ABHISHEK versus STATE OF MAHARASHTRA & ORS

[2022] 4 S.C.R. 1128

[2022] 4 S.C.R.

ABHISHEK

STATE OF MAHARASHTRA & ORS.

(Criminal Appeal No. 869 of 2022)

MAY 20, 2022

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Penal Code, 1860 – ss. 363, 364A, 384, 386, 387, 397 and504 – Sanction order – Challenge to – FIR was registered againstthe appellant for offences u/s 363, 364A, 384, 386, 387, 397 andC504 IPC – The appellant having remained out of reach, aproclamation was issued u/s 82 of the CrPC r/w. s.20(3) of MCOCA,declaring him as an ‘absconder’ – ADGP and Commissioner ofPolice after examining the proposal of Assistant Commissioner ofPolice for according sanction in terms of s.23(2) of MCOCA,Dgranted the sanction for prosecution of appellant under IPC, ArmsAct and MCOCA due to the previous involvement of the appellantin other criminal cases – After the sanction, police filed the charge-sheet against the accused persons including appellant – Appellantapproached the High Court challenging the sanctioning order –The High Court examined the contents of sanction order and, afterEfinding no legal flaw or shortcoming therein, proceeded to dismissthe writ petition – High Court rejected the contention raised by theappellant that the sanctioning authority did not apply its mind – Onappeal, held: The suggestions on behalf of the appellant to limit theactivity only to the use of violence is obviously incorrect when itFomits to mention the wide-ranging activities contemplated by clause(e) of s.2(1) of MCOCA, i.e., threat or violence or intimidation orcoercion or other unlawful means – Actual use of violence is notalways sine qua non for an activity falling within the mischief oforganised crime – The second part of the requirement of the natureof activity, i.e., pecuniary benefit, has also not been projectedGcorrectly on behalf of the appellant – The requirement of law is notlimited to pecuniary benefits but it could also be of ‘gaining undueeconomic or other advantage – Sanctioning Authority, wasconscious of the requirement of law and indeed examined the matteronly with reference to such requirement and issued the sanctionHorder in question only after arriving at the requisite satisfaction –

Challenge to the judgment as passed by the High Court, and to thesanctioning order, required to be rejected when the appellant hadbeen declared absconder.

Maharashtra Control of Organised Crime Act, 1999 – ss.2(1)(d), 2(1)(e), 3(1)(ii), 3(2), 3(4) & 23(2) – Object of – Thisenactment is for making special provisions for dealing with themenace of organised crime causing serious threat to the society –No doubt, the enactment makes stringent provisions with severalextraordinary measures but, the peculiar nature of the mischiefsought to be tackled, i.e., of organised crime, has obviously led tosuch extraordinary measures, particularly when the existing legalframework was found to be rather inadequate to control the menace.

Dismissing the appeal, the Court

HELD: 1. comprehensive look at the objects and reasonsfor enactment of Maharashtra Control of Organised Crime Act,1999 (MCOCA), its overall purpose signified in its Preamble,and the relevant definitions in Section 2 as also the punishmentsprovided in Section 3, leave nothing to doubt that this enactmentis for making special provisions for dealing with the menace oforganised crime causing serious threat to the society. No doubt,the enactment makes stringent provisions with severalextraordinary measures but, the peculiar nature of the mischiefsought to be tackled, i.e., of organised crime, has obviously ledto such extraordinary measures, particularly when the existinglegal framework was found to be rather inadequate to control themenace. [Para 11][1151-G-H; 1152-A]2. The provisions of MCOCA need to be strictly construedand for their application, an unlawful activity has to fall within theperiphery of organised crime. However, the question still remainsas to the import of the requirement of ‘strict construction’ of thestringent provisions? brief reference to the fundamental legalprinciples in that regard shall be apposite. So far as the applicabilityof the rule of strict construction qua MCOCA is concerned, itbeing special penal statute, this much is clear that no one is tobe made subject to this law by implication or by presumption;and all doubts concerning its application would, ordinarily, beresolved in favour of the accused. However, the rule of strict

ABC

Aconstruction cannot be applied in an impracticable manner so asto render the statute itself nugatory. In other words, the rule ofstrict construction of penal statute or special penal statute isnot intended to put all the provisions in such tight iron cast thatthey become practically unworkable, and thereby, the entirepurpose of the law is defeated. As regards application of MCOCA,Bwhat is required to be seen is as to whether the basic and thresholdrequirements, as per combined reading of clauses (d), (e) and (f)of Section 2(1) thereof, are fulfilled. If they are not so fulfilled,mere use of the expressions of the statute in the sanction orderwould be of no effect but, on the other hand, if the requirementsCare fulfilled, mere want of any expression or word in particularpassage in the sanction order would not take away the substanceof the matter. In other words, strict adherence by the authoritiesconcerned to the requirements of MCOCA also cannot bestretched beyond common sense and practical requirements interms of the letter and spirit of the statute. [Paras 12.3, 12.6 andD12.7][1154-G-H; 1156-B-D; G-H; 1157-A-B]

3. bare look at clause (e) of Section 2(1) of MCOCAmakes it clear that ‘organised crime’ means any unlawful activityby an individual singly or jointly, either as member of organisedcrime syndicate or on behalf of such syndicate, by use of violenceEor threat of violence or intimidation or coercion or other unlawfulmeans. The suggestions on behalf of the appellant to limit theactivity only to the use of violence is obviously incorrect when itomits to mention the wide-ranging activities contemplated byclause (e) of Section 2(1) of MCOCA, i.e., threat or violence orFintimidation or coercion or other unlawful means. Actual use ofviolence is not always sine qua non for an activity falling withinthe mischief of organised crime, when undertaken by an individualsingly or jointly as part of organised crime syndicate or on behalfof such syndicate. Threat of violence or even intimidation or even

coercion would fall within the mischief. This apart, use of otherGunlawful means would also fall within the same mischief. Thesecond part of the requirement of the nature of activity, i.e., itsobjective, has also not been projected correctly on behalf of theappellant. The requirement of law is not limited to pecuniarybenefits but it could also be of ‘gaining undue economic or otherH

advantage’. The frame of the proposition that the object ought tobe gaining pecuniary benefit or other ‘similar’ benefit is notcorrect as it misses out the specific phraseology of the enactmentwhich refers to undue economic or other advantage apart frompecuniary benefit. The Full Bench of the High Court in JaganGagansingh Nepali @ Jagya has rightly said that there could beadvantage to person committing crime which may not bedirectly leading to pecuniary advantage or benefit but could be ofgetting strong hold or supremacy in the society or even in thesyndicate itself. As noticed above, the purpose of this enactmentis to be kept in view while interpreting any expression thereinand in the name of strict construction, its spirit and object cannotbe whittled down. [Paras 14.1, 14.2 and 14.4][1158-H; 1159-A-E;1161-G-H; 1162-A]3. The common thread of “violence” or “threat of violence”or “unlawful means” running through all of these cases is not amatter requiring any analysis, for the same being apparent onthe face of record. Significantly, the aforesaid had not been thecases involving the appellant singularly; and more significantly,the alleged team leader RS is the co-accused in at least threeprevious cases. This is apart from the recurrence of other co-accused persons in one case or the other. It has rightly beenpointed out on behalf of the respondent-State that in order toattract MCOCA, every previous case need not be of the objectof gaining pecuniary benefit alone. The cases in question, apartfrom involving the offences against human body and property,also include variety of other offences including those of riotingwhile armed with deadly weapons; causing insult to provokebreach of peace; and criminal intimidation. They also include theoffence under the Arms Act. In all the referred cases, use ofviolence has specifically been alleged. In the crime chart, thenature of activities and the persons involved leave nothing todoubt that the involvement of the appellant in such crimes andunlawful activities which are aimed at gaining pecuniaryadvantages or of gaining supremacy and thereby, leading to otherunwarranted advantages is clearly made out. The criticism of theimpugned sanction order dated 05.11.2020, that it had been ofmere repetition of the expression of statute, is also difficult to beaccepted. The High Court, in the impugned order, has rightly

Aobserved that the said order is required to be viewed in its totality,and its substance cannot be ignored by isolated reference to aparticular line or expression. This Court has not an iota of doubtthat firstly, the approving authority, and then, the sanctioningauthority, were conscious of the requirement of law and indeedexamined the matter only with reference to such requirement;Band issued the orders in question only after arriving at the requisitesatisfaction. It has rightly been pointed out on behalf of therespondent that in such matters, the competent authority has tofocus essentially on the factum whether the material in questionreveals the commission of crime, which is an organised crime,Ccommitted by the organised crime syndicate. [Para 15.1, 15.2and 16][1162-G-H; 1163-AF]

4. The submissions about taking irrelevant factors intoaccount with reference to the said two cases resulting in acquittaland discharge must fail for the simple reason that for the purposeDof clause (d) of Section 2(1) of MCOCA, the result of particularmatter is not decisive of the question as to whether the activityin question answers to the description of ‘continuing unlawfulactivity’ or not. These had not been offences committed single-handed by the appellant and charge-sheets were indeed filedtherein. The matter of settlement because of cross-cases or aEmatter of acquittal because of the witnesses not turning up, couldhardly be of any relevance so far as clause (d) of Section 2(1) ofMCOCA is concerned. Therefore, it cannot be said that anyirrelevant matter has been taken into consideration by thesanctioning authority. What is significant and pertinent for theFpurpose of Section 2(1)(d) is the involvement of the personconcerned in the referred activity and filing of charge-sheet andtaking of cognizance in the offence as predicated. Acquittal ordischarge is of no significance. The reference in the confessionalstatements of the two co- accused persons in relation to the

appellant is not factor entirely irrelevant for the appellant beingGa co-accused person with them. The detailed discussion by thesanctioning authority to the substantial pieces of evidencecollected in the matter rather fortifies the conclusion that thesanctioning authority has meticulously applied its mind to all therelevant factors and has taken an overall view of the matter beforeH

forming the final opinion in favour of granting the sanction. Thecontention in that regard also fails. Thus, challenge to the judgmentas passed by the High Court on 16.12.2021, and to the sanctioningorder dated 05.11.2020, was required to be rejected when theappellant had indeed been declared absconder. However, asobserved hereinbefore, this Court has considered it proper tofirst examine the matter on merits because notices had beenissued to the respondents and it had appeared serving the causeof justice to deal with the matter on merits. As noticed, all thecontentions urged on behalf of the appellant remain baselessand challenge herein ought to fail. [Paras 17.5, 18.1 and 22][1166-F-H; 1167-B; 1168-B-C; 1170-B-D]

State of Maharashtra v. Jagan Gagansingh Nepali @Jagya & Anr.: (2011) SCC OnLine Bombay 1049 –approved.

