactment of MCOCA
does not by itself constitute an offence under MCOC A.
Registration of cases, filing of charge sheets and taking
of cognizance by the competent court in relation to the
offence alleged to have been committed by the respondents
in the past is but one of the requirements for invocation o f
Section 3 of the MCOCA. Continuation of unlawful
773
activities is the second and equally important requirement
that ought to be satisfied. It is only if an organised crime i s
committed by the accused after the promulgation of
MCOCA that he may, seen in the light of the previous charge
sheets and the cognizance taken by the competent cou rt,
be said to have committed an offence under Section 3 of
the Act.
11. In the case at hand, the offences which the respondents
are alleged to have committed after the promulgation of
MCOCA were not proved against them. The acquittal of
the respondents in Crimes No. 37 and 38 of 2001 signified
that they were not involved in the commission of th e
offences with which they were charged. Not only that the
respondents were acquitted of the charge under the Ar ms
Act even in Crimes Case No.1 and 2 of 2002. No appeal
against that acquittal had been filed by the State. This
implied that the prosecution had failed to prove the second
ingredient required for completion of an offence un der
MCOCA. The High Court was, therefore, right in holdi ng
that Section 3 of the MCOCA could not be invoked only
on the basis of the previous charge sheets for Sect ion
3 would come into play only if the respondents were proved
to have committed an offence for gain or any pecunia ry
benefit or undue economic or other advantage after the
promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the appeal
and setting aside the order passed by the Trial Court.”
8. By analyzing the expression “continuing unlawful activity ”,
the Apex Court has held that the filing of more than one charge
sheets for the offences punishable with more than three yea rs
imprisonment is not enough, but it must be satisfied th at the
continuation of unlawful activities is the second and equal ly
important requirement that ought to be satisfied. It is only if
an organised crime is committed by the accused afte r the
promulgation of the Act that has to be considered in the light
of the previous charge sheets. Thus, the contention raised by
the learned Advocate with regard to the prospective effe ct of
the Act is not palatable in view of the aforesaid observati ons
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
made by the Apex Court, but at the same time it is noticed i n
the present case, that the expression “continuing u nlawful
activity” is not satisfied in view of the offences which are
considered by the authority. In the instant case, for in voking
the provisions of the Act against the applicant, the state has
relied on 5 offences and one experiment order regis tered
against the applicant. The details are as under:
9. The Act came into force on 01.12.2019. The last offence
which is registered against the applicant is of 2019 regist ered
vide F.I.R. No.29/2019, (Item.1), for which the charge-- sheet
is filed on 21.01.2019 which is prior to the promulgati on of
the Act. The offence at serial no.6 being F.I.R. No .14/209
under sections 364(A), 387, 120(B), 114 of the IPC ha s been
quashed by this Court vide order dated 03.12.2019 p assed
in Criminal Misc. Application No.21872 of 2019 and hence,
the same could not have been considered by the auth ority
while registering the F.I.R. on 27.11.2020. The applicant has
not committed any offence after the promulgation of the A ct.
At serial no.6, the state has referred to the extens ion order
dated 03.03.2019 also which is against the provisio ns
of section 2(c) of the Act. The Supreme Court has held that it
is only if an organized crime is committed by the accused af ter
the promulgation of the Act that has to be considered in the
light of the previous charge sheets. Thus, the stat e has
misdirected itself with regard to the registration o f offences
775
against the applicant, hence the applicant cannot be allowed
to be further incarcerated in jail.
10. Having perused the materials placed on record and taking
into consideration the facts of the case, nature of allegat ions,
gravity of offences, role attributed to the accused , without
discussing the evidence in detail, at this stage, thi s Court is
inclined to grant regular bail to the applicant. It is clarified
that this Court has not expressed any opinion with regard to
the applicant not being a member or a member of the crim e
syndicate.”
10. Being dissatisfied with the aforesaid impugned order passed
by the High Court releasing the respondent-accused on bail, the State of
Gujarat is here before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT STATE
11. Mr. Tushar Mehta, the Solicitor General vehemently submitted
that the dictum as laid by this Court in Shiva alias Shivaji Ramaji
Sonawane (supra) requires a relook, as the said dictum frustra tes the
very object of enacting the 2015 Act. Mr. Mehta would submit that the
five FIRs referred to above, registered against the respondent-accused
prior to the 2015 Act coming into force, were sufficient to bring the case
within the ambit of ‘continuing unlawful activity’ as defined under the
2015 Act. He would submit that the term ‘organised crime’ as defined
under Section 2(1)(e) of the 2015 Act uses the term ‘continuing unlawful
activity’. A bare perusal of the definition of the term ‘continuing unlawful
activity’ would indicate that it does not refer to any ‘continuing unlawful
activity’ to be committed only after the promulgation of the 2015 Act.
Mr. Mehta would argue that the said term means activities prohibited by
law in respect of which more than one chargesheets has b een filed
before a competent court within the preceding period of ten years. The
phrase ‘within the preceding period of ten years’ by itself indicates that
the ‘continuing unlawful activity’ may be such activity, which could be
said to have been committed prior to the enactment of the 2015 Act.
12. Mr. Mehta submitted that one distinguishing feature of the
decision of this Court in the case of Shiva alias Shivaji Ramaji
Sonawane (supra) is that in the said case, the accused persons w ere
acquitted and the same signified that they were not involved in the
commission of the offence with which they were charged. It is in such
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
factual background that this Court in Shiva alias Shivaji Ramaji
Sonawane (supra) could be said to have observed that it is only if a n
organised crime is committed by the accused after the promulgation of
Maharashtra Control of Organised Crime Act, 1999 (for sh ort, ‘the
MCOCA’) that he may, seen in the light of the previous char gesheets
and the cognizance taken by the competent court, be s aid to have
committed an offence under Section 3 of the MCOCA.
13. In the last, Mr. Mehta submitted that if the dictum as laid in
Shiva alias Shivaji Ramaji Sonawane (supra) is affirmed, the object
of the 2015 Act i.e., prevention and control of terrorist act s and for
coping with criminal activities by organised crime syndicates, will surely
get hampered.
