® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.293 OF 2018 BETWEEN:
S.Narayan, S/o.Late Siddappa, Aged 61 years, Occ: Business, R/at No.32/1, 18th Cross, Sadashivanagar, Bengaluru – 560 080. .. Appellant ( By Sri S.M.Chandrashekar, Senior Counsel For Sri S.Kalyan Basavaraj, Advocate ) AND:
State of Karnataka By Police of Malleshwaram Police Station, Bengaluru.
(Investigated by CID) Represented by The Special Public Prosecutor, For KCOCA Cases, High Court of Karnataka, Dr.Ambedkar Veedhi, Bengaluru – 560 001. .. Respondent ( By Sri Ashok N. Naik, Spl.Public Prosecutor) This Criminal Appeal is filed under Section 12 of Karnataka Control of Organised Crimes Act, praying to set aside the order dated 20.11.2017, passed by the Prl. City Civil & Sessions Judge, Bengaluru, in Spl.C.C.No.417/2016, and discharge the appellant in Spl.C.C.No.417/2016 of the Prl.City Civil & Sessions Judge, Bengaluru, in respect of all the charges leveled against him under Sections 3(2) and 3(5) of KCOCA and Section 120-B, 109 and 411 of IPC.
This Criminal Appeal having been heard and reserved for Judgment on 29.1.2019, this day, the Court delivered the following:
JUDGMENT The appellant herein had made an application under Section 227 of Code of Criminal Procedure, 1973, (hereinafter for brevity referred to as `Cr.P.C.’), seeking his discharge in respect of the offences punishable under Sections 3(2), 3(5) of Karnataka Control of Organised Crimes Act, 2000, (hereinafter for brevity referred to as `KCOCA’), Sections 120(B), 109, 411 of Indian Penal Code, 1860, (hereinafter for brevity referred to as `IPC’) read with Sections 115 and 23 of the Karnataka Education Act, 1983 (hereinafter for brevity referred to as `Education Act’), in Special C.C.No.417/2016, on the file of Prl.City Civil & Sessions Judge, Bengaluru, (hereinafter for brevity referred to as `Special Court’). The Special Court by its order dated 20.11.2017, along with other similar applications filed by accused Nos.17 and 18, rejected the application filed by the present appellant also. Challenging the said order of the Special Court, the appellant has preferred this appeal.
2. The summary of the case of the prosecution as could be gathered from the materials placed before this Court is that, on the basis of a written information laid by the Joint Director of Pre-University Board, Karnataka, on 22.3.2016, the respondent/complainant police registered a case in their station Crime No.37/2016, against unknown persons for the offences punishable under Sections 418, 420, 381 of IPC, and under Sections 115 and 23 of Education Act, and took up the investigation.
The summary of the allegations made in the first information is that the examination of Second Year Pre-University Course (hereinafter for brevity referred to as `PUC’), was scheduled to be held between 11.3.2016 and 28.3.2016. On 21.3.2016, the examination in the subject – Chemistry, was scheduled and on the same day, at about 7.29 a.m., the informant learnt that the question papers of Chemistry examination of Second Year PUC was leaked in manuscript and on comparison with the original, the same were similar. Hence, the informant laid the information with the respondent- police seeking appropriate legal action. Based on the said information, the jurisdictional police registered a case as stated above and commenced the investigation.
3. Subsequently, vide requisition of the Investigating Officer dated 11.4.2016, Section 120-B and Section 201 of IPC were proposed to be added during the course of investigation and the present appellant was arraigned as accused No.13. Thereafter, the respondent invoked Section 3 of KCOCA, as such, the entire case stood transferred to Special Court constituted under KCOCA.
4. In the meantime, on 31.3.2016, one more case in Crime No.48/2016, was registered on the file of the respondent/complainant police for the offences punishable under Sections 418, 420, 381 of IPC and under Section 115 and Section 23 of the Education Act, in connection with leakage of question papers pertaining to PUC examination rescheduled to be held on 31.3.2016.