Khaja Bilal Ahmed v. State of Telangana & Ors.: (2020)13 SCC 632 : 2020 (1 ) SCALE 41 – held inapplicable.

State of Maharashtra & Ors. v. Lalit Somdatta Nagpal& Anr.: (2007) 4 SCC 171 : [2007] 2 SCR 473;Ranjitsing Brahmajeetsing Sharma v. State ofMaharashtra & Anr.: (2005) 5 SCC 294 : [2005] 3 SCR345; Jagannath Misra v. State of Orissa: (1966) 3 SCR134; Mohindhr Singh Gill & Anr. v. Chief ElectionCommissioner, New Delhi & Ors.: (1978) 1 SCC 405 :[1978] 2 SCR 272; State of Maharashtra v. KamalAhmed Mohammed Vakil Ansari & Ors.: (2013) 12 SCC17 : [2013] 5 SCR 128; Kavitha Lankesh v. State ofKarnataka & Ors.: (2021) SCC OnLine 956; Vinod G.Asrani v. State of Maharashtra: (2007) 3 SCC 633 :[2007] 2 SCR 1023; Balram Kumawat v. Union of India& Ors.: (2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24;Prem Shankar Prasad v. State of Bihar and Anr.: (2021)SCC OnLine SC 955 - referred to.

Case Law Reference[2007] 2 SCR 473referred toPara 6.1[2005] 3 SCR 345referred toPara 6.2

[2022] 4 S.C.R.

From the Judgment and Order dated 16.12.2021 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ PetitionCNo.667 of 2020.Vinay Navare, Sr. Adv., Mehul M. Gupta, R. P. Gupta, Advs. forthe Appellant.

Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms.DShwetal Shepal, Advs. for the Respondents.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

Leave granted.E2. By way of this appeal, the appellant has challenged the judgmentand order dated 16.12.2021, as passed by the High Court of Judicatureat Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of2020 whereby, the High Court has rejected his challenge to the orderdated 05.11.2020, as issued by the Additional Director General of PoliceFand Commissioner of Police, Nagpur City[1] under Section 23(2) of theMaharashtra Control of Organised Crime Act, 1999[2] sanctioningprosecution of the appellant with five other accused persons in CrimeNo. 251 of 2020 of Sadar Police Station, Nagpur City for varying offencesunder the Indian Penal Code, 1860[3], the Arms Act, 1959[4] as also MCOCA.

3. The genesis of the present appeal is in the complaint filed onG08.05.2020 at Police Station Sadar, Nagpur City. Therein, the complainant

1 Hereinafter also referred to as the ‘sanctioning authority’.

2 For short, ‘MCOCA’.

3 For short, ‘IPC’.

H4 Hereinafter also referred to as ‘the Arms Act’.

alleged that on 02.05.2019, he was forcefully kidnapped from MotimahalRestaurant, Sadar, Nagpur; and was intimidated with knife and ransomof Rs. 20 lakhs was demanded by the accused persons. The complainantalleged that three of the accused persons were known to him, being thepresent appellant Abhishek Singh, as also one Ankit Pali and anotherRoshan Sheikh. The complainant also alleged that the accused personsasked him to give them papers of his ancestral property and to handover the shop; threatened him from time-to-time to kill; forcefully tookhis son in vehicle; created terror of killing him and his son; and forcefullytook out an amount of Rs. 9,000 to Rs. 11,000 from his pocket. Thecomplainant further alleged that the accused persons visited his housefrom time-to-time demanding money; and that out of fear, he had left hishouse and was staying at other places.

3.1. On the basis of the complaint aforesaid, the said Crime No.251 of 2020 came to be registered for offences under Sections 363,364A, 384, 386, 387, 397 and 504 IPC.

3.2. It is noticed that the appellant, apprehending arrest, appliedfor pre-arrest bail and on 11.05.2020, the Sessions Judge, Nagpur grantedhim ad interim bail.

3.3. However, on 02.06.2020, the Additional Commissioner ofPolice (Crime), Crime Branch, Nagpur City examined the proposalsubmitted by the Police Inspector, Crime Branch, Nagpur City for additionof Sections 3(1)(ii), 3(2) and 3(4) of MCOCA in the said Crime No. 251of 2020 against six accused persons, including the appellant. The saidAdditional Commissioner of Police, in his approval order dated 02.06.2020,inter alia, observed that more than one charge-sheet had been filedagainst the accused persons involving offences for which, punishmentof three years or more of imprisonment had been prescribed; and theprevious record made out that the accused persons had committedoffences of very serious nature under IPC and related special enactments.The Additional Commissioner of Police recorded his satisfaction whilegranting approval in the following terms: -

“Previous preventive actions taken against the above mentionedaccused failed to show desired results. According to the record, itseems that ultimate intention of the accused persons is to gainpecuniary benefit, establishing supremacy in the locality, createterror in the minds of the people in order to have pecuniary gain

A& other advantages by committing such serious offence. Thepreventive actions taken against them on multiple occasions tilldate have failed to produce desired results and also after takingpreventive actions on multiple times above named criminals in anorganized way committed serious offences. Hence, it is very muchclear that preventive actions taken against them failed to produceBdesired results.

I am prima facie satisfied that every other time above mentionedaccused commit the offence with new offender thereby createscrime syndicate and there is enough material evidence availableand record to give prior approval for investigation under theCprovisions of section 3(1)(ii), 3(2) & 3(4) of M.C.O.C. Act, 1999against the above mentioned accused as per authority vested inme under section 23(1) (A) of the M.C.O.C. Act 1999.”

3.4. On the invocation of MCOCA in terms of the approvalaforesaid, the application for pre-arrest bail filed by the appellant wasDrejected by the Sessions Judge, Nagpur. However, for the appellant havingremained out of reach, proclamation was issued on 14.10.2020 underSection 82 of the Code of Criminal Procedure, 1973[5] read with Section20(3) of MCOCA, declaring him as an ‘absconder’.

3.5. On 05.11.2020, the Additional Director General of Police andECommissioner of Police, Nagpur City, examined the proposal of theAssistant Commissioner of Police (Crime), Crime Branch, Nagpur dated31.10.2020 for according sanction in terms of Section 23(2) of MCOCAfor prosecution of the accused persons in Crime No. 251 of 2020 for theoffences under IPC, Arms Act as also MCOCA; and proceeded to issueFsuch sanction as per the proposal. This sanction order dated 05.11.2020is the bone of contention in the present matter. Its relevant contents,particularly in relation to the appellant, could be usefully noticed as under:-

“…It is also revealed that preventive actions have been takenagainst the Team Leader and accused No. 5 Abhishek u/s 110 ofGthe Cr. P.C. at Sitaburdi Police station. It is also revealed that theTeam leader continues to commit the heinous offences involvingdifferent members of his crime syndicate mainly for pecuniarybenefit and other advantage.

H5 For short, ‘CrPC’.

The Team leader Roshan Sheikh has committed total 9 offences,out of which, he has committed 4 offences jointly with accusedNo. 5 Abhishek, out of which charge sheets have been filed in thecourt in 3 cases and one present offence is under investigation…

It is thus revealed that in total 4 cases charge sheets have beenfiled in the court against the Team Leader, accused No. 5 Abhishek,accused no. 4 Irfan Khan jointly. Thus in total 4 cases chargesheet have been filed jointly in respect of their crime syndicateand court has also taken the cognizance. The Chart showing chargesheets jointly filed in respect of their crime syndicate is annexedherewith as Annexure-B.

The Accused No. 5 Abhishek has committed total 7 offences, outof which, he has committed 3 offences jointly with Team Leaderi.e. crime No. 482/15 of Nandanwan P.S., Crime No. 196/16Sitaburdi P. S., and crime No. 83/17 Sitaburdi and one offencejointly with their present crime syndicate. The accused no. 5 hascommitted remaining 2 offences U/s 307 of IPC of Burdi P.S.with other different members of their crime syndicate and oneoffence under section 4/25 of Arms Act of Ambazari P. S. withother different members of their crime syndicate and charge sheetshave been filed in all above cases against the accused No. 5. Theaccused No. 5 had obtained Anticipatory Bail on registration ofpresent FIR and after application of the MCOCA he is absconding.The Chart showing total 7 offences committed by the accusedNo. 5 is annexed herewith as Chart- F.

It is further revealed that the Preventive action also has beentaken against Team Leader and accused No. 5 Abhishek, but invain. Offences under Arms Act are also found registered againstthe Team leader and accused No. 5 and 6 but could not deterthem from committing such offences for pecuniary benefit. It isthus appears that there is fulfillment of the essential ingredients ofthe section 2 (d) and (e) of MCOCA.

EVIDENCE COLLECTED IN PRESENT OFFENCE: -

1. It is revealed that the Team Leader and accused No. 3 SallimKaji have given Confession u/s 18 of MCOCA and disclosed

Amodus adopted for committing such serious offences punishableunder above said provisions for pecuniary benefit and for otheradvantage.

2. It reveals that the accused No. 3 has disclosed in his Confessionabout how and in what manner all other members of present crimeBsyndicate are involved in the present crime and what is exact roleof each member and also the modus opted by the Team leader incommitting such heinous offences, by deceiving various victimsfor pecuniary benefits.

3. The Team leader also has disclosed all his illegal acts, names ofCthe victims, instances of extortion and modus of blackmailingadopted by him for extortion for pecuniary benefits. The I. O. hasrecorded statements of all such victims as evidence relating tothe illegal heinous acts of the Team leader. In all total 24 statementsof witnesses have been recorded by the I.O.