14. In the aforesaid contest, the submission of Mr. Mehta is that
if, the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra)
is to be treated as the final word so far as the law is concerned, then the
first case under the 2015 Act can be registered, only after two cases of
the nature described in the 2015 Act, had been registered again st the
person or against an organised syndicate after 01.12.2 019. As the
definition indicates, for making a crime punishable under the provisions
of the 2015 Act, there has to be more than one case registered or in
other words, it is the third case which can be registered for a n offence
under Sections 3 and 4 resply of the 2015 Act. Such an interpr etation
would be in direct conflict with the very purpose of the 2015 Act. If such
an interpretation is accepted then the State will have to wait and helplessly
watch the organised crime taking place till it is the third time a person or
a syndicate is found involved in the offence after the 2015 Act came into
operation w.e.f. 01.12.2019 in the State of Gujarat. According to Mr.
Mehta, the ‘continuing unlawful activity’ could have taken place ten
years prior to the registration of the new case. In such cir cumstances,
the intention of the Legislature could not have been other than g iving
immediate effect to the 2015 Act by taking note of all the off ences or
chargesheets registered within ten years prior to the commencement of
the 2015 Act.
15. In such circumstances referred to above, the learned Solicitor
General prays that the ratio of the decision of this Court in the cas e of
Shiva alias Shivaji Ramaji Sonawane (supra) may either be explained
accordingly, keeping in mind the object of the 2015 Actor the issue may
be referred to a larger Bench.
777
SUBMISSIONS ON BEHALF OF THE RESPONDENT-
ACCUSED
16. On the other hand, this appeal has been vehemently opposed
by the learned counsel appearing for the respondent-a ccused. The
learned counsel would submit that no error not to speak of any error of
law could be said to have been committed by the High Court while
passing the impugned order. He would submit that the decision of this
Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is
binding on the High Court and the High Court has rightly applie d the
dictum, as laid therein for the purpose of releasing the re spondent-
accused on bail.
17. The learned counsel would submit that if the interpretation put
forward by the learned Solicitor General is accepted then the same would
be in breach of Article 20(1) of the Constitution which provides that no
person shall be convicted of an offence except for one which is in violation
of any law in force at the time of commission of the act charge d as an
offence nor be subjected to a penalty greater than that w hich might
have been inflicted under the law in force at the time of commission of
the offence.
18. The learned counsel further submitted that the scheme of the
2015 Act makes it abundantly clear that it is 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 wit h
the aid of the charge sheets that might have been filed in last ten preceding
years.
19. The learned counsel would submit that unless there i s a
substantive offence, mere past chargesheets would not const itute the
offence of organised crime. He would argue that there is no merit in the
contention canvassed on behalf of the appellant-State that o ffence of
organised crime itself comprises of chargesheets filed in the past of
which cognizance is taken. He would argue that if such a conte ntion
were to be accepted, it would amount to giving a free hand to the police
to send anybody to a long term of imprisonment, merely b y filing
chargesheets in respect of more than one offence.
20. In such circumstances referred to above, the learned counsel
appearing for the respondent-accused prays that there being no merit in
the present appeal, the same may be dismissed.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
ANALYSIS
21. Having heard the learned counsel appearing for the parti es
and having gone through the materials on record, the onl y question
that falls for our consideration is whether the decision rendered by a
coordinate Bench of this Court in the case of Shiva alias Shivaji
Ramaji Sonawane (supra) requires a relook and the issue be referred
to a larger Bench.
AN OVERVIEW OF THE GUJARAT CONTROL OF
TERRORISM AND ORGANISED CRIME ACT, 2015
22. The Gujarat Control of Terrorism Act, 2015, as its long title
indicates, is ‘an Act to make special provisions for the prevention and
control of terrorist acts and for coping with criminal activities by organised
crime syndicates and for the matters connected therewith or incidental
there to’. The statement of objects and reasons contains the reasons,
which constitute the foundation for the legislature to step in:
First, organised crime which is in existence for some yea rs
poses a serious threat to society;
Secondly, organised crime is not confined by nation al
boundaries;
Thirdly, organised crime is fuelled by illegal wealth generated
by contract killing, extortion, smuggling and contraband, illegal trade
in narcotics, kidnapping for ransom, collection of protection money
and money laundering, and other activities;
Fourthly, the illegal wealth and black money generated by
organised crime pose adverse effects on the economy;
Fifthly, organised crime syndicates make common cause with
terrorists fostering narcoterrorism which extends beyond national
boundaries;
Sixthly, the existing legal framework in terms of penal a nd
procedural laws and the adjudicatory system were found inadequate
to curb and control organised crime; and
Seventhly, the special law was enacted with ‘stringent and
deterrent provisions’ including in certain circumstances, the power
to intercept wire, electronic or oral communication.
779
In understanding the ambit of the enactment, emphasis must b e
given to three definitions:
a. Organised crime (Section 2(1)(e)); 1
b. Organised crime syndicate (Section 2(1)(f)); 2 and
c. Continuing unlawful activity (Section 2(1)(c). 3
The expression ‘organised crime’ is defined with reference t o a
continuing unlawful activity. The definition is exhaustive si nce it is
prefaced by the word ‘means’. The ingredients of an organised c rime
are:
a. The existence of a continuing unlawful activity;
b. Engagement in the above activity by an individual;
c. The individual may be acting singly or jointly either a s a
member of an organised crime syndicate or on behalf of
such a syndicate;
d. The use of violence or its threat or intimidation or coerci on
or other unlawful means; and
e. The object being to gain pecuniary benefits or undu e
economic or other advantage either for the person
undertaking the activity or any other person or for promoting
insurgency.
1 Section 2(1)(e) - “organised crime” means any continuing unlawful activity and terrorist
act including extortion, land grabbing, contract killing, economic offences, cyber crimes
having severe consequences, running large scale gambling rackets, women trafficking,
racket for prostitution or ransom by an individual, singly or jointly, either as a member
of an organised crime syndicate or on behalf of suc h syndicate, by use of violence or
threat of violence or intimidation or coercion, or other unlawful means.
2 Section 2(1)(f) - “organised crime syndicate” means a group of two or more persons
who, acting either singly or collectively, as a syndicate or gang indulging in activities of
organised crime.
3 Section 2(1)(c) - “continuing unlawful activity” me ans an activity prohibited by law
for the time being in force, which is a cognizable offence punishable with imprisonment
for a term 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;
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
The above definition of organised crime, as its elements indicate,
incorporates two other concepts namely, a continuing unlawful activity
and an organised crime syndicate. Hence, it becomes ne cessary to
understand the ambit of both those expressions. The ingredi ents of a
continuing unlawful activity are:
a. The activity must be prohibited by law for the time be ing in
force;
b. The activity must be a cognizable act punishable wi th
imprisonment of three years or more;
c. The activity may be undertaken either singly or jointly as a
member of an organised crime syndicate or on behalf of
such a syndicate;
d. More than one charge-sheet should have been filed in respect
of the activity before a competent court within the preceding
period of ten years; and
e. The court should have taken cognizance of the offence.