Since the offences in both the crime numbers were allegedly similar in nature and alleged to have been carried out by the same group, which circumstances indicate proximity in time, place and commonality of purpose and constituted same part of transaction carried out with a common object, by virtue of the order dated 6.9.2016, passed by the Addl.Director General of Police (hereinafter for brevity referred to as `ADGP’), CID, Bengaluru, both cases were investigated together and a common comprehensive charge sheet was filed against eighteen accused persons. The appellant had been re-arraigned as accused No.10 in the charge sheet.
5. The summary of the allegation made in the charge sheet in so far as present appellant is concerned is that, he had conspired with accused Nos.7 and 9 to secure question papers before hand with an intention to facilitate ………………….. (name concealed in the charge sheet), to enable to secure more marks than other deserving students and through them, had contacted accused No.6 and also paid consideration totaling to a sum of `13 lakhs. Accordingly, the appellant was alleged to have obtained the question papers before hand and facilitated ………………… (name concealed in the charge sheet) and ………………….. (name concealed in the charge sheet), at his residence and enabled them to prepare for examination in terms of the said question papers. Apart from conspiring and obtaining stolen question papers, as noted above, he had abetted and facilitated leakage of question papers and accordingly, he alleged to have committed offences punishable under Sections 3(2) and 3(5) of KCOCA Act and under Sections 120-B, 109 and 411 of IPC and under Section 115 and Section 23 of Education Act. Subsequently, the respondent-police filed an additional charge sheet under Section 173(8) of Cr.P.C.
After laying of charge sheet, the Special Court proceeded to take cognizance of the offences. The proceeding was renumbered as Special C.C.No.417/2016. It is then the appellant filed an application under Section 227 of Cr.P.C., seeking his discharge in the case.
6. The first point in the argument of learned Senior Counsel Sri S.M.Chandrashekar appearing for the appellant is that, the very objective of the KCOCA is to curb the organised crimes involving the criminal activities of contract killings, smuggling in contraband, illicit trade in narcotics, kidnappings for ransom, collection of protection money from business establishments and individuals and money laundering etc., The activities of the organised crime must be oriented in promoting insurgency. In the instant case, the alleged activity of the alleged organised crime syndicate, even if it is taken on its facial value as alleged in the charge sheet, still, it would not constitute any activity of promoting insurgency, as such, KCOCA is not applicable. In that connection, learned counsel relied upon the judgment of Bombay High Court in State of Maharashtra –vs- Jagan Gagansingh Nepali and others, MANU/MH/1155/2011, and drew the attention of the Court to Paragraph-27 of the said judgment wherein the Bombay High Court was pleased to refer to Paragraph Nos.14 and 16 of the judgment of Hon’ble Apex Court in Sanjay Dutt –vs- State, MANU/SC/0554/1994, which is reproduced here below :
“ 14. The construction made of any provision of this Act must, therefore, be to promote the object of its enactment to enable the machinery to deal effectively with persons involved in, and associated with, terrorist and disruptive activities while ensuring that any person not in that category should not be subjected to the rigours of the stringent provisions of the TADA Act. It must, therefore, be borne in mind that any person who is being dealt with and prosecuted in accordance with the provisions of the TADA Act must ordinarily have the opportunity to show that he does not belong to the category of persons governed by the TADA Act. Such a course would permit exclusion from its ambit of the persons not intended to be covered by it while ensuring that any person meant to be governed by its provisions, will not escape the provisions of the TADA Act, which is the true object of the enactment. Such a course while promoting the object of the enactment would also prevent its misuse or abuse. Such a danger is not hypothetical but real in view of serious allegations supported by statistics of the misuse of provisions of the TADA Act and the concern to this effect voiced even by the National Human Rights Commission.