D*********

I am satisfied that the accused No. 1 to 6 are members of an“Organized crime syndicate” and have jointly & singly committedserious and violent offences for pecuniary benefit. I am satisfiedthat the Team leader Roshan Sheikh and above named other co-Eaccused No. 2 to 6 in the present crime No.251/2020 of SadarP.S., are involved in “Continuing Unlawful Activity”, defined insection 2 (1) (d) and (e) of MCOCA i. e. they are indulging in useof violence, threats of violence, intimidation to gain pecuniarybenefit or undue economic or other advantage for themselves orany other person, by committing cognizable offences, punishableFwith imprisonment of 3 years or more, singly or jointly, and alsoundertaken as members of syndicate, in respect of which morethan one charge sheets have been filed in competent Court.

*********”G3.6. In view of the above, the sanctioning authority recorded itssatisfaction that all the essential ingredients of Sections 2(1)(d) and2(1)(e) of MCOCA were fulfilled and hence, proceeded to grant sanctionin terms of Section 23(2) of MCOCA for prosecution of the six accusedpersons including the appellant for the aforesaid offences, inclusive ofthe offences under MCOCA.H

3.7. After the sanction aforesaid, the police filed the charge-sheeton 07.11.2020 in the said Crime No. 251 of 2020. This led the appellantto file Writ Petition No. 667 of 2020 in the High Court, questioning thesanction order dated 05.11.2020.

4. As noticed from the contents of the impugned sanction orderdated 05.11.2020, the previous involvement of the appellant in othercriminal cases with at least three of them jointly with the alleged teamleader, had been the part of consideration in the sanctioning authorityultimately issuing sanction for prosecution in relation to the offencesunder MCOCA alongwith the other offences in Crime No. 251 of 2020.The involvement of the appellant in other cases had gone intoconsideration of the High Court too. As shall be noticed hereafter, thenature of other cases and the results of couple of them forms part ofthe submissions in support of this appeal. It would, therefore, beappropriate to take note of the cases in which the appellant is, or hadbeen, involved. The particulars and status of these cases with the natureof offences and the names of accused persons are as follows: -

Serial number 1

Police Station:Crime No. & Date:Accused persons:Offences:

Sitabuldi

3283/2012, dated 15.07.20121. Abhishek Singh 2. Keval PatelSections 4/25 of Arms Act and 135 ofMaharashtra Police ActPending before JMFC, Nagpur.

Status:Serial number 2

Police Station:Crime No. & Date:Accused persons:Offences:Status:

Sitabuldi

13/2012, dated 11.01.20121. Abhishek Singh 2. Harsh ModiGSections 307, 34 IPC

The appellant Abhishek and co-accusedwere acquitted by the Sessions Court on09.05.2017.

ASerial number 3

Police Station:

Nandanvan

Crime No. & Date:Accused persons:

482/2015, dated 20.12.2015

1. Shashank Chaudhari, 2. Roshan Sheikh,

3. Pankaj Dharwal, 4. Abhishek Singh

5. Divyam Samrit, 6. Harsh Modi

Offences:

Sections 143, 147, 148, 149, 294, 324, 325

IPC

Status:

This was cross-case with Crime No. 481of 2015 and the parties having arrived atsettlement, the High Court, by its orderdated 13.04.2016, quashed the

proceedings.

Serial number 4

Police Station:Sitabuldi

DCrime No. & Date:

196/2016, dated 06.05.2016

Accused persons:

1. Sameer Sharma, 2. Kammu @ KamleshYadav, 3. Abhishek Singh 4. Roshan Sheikh,5. Jaiprakash @ Vinod @ Pande ShuklaSections 143, 147, 148, 149, 294, 323, 326,324 IPC.

Offences:E

Status:

Charge-sheet has been filed and the caseis said to be pending.

Serial number 5

FPolice Station:SitabuldiCrime No. & Date:

517/2016, dated 18.11.2016

Accused persons:

1. Sameer Sharma, 2. Abhishek Singh 3.

Shrikant Wanwe 4. Shubham Jaiswal 5.Rakesh Samrutwar 6. Vishnu Tripathi 7.Rajlannan Pande 8. Ramashankar Mishra

9. Mohd. Wasim

Offences:

Sections 143, 147, 148, 149, 307 IPC and3/25 Arms Act.

Status:Charge-sheet has been filed and the caseHis said to be pending.

Serial number 6

Police Station:SitabuldiCrime No. & Date:83/2017, dated 08.03.2017Accused persons:1. Roshan Sheikh, 2. Sunil Kuril, 3.Kamlesh Yadav, 4. Divyam Samit, 5.BRudram Samrit, 6. Abhishek SinghOffences:Sections 143, 147, 148, 149, 323, 294 and506 IPC.

Status:

Charge-sheet has been filed and the caseis said to be pending.

Serial number 7Police Station:Crime No. & Date:Accused persons:

Police Station:SadarCrime No. & Date:251/2020, dated 08.05.2020Accused persons:1. Roshan Sheikh, 2. Sohil Khan, 3. SalimKazi, 4. Irfan Khan, 5. Abhishek Singh, 6.DAnkit PaliOffences:Sections 363, 364A, 384, 386, 387, 397, 504,506 IPC, 4/25 Arms Act, and 3(1)(ii), 3(2)and 3(4) MCOCA.

Status:

It is the present case where charge-sheethas been filed.

5. Having taken note of the relevant background aspects, we maynow refer to the submissions made before, and considerations of, theHigh Court.

5.1. In challenge to the sanction order dated 05.11.2020, it wasurged on behalf of the appellant before the High Court that the sanctioningauthority had not recorded specific satisfaction about the existence of‘organised crime syndicate’ in terms of Section 2(1)(f) of MCOCA; andmere satisfaction about the alleged existence of the ingredients of Section2(1)(d), which defines ‘continuing unlawful activity’ and Section 2(1)(e),which defines ‘organised crime’, was not sufficient for accordingsanction. In other words, the contention had been that there was noquestion of granting sanction in terms of Section 23(2) of MCOCA, forthe vital predicate, being the existence of ‘organised crime syndicate’,as defined by Section 2(1)(f) of MCOCA, having not been fulfilled.

A5.2. The High Court took note of the background aspects, includingthe facts pertaining to the appellant and his involvement in various othercases, some of them in league with the team leader Roshan Sheikh andother persons. The High Court also examined the contents of sanctionorder dated 05.11.2020 and, after finding no legal flaw or shortcomingtherein, proceeded to dismiss the writ petition while, of course, making itBclear that any observations occurring in the order would not influence orprejudice the trial or pre-empt any legitimate defence of the appellant.The High Court, inter alia, observed, held and concluded as follows: -“13. It is only after the record of satisfaction in the aforesaidterms that the sanctioning authority, in terms of Section 23 (2) ofCthe said Act, has proceeded to record further satisfaction in termsof focus by Mr. Mishra, learned Senior Advocate and quoted atpara no. 5 of this order. Even the quotation makes it clear thatsatisfaction about the existence of the essential ingredients is “inview of the forgoing observations”. The satisfaction is notDrestricted to the ingredients of Section 2(d) and 2(e) of the saidAct but to the ingredients of the said Act in general though,particular reference may have been made in the above-quotedportion to Section 2(d) and 2(e) of the said Act.

14. Therefore, based upon the reading of only the above-quotedEportion, it will not be proper to hold that the sanctioning authorityhas either not applied its mind and failed to record any satisfactionabout the existence of “organized crime syndicate” as definedunder Section 2(f) of the said Act or satisfaction that these accusedpersons including the petitioner herein are part of or are themembers of this organized crime syndicate. The impugned sanctionForder is to be read in its entirety and based on some truncatedportion, no contention can be advanced or at least sustained aboutany alleged non-application of mind by the sanctioning authorityto the requirements of Section 2(1) of the said Act. Besides, thecontention raised by Mr. Mishra, learned Senior Advocate notGonly over focusses on the above-quoted portion but tends tocompletely ignore the specific satisfaction recorded in theimpugned sanction order about not only the existence of anorganized crime syndicate in terms of Section 2(f) of the said Actbut, also that the accused persons including the petitioner aremembers of such syndicate and further, have singly or jointly

committed serious and violent offenses for pecuniary and otherbenefits. Therefore, we are satisfied that the impugned sanctionorder warrants no interference on the ground now urged beforeus.

15. At the request of Mr. Mishra, learned Senior Advocate, however,we clarify that observations in this order are only prima facie andnothing in this order is even remotely intended to either influenceor prejudice the trial and merits or to preempt any legitimatedefenses that the petitioner may have in the course of such trial.

16. This petition is therefore dismissed. The rule is discharged.There shall be no order as to costs.”

6. Assailing the judgment and order of the High Court as also thesanction order dated 05.11.2020, the learned senior counsel for theappellant has taken us through the scheme of the Maharashtra Controlof Organised Crime Act, 1999, as also the record of the case and hasput forth variety of submissions for consideration, which could besummarised as follows:

6.1. Learned senior counsel, with reference to various provisionsof MCOCA, has made the opening submissions that this enactment is ofdrastic consequences where not only minimum period of sentence isprovided under Section 3, several measures of extraordinary nature havebeen provided, like interception of communications (Section 14); specialrules of evidence overriding ordinary rules as contained in CrPC and theIndian Evidence Act, 1872[6], with converse burden of proof on the accused(Section 17); use of confessions made to the police officer (Section 18);forfeiture and attachment of property (Section 20) and modifiedapplication of CrPC with several protections being overridden. Thelearned counsel would submit that looking to the drastic and seriousconsequences, this Court has clearly provided that the provisions ofMCOCA have to be strictly construed by the Courts; and the authoritiesconcerned must strictly adhere to the same. The learned counsel hasreferred to the decision in the case of State of Maharashtra & Ors. v.Lalit Somdatta Nagpal & Anr.: (2007) 4 SCC 171, particularlyparagraph 62 thereof.