The elements of the definition of ‘organised crime syndicate’ are:
a. A group of two or more persons;
b. Who act singly or collectively, as a syndicate or gang; a nd
c. Indulge in activities of organised crime.
Section 2(1)(c) while defining ‘continuing unlawful activity’ and
Section 2(1)(e) while defining ‘organised crime’, b oth contain the
expression ‘as a member of an organised crime syndicate or on behalf
of such syndicate’. While defining an organised crime syndicate, Section
2(1)(f) refers to ‘activities of organised crime’.
Section 3 provides for the punishment for organised crime.4 Sub-
section (1) of Section 3 covers ‘whoever commits an offence of organised
crime’. Sub-section (2) covers whoever conspires or attempts to commit
4 Section 3 - (1) Whoever commits an offence of terrorist act or organised crime shall,—
(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 fine which shall not be less than rupees
ten lakhs;
(ii) in any other case, be punishable with imprison ment 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 fine which shall not be less than rupees five lakhs.
781
or advocates, abets or knowingly facilitates the commis sion of an
organised crime or any act preparatory to organised crime. Sub-section
(3) covers whoever harbours or conceals or attempts to harbo ur or
conceal any member of an organised crime syndicate. Sub- section (4)
covers any person who is a member of an organised crime sy ndicate.
Sub-section (5) covers whoever holds any property derived or obtained
from the commission of an organised crime or which has been acquired
through the funds of an organised crime syndicate. Section 4 punishes
the possession of unaccountable wealth on behalf of a memb er of an
organised crime syndicate.
23. For charging a person of organised crime or being a member
of organised crime syndicate, it would be necessary to prove t hat the
persons concerned have indulged in :
(i) an activity,
(ii) which is prohibited by law,
(iii) which is a cognizable offence punishable with imprisonment
for three years or more,
(iv) undertaken either singly or jointly,
(v) as a member of organised crime syndicate i.e. acting as a
syndicate or a gang, or on behalf of such syndicate,
(2) Whoever conspires or attempts to commit or advo cates, abets or knowingly
facilitates the commission of any terrorist act or an organised crime or any act
preparatory to any terrorist act or organised crime, 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 fine, which shall not be less than rupees five lakhs.
(3) Whoever intentionally harbours or conceals or a ttempts to harbour or conceal
any person who has committed an offence of any terro rist act or any member of an
organised 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 fine which shall not be less than rupees five lakhs.
(4) Any person who is a member of an organised crime syndicate shall be punishable
with imprisonment for a term which shall not be les s than five years but which may
extend to imprisonment for life and shall also be l iable to fine which shall not be less
than rupees five lakhs.
(5) Whoever holds any property derived, or obtained from commission of terrorist
act or an organised crime or which has been acquire d through the organised crime
syndicate funds shall be punishable with imprisonme nt for a term which shall not be
less than three years but which may extend to impri sonment for life and shall also be
liable to fine which shall not be less than rupees two lakhs.
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
(vi) (a) in respect of similar activities (in the past ) more than
one charge-sheets have been filed in competent court within
the preceding period of ten years,
(b) and the court has taken cognizance of such offence.
(vii) the activity is undertaken by :
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means
(viii) (a) with the object of gaining pecuniary benefits or gaining
undue or other advantage or himself or any other person,
or
(b) with the object of promoting insurgency.
24. A close analysis of the term, ‘organised crime’ would indicate
that there has to be an activity prohibited by law for the tim e being in
force which is a cognizable offence punishable with imprison ment of
three years or more, undertaken as singly or jointly as a member of
organised crime syndicate or on behalf of such syndicate, in respect of
which activity more than one chargesheets have been filed before a
competent court within the preceding period of ten years and the Court
has taken cognizance of such offence.
PRINCIPLES GOVERNING GRANT OF BAIL IN CASES
OF THE 2015 ACT
25. Although, Mr. Mehta with all fairness submitted that the
discretion exercised by the High Court in favour of the re spondent-
accused in so far as releasing the accused on bail is concerned , the
same may not be disturbed in the facts and circumstances of the case.
Yet as this appeal arises from an order of bail granted by the High Court
wherein the provisions of the 2015 Act are made applicable, we deem it
fit to reiterate the principles of grant of bail.
26. The considerations which normally weigh with the Court in
granting bail in non-bailable offences are:
(1) the nature and seriousness of the offences;
(2) the character of the evidence;
783
(3) circumstances which are peculiar to the accused;
(4) a reasonable possibility of the presence of the accused not
being secured at the trial;
(5) reasonable apprehension of witnesses being tampered with;
(6) the larger interest of the public or the State and other similar
factors which may be relevant in the facts and circumstances
of the case.
27. However, if the provisions of the 2015 Act are invoked in a
given case, then, in addition to the aforementioned broad principles, the
limitations imposed in the provisions contained in sub-sectio n (4) of
Section 20 of the 2015 Act should not be lost sight of while dealing with
application for grant of bail. The relevant provision reads as under:
“20.(4) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under th is Act
shall, if in custody, be released on bail or on his own bond,
unless –
(a) the Public Prosecutor has been given an opportuni ty to
oppose the application of such release; and
(b) where the Public Prosecutor opposes the application, th e
Special Court is satisfied that there are reasonable grounds
for believing that accused is not guilty of committ ing such
offence and that he is not likely to commit any offence whil e
on bail.”
28. It is plain from a bare reading of the non-obstante cla use in
the sub-section that the power to grant bail by the High Court or Court
of Sessions is not only subject to the limitations imposed by Section 439 of
the Code but is also subject to the limitations placed by Section 20(4) of
the 2015 Act. Apart from the grant of opportunity to the Public Prosecutor,
the other twin conditions are: the satisfaction of the court that there are
reasonable grounds for believing that the accused is not guil ty of the
alleged offence and that he is not likely to commit any offence while on
bail. The conditions are cumulative and not alternative. The satisfaction
contemplated regarding the accused being not guilty has to be based on
reasonable grounds. The expression ‘reasonable grou nds’ means
something more than prima facie grounds. It contemplates su bstantial
probable causes for believing that the accused is not guilty of the alleged
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
offence. The reasonable belief contemplated in the provisions requires
existence of such facts and circumstances as are sufficient in themselves
to justify satisfaction that the accused is not guilty of the alleged offence.
