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2014 SCC OnLine Bom 1570 : (2014) 4 Bom CR (Cri) 836

In the High Court of Bombay

(BEFORE B.P. DHARMADHIKARI AND C.V. BHADANG, JJ.)

Narendra Singh alias Dallu Sardar … Appellant;

Versus
State of Maharashtra, through Police Station Officer,
Panchpaoli, Nagpur … Respondent.
Criminal Appeal No. 365/2014
Decided on September 22, 2014
Advocates who appeared in this case:
Shri S.P. Dharmadhikari, Senior Adv. with Shri D.V. Chauhan, Adv.
for Appellant;
Shri S.S. Doifode, Additional Public Prosecutor for Respondent-State;
Shri Anil S. Mardikar, Senior Advocate for Intervenor-original
complainant.
The Judgment of the Court was delivered by
C.V. BHADANG, J.:— Heard. Admit. Taken up for final disposal with
the consent of the learned Counsel for the parties.
2. This appeal is filed by the original accused Narendra Singh @
Dallu Sardar challenging the order dated 10.1.2014 passed by the
learned Special Court in Special Criminal Case No. 5/2013. By the
impugned order, the learned Special Judge has dismissed the
application Exh.28 filed by the appellant/accused for discharge from the
offence u/s 3 of the Maharashtra Control of Organised Crime Act, 1999
(‘MCOC Act’ for short).
3. The facts necessary for the disposal of the appeal may be stated
thus:
4. That, now deceased Suraj Yadav was a property dealer at Nagpur
and had established a name in the business. According to the
prosecution, the appellant is also dealing in property business and is
running a Organised Crime Syndicate within the meaning of the act,
along with his associates. The appellant was not happy with the
influence of the deceased in the business and wanted to establish a
supremacy over the deceased. This is said to be the motive behind the
incident which occurred on 18.11.2012.
5. According to the complainant Rajesh Yadav, who is the brother of
the deceased, a plot situated at Zingabai Takli, Nagpur was belonging
to one Munna Yadav, brother-in-law of the deceased and complainant.
The deceased was looking after the said plot and for that purpose had
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posted one Dau watchman. The watchman along with his wife was
staying at the plot.
6. A day before the incident i.e. 17.11.2012, the deceased along
with his friends had gone to Yavatmal. At about 6.30 pm, the wife of
the watchman Dau called the deceased on his mobile, informing that
some eight to ten persons had come to the plot in Scorpio vehicle and
were claiming rights over the said plot. According to the complainant,
the wife of the watchman handed over the mobile to one of the
persons, who gave his name as Dallu Sardar (the appellant). The
appellant informed the deceased that he has purchased the plot, when
the deceased said to the appellant that he will have a talk after he
returns from Yavatmal. It is alleged that the appellant abused and
threatened the deceased saying that he is a resident of Sujata Nagar.
The deceased and his friends returned to Nagpur in the night at about
1.00 a.m. The following a day i.e. on 18.11.2012 the appellant again
called the deceased at about 1.00 to 1.30 pm and the deceased
disconnected the call, after informing that he would come to give
information about the plot. It is said that thereafter the deceased along
with his friend Anand went to the Mental Hospital square where the
appellant and others were present. The deceased apprised the appellant
that the plot is belonging to Munna Yadav. Thereafter, the deceased
returned to his house. Later in the day at about 3.30 to 3.45 pm, the
deceased along with his family members including his sister Sau.
Kanchan Amol Yadav and one Anand Kolhatkar were at the house of the
deceased. When the complainant went to the bathroom, he heard some
commotion and came out, when he saw that the appellant along with
his associates were assaulting the deceased. The appellant assaulted
the deceased by a sword on his neck. The associates of the appellant
were holding weapons such as ‘knife’ and all of them assaulted the
deceased, on account of which, the deceased sustained injuries. After
the assault, the appellant and others escaped from the spot in the
Scorpio vehicle bearing no. MH-12-DY 9147. Some of them fled on their
motorcycles. The deceased was carried to the Madan Hospital, where he
was declared dead. On the basis of a complaint lodged by Rajesh Ashok
Yadav, an offence came to be registered with Police Station, Panchpaoli,
Nagpur. On completion of the investigation, the appellant and nine
others have been chargesheeted before the learned Special Judge in
Special Criminal Case No. 5/2013.
7. The appellant filed the application Exh.28 u/s 227 of the Code of
Criminal Procedure (‘Cr. P.C..’ for short) for discharge from the offence
u/s 3 of the Act which has been rejected by the learned Special Judge
by the impugned order. The appellant has therefore come up in appeal
u/s 12 of the Act.
8. We have heard Shri S.P. Dharmadhikari, learned Senior Counsel
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for the appellant along with Advocate Shri D.V. Chauhan and Shri S.S.
Doifode, learned Assistant Public Prosecutor for the respondent-State.
We have also heard Shri Anil S. Mardikar, learned Senior Counsel for
the intervenor-original complainant Rajesh Ashok Yadav. With the
assistance of the learned counsels for the parties, we have perused the
record and impugned order.