6 Hereinafter also referred to as ‘the Evidence Act’.

A6.2. The learned senior counsel has further submitted that by virtueof Section 2(1)(d) read with Sections 2(1)(e) and 2(1)(f) of MCOCA, toinvoke its provisions, minimum of two charge-sheets are required tohave been filed with twin allegations, i.e., of a) violence and b) the objectbeing of gaining pecuniary benefit or other similar benefit. The learnedcounsel would submit that in view of these twin requirements, theBprosecution cannot rely upon the cases where the allegations only relateto violence but not to the object of gaining pecuniary or other benefit.The learned counsel has particularly referred paragraph 24 of the decisionof this Court in the case of Ranjitsing Brahmajeetsing Sharma v.State of Maharashtra & Anr.: (2005) 5 SCC 294.

6.3. With reference to the facts of the present case, learned seniorcounsel for the appellant has strongly contended that even as per thestand of the respondents, the allegations concerning pecuniary benefitoccur only in the present case of Crime No. 251 of 2020 and not in othercases. Therefore, according to the learned counsel, the thresholdDrequirement of involvement of the appellant in two or more cases involvingthe object of gaining pecuniary or similar benefit being not existing, evenif those cases are taken on their face value, the provisions of MCOCAare inapplicable to the present case.

6.4. With reference to the contents of the sanction order and theEstand of the respondents, the learned senior counsel has submitted thatthe cases forming the basis of the sanction order did not relate to anypecuniary benefit nor any such consideration had occurred in the orderimpugned but, in the concluding part, the sanctioning authority hadmechanically used the expressions ‘to gain pecuniary benefit or undueeconomic or other advantage’. According to the learned counsel, theFuse of alternative, i.e., “or” has no basis whatsoever and thus, the orderimpugned remains baseless where the propositions of the sanctioningauthority do not meet with the threshold requirements of Section 2(1)(f)of MCOCA. The learned counsel has referred to the decision in thecase of Jagannath Misra v. State of Orissa:(1966) 3 SCR 134 andGhas submitted that mere use of the expressions of the statute withoutproper application to the facts is not countenanced, particularly in thematters where the question of liberty of person is involved. Thus,according to the learned counsel, there being no such element of ‘otheradvantage’ and these words having been used in an arbitrary and formalmanner, the prosecution is not entitled to rely upon the same. It has alsoH

been contended that, in fact, the plea of ‘other advantage’, as takenbefore this Court, is rather an afterthought and is of an attempt atimprovement over the reasons recorded in the sanction order, which isentirely impermissible in view of the decision of this Court in the case ofMohindhr Singh Gill & Anr. v. Chief Election Commissioner, NewDelhi & Ors.: (1978) 1 SCC 405.

6.5. In other limb of submissions, the learned senior counsel hasparticularly referred to the cases pertaining to Crime Nos. 13 of 2012and 482 of 2015 and has submitted that these cases could not have beenconsidered at all for the reason that in the case relating to Crime No. 13of 2012, the appellant was, in fact, acquitted by the Trial Court whereasin the case relating to Crime No. 482 of 2015, the proceedings werequashed by the High Court. It has been submitted that the order impugnedought to have given specific reasons for placing reliance on such casesdespite acquittal and quashing. Therefore, again, learned counsel wouldsubmit that the order issuing sanction deserves to be set aside.6.6. Learned senior counsel has further submitted that thesanctioning authority has placed reliance on the confessions recordedunder Section 18 of MCOCA and this could not have been done as self-serving exercise. In any case, according to the learned counsel, withoutmeeting the threshold requirement of two charge-sheeted cases withthe allegations applicable to MCOCA, no number of confessions in onecase could be taken as sufficient. The learned counsel has submittedthat any order having drastic consequences like those of application ofMCOCA, if proceeding on the basis of irrelevant material, while ignoringthe relevant considerations, cannot be approved and has referred to thedecision of this Court in the case of Khaja Bilal Ahmed v. State ofTelangana & Ors.: (2020) 13 SCC 632. The learned counsel wouldsubmit that when the irrelevant material is excluded in the present case,the sanction order falls to the ground and deserves to be set aside.

6.7. As regards the allegations of the respondents that the appellantwas an absconder, it has been submitted that the appellant had no intentionto abscond or not to face the judicial process and he has always beenavailable in Nagpur; and had travelled to Delhi to swear the affidavitbefore this Court. It has been contended that the appellant, like in othercases in the past, would fully cooperate with the investigation and withthe Trial Court but the arbitrary, illegal and mala fide invocation of thedrastic provisions of MCOCA, severely impinging the fundamental rights

Aof the appellant, could not stand validated by the alleged absconsion ofthe appellant; and the State was only trying to create false prejudice andto justify its arbitrary and illegal sanctioning order.

7. Learned counsel for the respondent-State has countered thesubmissions made on behalf of the appellant and, after detailed referenceBto the fact-sheet has, inter alia, contended as follows:

7.1. The learned counsel for the State has, in the first place,emphatically argued that the appellant is not entitled for any relief fromthis Court under Article 136 of the Constitution of India in view of thefact that he has been declared an absconder under Section 82 CrPCCread with Section 20(3) MCOCA. Learned counsel would submit thatall the submissions concerning personal liberty with the application ofMCOCA deserve to be rejected when the appellant himself has chosennot to submit to the law.

7.2. Moving on to the conditions prescribed for invocation ofDMCOCA, the learned counsel has referred to the aforesaid three casesin Crime No. 482 of 2015 (Police Station Nandanwan), Crime No. 196of 2016 (Police Station Sitabuldi) and Crime No. 83 of 2017 (PoliceStation Sitabuldi) and has submitted that the charge-sheets have beenfiled in all these matters and, therefore, the essential condition of morethan one charge-sheet, in terms of Section 2(1)(e), has been duly met.ELearned counsel would further contend that the facts about one of thecrime cases having been quashed and another ending in acquittal, arenot material considerations for deciding the question as to whether theappellant was indulging in ‘continued unlawful activity’ in terms of Section2(1)(d) of MCOCA.F

7.2.1. In regard to the case ending in acquittal, learned counselfor the State has also pointed out the facts that therein, one witnessturned hostile and other witnesses did not come forward; and hassubmitted that in fact, MCOCA seeks to curb such menace where theoffenders get reprieve because of the witnesses not standing with theGprosecution. This, according to the learned counsel, is sufficient to showthat MCOCA has rightly been invoked in the present case.

7.3. The learned counsel for the State has further contended thatthe arguments about the appellant not being involved in the crime referablefor invocation of MCOCA are not correct and the suggested interpretationon behalf of the appellant of the expression ‘other advantage’ is also notH

correct. The learned counsel for the respondent-State has referred tothe decision of the Full Bench of the Bombay High Court in the case ofState of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr.:(2011) SCC OnLine Bombay 1049 to submit that therein, the BombayHigh Court has held that crimes of bodily offence could be the crimescommitted with an intention to establish supremacy and which couldlead to gains other than pecuniary benefit or advantage.

7.4. The learned counsel has also referred to the decision of thisCourt in the case of State of Maharashtra v. Kamal AhmedMohammed Vakil Ansari & Ors.: 2013 (12) SCC 17 to submit thatthe confessional statement could definitely be considered when grantingsanction under Section 23(2) of MCOCA. Learned counsel would submitthat the confessional statements of the gang leader and other co-accusedperson directly disclose the role of the appellant as an active member ofthe ‘organised crime syndicate’. Thus, in the present case, the confessionalstatements are limited to the confessor and to the co-accused; and theiruse in the sanction order cannot be faulted at. Learned counsel has alsosubmitted that there is no prohibition in MCOCA in using the confessionalstatements while according sanction and, in any case, they could bepressed into service by the sanctioning authority when forming primefacie view of the matter and examining the question of according sanction.The learned counsel has also added that the question of reliability ofconfessional statement cannot be adjudged at the stage of grantingsanction and could only be decided during trial when the witnesses areexamined.

7.5. The learned counsel has submitted that when the materialplaced before the sanctioning authority reveals presence of credibleinformation regarding commission of an offence or organised crime, thesame could always be relied upon; and has referred to the decision ofthis Court in the case of Kavitha Lankesh v. State of Karnataka &Ors.: (2021) SCC OnLine 956.

7.6. In yet another limb of submissions, learned counsel for theState would argue that the validity of the sanction could always bedetermined by the Trial Court during the course of trial where thesanctioning authority could be examined with an opportunity of cross-examination to the accused. Learned counsel has relied upon the decisionof this Court in the case of Vinod G. Asrani v. State of Maharashtra:(2007) 3 SCC 633 and has contended that for this opportunity being

Aavailable to the appellant during trial, no interference in the sanctioningorder is called for.

8. We have given anxious consideration to the rival submissionsand have examined the material placed on record with reference to thelaw applicable.B

9. While dealing with the rival submissions, pertinent it is to takenote of the Statement of Objects and Reasons as also the Preamble ofthe Maharashtra Control of Organised Crime Act, 1999 and the relevantprovisions under reference.

9.1. The Statement of Objects and Reasons for this enactmentCreads as under: -

“STATEMENT OF OBJECTS AND REASONS

Organised crime has been for quite some years now come up asa very serious threat to our society. It knows no national boundariesand is fueled by illegal wealth generated by contract, killing,extortion, smuggling in contrabands, illegal trade in narcoticskidnappings for ransom, collection of protection money and moneylaundering, etc. The illegal wealth and black money generated bythe organised crime being very huge, it has had serious adverseeffect on our economy. It was seen that the organised criminalsyndicates made common cause with terrorist gangs and fosternarco terrorism which extend beyond the national boundaries.There was reason to believe that organised criminal gangs havebeen operating in the State and thus, there was immediate need tocurb their activities.

It was also noticed that the organized criminals have been makingextensive use of wire and oral communications in their criminalactivities. The interception of such communications to obtainevidence of the commission of crimes or to prevent theircommission would be an indispensable aid to law enforcementand the administration of justice.

2. The existing legal framework i. e. the penal and procedurallaws and the adjudicatory system were found to be ratherinadequate to curb or control the menace of organised crime.Government, therefore, decided to enact special law with stringentand deterrent provisions including in certain circumstances power

to intercept wire, electronic or oral communication to control themenace of the organised crime.

It is the purpose of this Act to achieve there objects.”