Thus, recording of findings under the said provision is a sine qua non for
granting bail under the 2015 Act.
29. The Court should bear in mind the principles enunciated in the
case of
Ranjitsing Brahmajeetsing Sharma v. State of Maharasht ra
and Another reported in (2005) 5 SCC 294. We quote paras 43, 44 and
46 resply:
“43. Section 21(4) of MCOCA does not make any distinction
between an offence which entails punishment of life
imprisonment and an imprisonment for a year or two. It does
not provide that even in case a person remains behi nd the
bars for a period exceeding three years, although h is
involvement may be in terms of Section 24 of the Ac t, the
court is prohibited to enlarge him on bail. Each case, therefore,
must be considered on its own facts. The question as to whether
he is involved in the commission of organised crime or
abetment thereof must be judged objectively. …..
44. The wording of Section 21(4), in our opinion, does not
lead to the conclusion that the court must arrive at a positive
finding that the applicant for bail has not committed an offence
under the Act. If such a construction is placed, th e court
intending to grant bail must arrive at a finding th at the
applicant has not committed such an offence. In suc h an
event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the
intention of the legislature. Section 21(4) of MCOC A,
therefore, must be construed reasonably. It must be so
construed that the court is able to maintain a delicate balance
between a judgment of acquittal and conviction and an order
granting bail much before commencement of trial. Si milarly,
the court will be required to record a finding as t o the
possibility of his committing a crime after grant o f bail.
However, such an offence in future must be an offence under
the Act and not any other offence. Since it is difficult t o predict
the future conduct of an accused, the court must neces sarily
785
consider this aspect of the matter having regard to the
antecedents of the accused, his propensities and the nature
and manner in which he is alleged to have committed the
offence.
Xxx xxx xxx
46. The duty of the court at this stage is not to weig h the
evidence meticulously but to arrive at a finding on the basis
of broad probabilities. However, while dealing with a special
statute like MCOCA having regard to the provisions contained
in sub-section (4) of Section 21 of the Act, the co urt may
have to probe into the matter deeper so as to enabl e it to
arrive at a finding that the materials collected ag ainst the
accused during the investigation may not justify a judg ment
of conviction. The findings recorded by the court w hile
granting or refusing bail undoubtedly would be tentat ive in
nature, which may not have any bearing on the merit of the
case and the trial court would, thus, be free to de cide the
case on the basis of evidence adduced at the trial, without i n
any manner being prejudiced thereby.”
DECISION OF THIS COURT IN THE CASE OF STATE
OF MAHARASHTRA V. SHIVA ALIAS SHIVAJI RAMAJI
SONAWANE
30. We may now proceed to look into the decision of this Court
rendered in the case of Shiva alias Shivaji Ramaji Sonawane (supra).
But before we undertake this exercise, we must look into the judgment
of the High Court of Judicature at Bombay in Prafulla Uddhav Shende
v. State of Maharashtra, 2008 SCC OnLine Bom 1848 : (2009) 2 AIR
Bom R 1, which came to be challenged by the State of Mahar ashtra
before this Court & titled Shiva alias Shivaji Ramaji Sonawane (supra).
31. The High Court in Prafulla (supra) decided a batch of criminal
appeals filed by individual convicts. The accused persons therein were
convicted for the offences punishable under Section 3(4) of the MCOCA.
Shiva alias Shivaji Ramaji Sonawane was also one of the appellants
in the batch of appeals before the High Court.
32. The High Court after referring to the various provisions of the
MCOCA looked into its own decision delivered by a Division Bench in
the case of Jaisingh Ashrfilal Yadav and Others v. State of
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
Maharashtra and Another reported at 2003 All MR (Cri) 1506. We
quote paras 42 and 43 resply of the decision of the High Court in Prafulla
(supra):
“42. In Jaisingh Ashrfilal Yadav v. State of Maharashtra ,
reported at 2003 All MR (Cri) 1506, to which the le arned
A.P.P. drew my attention, a Division Bench of this Court was
considering the constitutionality of the provisions of MCOC
Act. The Court observed in paragraph 9 as under:
“9. The analysis of the definition of the organised cri me,
therefore, would reveal that continuing unlawful ac tivity
is one of its ingredients whereas in order to make an activity
to be continuing unlawful one, it should disclose filing o f
minimum two charge-sheets in relation to the activi ty
prohibited by law in force and of the nature specifi ed in
Section 2(d) during the period of preceding ten years. In
other words, lodging of two charge-sheets in relatio n to
the acts which are already declared under the law then in
force as offences of the nature specified under Sec tion
2(d) during the preceding period of ten years is one of the
requisites for the offence of organised crime under the said
Act.” (Emphasis supplied)
43. The Court then considered the challenge based on Article
20(1) of the Constitution of India. In paragraph 19 the Cour t
observed as under:
“19. There is lot of difference between the act or activity
itself being termed or called as an offence under a statute
and such act or activity being taken into consideration as
one of the requisites for taking action under the statute.
The former situation has to satisfy the mandate of Article
20(1) of the Constitution, however, in case of latter situation,
it stands on totally different footing. Undoubtedly, for the
purpose of organised crime there has to be a continu ing
unlawful activity. There cannot be continuing unlaw ful
activity unless at least two charge-sheets are to be fo und
to have been lodged in relation to the offence punishabl e
with three years’ imprisonment during the period of ten
years. Undisputedly, the period of ten years may relate to
787
the period prior to 24-2-1999 or thereafter. In other words,
it provides that the activities which were offences under
the law in force at the relevant time and in respect of whic h
two charge-sheets have been filed and the Court has taken
cognizance thereof, during the period of preceding ten
years, then it will be considered as continuing unla wful
activity on 24-2-1999 or thereafter. It nowhere by itself
declares any activity to be an offence under the said A ct
prior to 24-2-1999. It also does not convert any acti vity
done prior to 24-2-1999 to be an offence under the s aid
Act. It merely considers two charge-sheets in relati on to
the acts which were already declared as offences un der
the law in force to be one of the requisites for the purpo se
of identifying continuing unlawful activity and/or for the
purpose of an action under the said Act. This by it self
cannot be said to be in any manner violative of the mandate
of Article 20(1) considering the law laid down by the Ape x
Court in Rao Shiv Bahadur Singh’s case as well as
in Sajjan Singh’s case.”