9. It is submitted by Shri Dharmadhikari, learned Senior Counsel for
the appellant that the appellant is shown to have been previously
prosecuted in three cases being Crime No. 456/2003 with Panchpaoli
Police Station, Crime No. 79/2007 with Police Station, Jaripatka and
Crime No. 3110/2011 with Police Station, Jaripatka. It is submitted
that none of the co-accused in the present case are the accused in the
aforesaid three crimes. Similarly, according to the prosecution, the co-
accused have been chargesheeted in different offences, in respect of
which, the prosecution is placing reliance on 27 chargesheets. It is
submitted that the appellant is not an accused in any of these cases.
The submission is that, in such circumstances, there is no organised
crime syndicate allegedly run by the appellant which is borne out of the
record. It is submitted that the existence of an organised crime
syndicate, within the meaning of the act, would be a sine qua non for
attracting the provisions of the Act and in the absence of any material
to that effect, the appellant cannot be prosecuted for the offence u/s 3
of the said Act.
10. It is submitted that none of these 27 chargesheets, in which the
co-accused are facing prosecution, are filed on record and even
otherwise only 9 out of the 27 cases, involve offence punishable with
imprisonment of three years or more. The learned senior counsel has
referred to the definition of a “continuing unlawful activity”, “organised
crime” and “organised crime syndicate” respectively u/s 2(d)(e)(f) of
the Act, in order to submit that the prosecution case, as is borne out of
the chargesheet would not answer the requirement of this section, so
as to attract the provisions of the Act. The learned counsel would
submit that the filing of the previous chargesheet for the perusal of the
Special Court is necessary and merely mentioning the gist of the earlier
chargesheet would not be sufficient. It is submitted that the said gist
can at the best would be an inference or the assessment drawn by the
investigating officer which is not decisive. It is for the Special Court to
look into the nature of the allegations and the offence in respect of
which the previous chargesheets are filed, in order to find out, whether
the provisions of Section 2(d)(e)(f) of the MCOC Act are attracted. It is
submitted that in the absence of the said requirement which is very
basis of the charge of indulging into organised crime by or on behalf of
organised crime syndicate cannot be sustained.
11. Learned Senior counsel has placed reliance on the decision of the
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Hon'ble Apex court in the case of Ranjit Singh Sharma v. State of

Maharashtra, reported in (2005) 5 SCC 294 : AIR 2005 SC 2277 in
order to submit that the expression ‘any unlawful means’ as referred to
u/s 2(1)(e) of the MCOC Act cannot be widely construed as including
any or other unlawful means. It is submitted that such an act has to
have a direct nexus with the commission of a crime which MCOCA seeks
to prevent or control. It is submitted that an offence falling within the
definition of organised crime and committed by an organised crime
syndicate is the offence contemplated under the said Act. Reliance is
then placed on the Division Bench decision of this Court in the case of
State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya, reported in
2011 ALL MR (Cri) 2961 in order to submit that mere allegations about
filing of more than one chargesheets, in respect of offence/s with
imprisonment of three years or more, is not sufficient. It is submitted
that it would be necessary that such chargesheets contain allegation
that the alleged offence was committed either singly or jointly as a
member of the organised crime syndicate or on behalf of such
syndicate. It is submitted that in none of the chargesheets any such
averment is made and as such, the provisions of the Act would not
stand attracted. The learned counsel also placed reliance on a full bench
decision of this Court in the case of State of Maharashtra v. Jagan
Gagansingh Nepali @ Jagya, 2011 ALL MR (Cri) 2961 in support of the
submission that the prosecution is obliged to establish the prior
existence of an organised crime syndicate indulging in continuing
unlawful activity.
12. Lastly, a submission for a necessity to make a reference to larger
bench has also been pressed into service in view of later decision of this
court in Criminal Appeal No. 25/2014 [Sachin Bansilal Ghaiwal v. State
of Maharashtra (through Crime Branch, Pune) with Criminal Appeal No.
1115/2013 [Umesh Mohan Kirve v. The State of Maharashtra (through
Dattawadi Police Station, Pune), dated 16.7.2014 by Division Bench of
this court at the principal seat. It is submitted that the ratio, as laid
down in the case of State of Maharashtra v. Rahul Ramchandra Taru,
reported in 2011 ALL MR (Cri) 2100 has been displaced by the later
decision in the case of Sachin (supra). It is, therefore, submitted that
faced with such a situation, this court may refer the issue and the
matter to the larger bench.
13. Shri S.S. Doifode, learned APP, after arguing the matter for
sometime, had sought time to ascertain from the record of the case
before the Special Court, as to whether, physically all the previous
chargesheets have been produced on the record. On the subsequent
date, the learned A.P.P. has made a statement that indeed the previous
chargesheets have been produced before the learned Special Judge and
this aspect has not been disputed by the learned senior counsel for the
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appellant.