9.2. Relevant part of the Preamble of MCOCA, that substitutedits predecessor Ordinance, reads as under: -

“An Act to make Special Provisions for Prevention and Controlof Organised Crime and for coping with, Criminal Activity byOrganized Crime Syndicate or Gang, and for matters connectedtherewith or incidental thereto.”

9.3. The relevant definitions and meanings assigned to theexpressions “continuing unlawful activity”, “organised crime” and“organised crime syndicate”, respectively in clauses (d), (e) and (f) ofSection 2(1) read as under: -

“2. Definitions. (1) In this Act, unless the context otherwiserequires, -

*********

(d) “continuing unlawful activity” means an activity prohibited bylaw for the time being in force, which is cognizable offencepunishable with imprisonment of three years or more, undertakeneither singly or jointly, as member of an organised crime syndicateor on behalf of such syndicate in respect of which more than onecharge-sheets have been filed before competent Court withinthe preceding period of ten years and that Court has takencognizance of such offence;

(e) “organised crime” means any continuing unlawful activity byan individual, singly or jointly, either as member of an organisedcrime syndicate or on behalf of such syndicate, by use of violenceor threat of violence or intimidation or coercion, or other unlawfulmeans, with the objective of gaining pecuniary benefits, or gainingundue economic or other advantage for himself or any other personor promoting insurgency;

(f) “organised crime syndicate” means group of two or morepersons who, acting either singly of collectively, as syndicate organg indulge in activities of organised crime.”

9.4. Different punishments for organised crime with respect tothe nature of offence and the nature of involvement of the offender arespecified in Section 3 of MCOCA, which reads as under: -

“3. Punishment for organised crime. - (1) Whoever commitsan offence of organised crime shall, -

(i) if such offence has resulted in the death of any person,be punishable with death or imprisonment for life and shallalso be liable to fine, subject to minimum fine of rupees onelac;

(ii) in any other case, be punishable with imprisonment fora term which shall not be less than five years but which mayextend to imprisonment for life and shall also be liable to fine,subject to minimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abetsor knowingly facilitates the commission of an organised crime orDany act preparatory to organised crime, shall be punishable withimprisonment for term which shall be not less than five yearsbut which may extend to imprisonment for life and shall also beliable to fine, subject to minimum fine of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour orconceal, any member of an organised crime syndicate shall bepunishable with imprisonment for term which shall not be lessthan five years but which may extent to imprisonment for life, andshall also be liable to fine, subject to minimum fine of rupeesfive lacs.

(4) Any person who is member of an organised crime syndicateshall be punishable with imprisonment for term which shall notbe less than five years but which may extend to imprisonment forlife and shall also be liable to fine, subject to minimum fine ofrupees five lacs.

G(5) Whoever holds any property derived or obtained fromcommission of an organised crime or which has been acquiredthrough the organised crime syndicate funds shall be punishablewith term which shall not be less than three years but whichmay extend to imprisonment for life and shall also be liable to fine,subject to minimum fine of rupees two lacs.”H

9.5. The approval for investigation and sanction for prosecutionhave been granted in terms of Section 23 of MCOCA, which reads asunder: -

23. Cognizance of, and investigation into, an offence. - (1)Notwithstanding anything contained in the Code, -

(a) no information about the commission of an offence oforganised crime under this Act, shall be recorded by policeofficer without the prior approval of the police officer not belowthe rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions ofthis Act shall be carried out by police officer below the rankof the Deputy Superintendent of Police.

(2) No Special Court shall take cognizance of any offenceunder this Act without the previous sanction of the police officernot below the rank of Additional Director General of Police.”

10. As noticed, learned counsel for the State has emphaticallyargued in the very first place that the appellant has been declared as an‘absconder’ in terms of Section 82 CrPC and Section 20(3) MCOCAand hence, his case deserves no consideration. The appellant’s answerto this plea of the respondent has been that he had no intention to abscondor not to face the judicial process; and that the illegal and mala fideinvocation of MCOCA, impinging upon his fundamental rights, could notstand validated by the alleged absconsion. Though we cannot ignore thesubmissions on behalf of the State altogether in this regard; and it remainsseriously questionable if the appellant deserves indulgence under Article136 of the Constitution of India but, in totality of the circumstances,where notices had been issued to the respondents, we have consideredit proper to first examine the matter on merits; and to advert to thisaspect of absconsion in the last.11. comprehensive look at the objects and reasons for enactmentof MCOCA, its overall purpose signified in its Preamble, and the relevantdefinitions in Section 2 as also the punishments provided in Section 3,leave nothing to doubt that this enactment is for making special provisionsfor dealing with the menace of organised crime causing serious threat tothe society. No doubt, the enactment makes stringent provisions withseveral extraordinary measures but, the peculiar nature of the mischiefsought to be tackled, i.e., of organised crime, has obviously led to such

Aextraordinary measures, particularly when the existing legal frameworkwas found to be rather inadequate to control the menace.

12. long deal of arguments has been advanced before us onbehalf of the appellant that looking to the drastic and serious consequences,the provisions have to be strictly construed and the authorities are boundBto strictly adhere to the same. The question is as to what are theconnotations of ‘strict construction’ by the Courts and ‘strict adherence’by the authorities in the context of an enactment like MCOCA? Fordetermination of this question, apposite it shall be to refer to the citeddecisions and the applicable legal principles.

C12.1. The case of Lalit Somdatta Nagpal(supra) was oneinvolving questions relating to the application of MCOCA in respect ofthe offences alleged to have been committed under Sections 3 and 7 ofthe Essential Commodities Act, 1955. Having particular regard to theenactment of Essential Commodities (Special Provisions) Act, 1981,which was to remain in force for 15 years only and therein, the power toDimpose punishment was limited upto 2 years, this Court held that evenwhen power of the Court to impose punishment was limited to 2 years,the offence continued to remain punishable upto maximum period of 7years, so as to attract the provisions of MCOCA. Having said that andhaving disapproved the views of the High Court, this Court, of course,Eagreed with the other submissions on behalf of the respondents as regardsstrict interpretation of the provisions and strict observance by theauthorities while observing as under: -

“62. However, we are in agreement with the submission thathaving regard to the stringent provisions of mcoca, its provisionsFwill have to be very strictly interpreted and the authoritiesconcerned would have to be bound down to the strict observanceof the said provisions. There can be no doubt that the provisionsof mcoca have been enacted to deal with organised criminal activityin relation to offences which are likely to create terror and toendanger and unsettle the economy of the country for whichGstringent measures have been adopted. The provisionsof mcoca seek to deprive citizen of his right to freedom at thevery initial stage of the investigation, making it extremely difficultfor him to obtain bail. Other provisions relating to the admission ofevidence relating to the electronic media have also been providedHfor. In such situation it is to be seen whether the investigation

from its very inception has been conducted strictly in accordancewith the provisions of the Act.”

12.1.1. In relation to the particular fact situation concerning theindividual accused persons, this Court found that the sanction had beengranted with complete non-application of mind and hence, disapprovedthe same in the following words: -

“67. In the instant case, though sanction had been given by theSpecial Inspector General of Police, Kolhapur Range, on 31-8-2004, granting permission under Section 23(1)(a) of mcoca, 1999to apply its provisions to the alleged offences said to have beencommitted by Anil Nagpal, Lalit Nagpal and Vijay Nagpal, suchsanction reveals complete non-application of mind as the sameappears to have been given upon consideration of an enactmentwhich is non est. Even if the subsequent approval order of 22-8-2005 is to be taken into consideration, the organised crime referredto in the said order is with regard to the alleged violation of salestax and excise laws, which, in our view, was not intended to bethe basis for application of the provisions of mcoca, 1999. To applythe provisions of mcoca something more in the nature of coerciveacts and violence is required to be spelt out so as to bring theunlawful activity complained of within the definition of “organisedcrime” in Section 2(1)(e) of MCOCA.

68. In our view, both the sanctions which formed the very basisof the investigation have been given mechanically and are vitiatedand cannot be sustained. In taking recourse to the provisionsof mcoca, 1999, which has the effect of curtailing the liberty ofan individual and keeping him virtually incarcerated, greatresponsibility has been cast on the authorities in ensuring that theprovisions of the Act are strictly adhered to and followed, whichunfortunately does not appear to have been done in the instantcase.”

12.2. In the case of Ranjitsing Brahmajeetsing Sharma (supra),during the tenure of the appellant as Commissioner of Police, Pune, fakestamp papers worth Rs. 2.91 lakhs were seized, whereupon an FIR foroffences under Sections 120-B, 255, 249, 260, 263(a) and (b), 478, 472and 474 read with Section 34 IPC was registered. Prior to that, oneAbdul Karim Ladsa Telgi was arrested and proceeded against for the

Aalleged offences of printing counterfeits stamps and forgery. Theprovisions of MCOCA were invoked against the said Telgi and therein,the role of the appellant was said to be of rendering help and support tothe organised crime syndicate while functioning as the Commissioner ofPolice at different places. Therein, this Court was essentially concernedwith the operation of Section 24 of MCOCA, providing for punishmentBof public servants failing in discharge of their duties. Taking an overallview of the matter with reference to its facts, this Court formed theprima facie opinion that the High Court might not have been entirelycorrect in coming to the conclusion that the appellant committed anoffence under Sections 3(2) as well as 24 of MCOCA and thus, theCinterim bail granted to the appellant was continued.

12.2.1. In the said case, this Court referred to the objects andreasons for the enactment and the connotations of the expression “anyunlawful means” in the following words: -

“24. The Statement of Objects and Reasons clearly states as toDwhy the said Act had to be enacted. Thus, it will be safe to presumethat the expression “any unlawful means” must refer to any suchact which has direct nexus with the commission of crimewhich MCOCA seeks to prevent or control. In other words, anoffence falling within the definition of organised crime andEcommitted by an organised crime syndicate is the offencecontemplated by the Statement of Objects and Reasons. Thereare offences and offences under the Penal Code, 1860 and otherpenal statutes providing for punishment of three years or moreand in relation to such offences more than one charge-sheet mayFbe filed. As we have indicated hereinbefore, only because personcheats or commits criminal breach of trust, more than once, thesame by itself may not be sufficient to attract the provisions ofMCOCA. Furthermore, mens rea is necessary ingredient forcommission of crime under MCOCA.”