16. It is the duty of Courts to accept a construction which promotes the object of the legislation and also prevents its possible abuse even though the mere possibility of abuse of a provision does not affect its constitutionality or construction. Abuse has to be checked by constant vigilance and monitoring of individual cases and this can be done by screening of the cases, by a suitable machinery at a high level. It is reported that in some States, after the decision of this Court in Kartar Singh, high powered committees have been constituted for screening all such cases. It is hoped that this action will be taken in all the States throughout the country, Persons aware of instances of abuse, including the National Human Rights Commission, can assist by reporting such instances with particulars to that machinery for prompt and effective cure. However, that is no reason, in law, to doubt its constitutionality or to alter the proper construction when there is a felt need by the Parliament for enacting such a law to cope with, and prevent terrorist and disruptive activities threatening the unity and integrity of the Country.”
7. The Statement of Objects and Reasons for introducing the Bill for the KCOCA which was also relied upon by the learned senior counsel is reproduced here below :
“ STATEMENT OF OBJECTS AND REASONS Organised crime is a very serious threat to our society. It knows no national boundaries. It is fuelled by illegal wealth generated by contract killings, smuggling in contraband, illicit trade in narcotics, kidnappings for ransom, collection of protection money from business establishments and individuals and money laundering etc. The illegal wealth generated by the organised crime is so huge that after a stage, its perpetrators are trying to interfere with the vital institutions of the state by their money power or through threat or intimidation. In fact, many criminal activities tend to put a question mark on the very existence of the State. The experience in our country as well as in other countries of the world shows that organised criminal syndicates make a common cause with terrorist gangs and foster nacro- terrorism. There is a reason to believe that organised criminal gangs are operating in our cities and thus, there is immediate need to curb their activities.
The existing penal laws and the adjudicatory system, are not adequate to curb or control the menace of organised crime. Therefore, it is considered necessary to enact a law to control the menace of organised crimes in the State.”
The above statement of Objects & Reasons of the KCOCA makes it clear that the law was enacted to control the menace of organised crimes in the state. The word “organised crimes” has been defined under Section 2(1)(e) of the KCOCA, which reads as below :
“ Section 2 (1)(e) : “Organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.”
The word “organised crime” has to be read along with the definition of the term “continuing unlawful activity”, which is defined under Section 2(1)(d) of the KCOCA, which reads as below :
“ Section 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-sheet have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.”
The word “organised crime syndicate” is defined under Section 2(1)(f) of KCOCA, which reads as below :
“ Section 2(1)(f)- “Organised crime syndicate” means a group of two or more persons who acting either singly or collectively, as a syndicate or gang, indulged in activities of organised crime.”
8. The above three terms defined under Section 2(1)(d), 2(1)(e) and 2(1)(f) of the KCOCA are interrelated to each other. As observed by the Hon’ble Apex Court in Ranjitsing Brahmajeetsing Sharma –vs- State of Maharashtra and another, reported in {(2005) 5 SCC 294}, at paragraph-23 of the judgment, the interpretation clause contained in Section 2(d) 2(e) and 2(f) of the MCOCA are interrelated (in the said judgment, reference was to the Act of Maharashtra Control of Organised Crimes Act, 1999 - MCOCA. KCOCA is similar in those Sections with MCOCA).
9. In the above context, another decision relied upon by the Senior Counsel for the appellant in Jagan Gagansingh Nepali (supra) also to be considered, wherein the Full Bench of the High Court of Bombay while dealing with the matter under MCOCA, at Paragraph-27 of its judgment was pleased to rely upon the judgment of Hon’ble Apex Court in Sanjay Dutt’s case (supra), wherein at Paragraph-14 of its judgment, the Hon’ble Apex Court had observed that the construction made of any provision of this Act must, therefore, be to promote the object of its enactment to enable the machinery to deal effectively with persons involved in, and associated with it, terrorist and disruptive activities while ensuring that any person not in that category should not be subjected to the rigours of the stringent provisions of the TADA Act.