14. Insofar as the rest of the submissions are concerned, it is
submitted that the previous chargesheet, in which the appellant is
facing the prosecution coupled with the chargesheets filed against co-
accused, would be sufficient to prima facie infer at this stage about the
existence of organised crime syndicate led by the appellant. The
learned A.P.P. submitted that there is material on record to show that
there was a tag of war between the appellant and the deceased over
supremacy in the land dealing business and thus a clear motive is
borne out of record. It is submitted that as such the act of the
appellant in eliminating the deceased would clearly answer the
definition of continuing unlawful activity within the meaning of Section
2(1)(d) of the Act and considering the previous offences against the
appellant as also against the co-accused would clearly established the
existence of organised crime syndicate. The learned A.P.P. has taken us
to the individual allegations in the various chargesheets in order to
demonstrate that a case of indulging into organised crime by or on
behalf of organised crime syndicate, is prima facie made out, at this
stage. It is submitted that on the basis of decision of this court
reported in the case of (judgment of Hon'ble Justice Shri V.G. Palshikar
and S.A. Bobde) that the previous conviction or acquittal is not
material. The learned A.P.P. has placed reliance on the following
decisions in support of his various submissions:
[1] Anil Murlidhar Deshmukh v. State of Maharashtra, 2006 ALL MR
(Cri) 531.
[2] Gulab Jethanand Khemnani v. State of Maharashtra, (2007) 2
Mah LJ (Cri) 538.
[3] Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2011) 3 SCC
(Cri) 867.
[4] Ganesh Nivrutti Marne v. State of Maharashtra, (2010) 3 Mah LJ
(Cri) 197.
[5] Moin Vairuddin Qureshi v. State of Maharashtra, (2009) 2 Mah LJ
(Cri) 322.
[6] Shoraj Singh Ahlawat v. State of U.P., 2013 Cri LJ 331.
[7] State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya, 2011
ALL MR (Cri) 2961.
[8] Govind Sakharam Ubhe v. State of Maharashtra, (2009) 3 Mah LJ
(Cri) 131.
15. Insofar as the submission regarding the necessity to make a
reference to the larger bench is concerned, it is submitted that the
same would not be necessary.
16. The learned A.P.P. submitted that the case of Ramchandra Taru
(supra) turned on its own facts and this has been so held in the later
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decision in the case of Sachin (supra). It is submitted that as held by

the Division Bench in the case of Sachin (supra), the legal position has
been correctly stated in the case of Govind (supra) and as such in the
absence of any conflict between the case of Ram Taru (supra) and
Sachin Gour (supra), there is no necessity to make a reference to the
larger bench. It is submitted that it is the membership of organised
crime syndicate which makes a person liable under the MCOC Act which
is evident from Section 3 of the Act. It is submitted that therefore the
earlier chargesheets which are envisaged within the period of preceding
10 years, are in respect of an organised crime committed by an
organised crime syndicate and these chargesheets can be taken into
consideration against the member of the said organized crime syndicate
for the purpose of application of said act, even if, the said person is not
involved in one or more of any such cases. It is submitted that the
organised crime committed by such a member will be a part of
continuing unlawful activity of the organized crime syndicate. It is then
submitted that at the stage of framing of charge, the court is not
obliged to make a detailed and roving inquiry into the material and
even if a strong suspicion is raised, it would be sufficient to refuse to
discharge the accused. It is submitted that the learned Special Court
has correctly appreciated the factual situation and legal propositions
arising out of the application of the act and the impugned order does
not call for any interference.
17. The learned senior counsel Shri Mardikar appearing for the
original complainant has again referred to the provisions of Section 2(1)
(d)(e)(f) of the Act, as also a statutory presumption arising u/s 22(2)
of the Act in order to submit that the material is sufficient to frame the
charge and consequently to refuse discharge from the offence under the
provisions of MCOC Act.
18. The learned counsel Shri Chauhan, in reply, has submitted that
there is no material in this case to show that the appellant was
operating an organized crime syndicate. It is submitted that in all
reported cases on which reliance is placed, the existence of a
gang/organized crime syndicate was not in dispute. The learned
counsel again reiterated necessity to make a reference to a larger
bench. It is also submitted that the presumption u/s 22 of the Act
would not apply at this stage. Insofar as the previous offence against
the appellant in Crime No. 50/2012 and 43/2005, which has been
relied upon by the learned APP, it is submitted that the appellant is not
an accused therein. It is submitted that even otherwise, there is
nothing to show that these crimes were committed by or on behalf of
organized crime syndicate and at the best the allegations would show
that they were committed at the spur of the moment and in individual
capacity. It is therefore submitted that the impugned order needs
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interference.
19. At the outset, it may be mentioned that although initially
submission was advanced on behalf of the appellant that previous
charge-sheets against the co-accused have not been produced before
the Special Court, on verification of the record, it was not in dispute
that the previous charge-sheets have been physically produced before
the Special Court and therefore, the submission on that count does not
survive for consideration. In these circumstances, it is not necessary for
us to consider whether the reproduction of the gist of the earlier
offences in the charge-sheet would be sufficient or not.