33. The High Court, thereafter in para 44 of Prafulla (supra)
referred to its decision, rendered by a Division Bench in Bharat Shantilal
Shah v. State of Maharashtra reported at 2003 All MR (Cri) 1061. In
Bharat Shantilal Shah (supra), the challenge was to the constitutional
validity of MCOCA. We quote paras 44, 45 and 46 resply:
“44. In Bharat Shantilal Shah v. State of Maharashtra,
reported at 2003 All MR (Cri) 1061 the challenge to the
constitutional validity of MCOC Act, was considered by
another Division Bench. Definition of continuing un lawful
activity in Section 2(1)(d) was sought to be attack ed by
advancing the following arguments:
“19. Dealing with the next definitions in Section 2( 1)(d)
of ‘continuing unlawful activity’ it was submitted th at it
suffers from violation of Article 14 as it treats unequals a s
equals. It makes an activity continuing unlawful activity if
more than one charges of cognizable offence punishable
with imprisonment of three years or more are filed in
competent Court, if does not touch an activity as continuin g
unlawful activity if undertaken by a person who is known
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
to be a criminal but more than one charge sheets have not
been filed against him. A person charged ten times of a n
offence though acquitted on every occasion may yet be
roped in as a person engaged in continuing unlawful
activity. Whereas a person who is convicted for an offence
for three years punishment cannot be touched by thi s
definition if he is not charged with more than two of such
offences. The definition therefore treats as equal per sons
who are hopelessly unequal that is to say a person who is
a known criminal but charge-sheeted and convicted n ot
more than once and another who has been falsely charged
with 10 fabricated charges and acquitted of all the 10
charges with a finding that the charges were fabric ated
yet merely because cognizance has been taken of tha t
charge are treated as person engaged in continuous
unlawful activity. The definition therefore arbitra ry and
liable to be struck down as violative of Article 14 . The
arguments appear to be attractive at the first blush , but
deeper scrutiny reveals the hollowness of the argument. ”
45. Dealing with the objections to this definition the Court
observed in paragraph 25 of the judgment as under:
“25. Then we would consider the submission of Shri Manohar
that the definition of continuing unlawful activity violates the
mandate of Article 14 and is therefore liable to be struck down.
According to the learned counsel unequals are being tr eated
as equals. Persons charged only once are not brought within
the purview of the Act but a person, with several c harges
framed and cognizance taken by competent Court who late r
on are acquitted are covered by the definition. Accor ding to
him therefore a person is acquitted, of, ten charges cannot be
treated as equal to a person who charged and convicte d of
only one offence. In our opinion, there is no violation of Arti cle
14 by this definition. If we read the definition ag ain, what
has been defined as continuing unlawful activity is a member
of organized crime syndicate in respect of which any activi ty
prohibited by law and done repeatedly i.e. more tha n once
for which charge-sheet has been filed in the Court of
competent jurisdiction in the past ten years. The pu rpose of
789
definition is to define what continuing unlawful ac tivity is
and it is for the purposes of defining what is cont inued
unlawful activity that those charges are to be take n into
consideration. Mere taking into consideration of such charge s
cannot result in discrimination of the kind alleged by Shri
Manohar. The activity must be continuing unlawful activity
and to define it with clarity it is provided that any per son who
in the past was charge-sheeted for more than one cha rge of
such activity or crime the cognizance of which has been tak en
and imprisonment for which is more than three years should
be taken into account. The fact of the person havin g been
charge-sheeted in such cognizable offences in the past makes
the unlawful activity continuing unlawful activity. This Section
only defines what the activity is. It does not itself prov ide for
any punishment for that activity. Had punishment be en
provided the submission that it threats while punis hing
unequals as equals may carry weightage. That being not th e
case in the challenge to Section 2(1)(d) of the Act we see no
vagueness or violation of Article 14 by the definition. We find
that the provision treats all those covered by it in a like manner
and does not suffer from the vice of class legislation.”
(emphasis supplied)
46. In paragraph 27 the Court then went on to observe as
under:
“27. We also do not find substance in the challenge that the
equality clause in the Constitution is violated bec ause the
definition ropes in anyone charged more than once,
irrespective of whether the charge resulted in an acquittal or
conviction. The circumstances that followed the char ge are
not material. The provision only defines what is co ntinued
unlawful activities and refers to whether a person has been
charged over a period of ten years for the purpose of seeing
whether the person is charged for the first time or ha s been
charged often. The circumstance of conviction or ac quittal
that followed the charge are not material. The limited purpo se
is to see antecedents of the person. Not to convict. ””
(emphasis supplied)
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
34. Thus, Prafulla (supra) looked into paras 19, 25 and 27 resply
of Bharat Shantilal Shah (supra). It may not be out of place to State
that the High Court of Judicature at Bombay in Bharat Shantilal Shah
(supra) held that Sections 3 and 4 resply of the MCOCA i nherently
contemplated mensrea. The High Court held that the provisions of
MCOCA except those contained in Sections 13 to 16 resply to be valid
and struck down the provisions of Sections 13 to 16 resply as beyond the
legislative competence of the State Legislature. The High Court of
Judicature at Bombay also held that the words in sub-section (5) of the
Section 21 of the MCOCA ‘or under any other Act on the date of the
offence in question’ were violative of Article 14 of the Constitution and,
therefore, were to be deleted.
35. The judgment of the High Court of Judicature at Bombay in
the case of Bharat Shantilal Shah (supra) was challenged by the State
of Maharashtra before this Court in so far as it held Sect ions 13 to 16
resply of the MCOCA as unconstitutional. A Bench of three Judges of
this Court in State of Maharashtra v. Bharat Shanti Lal Shah and
Others reported in (2008) 13 SCC 5 upheld the judgment of the Hig h
Court of Judicature at Bombay deleting the words ‘or under any other
….’ from sub-section (5) of the Section 21. The questions raised before
this Court were concerned essentially with the consti tutionality of
interception of conversation or communication, which was subject matter
of Sections 13 to 16 resply of the MCOCA. This Court reverse d the
judgment only to the extent the High Court held the provisions ultravires.
36. There was no cross appeal filed by Bharat Shah challenging
the order of the High Court upholding the constitutional validity of the
provisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectively
of the MCOCA. Therefore, this Court had no occasion to go into that
question. This Court, however, observed that there was no va gueness
as the definitions defined with clarity what was meant by cont inuing
unlawful activity, organised crime and also organised crime syndicate.