The above judgments make it clear that Act must be interpreted keeping its objective in mind and the Act should not be so interpreted that a person who does not fall within the ambit of the Act, is subjected to rigours of the stringent provisions of the Act like TADA, MCOCA and KCOCA etc., 10. As noted above, the object of the Act was to define as to what is organised crime and to control the menace of organised crime. A reading of Section 2(1)(e) of KCOCA makes it clear that any continuing unlawful activity can be by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf such syndicate and it can be by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefit or gaining undue economic or other advantage for himself or any other person or promoting insurgency.
11. Learned Special Public Prosecutor appearing for the respondent in his argument submitted that KCOCA can be invoked against any organised crime syndicate/gangs indulged in unlawful activities. Such activities may be of violent mode or of soft crimes also. He also submitted that since the year 2008, many similar cases have been booked against accused Nos.1 to 3. Thus, the syndicate continued the similar unlawful activities attracting KCOCA provisions. Learned Special Public Prosecutor submitted that in many instances where insurgency was not the activity involved in the crime, then also MCOCA or KCOCA provisions were attracted. He quoted the following cases in his support :
(i) State of Maharashtra and others –vs- Lalit Somdatta Nagpal and another, reported in { (2007) 4 SCC 171}. The crime alleged under the said case was involving seizure of two iron tanks of 12,000 and 6,000 litres capacity, greenish lubricating oil in 200 litres barrel, 45 kilos of white chemical powder in five gunny bags and ten motor tankers containing petroleum products and two empty tankers, worth `77,14,195/-. The crime was registered under Sections 3 and 7 of the Essential Commodities Act, 1955, and under Section 3 of the Petroleum Storage and Distribution Act, 2000. Subsequently, in the said crime, MCOCA was also attracted.
(ii) Ranjitsing Brahmajeetsing Sharma’s case (supra) – The case pertains to the offences of printing counterfeit stamps and forgery in various States, including the State of Maharashtra. The case was popularly called as Fake Stamp Paper case. Though initially FIR was registered under Sections 120-B, 255, 249, 260, 263(a) and (b), 478, 472 and 474 read with Section 34 of IPC, but, later Section 3 of MCOCA was also brought on the scene.
(iii) Mahipal Singh –vs- Central Bureau of Investigation and another, reported in { (2014) 11 SCC 282}. The case pertains to rigging of results of various entrance examinations for admission to Post- Graduate course in medical colleges conducted by the All India Institute of Medical Sciences and also in connection with admission to under-Graduate courses in medical colleges. The accused was alleged to have committed the offences punishable under Sections 120-B read with Sections 420, 467, 471 and 511 of IPC. Later, the Deputy Inspector General of CBI had accorded approval for invoking Section 3 of MCOCA.
(iv) Shiv Murat Dwivedi –vs- State, reported in 2012 Crl.LJ 4237. The FIR was registered for the offences punishable under Sections 4, 5 and 8 of Immoral Traffic (Prevention) Act, 1956. During the course of investigation, Section 3 and 6 of Immoral Traffic (Prevention) Act, 1956, was also added. Later, the competent authority granted approval to apply Section 3 of MCOCA also. When challenged, the Delhi High Court held that attraction of MCOCA in the said case was proper.
(v) State –vs- Vipin Sharma and others, reported in 2014 (3) JCC 1846, was about alleged illegal activities of cheating, forgery of passports and Visas and playing fraud upon the authorities. Apart from the offences under Indian Penal Code, Section 3 of MCOCA was also attracted. It was held by the Delhi High Court that in the said facts of the case, provisions of Section 3 of MCOCA cannot be held unjustified.
12. Thus, it is clear that KCOCA, which is similar to MCOCA, is not just confined to the acts of promotion of insurgency alone, but, it also includes other unlawful means having obtained for gaining pecuniary benefits or gaining undue economic or other advantage for the benefit of an individual or for any other person.