20. The material ground of challenge on behalf of the appellant is
that an offence under Section 3 of the MCOC Act presupposes existence
of organised crime syndicate. It is submitted that the material
produced on record does not show existence of such organised crime
syndicate of which the present appellant is a member, much less a
leader. Reliance in this regard is placed on the provisions of Section 2
(d)(e) and (f) of the MCOC Act, which define the continuing unlawful
activity, the organised crime and the organised crime syndicate. It is
submitted that if requirement of these sections is taken into
consideration, the material produced does not prima facie indicate that
the appellant having indulged into continuing unlawful activity or
organised crime either as a member or on behalf of any organised crime
syndicate. The submission precisely is that the appellant is not accused
in any of the charge-sheets filed against the co-accused and even so far
as the previous offences against the present appellant are concerned,
they would not be sufficient to attract the provisions of the Act.
21. It may be worthwhile to reproduce the provisions of Section 2(d)
(e) and (f) of the Maharashtra Control of Organised Crime Act.
“Section 2(d):“continuing unlawful activity” means an activity
prohibited by law for the time being in force, which is a cognizable
offence punishable with imprisonment of three years or more,
undertaken either singly or jointly, as a member of an organised
crime syndicate or on behalf of such syndicate in respect of which
more than one charge-sheets have been filed before a competent
Court within the preceding period of ten years and that Court has
taken cognizance of such offence;
(e)“organised crime” means any continuing unlawful activity by
an individual, singly or jointly, either as a member of an organised
crime syndicate or on behalf of such syndicate, by use of violence
or threat of violence or intimidation or coercion, or other unlawful
means, with the objective of gaining pecuniary benefits, or
gaining undue economic or other advantage for himself or any
other person or promoting insurgency;
(f) “Special Court” means the Special court constituted under
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section 5.”
22. The provisions of Section 2(e) of the MCOC Act in particular fell
for consideration of full Bench of this Court in the case of State of
Maharashtra v. Jagan Gagansingh Nepali @ Jagya, reported in 2011 ALL
MR (Cri) 2961. The reference to the larger Bench arose on account of
difference of opinion between two Division Benches of this Court. The
Division Bench in the case of Ganesh Nivrutti Marne v. State of
Maharashtra, reported in (2010) 2 Bom CR (Cri) 586 had taken a view
that the term “other advantage” as per Section 2(e) of the MCOC Act,
cannot be read ‘ejusdem generis’, with ‘pecuniary benefits’ and ‘undue
economic advantage’.
23. In the case of Sherbahadur Akram Khan v. State of Maharashtra,
reported in 2007 ALL MR (Cri) 1 and Madan S/o Ramkisan Gangwani v.
State of Maharashtra, reported in 2009 ALL MR (Cri) 1447 it was held
that ‘other advantage’ as used in Section 2(e) of the MCOC Act has to
be read ‘ejusdem generis’ with words ‘pecuniary benefits and undue
economic advantage’. The Full Bench after taking survey of various
decisions holding the field, ultimately held that the term “other
advantage” cannot be read ‘ejusdem generis’ with words ‘pecuniary
benefits’ and ‘undue economic advantage’. On behalf of the appellant,
reliance was placed on the following observations in the case of Jagan
(supra) in paragraph no. 38 of the judgment, which reads as under:
“38. It is difficult to accept the contention that if the wider
meaning is given to the provision of section 2(e), provisions of
MCOCA would be invoked even for petty offences. In case of
Sherbahadur Akram Khan v. State of Maharashtra (cited supra),
some of the offences resulted from the quarrel at public water tap. In
the said matter, as in many of the cases, the accused had assaulted
the injured with a fist blow. By no stretch of imagination, such an
activity could be construed to be the one for which MCOCA could be
invoked. If there are some altercations between two businessmen
within four corners of shop and, as a result of which one of them
slaps the other, by no stretch of imagination it can be said to be an
offence for which MCOCA is to be invoked. Similarly, a dispute
between two brothers on some property issue and even assault and
that too by a deadly weapon would not come in the ambit of MCOCA.
The legislative intent is clear, that MCOCA is for curbing the
organised crime. Unless there is prima facie material, firstly, to
establish that there is an organised crime syndicate and, secondly,
that organised crime has been committed by any member of the
organised crime syndicate or any person on behalf of such syndicate,
the provisions of MCOCA cannot be invoked. In the earlier paragraph
we have discussed in detail as to what are the ingredients so as to
constitute an offence of “organised crime”. The prosecution will,
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therefore, have to firstly establish that there is an organised crime

syndicate. It will have to satisfy that there exist the ingredients of
“continuing unlawful activity”. It will thereafter have to satisfy that
the ingredients of the “organised crime” as spelt out by us
hereinbefore exist, prior to invoking the provisions of MCOCA. We
are, therefore, unable to accept the contention that if the wider
meaning is given, the MCOCA can be invoked even for sundry
offences. As held by the Apex Court in the case of Ranjitsingh
Brahmajeetsing Sharma (supra), merely because the person who
cheats or commits a criminal breach of trust more than once, the
same by itself may not be sufficient to attract the provisions of
MCOCA. By the same analogy, if a person commits murder more
than once, would not by itself be sufficient to attract the provisions
of MCOCA. At the cost of repetition, we make it clear that unless all
the ingredients to constitute the offence punishable under MCOCA
are available, it will not be permissible to invoke the provisions of
MCOCA.”