G12.3. It is, thus, not in doubt that the provisions of MCOCA needto be strictly construed and for their application, an unlawful activity hasto fall within the periphery of organised crime. However, the questionstill remains as to the import of the requirement of ‘strict construction’of the stringent provisions? brief reference to the fundamental legalprinciples in that regard shall be apposite.H

12.4. In the Principles of Statutory Interpretation by JusticeG.P. Singh[7], the rule of construction applicable to penal statute has,inter alia, been stated in the following terms: -

“Story, J. in agreeing to the rule in its “true and sober sense”stated the same as follows: “Penal statutes are not to be enlargedby implication or extended to cases not obviously within their wordsand purport. But where the words are general, and include variousclasses of persons, I know of no authority, which would justify thecourt in restricting them to one class, or in giving them thenarrowest interpretation, where the mischief to be redressed bythe statute is equally applicable to all of them. And where wordis used in statute, which has various known significations, I knowof no rule, that requires the court to adopt one in preference toanother, simply because it is more restrained, if the objects of thestatute equally apply to the largest and broadest sense of the word.”

12.5. The meaning and import of the expression “strictconstruction” have also been explained in Advanced Law Lexicon byP. Ramanatha Aiyar[8], as follows: -

“Strict construction. “Strict construction of statute is that whichrefuses to expand the law by implications or equitableconsiderations, but confines its operation to cases which are clearlywithin the letter of the statute, as well as within its spirit or reason,not so as to defeat the manifest purpose of the Legislature, but soas to resolve all reasonable doubts against the applicability of thestatue to the particular case. William M. Life et. al., Brief Makingand the Use of Law Books, 343 (3d ed. 1914).

“Strict interpretation is an equivocal expression, for it means eitherliteral or narrow. When provision is ambiguous, one of its meaningsmay be wider than the other, and the strict (i.e. narrow) sense isnot necessarily the strict (i.e. literal) sense.” John Salmond,Jurisprudence 171 n(t) (Glanville L. Williams ed., 10[th] ed., 1947).

“Strict construction” is that which refuses to expand the law byimplications or equitable considerations, and confines its operationto cases which are clearly within the letter of the statute, as well

7 14th Edition p. 978.

8 5th Edition p. 4956.

1156SUPREME COURT REPORTS

Aas within its spirit or reason. When the sense of the law is manifest,and leads to nothing absurd, there can be no reason not to adoptit. Statutes exercising the power of taxation in any of its forms, ordelegating the power to political sub-divisions, are to be strictlyconstrued.”

B12.6. So far as the applicability of the rule of strict constructionqua MCOCA is concerned, it being special penal statute, this much isclear that no one is to be made subject to this law by implication or bypresumption; and all doubts concerning its application would, ordinarily,be resolved in favour of the accused. However, the rule of strictconstruction cannot be applied in an impracticable manner so as to renderCthe statute itself nugatory. In other words, the rule of strict constructionof penal statute or special penal statute is not intended to put all theprovisions in such tight iron cast that they become practically unworkable,and thereby, the entire purpose of the law is defeated. At this juncture,we may profitably refer to decision of this Court in the case of BalramDKumawat v. Union of India & Ors.:(2003) 7 SCC 628, that thepurpose of law is not to allow the offender to sneak out of the meshes oflaw. This Court said, inter alia, as under: -

“23. Furthermore, even in relation to penal statute any narrowand pedantic, literal and lexical construction may not always beEgiven effect to. The law would have to be interpreted having regardto the subject-matter of the offence and the object of the law itseeks to achieve. The purpose of the law is not to allow theoffender to sneak out of the meshes of law. Criminal jurisprudencedoes not say so.”

FTherein, this Court, after reference to large number of decisions,ultimately exposited as follows: -

“36. These decisions are authorities for the proposition that therule of strict construction of regulatory/penal statute may not beadhered to, if thereby the plain intention of Parliament to combatGcrimes of special nature would be defeated.”

12.7. As regards application of MCOCA, what is required to beseen is as to whether the basic and threshold requirements, as percombined reading of clauses (d), (e) and (f) of Section 2(1) thereof, arefulfilled. If they are not so fulfilled, mere use of the expressions of thestatute in the sanction order would be of no effect but, on the other hand,H

if the requirements are fulfilled, mere want of any expression or word ina particular passage in the sanction order would not take away thesubstance of the matter. In other words, strict adherence by theauthorities concerned to the requirements of MCOCA also cannot bestretched beyond common sense and practical requirements in terms ofthe letter and spirit of the statute.

12.8. In the case of Kavitha Lankesh (supra), this Court hasexposited on the fundamentals for invocation of similar provisions ofKarnataka Control of Organised Crime Act, 2000, inter alia, in thefollowing words: -

“21. What is crucial in this provision is the factum of recording ofoffence of organized crime and not of recording of crime againstan offender as such. Further, the right question to be posed at thisstage is : whether prior approval accorded by the competentauthority under Section 24(1)(a) is valid? In that, whether therewas discernible information about commission of an offence oforganized crime by known and unknown persons as being membersof the organized crime syndicate? Resultantly, what needed to beenquired into by the appropriate authority (in the present case,Commissioner of Police) is : whether the factum of commissionof offence of organized crime by an organized crime syndicatecan be culled out from the material placed before him for grant ofprior approval? That alone is the question to be enquired into evenby the Court at this stage. It is cardinal to observe that only afterregistration of FIR, investigation for the concerned offence wouldproceed — in which the details about the specific role and theidentity of the persons involved in such offence can be unravelledand referred to in the chargesheet to be filed before the competentCourt.

27. At the stage of granting prior approval under Section 24(1)(a)of the 2000 Act, therefore, the competent authority is not requiredto wade through the material placed by the Investigating Agencybefore him along with the proposal for grant of prior approval toascertain the specific role of each accused. The competentauthority has to focus essentially on the factum whether theinformation/material reveals the commission of crime which isan organized crime committed by the organized crime syndicate.

AIn that, the prior approval is qua offence and not the offender assuch. As long as the incidents referred to in earlier crimes arecommitted by group of persons and one common individual wasinvolved in all the incidents, the offence under the 2000 Act canbe invoked…”

B13. Having taken note of the relevant principles, we may proceedwith their application to the present case.

14. The main plank of the case argued on behalf of the appellanthas been that the threshold requirement of his involvement in two ormore cases, involving the object of gaining pecuniary or similar benefitsCis not existing and, therefore, even if the referred cases are taken ontheir face value, the provisions of MCOCA are not applicable. Whileexamining this line of arguments, we are constrained to observe that thesubmissions on behalf of the appellant are rather premised on anincorrectly framed question which has, obviously, led to incorrectly framedcontentions. The wrong premise of the contentions of the appellant couldDbe noticed from the very opening paragraph in the written submissionswhich reads as under: -

“1. The only issue that arises for the kind consideration of thisHon’ble Court in the present matter is:

E“Whether the minimum threshold laid down in Section 2(d) ofthe Act viz. minimum two charge-sheeted cases with allegationsof violence for pecuniary benefit has been fulfilled in thepresent matter?”

Yet further, it has been submitted in paragraph 3 about the essentialFingredients to invoke MCOCA as under: -

“3.By virtue of Section 2(d) read with Sections 2(e) and 2(f)of the Act, to invoke the provisions of MCOCA two chargesheetsare required to have been filed with the following allegations:

a. Violence; andG

b. The object of gaining pecuniary benefit or other similar benefit.”

Neither the question aforesaid is correct nor the suggestedingredients are in conformity with the plain provisions of the statute.

14.1. bare look at clause (e) of Section 2(1) of MCOCA makesHit clear that ‘organised crime’ means any unlawful activity by an individual

singly or jointly, either as member of organised crime syndicate or onbehalf of such syndicate, by use of violence or threat of violence orintimidation or coercion or other unlawful means. The suggestions onbehalf of the appellant to limit the activity only to the use of violence isobviously incorrect when it omits to mention the wide-ranging activitiescontemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat orviolence or intimidation or coercion or other unlawful means. Actual useof violence is not always sine qua non for an activity falling within themischief of organised crime, when undertaken by an individual singly orjointly as part of organised crime syndicate or on behalf of such syndicate.Threat of violence or even intimidation or even coercion would fall withinthe mischief. This apart, use of other unlawful means would also fallwithin the same mischief.

14.2. The second part of the requirement of the nature of activity,i.e., its objective, has also not been projected correctly on behalf of theappellant. The requirement of law is not limited to pecuniary benefits butit could also be of ‘gaining undue economic or other advantage’. Theframe of the proposition that the object ought to be gaining pecuniarybenefit or other ‘similar’ benefit is not correct as it misses out the specificphraseology of the enactment which refers to undue economic or otheradvantage apart from pecuniary benefit.

14.3. This aspect has gone into consideration of the Full Bench ofBombay High Court in the case of Jagan Gagansingh Nepali @ Jagya(supra), wherein the Court examined precisely the connotations of theexpression “other advantage” occurring in Section 2(1)(d) of the Act.The question formulated had been as under: -

“2. The question, therefore, that we are called upon to answer is“as to whether the term “other advantage” has to be readas ejusdem generis with the words “gaining pecuniary benefits,or gaining undue economic advantage” or whether the said term“other advantage” is required to be given wider meaning””.

14.3.1. The Full Bench of the Bombay High Court gave theanswer to the question formulated as under: -

“42. For the reasons aforesaid, we answer the issue that the term“other advantage” cannot be read as ejusdem generis with thewords “pecuniary benefits” and “undue economic”.

A14.3.2. While giving answer aforesaid, the High Court took noteof the principles applicable and exposited, inter alia, as under: -

“31. Applying these principles, it can be seen that the existinglegal framework i.e. the penal and procedural laws and theadjudicatory system were found to be inadequate to curb or controlthe menace of organised crime. It was found that the organisedcrime had become serious threat to the society beyond nationalboundaries and is fuelled by the illegal wealth achieved by contract,killing, extortion, smuggling in contrabands, illegal trade in narcotics,kidnapping for ransom, collection of protection money and moneylaundering etc. It was found that the illegal wealth and black moneygenerated by the organised crime being very huge, it had seriousadverse effect on the economy. It was further seen that theorganised criminal syndicates made common cause with terroristgangs and foster narco terrorism which extend beyond the nationalboundaries. It was further found that the organised criminals havebeen making extensive use of wire and oral communications intheir criminal activities. In this background, it was found necessaryto enact special law with stringent and deterrent provisionsincluding in certain circumstances power to intercept wire,electronic or oral communication to control the menace of theorganised crime.

