Shyam C. Chandak JUDGMENT
A.S. Gadkari, J.
1. The aforenoted Appeals are filed under Section 12 of the Maharashtra Control of Organised Crime Act, 1999 (for short, "the said Act") impugning the Orders dated 6th March, 2023 passed below Exhibit Nos.140 and 133 respectively, in Special Case No.909 of 2020, by the learned Special Judge, City Civil and Sessions Court, Greater Mumbai, rejecting their Applications for dropping the charges/provisions of theM.C.O.C. Act from the said case.
1.1. Appellants in Appeal No.472 of 2023 are original accused Nos.5 and 6 and Appellant in Appeal No.523 of 2023 is original accused No.4 in Special Case No.909 of 2020. The said Sessions case arises out ofcrime bearing No.RC-02/2019/NIA/MUM registered with the National Investigating Agency i.e. the Respondent No.1 herein and originally registered as C.R. No.19 of 2019 with Purada Police Station, District Gadchiroli dated 2nd May, 2019.
1.2. Appellants are being prosecuted for the offences punishable under Sections 302, 353, 427, 120-B, 121, 121A, 147, 148 and 149 of the Indian Penal Code, 1860 along with Sections 3, 4 and 5 of the Explosive Substances Act, Sections 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 and Sections 3(1)(i)(ii), 3(2) and 3(4) of the M.C.O.C. Act.
1.3. Record indicates that, a crime bearing No.19 of 2019 was registered with Purada Police Station, Gadchiroli on 2nd May, 2019, for an incident occurred on 1st May, 2019. Taking into consideration the gravity of the offence, the Government appointed Respondent No.1 as its investigating agency. After completion of investigation, charge-sheet was filed on 4th December, 2019.
1.4. During the course of investigation it was revealed that, the said offence was committed by the organized crime syndicate of a banned Terrorist Organization namely "CPI (M)". It was also revealed to the investigating agency that, during the last 10 preceding years more than 23 cases have been registered against the arrested principal accused Smt. Nirmala Kumari Uppuganti @ Narmada Akka @ Alluri Usharani d/o SubbaRao Uppuganti (A-1). That, the Superintendent of Police, N.I.A., Mumbai therefore submitted his report dated 6th December, 2019 for applying the provisions of the said Act to the said crime to the Concerned Authority. The Deputy Inspector General, N.I.A., New Delhi, by its Order dated 7th February, 2020 passed under Section 23(1)(i) of the said Act, granted permission to apply the provisions of the M.C.O.C. Act to the said crime. After conducting further investigation, a supplementary charge-sheet is filed on 24th September, 2020.
2. The Appellants thereafter filed Applications below Exhibits 140 and 133 respectively for dropping the charges/provisions of the M.C.O.C. Act and/or to discharge them from the provisions of the said Act, from the present case. As noted earlier, the trial Court by its impugned Order dated 6th March, 2023 has rejected the said Applications.
3. Mr. Bhawnani, learned counsel appearing for the Appellants in Appeal No.472 of 2023 submitted that, in the present case the date of alleged commission of offence is 1st May, 2019 and the date of registration of offence is 2nd May, 2019. That, the Competent Authority while granting prior approval to apply provisions of the said Act has relied on two crimes mentioned therein. That, as far as crime No.99 of 2019 is concerned, the cognizance of the same was taken by the trial Court on 30th May, 2019. He submitted that, in view of the decision of the Hon'ble Supreme Court in the case of Mahipal Singh Vs. C.B.I. and Anr. reported in MANU/SC/0266/2014 : (2014) 11 S.C.C. 282,on the date of lodgment of the crime to which the provisions of M.C.O.C. Act are applied, the cognizance of both the cases must have been taken by the trial Court, otherwise the prior approval granted by the concerned authority is bad in law and the accused cannot be prosecuted for the offence under the provisions of the said Act. He submitted that, therefore the impugned Orders passed by the trial Court are erroneous and may be set aside.
4. Ms. Shaikh, learned learned counsel for the Appellant in Appeal No.523 of 2023 adopted the arguments of Mr. Bhavnani and also prayed that, impugned Order in her Appeal may also be set aside.
5. Per contra, Smt. Pai, learned Special P.P. appearing for the Respondent No.1 vehemently opposed the Appeals and submitted that, the Respondent No.1 took over the investigation of C.R. No.19 of 2019 on 24th June, 2019 and thereafter the present renumbered crime bearing R.C. No.2 of 2019 was given to it on 25th June, 2019. That, after completion of investigation, charge-sheet was filed on 4th December, 2019. That, the competent authority of Respondent No.1 granted prior approval dated 7th February, 2020 for invoking the provisions of the said Act to the present crime. She submitted that, when the N.I.A. i.e. Respondent No.1 took over the investigation in June, 2019, the trial Court had taken cognizance of both the offences and therefore it cannot be said that, in C.R. No.99 of 2019, the trial Court had not taken cognizance on the date of registration of offence. She submitted that, the Superintendent of Police, N.I.A., Mumbai had filed an Affidavit dated 27th June, 2023, and in paragraph Nos.33 and34 thereof, the said contentions have been raised. She submitted that, therefore there is no substance in the submissions of the learned counsel for the Appellants and therefore the Appeals may be dismissed.
6. Perusal of record indicates that, the original crime i.e. C.R. No.99 of 2019 with Purada Police Station, Gadchiroli was registered on 2nd May, 2019 for an incident occurred on 1st May, 2019, within the jurisdiction of the said Police Station. After its transfer for investigation to the Respondent No.1, on 24th June, 2019, the Respondent No.1 renumbered it as RC-02/2019/NIA/MUM on 25th June, 2019. The Superintendent of Police, N.I.A., Mumbai, submitted its report dated 6th December, 2019 to its Competent Authority for applying the provisions of the said Act to the said crime. The Competent Authority by its Order dated 7th February, 2020 has accorded prior approval under Section 23(1)(i) of the M.C.O.C. Act to apply the provisions of the said Act to the present crime.