24. As noticed earlier, the basic question before the Full Bench was
as to the interpretation to be placed on the term “other advantage” as
appearing in Section 2(e) of the MCOC Act. However, as has been held
in paragraph no. 38, there cannot be any dispute with the proposition
that the existence of ‘organised crime syndicate’ would be prerequisite
and sine qua non for attracting the provisions of the said Act. As
noticed by the Full Bench, the following ingredients will be necessary.
“(i) that there has to be a continuing unlawful activity;
(ii) that such an activity will have to be by an individual, singly or
jointly;
(iii) that such an activity is either by a member of an organised
crime syndicate or on behalf of such syndicate;
(iv) that there has to be use of violence or threat of violence or
intimidation or coercion or other unlawful means; (v) that such an
activity has to be with an objective of gaining pecuniary benefits
or gaining undue economic or other advantage for the person who
undertakes such an activity or any other person or promoting
insurgency.”
25. The ingredients of continuing unlawful activities would be:
“(i) that such an activity should be prohibited by law for the time
being in force;
(ii) that such an activity is a cognizable offence punishable with
imprisonment of three years or more;
(iii) that such an activity is undertaken either singly or jointly, as a
member of an organised crime syndicate or on behalf of such
syndicate;
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(iv) that in respect of such an activity more than one chargesheet

must have been filed before a competent Court;
(v) that the chargesheets must have been filed within a preceding
period of ten years; and
(vi) that the Courts have taken cognizance of such offences.”
26. Before proceeding to consider the rival submissions it may be
mentioned at the outset that at the stage of consideration of application
for discharge under Section 227 of the Code of Criminal Procedure, the
Court is not expected to embark upon roving enquiry or detail
appreciation of the material and the evidence on record, which can only
be done at the trial. In the case of Govind Sakharam Ubhe v. State of
Maharashtra, reported in (2009) 3 Mah LJ (Cri) 131 there was a
challenge to the dismissal of application for discharge from the
provisions of MCOC Act, as in the present case. The Division Bench
while deciding the said appeal had considered the decision of the
Hon'ble Supreme Court in the case of Union of India v. Prafulla Kumar
Samal, reported in (1979) 3 SCC 4 : AIR 1979 SC 366 reiterating the
well established principles with a rider that at the stage of Section 227
of the Code of Criminal Procedure, the Court has power to sift and
weigh the evidence to find out whether there is prima facie case against
the accused. However, if two views are equally possible and the Judge
is satisfied that the evidence gives rise to some suspicion but not grave
suspicion against the accused, he will be fully within his right to
discharge the accused. The Supreme Court has further observed that
the Judge cannot act as a mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the total effect of the
evidence, any basic infirmities appearing in the case and so on. It has
been clarified that this however does not mean that the Judge should
make a roving enquiry into the pros and cons of the matter and weigh
the evidence as if he was conducting a trial. The Division Bench, after
considering the subsequent decisions of the Hon'ble Supreme Court in
the case of Superintendent and Remembrancer of Legal Affairs, West
Bengal v. Anil Bhunja, reported in (1979) 4 SCC 274 : AIR 1980 SC 52,
Niranjan Singh Karam Singh Punjabi v. Jitendra Bijja, reported in
(1990) 4 SCC 76 : AIR 1990 SC 1962, State of Maharashtra v. Som
Nath Thapa, reported in (1996) 4 SCC 659, State of Maharashtra v.
Priya Sharan Maharaj, reported in (1997) 4 SCC 393 : AIR 1997 SC
2041, State of Karnataka v. L. Muniswamy, reported in (1977) 2 SCC
699 and R.P. Kapur v. The State of Punjab, reported in AIR 1960 SC
866, summarized the principles in paragraph no. 25 as under:
“25. The principles laid down by the Supreme Court in the above
cases need to be summarized. It is settled law that at the stage of
section 227 of the Code, the Court has power to sift the materials
collected by the prosecution to find out whether there is prima facie
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case against the accused or not. The Court has to be satisfied that
there is ground for presuming that the accused has committed the
offence or that there is no sufficient ground for proceeding against
him. The Court's enquiry must not be directed to find out whether
the case will end in conviction. However, though roving enquiry is
not permissible, the Court can consider whether the material
collected by the prosecution if accepted as it is without being
subjected to cross-examination gives rise to strong and grave
suspicion for presuming that the accused has committed the offence
and that unrebutted material will lead to a conviction. If at the stage
of section 227 or section 228, the scales as to the guilt or innocence
of the accused are even then the Court must proceed to frame a
charge. There is no question of giving benefit of doubt to the
accused and discharge the accused at that stage because the scales
are even. That can be done only at the conclusion of trial. If there is
a strong suspicion which leads the Court to think that there is a
ground for presuming that the accused has committed an offence,
then the Court will proceed to frame the charge. But if two views are
possible and the Court is satisfied that the evidence gives rise to
some suspicion but not grave suspicion against the accused, the
Court will be within its right to discharge the accused. Suspicion has
to be strong and grave suspicion leading the Court to presume that
the accused has committed an offence. While basic infirmities and
broad probabilities can be considered, the Court cannot make a
roving enquiry into the pros and cons of the matter and weigh the
evidence as if it is conducting a trial. Probative value of the material
cannot be gone into at that stage.”