32. The Preface would show that it was also found that the criminalactivities like murders of tycoons related to film industry as wellby builders, extortion of money from businessmen, abduction etc.showed that criminal gangs are active in the State. It can, thus, beseen that it was hoped that with the passing of this law, unlawfulFelements spreading terrorism in the society can be controlled to agreat extent and it will go long way in minimizing the feeling offear spread in the society.

33. It is pertinent to note that in both Statement of Objects andReasons and the Preface, though certain activities have beenmentioned the same are followed by the term “etc”. It is, thus,clear that the activities mentioned in the Statement of Objectsand Reasons and the Preface are only illustrative in nature andnot exhaustive. It is, thus, clear that the legislative intent is notonly to curb only the activities mentioned in the Statement ofObjects and Reasons or Preface but to curb various other activities

of the organised crime syndicate so that unlawful elementsspreading terrorism in the society can be controlled to greatextent, with an intention that the feeling of fear spread in thesociety is minimised.

34. It can, thus, clearly be seen that the purpose behind enactingthe MCOCA was to curb the activities of the organised crimesyndicates or gangs. The perusal of the Preamble and theStatement of Objects and Reasons and Preface, in our consideredview, does not lead to any narrower meaning that MCOCA hasbeen enacted only for the purpose of curbing activities whichinvolve pecuniary gains or undue economic advantages. Themischief which is sought to be cured by enactment of MCOCA isto curb and control menace of organised crime. The law has beenenacted with the hope that the elements spread by the organisedcrime in the Society can be controlled to great extent and forminimizing the fear spread in the society. If narrower meaningas sought to be placed is accepted, it will frustrate the objectrather than curing the mischief for which the Act has been enacted.

35. For appreciating this issue, it would also be relevant to referto sub-section (4) of section 3 of MCOCA. It can be seen thatthe said provision also provides for punishment only by virtue of aperson being member of the organised crime syndicate. If thecontention advanced by the respondents is to be accepted, sub-section (4) of section 3 will be rendered redundant. We are alsoof the considered view that there could be various “unlawfulcontinuing activities” by member of “organised crime syndicate”or by any person on behalf of such syndicate which can be forthe advantages other than economic or pecuniary...”

14.4. We have no hesitation in endorsing the views of Full Benchdecision of Bombay High Court in the case of Jagan GagansinghNepali @ Jagya (supra). Looking to the object and purpose of thisenactment, the expression ‘other advantage’ cannot be read in arestrictive manner and is required to be given its full effect. The HighCourt has rightly said that there could be advantage to personcommitting crime which may not be directly leading to pecuniaryadvantage or benefit but could be of getting strong hold or supremacyin the society or even in the syndicate itself. As noticed above, thepurpose of this enactment is to be kept in view while interpreting any

Aexpression therein and in the name of strict construction, its spirit andobject cannot be whittled down.

15. chart has been placed before us on behalf of the appellantin relation to the aforesaid seven cases with certain comments. As regardsthe case at Serial No. 1, it is submitted that no pecuniary benefit orBundue economic gain was alleged in the matter where it was allegedthat during house search, the police found sword from the house ofKeval Patel and the appellant was staying there as tenant. As regardsthe case at Serial No. 2, it is submitted that the allegation against theappellant had been of giving blow with knife to the complainant due toprevious enmity and quarrel on account of friendship with girl. Again,Cit is submitted that none of the members of the alleged crime syndicateare accused persons and no pecuniary benefit or other advantage isalleged. The said case resulted in acquittal with one witness turninghostile and other witnesses not turning up. As regards the case at SerialNo. 3, it is contended that this was the first joint offence with the accusedDRoshan Sheikh and in fact, it had been the matter of cross FIRs; and thesame were quashed by the High Court on 13.04.2016. It is submittedthat it had been matter of clash between two groups of people and noelements of pecuniary benefit or undue economic gain or other advantagewas alleged. As regards the case at Serial No. 4, it is submitted that theincident took place in bar because of some argument between theEwaiter and the customer and no such element of pecuniary benefit orundue economic gain or other advantage is shown. As regards the caseat Serial No. 5, it is submitted that this has also been matter of counterFIRs where first FIR was lodged by Sameer Sharma and the appellantis an eye-witness therein; and no pecuniary benefit or undue economicFgain or other advantage to the accused is shown in this crime. As regardsthe case at serial No. 6, it is submitted that the charge-sheet does notdisclose any act committed by any syndicate, or any crime for pecuniarygain; that during investigation, offences under Section 3/25 of Arms Actwas deleted; and taking this case also into account was not correct.G15.1. The common thread of “violence” or “threat of violence” or“unlawful means” running through all of these cases is not matterrequiring any analysis, for the same being apparent on the face of record.Significantly, the aforesaid had not been the cases involving the appellantsingularly; and more significantly, the alleged team leader Roshan Sheikhis the co-accused in at least three previous cases. This is apart from theH

recurrence of other co-accused persons in one case or the other. It hasrightly been pointed out on behalf of the respondent-State that in orderto attract MCOCA, every previous case need not be of the object ofgaining pecuniary benefit alone. The cases in question, apart frominvolving the offences against human body and property, also includevariety of other offences including those of rioting while armed withdeadly weapons; causing insult to provoke breach of peace; and criminalintimidation. They also include the offence under the Arms Act. In allthe referred cases, use of violence has specifically been alleged.

15.2. The crime chart aforesaid, the nature of activities and thepersons involved leave nothing to doubt that the involvement of theappellant in such crimes and unlawful activities which are aimed at gainingpecuniary advantages or of gaining supremacy and thereby, leading toother unwarranted advantages is clearly made out.

16. The criticism of the impugned sanction order dated 05.11.2020,that it had been of mere repetition of the expression of statute, is alsodifficult to be accepted. The High Court, in the impugned order, hasrightly observed that the said order is required to be viewed in its totality,and its substance cannot be ignored by isolated reference to particularline or expression. We have reproduced the relevant contents of theorder dated 05.11.2020 particularly those concerning the presentappellant; and we have not an iota of doubt that firstly, the approvingauthority, and then, the sanctioning authority, were conscious of therequirement of law and indeed examined the matter only with referenceto such requirement; and issued the orders in question only after arrivingat the requisite satisfaction. It has rightly been pointed out on behalf ofthe respondent that in such matters, the competent authority has to focusessentially on the factum whether the material in question reveals thecommission of crime, which is an organised crime, committed by theorganised crime syndicate.

16.1. In view of above, reference to the decision of this Court inJagannath Misra (supra), which essentially related to matter ofpreventive detention, hardly makes out any case for interference. Thequestion of arriving at satisfaction has been dealt with by this Court inthe following: -

“Now we have pointed out that the order of detention in thiscase refers to six out of eight possible grounds on which personcan be detained under Section 3(2)(15). Of these eight grounds

Aunder Section 3(2)(15) one refers to foreigners i.e., of being ofhostile origin. Therefore in the present case the order reallymentions six out of seven possible grounds which can apply to anIndian whose detention is ordered under Section 3(2)(15). We donot say that it is not possible to detain citizen on six out of sevenpossible grounds under Section 3(2)(15); but if that is done it isBnecessary that the authority detaining citizen should be satisfiedabout each one of the grounds that the detention is necessarythereon. But if it appears that though the order of detention mentionsa large number of grounds the authority concerned did not applyits mind to all those grounds before passing the order, there can inCour opinion be no doubt in such case that the order was passedwithout applying the mind of the authority concerned to the realnecessity of detention. In the present case as we have alreadypointed out six grounds out of possible seven grounds on which acitizen can be detained have been mentioned in the order; but inthe affidavit of the Minister we find mention of only two of thoseDgrounds, namely, safety of India (which may be assumed to bethe same as public safety) and the maintenance of public order.In these circumstances there can be little doubt that the authorityconcerned did not apply its mind properly before the order inquestion was passed in the present case. Such discrepancyEbetween the grounds mentioned in the order and the grounds statedin the affidavit of the authority concerned can only show an amountof casualness in passing the order of detention against theprovisions of Section 44 of the Act. This casualness also showsthat the mind of the authority concerned was really not applied tothe question of detention of the petitioner in the present case. InFthis view of the matter we are of opinion that the petitioner isentitled to release as the order by which he was detained is noorder under the Rules for it was passed without the application ofthe mind of the authority concerned.

There is another aspect of the order which leads to the sameGconclusion and unmistakably shows casualness in the making ofthe order. Where number of grounds are the basis of detentionorder, we would expect the various grounds to be joined by theconjunctive “and” and the use of the disjunctive “or” in such acase makes no sense. In the present order however we find thatHthe disjunctive “or” has been used, showing that the order is more

or less copy of Section 3(2)(15) without any application of themind of the authority concerned to the grounds which apply in thepresent case.”

16.2. In the said case, where there was discrepancy in the detentionorder and the affidavit of the Minister as regard the grounds of detention,this Court found that the authority concerned did not apply its mindproperly. In the present case, on the contrary, the meticulously drawnsanction order dated 05.11.2020 leaves nothing to doubt that thesanctioning authority had indeed applied its mind to all the material andrelevant aspects. Therefore, this contention on behalf of the appellantmust fail.

17. long deal of arguments on behalf of appellant before us hadalso been about the sanctioning authority purportedly taking the irrelevantfactors into account and for that matter, acquittal in relation to CrimeNo. 13 of 2012 and of quashing the proceedings in Crime No. 482 of2015 have been referred. In our view, this line of arguments also remainsbereft of substance.