6.1. The Competent Authority while granting prior approval by its impugned Order has taken into consideration two crimes registered against the Organized Crime Syndicate of CPI (M) in the present case, headed by Smt. Nirmala Kumari Uppuganti @ Narmada Akka @ Alluri Usharani d/o Subba Rao Uppuganti namely, Sessions Case No.99 of 2019 and Sessions Case No.70 of 2019. As per the record, the trial Court has taken cognizancein the said two cases on 30th May, 2019 and 22nd April, 2019 respectively. A table indicating C.R. No., Name of Police Station, Sessions Case No., the date of filing of charge-sheet and the date of cognizance taken by the trial Court is reproduced hereinbelow for the sake of brevity.
7. Section 2(d) of the M.C.O.C. Act reads as under:-
"2. (1)(d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a Competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;"
(Underline emphasised)
7.1. The Supreme Court in paragraph No.14 of Mahipal's case (Supra) has held as under:-
"14. We have given our most anxious consideration to the rival submissions and in the light of what we have observed above, the submissions advanced by Mr. Subramaniam commend us.It is trite that to bring an accused within the mischief of the penal provision, ingredients of the offence have to be satisfied on the date the offence was committed. Article 20(1) of the Constitution of India permits conviction of a person for an offence for violation of law in force at the time of commission of the act charged as an offence. In the case in hand, examinations alleged to have been rigged had taken place in January 2010, June 2010, November 2010 and January 2011 and the date on which the first information reports were registered, more than one charge-sheets were not filed against the accused for the offence of specified nature within the preceding period of ten years and further, the court had not taken cognizance in such number of cases. As observed earlier, for punishment for the offence of organised crime under Section 3 of MCOCA, the accused is required to be involved in continuing unlawful activity which inter alia provides that more than one charge-sheets have been filed before a competent court within the preceding period of ten years and the court had taken cognizance of such offence. Therefore, in the case in hand, on the date of commission of the offence, all the ingredients to bring the act within Section 3 of MCOCA have not been satisfied. We are conscious of the fact that there may be a case in which on the date of registration of the case, one may not be aware of the fact of charge-sheet and cognizance being taken in more than one case in respect of the offence of specified nature within the preceding period of ten years, but during the course of investigation, if it transpires that such charge-sheets and cognizance have been taken, Section 3 of MCOCA can be invoked. There may be a case in which the investigating agency does not know exactly the date on which the crime was committed; in our opinion, in such a case the date on which the offence comes to the notice of the investigating agency, the ingredients constituting the offence have to be satisfied. In our opinion, an act which is not an offence on the date of its commission or the date on which it came to be known, cannot be treated as an offence because of certain events taking place later on. We may hasten to add here that there may not be any impediment in complying with the procedural requirement later on in case the ingredients of the offence are satisfied, but satisfying the requirement later on to bring the act within the mischief of penal provision is not permissible. In other words, procedural requirement for prosecution of a person for an offence can later on be satisfied but ingredients constituting the offence must exist on the date the crime is committed or detected. Submission of charge- sheets in more than one case and taking cognizance in such number of cases are ingredients of the offence and have to be satisfied on the date the crime was committed or came to be known.
7.2. The said view is subsequently followed by the Hon'ble Supreme Court in the case of Prasad S. Purohit Vs. State of Maharashtra & Anr. reported in MANU/SC/0449/2015 : 2015:INSC:325 : (2015) 7 S.C.C. 440.
7.3. It is thus clear that the Supreme Court has held that, submission of charge-sheet in more than one case and taking cognizance in such number of cases are ingredients of the offence under Section 3 of theM.C.O.C. Act and are to be satisfied on the date on which crime was committed or came to be known. It is the settled position of law that, stringent the provisions of an Act are, the stricter is its compliance.
7.4. In the present case, the offence in question was committed on 1st May, 2019 and it is registered on 2nd May, 2019 with Purada Police Station, Gadchiroli. In Sessions Case No.99 of 2019 the concerned Court took cognizance on 30th May, 2019 i.e. much after the date of committal of crime and/or its registration on 2nd May, 2019. Thus, on the date of commission of the offence and/or on the date of its registration in Sessions case No.99 of 2019, the concerned Court had not taken cognizance and therefore it legally did not comply with the requirement of Section 2(d) of the M.C.O.C. Act. It be noted here that, though the Competent Authority in the Order of Prior Approval under Section 23(1)(a) of the M.C.O.C. Act has stated therein that, more than 23 cases have been registered against the principal accused Smt. Nirmala Kumari Uppuganti @ Narmada Akka @ Alluri Usharani d/o Subba Rao Uppuganti (A-1), in its wisdom has relied upon the aforenoted two cases while passing the impugned Order of prior approval. It is thus clear that, the principle of law enunciated by the Hon'ble Supreme Court in the case of Mahipal Singh (Supra) has not been followed by the Competent Authority. Therefore we have no other option than to set aside the impugned prior approval dated 7th February, 2020 and to hold that, the Appellants cannot be prosecuted for the offence under Section 3 of the M.C.O.C. Act.
8. Perusal of impugned Orders dated 6th March, 2023 indicates that, the trial Court has not taken into consideration the aforestated aspects and has considered the Applications of the Appellants on merits i.e. dealing with the evidence against the Appellants.
9. In view of the aforenoted deliberation, the impugned Orders dated 6th March, 2023 passed below Exhibits 140 and 133 respectively in Special Case No.909 of 2020 are quashed and set aside.
10. Appeals are allowed in the aforesaid terms.
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