27. In the present case, it is not in dispute that the appellant is
facing prosecutions in respect of following offences.
“(1) Crime No. 456/2003, Police Station Panchpaoli, under Sections
143, 147, 148, 149, 452, 427 and 395 of Penal Code, 1860.
(2) Crime No. 79/2007, Police Station Jaripatka, under Sections 377,
392, 367 r/w Section 34 of Penal Code, 1860.
(3) Crime No. 3110/2011, Police Station Jaripatka, under Sections
294 and 506 of Penal Code, 1860.
(4) Crime No. 276/2012, Police Station Panchpaoli, under Sections
143, 144, 147, 148, 149, 302, 307, 504, 323 and 452 of Penal
Code, 1860, under Sections 3 and 4 read with Section 25 of the
Arms Act and under Section 135 of the Bombay Police Act.”
28. The learned Special Judge in paragraph no. 8 of the impugned
order has found that the charge-sheet and the material produced prima
facie show that the appellant is running crime syndicate. It would be
worthwhile to reproduce the observations in paragraph no. 8 of the
impugned order as under:
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“8. I have carefully gone through the charge sheet and I find that
all the above ingredients are satisfied in the present case.
Statements of witnesses show that accused Dallu Sardar is running a
crime syndicate. It is true that Dallu Sardar has not committed
earlier offences with co-accused, but mere fact that he has
committed present offence with newly enrolled members would not
relieve him from the rigor of MCOC Act. Even if a person commits
crime singly as a member of the gang or on behalf of the gang he is
liable under the Act. If he commits offence through or with the
assistance of newly enrolled member/s, still he and newly enrolled
members are liable under the Act. There is no escape for him only
because he has changed members for commission of crimes. He will
not loose his character as a member of the gang. Similarity of more
than two members for commission of unlawful activities is not the
requirement of the Act. If that is the requirement, then the gang
leader may go on changing members for commission of each offence
so as to defeat the provisions MCOC Act. In order to curb this
mischief or ill design of gang members the legislature in its wisdom
defined the terms, “Organised Crime Syndicate”, “Organised Crime”,
“Continuing unlawful activities” by employing the words “acting
either singly or collectively, “either as a member of an organised
crime syndicate or on behalf of such syndicate”, “such syndicate in
respect of which more than one charge-sheets have been filed” etc.
In the present case, existence of organised crime syndicate and
membership of accused Dallu Sardar is evident from the fact that he
had committed such offences with other accused which MCOC Act
seeks to prevent.”
29. The learned Special Judge has further found that the offences at
serial nos. 1, 2 and 4 above, registered against the appellant and his
associates, fall in the category of the offences which the MCOC Act,
seeks to prevent or control. It has been found that all these offences
involve violence as well as pecuniary gain.
30. It has also been found that the statements of witnesses A.18, A.
19 and A.20 show that the deceased and the appellant were dealing in
the business of real estate and the appellant was threatening the
deceased that he should not deal in the property in which the appellant
was dealing. The learned Special Judge has found that the statements
further show that the appellant intended to establish his supremacy in
the business over the deceased. Thus, it has been found that the
statements of the witnesses “unequivocally” show that the appellant is
running organised crime syndicate.
31. The details of the offences registered against the co-accused are
as under:
“1. GOLDI MULTANI (A2):
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Sr. No. Police Station No. Section

1. Sadar 96/09 395 (Decoity for
mobile)
2. Panchpaoli 79/10 324 (Hurty by knife)
(pool)
3. Panchpaoli 50/12 399 IPC, 135 BP
preparation to commit
dacoity.
32. MANMEET SINGH DIGHWA (A3):
Sr. No. Police Station No. Section
1. Panchpaoli 3309/10 294, 506B, 34 IPC *
2. Panchpaoli 299/11 323, 324, 226, 307,
294, 506B, 34 IPC
(110g) of Cr.P.C.
33. CHOTU BALBIRSINGH JAUHAR (A4):
Sr. No. Police Station No. Section
1. Jaripatka 33/12 452, 336, 294, 506B,
342 for election ticket.
*
2. Panchpaoli 50/12 399 IPC 25 Arms Act
135 Bombay Police
Act
(3 NC against this accused)
34. MEHAROZ BABLOO SARDAR HUSSAIN (A5):
Sr. No. Police Station No. Section
1. Jaripatka 43/2005 147, 148, 149, 307
IPC 110 Cr.P.C.