This Court specifically concluded that after examining the judgment of
the High Court of Judicature at Bombay on the issue of the constitutional
validity of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 respectively
of the MCOCA, that the court was in accord with the finding arrived at
by the High Court that the aforesaid provisions cannot be said to be
ultravires of the Constitution and this Court did not find any reason to
take a different view than the one taken by the High Court of Judicature
at Bombay while upholding the validity of the aforesaid provisions.
791
37. The High Court of Judicature at Bombay had specifically held
as affirmed by a three-Judge Bench decision of this Court that had
punishment been provided for continuing unlawful activity, the submission
that while punishing, it treats unequals as equals may carry weightage.
The High Court, as affirmed by this Court, upheld the validi ty of the
provision defining ‘continuing unlawful activity’ only because the Act
did not provide any punishment for that activity. In para 27 of Bharat
Shantilal Shah (supra), the High Court made it explicitly clear that the
limited purpose of continuing unlawful activity was to see the antecedents
of the person and not to convict. Section 2 defines, not only the offence
of ‘organised crime’ but also the other terms used in the MCOCA. What
is material is the definition of offence of ‘organised crime’ and not the
definitions of other terms included in Section 2. Had the term ‘continuing
unlawful activity’ been synonymous with ‘organised crime’, it would not
have been necessary for the Legislature to include or prov ide for two
definitions. It would have been sufficient to provide for only one definition
of continuing unlawful activity and make that activity punishable. The
definitions in clauses (d) and (e) resply of sub-section (1) clearly indicate
that one of the components of organised crime is continuing unl awful
activity and, therefore, organised crime is something more tha n mere
continuing unlawful activity.
38. The High Court thereafter proceeded to observe in paras 47
to 53 resply as under:
“47. The Court then rejected the objections to the
constitutional validity of the definition. It is th us clear that
apart from previous charge-sheets there has to be a
continuation, an activity to which MCOCA is applied.
48. This fortifies the conclusion that mere proof of f iling
charge-sheets in the past is not enough. It is only on e or the
requisites for constituting offence of organised crime. If only
the past charge-sheets were to be enough to constit ute
offence of organised crime, it could have offended the
requirement of Article 20(1) of the Constitution and p ossibly
Article 20(2) as well, (and in any case Section 300 of the Cr
PC). Had these judgments of the Supreme Court and Divis ion
Benches of this Court been cited before the learned single
Judge deciding Amarnath v. State, (2006 All MR (Cri) 407 :
((2006) 6 AIR Bom R 120), the learned single Judge, wit hout
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
doubt, would not have held that the matter was simp ly one
of an arithmetical equation. The said judgment cann ot be
reconciled with the judgments or Division Benches
in Jaisingh v. State, (2003 All MR (Cri) 1506 and Bh arat
Shah v. State, 2003 All MR (Cri) 1061, which I am boun d to
follow.
49. It is not necessary to go into the implications of the
expression “prosecuted and punished” used in Article 20 (2)
of the Constitution. Section 300 of the Cr PC itsel f clearly
bars a fresh trial for the same offence. Section 21 of MCOC A
which prescribes modified applications of the Code to offe nces
under MCOCA does not make provisions of Section 300 o f
the Cr PC inapplicable. Therefore, since the previous cri minal
history of the applicants denotes that they had bee n or are
being separately charged/tried for those offences b efore
competent Courts, there is no question of such offe nces
constituting offence of organised crime.
50. In Appa @ Prakash Haribhau Londhe v. State of
Maharashtra, reported at 2006 All MR (Cri) 2804 : (( 2006)
6 AIR Bom R 401), a Division Bench of this Court wa s
considering the challenge to the applicability of MCOC Ac t.
The Court observed as under in paragraph 10 of the judgmen t:
“10. For the purpose of organised crime there has to be a
continuing unlawful activity and there cannot be continuing
unlawful activity unless at least two charge-sheets ar e to
be found to have been lodged in relation to the off ence
punishable with three years’ imprisonment during the period
of ten years. If no illegal activity as contemplated by MCOC
Act are committed after 1999, then the past activities p rior
to 1999 may not be of any help for registering any FIR
only on the basis of those past activities as has b een
observed by the Division Bench (R.M.S. Khandeparkar
and P.V. Kakade, JJ.) of this Court in Writ Petitio n No.
689 of 2005 and other petitions, but if two or more illegal
activities are committed after 1999, then the past activ ities
can be taken into consideration in order to show th e
continuity. We are therefore not in agreement with the
submissions made by Mr. Pradhan that on the date of
793
registration of FIR against the petitioners they ha d not
committed any act, as contemplated.”
51. While offences committed prior to 24-2-1999 cannot
amount to “organised crime”, since this offence was n ot on
statute book then, even post-24-2-1999 crimes could be tried
as “organised crime” only if information in respect of these
crimes is permitted to be registered as organised cr ime and
sanction is accorded for prosecution for such crime under
Section 23 of MCOCA. Such are not the facts in the presen t
cases. There is no substantive crime which is allow ed to be
registered under MCOCA. Offences in Crime Nos. 37/01 and
38/01. for which approval was sought are not subject-matter
of these trials. When Crime Nos. 3007/2001 and 3008/2 001
were registered, upon receiving approval, there was no crime
reported. Seizure of weapons is subsequent to registration o f
these crimes, for which the concerned accused persons hav e
been acquitted. Consequently without there being a
substantive offence indicating continuity, there woul d be no
continuation of the unlawful activity and as a corol lary no
“continuing unlawful activity”.
52. A look at provisions of the punishment. Section 3 of t he
MCOCA would fortify this conclusion. Clauses (i) and (ii) of
sub-section (1) would show that “if such offence has re-suited
in death of any person”, the offence of organised crime wou ld
attract death sentence or life imprisonment with a fine o f Rs.
one lakh. Now, if only old charge-sheets should be held as
enough, a person acquitted of a murder charge in th e past
would be liable to be sent for a life term, in spite of acqu ittal,
simply because a charge-sheet had been filed in the past.
Had this been contemplated, the learned Judge, Special Court,
would have charged Accused No. 1/I Shiva of offence
punishable under Section 3(1)(i) of MCOCA and not o ne
punishable under Section 3(1)(ii) of the MCOCA, since Shiva
had been charged once of murder (Sr. No. 9 in the chart) and
acquitted. Same would hold good about the other gangster s.