17.1. The threshold requirement in terms of clause (d) of MCOCAis that of the activity/activities undertaken by the accused persons eithersingly or jointly, as member of an organized crime syndicate, whichinvolves cognizable offence punishable with imprisonment of 3 yearsor more and in respect of which, more than one charge-sheets havebeen filed before the competent Court within 10 years and cognizancehad been taken.

17.2. Crime No. 13 of 2012 was registered on 11.01.2012 andinvolved two accused persons including the appellant and related to theoffence under Section 307 IPC read with Section 34 IPC. Thus, theprescribed period and nature of offence with reference to prescribedpunishment were met. Cognizance had also been taken in the said caseand that is how it went to trial. The prosecution therein could examineonly one person as the alleged eye-witness but, he turned hostile and didnot support the case of the prosecution. The prosecution failed to examinethe other witnesses including the complainant and the injured and eventhe non-bailable warrant issued in their relation were returned unservedwith the report that they were not traceable. Thus, the prosecution failedto substantiate the charges. We shall comment on the said nature ofacquittal little later but, relevant it is to observe for the present purpose

Athat the said case answers to all the requirements of clause (d) of Section2(1) of MCOCA.

17.3. As regards the other case, being Crime No. 482 of 2015dated 20.12.2015, the offences had been of Sections 143, 147, 148, 149,294, 324, 325 IPC. The co-accused person of the previously referredBCrime No. 13 of 2012 was the co-accused person in this case too, apartfrom the other co-accused persons, including Roshan Sheikh, said to bethe team leader. The said case also answers to all the requirements ofclause (d) of Section 2(1) of MCOCA. In the said case, there had beena cross FIR in Crime No. 481 of 2015 and it appears that there was asettlement for which, the High Court, by its order dated 13.04.2016,Cconsidered it appropriate to quash the proceedings. We would refer tothe implications of such quashing of proceedings also little later. Sufficeit to notice for the present purpose that the said case too answers to allthe requirements of clause (d) of Section 2(1) of MCOCA.17.4. There is no dispute to the fact that at least two more cases,Dbeing of Crime No. 196 of 2016 and of Crime No. 83 of 2017, both ofSitabuldi Police Station, are also pending wherein charge-sheets havebeen filed and they include varying offences, including those of Sections148 and 326 IPC, clearly meeting with all the essential requirements. Inboth these cases, the appellant is an accused person alongwith fewEcommon co-accused persons, including the alleged team leader RoshanSheikh. It is not the case of the appellant that cognizance had not beentaken in those cases.

17.5. The submissions about taking irrelevant factors into accountwith reference to the said two cases resulting in acquittal and dischargeFmust fail for the simple reason that for the purpose of clause (d) ofSection 2(1) of MCOCA, the result of particular matter is not decisiveof the question as to whether the activity in question answers to thedescription of ‘continuing unlawful activity’ or not. These had not beenoffences committed single-handed by the appellant and charge-sheetswere indeed filed therein. The matter of settlement because of cross-Gcases or matter of acquittal because of the witnesses not turning up,could hardly be of any relevance so far as clause (d) of Section 2(1) ofMCOCA is concerned. Therefore, it cannot be said that any irrelevantmatter has been taken into consideration by the sanctioning authority.The case of Khaja Bilal Ahmed (supra) as relied upon on behalf of theHappellant, even otherwise, has no direct application for being related to

preventive detention matter. In any case, there is no quarrel with theproposition therein that for detaining authority, it is incumbent that itssatisfaction must not be based on irrelevant or invalid grounds but, weare clearly of the view that in the present case, the authority cannot besaid to have proceeded on any irrelevant consideration. What is significantand pertinent for the purpose of Section 2(1)(d) is the involvement of theperson concerned in the referred activity and filing of charge-sheet andtaking of cognizance in the offence as predicated. Acquittal or dischargeis of no significance.

18. As regards the use of confessional statement by the sanctioningauthority, we are unable to find any fault therein. In the first place,noticeable it is that the confessional statements of the co-accused persons,including the alleged team leader, have not been used by the sanctioningauthority as the only basis of the sanction order. Those have been referredas the part of evidence collected in the present offence, which includedvarious other pieces of evidence, i.e., mobile phones, vehicles, pen drive,weapons etc. In any case, the value attached to the confessionalstatement, while overriding the provisions of CrPC and the EvidenceAct in terms of Section 18 of MCOCA, cannot be gainsaid and cannotbe ignored. This Court has, in the case of Kamal Ahmed MohammedVakil Ansari (supra), observed and held, inter alia, as under: -

“71. Section 18 of Mcoca through non obstante clause overridesthe mandate contained in Sections 25 and 26 of the Evidence Act,by rendering confession as admissible, even if it is made to apolice officer (not below the rank of Deputy Commissioner ofPolice). Therefore, even though Sections 25 and 26 of the EvidenceAct render inadmissible confessional statements made to policeofficer, or while in police custody, Section 18 of Mcoca overridesthe said provisions and bestows admissibility to such confessionalstatements, as would fall within the purview of Section 18of Mcoca.72. It is however relevant to mention that Section 18of Mcoca makes such confessional statements admissible onlyfor “the trial of such person, or co-accused, abettor or conspirator”.Since Section 18 of Mcoca is an exception to the rule laid downin Sections 25 and 26 of the Evidence Act, the same will have tobe interpreted strictly, and for the limited purpose contemplatedthereunder. The admissibility of confessional statement would

Aclearly be taken as overriding Sections 25 and 26 of the EvidenceAct for purposes of admissibility, but must mandatorily be limitedto the accused confessor himself, and to co-accused (abettor orconspirator).”

18.1. The reference in the confessional statements of the two co-Baccused persons in relation to the appellant is not factor entirelyirrelevant for the appellant being co-accused person with them. Thedetailed discussion by the sanctioning authority to the substantial piecesof evidence collected in the matter rather fortifies the conclusion thatthe sanctioning authority has meticulously applied its mind to all therelevant factors and has taken an overall view of the matter beforeCforming the final opinion in favour of granting the sanction. The contentionin that regard also fails.

18.2. The learned counsel for the State has fairly and rightlyindicated, with reference to the decision of this Court in the case ofDVinod G. Asrani (supra), that the validity of sanction could always bedetermined by the Trial Court during the course of trial where sanctioningauthority could be examined and the appellant will have sufficientopportunity to contest the same, including that of cross-examining thesanctioning authority. In fact, the High Court has also taken care in itsimpugned order to make it clear that the observations were only primaEfacie and nothing in the order would influence or prejudice the trial orpre-empt any legitimate defence of the appellant. In Vinod G. Asrani(supra), this Court has observed and held as under: -

“9. …The scheme under Section 23 of MCOCA is similar andSection 23(1)(a) provides safeguard that no investigation intoFan offence under mcoca should be commenced without theapproval of the authorities concerned. Once such approval isobtained, an investigation is commenced. Those who aresubsequently found to be involved in the commission of theorganised crime can very well be proceeded against once sanctionGis obtained against them under Section 23(2) of MCOCA.

10. As to whether any offence has at all been made out againstthe petitioner for prosecution under MCOCA, the High Court hasrightly pointed out that the accused will have sufficient opportunityto contest the same before the Special Court.”

18.3. For what has been discussed hereinabove, this appeal mustfail on merits.

19. Having said so, we deem it appropriate to revert to the twoaspects of the matter which we had partly left for discussion at laterstage: one being of acquittal and discharge in the respective criminalcases; and second being the effect of the fact that the appellant hasbeen declared as an ‘absconder’.

20. As noticed, in the case relating to Crime No. 13 of 2012, theappellant and the co-accused person were acquitted by the Trial Courtfor the only private witnesses examined in the matter turning hostile andall other witnesses including the complainant and the injured person notturning up at all. The enactment in question, i.e., MCOCA, essentiallyintends to deal with the criminal activities by an organised crime syndicateor gangs; and protection of witnesses is also one of the avowed objectivesof this enactment. It has rightly been contended on behalf of therespondents that MCOCA seeks to curb such menace, where criminalcase cannot be taken to its logical conclusion because of the witnesseseither turning hostile or not turning up at all. The provision for witnessprotection, as contained in Section 19 of MCOCA is one of those steps.Having examined the judgment of the Sessions Court dated 09.05.2017,as placed on record on behalf of the appellant, we could only say thatthe very reason of acquittal in the said case rather fortifies therequirements of invocation of MCOCA against the appellant, of course,when other requirements of Sections 2(1)(d), (e) and (f) are fulfilled.They are indeed fulfilled, as noticed above.

21. As regards the implication of proclamation having been issuedagainst the appellant, we have no hesitation in making it clear that anyperson, who is declared as an ‘absconder’ and remains out of reach ofthe investigating agency and thereby stands directly at conflict with law,ordinarily, deserves no concession or indulgence. By way of reference,we may observe that in relation to the indulgence of pre-arrest bail interms of Section 438 CrPC, this Court has repeatedly said that when anaccused is absconding and is declared as proclaimed offender, there isno question of giving him the benefit of Section 438 CrPC.[9] What hasbeen observed and said in relation to Section 438 CrPC applies with

9 For example, Prem Shankar Prasad v. State of Bihar and Anr.: (2021) SCC OnLineSC 955.

Amore vigour to the extraordinary jurisdiction of this Court under Article136 of the Constitution of India. The submissions on behalf of the appellantfor consideration of his case because of application of stringent provisionsimpinging his fundamental rights does not take away the impact of theblameworthy conduct of the appellant. Any claim towards fundamentalrights also cannot be justifiably made without the person concerned himselfBadhering to and submitting to the process of law.

22. Thus, challenge to the judgment as passed by the High Courton 16.12.2021, and to the sanctioning order dated 05.11.2020, was requiredto be rejected when the appellant had indeed been declared absconder.However, as observed hereinbefore, we have considered it proper toCfirst examine the matter on merits because notices had been issued tothe respondents and it had appeared serving the cause of justice to dealwith the matter on merits. As noticed, all the contentions urged on behalfof the appellant remain baseless and challenge herein ought to fail. Thus,we need not say any more in the present case as regards the effect ofDabsconsion.

23. Accordingly, and in view of the above, this appeal fails and is,therefore, dismissed.

Ankit GyanE(Assisted by : Rahul Rathi, LCRA)

Appeal dismissed.