35. RAVINDRA BUTI LANGADYA (A6):
Sr. No. Police Station No. Section
1. Jaripatka 43/2005 147, 148, 149, 307
IPC
2. Panchpaoli 211/11 325, 504, 34 IPC,
107, 110 *
36. PAPPU ZHADE (A7):
Sr. No. Police Station No. Section
1. Yashodara 140/11 395, 324, 323, 504
IPC *
37. VINOD RAMRAO PANCHANG (A8):
Sr. No. Police Station No. Section
1. Yashodara 08 376 (Acquittal)
2. Yashodara 10 324, 225, 34
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(Acquittal)
3. Yashodara 12 294, 506B (Acquittal)
38. MONEYDARJEET SINGH SODHI (A9) - No earlier record.
39. PINTU CHAWARE (A10):
Sr. No. Police Station No. Section
1. Jaripatka 2001 324 IPC *
2. Jaripatka 12 324 IPC *
3. Jaripatka 2006 324 IPC *
40. AAKASH MAHURKAR (A11):
Sr. No. Police Station No. Section
NO OFFENCE REGISTERED AGAINST THIS ACCUSED
41. GAWATAM VITTHAL PILLAVAN (A12):
Sr. No. Police Station No. Section
NO OFFENCE REGISTERED AGAINST THIS ACCUSED
42. ANAND BUNTI RAMESH (A13):
Sr. No. Police Station No. Section
1. Jaripatka 12 294, 506 IPC *
2. Kalmana 143, 147, 149, 363,
365, 374 IPC
43. AAKASH RAVINDRA BOSA (14):
Sr. No. Police Station No. Section
1. Ajni 08 302, 34 (Acquittal)
2. Ajni 09 147, 148, 149 IPC *
44. ASHISH KALYA MAHENDRA RAMTEKE (A16):
Sr. No. Police Station No. Section
1. Gittikhadan 294, 323, 506B, 34
IPC *
45. TIRUPATI (A15):
Sr. No. Police Station No. Section
1. Lakadganj 143/03 294, 34 IPC *
2. Lakadganj 2010 294, 34 IPC *
3. Lakadganj 2010 294, 34 IPC *
4. Lakadganj 2012 307, 323 IPC
5. Lakadganj 2012 399 of I.P.C. 4, 25
Arms Act
*Note : According to the learned Senior Counsel, some of the
above offences (marked by asterisk) cannot be considered for
invoking the provisions of MCOC Act.”
46. According to the learned Senior Counsel for the appellant, he
had a cement house in his favour in the form of decision of this Court in
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the case of State of Maharashtra v. Rahul Ramchandra Taru, reported in

2011 ALL MR (Cri) 2100. It is submitted that this was demolished when
this Court, in the case of Sachin Ghaiwal, decided on 16.7.2014 has
held that the requirement of more than one chargesheet is qua
unlawful activities of the organized crime syndicate and not qua the
individual member thereof. It is submitted that the view as taken in the
case of Sachin Ghaiwal runs counter to the decision in the case of Rahul
Ramchandra Taru (Supra) and this would require reference to the
Larger Bench.
47. On considering the rival submissions, we tend to disagree. In
the case of Rahul Taru (supra) the incident occurred on 14.10.2006
within the jurisdiction of Police Station Kothrud in which it was alleged
that one Sachin Pote and his associates had attacked the deceased
Sandeep Mohol while later was proceeding in his Scorpio Jeep. The
accused had used firearms and other deadly weapons. During the
course of investigation, it was revealed that the accused were members
of organised crime syndicate and therefore, the provisions of MCOC Act
were invoked against them. Accused Rahul Taru had sought discharge
from the offences punishable under Sections 3(i), 3(ii), 3(iii) and 3(iv)
of the MCOCA which was rejected and the said order was challenged in
appeal. It was ultimately held in paragraph no. 8 that one or more
charge-sheets containing allegations that the alleged offence was
committed either singly or jointly as a member of the organized crime
syndicate or on behalf of such syndicate, is sine qua non for invoking
stringent provisions of MCOCA. It was further held that mere filing of
more than one charge-sheets within the preceding period of ten years,
alleging commission of cognizable offence punishable with
imprisonment of three years or more, is not enough.
48. In the case of Sachin Ghaiwal, the Division Bench, after
considering the case of Rahul Taru, held that the finding recorded
therein has to be confined to the facts of the said case. It was held that
consideration of the expression ‘continuing unlawful activity’ was
strictly with reference to the facts of said case, rather than interpreting
the provisions of Section 2(d) of the MCOC Act. Thus, it may be seen
that the Division Bench in Sachin Ghaiwal's case has considered the
earlier decision and found that the observations in the case of Rahul
Taru have to be confined to the facts as arising therein. The Division
Bench has further held that the correct legal position in this regard is
stated in the case of Govind Sakharam Ubhe v. State of Maharashtra,
reported in (2009) 3 Mah LJ (Cri) 131 in which it has been held that the
requirement of more than one charge-sheet is qua unlawful activities of
the organised crime syndicate and not qua individual member thereof.
The following observations in paragraph no. 31 in the case of Sachin
Ghaiwal are to the point.
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“31. We hereby further respectfully while agreeing with the

propositions and interpretation made by the Division Bench of this
Court in the cases of (i) Bharat Shantilal Shah v. State of
Maharashtra, reported in 2003 All MR (Cri) 1061 (ii) Appa alias
Prakash Haribhau Londhe v. State of Maharashtra reported in 2007
Cri LJ 165, (iii) Asif Khan Bashir Khan v. The State of Maharashtra in
Criminal Appeal No. 749 of 2007 and Govind Sakharam Ubhe v.