Advocate Tiwari, the learned counsel for Mehmood and others
relying on judgment of the Supreme Court in Dilip
Singh v. State of Punjab, reported at (1997) 3 Curr ent
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
Criminal Journal 223, that charge-sheets cannot be made the
basis of guilt or innocence of an accused. Therefor e, it is
clear that the offences referred to in various char ge-sheets
are not “such oftence(s)” and consequently an offen ce,
punishable under Section 3 of the MCOCA has to be different
from those for which such accused had been charge-shee ted
in the past. Past criminal activity only aggravates the
continued activity amounting to an offence and attr acts
provisions of MCOCA.
53. In view of this, since the appellants are not shown to have
indulged in any crime which can be said to be continuati on
of past criminal activity provisions of Section 3(1 ) of the
MCOCA are not attracted. It cannot be said that the
appellants have committed the offence of organised cr ime.”
39. It may not be out of place to state at this stage that in Prafulla
(supra), the High Court also referred to and relied upon its own decision
in the case of Altaf Ismail Sheikh v. State of Maharashtra, 2005 SCC
OnLine Bom 420 : 2005 Cri LJ 3584 : (2006) 1 CCR 391, more particularly
para 24 therein, which reads thus:
“24. The Section 23 of the MCOC Act which opens with non-
obstante clause and further clothed with negative w ords
clearly discloses the mandate of the legislature th at the
cognizance of the offences under the MCOC Act should not
be in routine course, but only upon the facts disclosi ng the
applicability thereof and satisfaction of the officer of t he high
rank, the minimum being of the rank of Deputy Inspe ctor
General of Police, in that regard. In fact, the officer of such
high rank is required to decide about the approval eve n for
recording of FIR in relation to any offence under the MCOC
Act. This obviously discloses that the approving authority ha s
to apply its mind about the applicability of the provision s of
the MCOC Act to the facts disclosed in a matter before allowing
the recording of FIR and for that purpose, he must be, p rima
facie, satisfied about the commission of offence of organis ed
crime under the MCOC Act by the person or persons against
whom the FIR is to be recorded. Obviously, for prim a facie
satisfaction regarding the commission of the offenc e of
organised crime or of participation therein in whatever manner,
795
the approving authority must have some materials bef ore it
disclosing the activities of the person or the persons to be of
the nature of offence under the MCOC Act and having
committed such activities on or after 24th February, 1999. In
other words, the activities of a person to be terme d as the
offence under the MCOC Act, the same should inevita bly
disclose to have been committed on or after 24th Feb ruary,
1999. If the activity of the person is relating to the period
prior to 24th February, 1999, obviously, it cannot be said t o
be an offence under MCOC Act, even though the activity ma y
be an offence under the provisions of some other stat ute in
force at the relevant time…..”
(Emphasis supplied)
40. Thus, the High Court took the view relying on its various other
decisions that if no illegal activities as contemplated by M COCA are
shown to have been committed after 1999, then the past activities, prior
to 1999 may not be of any help for registering any FIR only on the basis
of such past activities. Further, if two or more illegal a ctivities are
committed after 1999, then the past activities can b e taken into
consideration in order to show the continuity.
41. The State of Maharashtra being dissatisfied with the aforesaid
judgment of the High Court of Judicature at Bombay challenged the
same before this Court. It is the said challenge which culminated in the
decision titled as Shiva alias Shivaji Ramaji Sonawane (surpa).
42. We now proceed to look into the relevant observations made
by this Court as contained in paras 9, 10 and 11 resply:
“9. It was in the above backdrop that the High Court h eld
that once the respondents had been acquitted for the offences
punishable under IPC and the Arms Act in Crimes Nos. 37
and 38 of 2001 and once the trial court had recorde d an
acquittal even for the offence punishable under Sec tion 4
read with Section 25 of the Arms Act in M COCA Crimes Nos. 1
and 2 of 2002, all that remained incriminating was the filing
of charge-sheets against the respondents in the pas t and
taking of cognizance by the competent court over a period o f
ten years prior to the enforcement of M COCA. The filing of
charge-sheets or taking of the cognizance in the sa me did
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
not, declared the High Cou rt, by itself constitute an offence
punishable under Section 3 of MCOCA. That is because the
involvement of the respondents in previous offences was just
about one requirement but by no means the only requirement
which the prosecution has to satisfy to secure a co nviction
under MCOCA. What was equally, if not, more important was
the commission of an offence by the respondents that would
constitute “continuing unlawful activity”. So long as that
requirement failed, as was the position in the inst ant case,
there was no question of convicting the respondents under
Section 3 of MCOCA. That reasoning does not, in our opinion,
suffer from any infirmity.
10. The very fact that more than one charge-sheets had been
filed against the respondents alleging offences pun ishable
with more than three years’ imprisonment is not enou gh. As
rightly pointed out by the High Court commission of offences
prior to the enactment of MCOCA does not by itself constitute
an offence under MCOCA. Registration of cases, filing of
charge-sheets and taking of cognizance by the compe tent
court in relation to the offence alleged to have been commi tted
by the respondents in the past is but one of the require ments
for invocation of Section 3 of MCOCA . Continuation of
unlawful activities is the second and equally impor tant
requirement that ought to be satisfied. It is only if an organise d
crime is committed by the accused after the promulg ation
of MCOCA that he may, seen in the light of the previous charge-
sheets and the cognizance taken by the competent court , be
said to have committed an offence under Section 3 of the Act.
11. In the case at hand, the offences which the respond ents
are alleged to have committed after the promulgatio n
of MCOCA were not proved against them. The acquittal of the
respondents in Crimes Nos. 37 and 38 of 2001 signified that
they were not involved in the commission of the offences wi th
which they were charged. Not only that the respondents were
acquitted of the charge under the Arms Act even in Crime
Cases Nos. 1 and 2 of 2002. No appeal against that acquittal
had been filed by the State. This implied that the prosecuti on
had failed to prove the second ingredient required for
797
completion of an offence under M COCA. The High Court was,
therefore, right in holding that Section 3 of MCOCA could not
be invoked only on the basis of the previous charge -sheets
for Section 3 would come into play only if the resp ondents
were proved to have committed an offence for gain o r any
pecuniary benefit or undue economic or other advantage after
the promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing th e appeal
and setting aside the order passed by the trial court.”
(Emphasis supplied)
43. Thus, in Shiva alias Shivaji Ramaji Sonawane (surpa), this
Court took the view that there are two essential ingredients to constitute
an offence under MCOCA. First, the registration of cases, fi ling of
chargesheets and taking of cognizance by the competent court in relation
to the offences alleged to have been committed by the accuse d in the
past and secondly, continuation of unlawful activities. In other words, 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.