State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 hold that
the said four judgments have binding effect. And the ratio laid down
by the Division Bench in the case of Govind Sakharam Ubhe v. State
of Maharashtra reported in 2009 ALL.M.R. (Cri.) 1903 is the correct
position of law as far as the interpretation with reference to the
expression ‘continuing unlawful activity’ as has been defined in
Section 2(1)(d) of the MCOC Act.”
49. Section 2(d) defining continuing unlawful activity does not
envisage charge-sheets in relation to “organized crime” as defined in
Section 2(e) of the Act. It also nowhere stipulates that the charge-
sheets should be against the accused in last charge-sheet under this
Act or any of his co-accused in such charge-sheet. This scheme is itself
sufficient to negate the challenge of present appellant. Charge-sheets
in relation to offences punishable with lesser punishments filed against
an accused as part or representative or member of a crime syndicate or
against its other members, may be relevant to demonstrate the
existence of such a syndicate. Similarly, the existence or involvement of
any organized syndicate or fact that accused in charge-sheets already
filed acted for or were acting at the instance of such a syndicate or co-
accused were its part or members or representatives, may itself surface
later on i.e. after filing of earlier charge-sheets or earlier trial and
hence, the said existence or capacity or involvement of or on behalf of
the crime syndicate would not find mention in any of such previous
charge-sheets. Said assertion may, however, figure in the impugned
charge-sheet to be tried and filed against a person like present
accused. In the present matter, the impugned charge-sheet expressly
refers to those earlier charge-sheets and to appellant as gang leader of
such a crime syndicate. We feel that in present trial also, the
prosecution can show that the earlier charge-sheets were against the
crimes of a syndicate or co-accused found now associated with him,
happen to be part of such a syndicate. If the arguments of appellant
are accepted, words deliberately not used in Section 2(d) by the State
Legislature are required to be read in to it and a rider deliberately
omitted by it, is required to be artificially inserted into it. This is against
the settled cannons of interpretation. Section 2(d) does not
contemplate any “accused specific” ingredient and needs independent
interpretation uninfluenced by Section 2(e). This definition gives
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primacy to direct or indirect role played by the syndicate and

individuals roped in subsequent charge-sheet become relevant only
because of their connection with earlier crime or accused therein.
Section 2(e) is a specie carved out of a larger concept seen in Section 2
(d) by the State Legislature. Thus to control organised commission of
crimes, commission of at least two cognizable offences, completion of
investigation of the same, cognizance of the charge-sheets filed in
relation thereto meet requirements of Section 2(d). Section 2(e) adds
one more rider to it.
50. If mention of fact that such continuing unlawful activity was
committed by the accused or his colleagues either singly or jointly, as a
member of any organised crime syndicate or on behalf of such
syndicate, is held a pre-requisite in more than one charge-sheet in
previous ten years, the purpose of enactment itself would be defeated.
Comission of first crime by an individual or few accused together will
never show the requisite link or affinity needed to demonstrate either
existence or participation of or on behalf of a syndicate. It may surface
after more than one such offences are committed or charge-sheets are
filed. Therfore, only the State Legislature has given wide time frame of
10 years to see that more than one charge-sheet of which cognizance is
taken by the competent court are filed in relation to such continuing
unlawful activity. Earnest will of the State Legislature to prevent
organised crimes is also apparent from the words “either singly or
jointly, as a member of an organised crime syndicate or on behalf of
such syndicate” also reveal a very broad field thrown open before the
investigating agency. After more than one such charge-sheets only the
investigating officer/s may get some clue or hint about involvement of
a syndicate and not otherwise. Hence, this practical difficulty and
legislative resolution thereof also shows absence of any merit in the
preliminary objection raised by the appellant.
51. In this view of the matter and having regard to the decision in
the case of Govind Ubhe (Supra) with which we respectfully agree, we
do not find any necessity to make a reference to a Larger Bench in this
case.
52. In the present case undoubtedly the appellant is facing
prosecution in four previous crimes within preceding 10 years and even
if we exclude Crime No. 3110/2011 under Sections 294 and 506 of
Penal Code, 1860 and for that matter even Crime No. 79/2007, Police
Station Jaripatka under Sections 377, 397, 367 read with Section 34 of
Penal Code, 1860, having regard to the previous charge-sheets against
the appellant and the co-accused and the nature of the offences would
prima facie show the existence of organised crime syndicate. In the
present case, prima facie, the allegations are relatable to a dispute with
regard to the dealing in real estate. The submission on behalf of the
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appellant that there is some discrepancy as to whether it was the

appellant who was intermeddling with the property in which deceased
was dealing or otherwise, in our considered view, would not be
significant at this stage. The fact remains that there is prima facie
material to show the commission of an offence of the nature which the
MCOC Act seeks to control or prevent.
53. In that view of the matter, we do not find any reason to interfere
with the impugned order. As such, the appeal is hereby dismissed.
Needless to mention that the observations herein are essentially for the
limited purpose of deciding the prayer for discharge and would not be
binding at the trial.
———
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