44. Indisputably, in Shiva alias Shivaji Ramaji Sonawane (surpa),
the accused persons stood acquitted in connection with two of the crimes
and considering the same, this Court took the view that the ac cused
persons could not be said to have committed the alleged crime after the
promulgation of MCOCA, as the allegations could not be proved against
them. However, this Court, in no uncertain terms, has observed that
what is important is the commission of an offence by the accuse d that
would constitute ‘continuing unlawful activity’ and the unlawful activities
could be said to have continued only if the accused are found to ha ve
indulged in an organised crime after the promulgation of the MCOCA.
45. The learned counsel appearing for the respondent-acc used
is right in his submission that having regard to the stringent provisions
of the 2015 Act, its provisions should be very strictly inte rpreted and
the authorities concerned would be obliged in law to stri ctly observe
the said provisions. There need not be any debate on the fact that the
provisions of the 2015 Act have been enacted to deal with organised
criminal activity in relation to offence, which are likely to create terror
and endanger and unsettle the economy of the country f or which
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
stringent measures have been adopted. The provisions of the 2015 Act
seek to deprive a citizen of his right to freedom at the very initial stage
of the investigation, making it extremely difficult for him to obtain bail.
Other provisions relating to the admission of evidence an d electronic
media have also been provided for. In such a situation, it has to be
ensured whether the investigation from its very incept ion has been
conducted strictly in accordance with the provisions of the 2015 Act.
(See: State of Maharashtra and Others v. Lalit Somdatta Nagp al
and Another reported in (2007) 4 SCC 171)
46. It is a sound rule of construction that the substantive law should
be construed strictly so as to give effect and protection to the substantive
rights unless the statute otherwise intends. Strict construct ion is one
which limits the application of the statute by the words used. According
to Sutherland, ‘strict construction refuses to extend the import of words
used in a statute so as to embrace cases or acts which the words do not
clearly describe’.
47. The rule as stated by Mahajan C.J. in Tolaram Relumal and
Another v. State of Bombay reported in AIR 1954 SC 496, is that “ if
two possible and reasonable constructions can be put upon a penal
provision, the court must lean towards that constru ction which
exempts the subject from penalty rather than the one which imp oses
a penalty. It is not competent to the court to stretch the meaning of
an expression used by the legislature in order to c arry out the
intention of the legislature…. ” In State of Jharkhand and Others v.
Ambay Cements and Another reported in (2005) 1 SCC 368, this Court
held that it is a settled rule of interpretation that where a statute is penal
in character, it must be strictly construed and followed. The basic rule of
strict construction of a penal statute is that a person cannot be penalised
without a clear letter of the law. Presumptions or assumptions have no
role in the interpretation of penal statutes. They are to be construed
strictly in accordance with the provisions of law. Nothing can be implied.
In such cases, the courts are not so much concerned with what m ight
possibly have been intended. Instead, they are concerned with what has
actually been said.
48. We are of the view and the same would be in tune with the
dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) that
there would have to be some act or omission which amounts to organised
crime after the 2015 Act came into force i.e., 01.12.2019 in respect of
799
which, the accused is sought to be tried for the first time in the special
court.
49. We are in agreement with the view taken by the High Court
of Judicature at Bombay in the case of Jaisingh (supra) that neither the
definition of the term ‘organised crime’ nor of the term ‘ continuing
unlawful activity’ nor any other provision therein declares any activity
performed prior to the enactment of the MCOCA to be an offence under
the 1999 Act nor the provision relating to punishment relates to any
offence prior to the date of enforcement of the 1999 Act, i.e., 24.02.1999.
However, by referring to the expression ‘preceding period of ten years’
in Section 2(1)(d), which is a definition clause of the term ‘continuing
unlawful activity’ inference is sought to be drawn that in fact, it takes
into its ambit the acts done prior to the enforcement of the 1999 Act as
being an offence under the 1999 Act. The same analogy will apply to the
2015 Act.
50. There is a vast difference between the act or activi ty, which
is being termed or called as an offence under a statute and suc h act or
activity being taken into consideration as one of the requisites for taking
action under the statute. For the purpose of organised crime, t here has
to be a continuing unlawful activity. There cannot be continuing unlawful
activity unless at least two chargesheets are found to have been lodged
in relation to the offence punishable with three years’ imprisonment during
the period of ten years. Indisputably, the period of ten years may relate
to the period prior to 01.12.2019 or thereafter. In other words, it provides
that the activities, which were offences under the law in force at the
relevant time and in respect of which two chargesheets have been filed
and the Court has taken cognizance thereof, during the period of preceding
ten years, then it will be considered as continuing unlawful activity on
01.12.2019 or thereafter. It nowhere by itself declares any activity to be
an offence under the said 2015 Act prior to 01.12.2019. It also does not
convert any activity done prior to 01.12.2019 to be an offence under the
said 2015 Act. It merely considers two chargesheets in relati on to the
acts which were already declared as offences under the law in force to
be one of the requisites for the purpose of identifying continuing unlawful
activity and/or for the purpose of an action under the said 2015 Act.
51. If the decision of the coordinate Bench of this Court in the
case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into
closely along with other provisions of the Act, the same would indicate
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]
that the offence of ‘organised crime’ could be said to have been
constituted by at least one instance of continuation, apart from continuing
unlawful activity evidenced by more than one chargesheets in the
preceding ten years. We say so keeping in mind the following:
(a) If ‘organised crime’ was synonymous with ‘continuing
unlawful activity’, two separate definitions were n ot
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 o f
‘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 su ch
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 whic h
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).
801
(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 the person continues with the unlawful activities and is
arrested, after the promulgation of the said Act, then, such
person can be tried for the offence under the said Act. If a
person ceases to indulge in any unlawful act after the said
Act, then, he is absolved of the prosecution under the said
Act. But, if he continues with the unlawful activity, it cannot
be said that the State has to wait till, he commits two acts
of which cognizance is taken by the Court after coming
into force. The same principle would apply, even in the case
of the 2015 Act, with which we are concerned.
52. In the overall view of the matter, we are convinced tha t the
dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane
(supra) does not require any relook. The dictum in Shiva alias Shivaji
Ramaji Sonawane (supra) is the correct exposition of law.
53. With the aforesaid clarification, the appeal stands disposed of.
Devika Gujral Appeal disposed of.
(Assisted by : Shevali Monga, LCRA)
THE STATE OF GUJARAT v. SANDIP OMPRAKASH GUPTA
[J. B. PARDIWALA, J.]