Thus, the first point of argument of learned Senior counsel for the appellant that in the absence of any activity of insurgency or violence in the alleged offences, the KCOCA would not be attracted, is not acceptable.
13. The second point of argument of learned Senior counsel for the appellant was that there is non-compliance of Section 24 (1)(a) of the KCOCA, as such, also the charge sheet against the appellant deserves to be quashed.
14. Section 24(1)(a) of the KCOCA reads as below:
“ 24. Cognizance of and investigation into an offence.- (1) Notwithstanding anything contained in the Code, -
(a) No information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police.”
According to the learned Senior Counsel for the appellant, the complainant-police ought not to have registered FIR and recording of the first information should have been only by a police officer not below the Rank of Deputy Inspector General of Police. In this regard, learned Senior Counsel also relied upon the judgment of Lalit Somdatta Nagpal’s case (supra), where at Paragraph No.66 of the judgment, the Hon’ble Apex Court was pleased to observe; “Section 23(1)(a) of MCOCA provides a safeguard to the accused in that notwithstanding anything contained in the Code of Criminal Procedure, no investigation of an alleged offence of organised crime under MCOCA, 1999, can be commenced without the prior approval of a police officer not below the rank of Deputy Inspector General of Police”.
It is further submitted that in the said Lalit Somadatta Nagapal’s case (supra), the Hon’ble Apex Court has no where observed that the police are prevented or barred from registering a FIR for the offence under Indian Penal Code and subsequently based on the progress made in the investigation and the availability of materials attracting the provisions of MCOCA, with the due permission of a police officer, not below the rank of Deputy Inspector General of Police.
The said judgment no where says that the registration of FIR for offences other than MCOCA and more particularly, for the offences under Indian Penal Code also should have been by a police officer not below the rank of Deputy Inspector General of Police. Even in the said case also, the approval by a police officer not below the rank of Deputy Inspector General of Police for attracting the provisions of MCOCA was at a subsequent date. However, the Hon’ble Apex Court observed that “the organised crime referred to in its approval order was with regard to the alleged violation of Sales Tax and Excise Laws which was not intended to be the basis for the application of provisions of MCOCA”.
15. In State (N.C.T.Delhi) –vs- Brijesh Singh and others, reported in { (2017) 10 SCC 779}, the fact reveals that the FIR registered in the said case was for offences punishable under Sections 384, 387, 417, 419, 471, 506 read with Section 34 of IPC.
Subsequently, the Assistant Commissioner of Police prepared for a proposal for registration and investigation of the case under Sections 3/4 of MCOCA. That the particulars of fourteen members of the syndicate were given for the proposal and approval was sought for conducting thorough investigation into the role of each of them for the offences under Sections 3 and 4 of MCOCA. Thereafter, obtaining the requisite sanction under Section 23(2) of MCOCA from the competent authority, the Special Court was requested to take cognizance of the offences under Sections 3 and 4 of the MCOCA. From these, it is clear that the first information report to attract or incorporate the provisions of KCOCA in a pending crime, it is not necessary that the first information report should necessarily be registered and the FIR to be filed by a police officer not below the rank of the Director General of Police. As such, the argument of learned Senior Counsel for the appellant on the said point is not convincing.
16. The third point of argument of learned Senior Counsel for the appellant, on which he gave emphasis was that, the appellant herein, who is the accused No.10 in the crime, being only an alleged abettor, against whom, there is no antecedent of involvement in a similar crime or filing of charge sheet of an offence punishable with more than three years imprisonment in the preceding ten years, the provisions of KCOCA will not apply. In that regard, he relied upon few cases of the Hon’ble Apex Court in his support.
The first case he relied upon is on Lalit Somadatta Nagpal’s case (supra). In the said judgment, learned counsel drew the attention of this Court to a portion of Paragraph No.63 and Paragraphs 64 and 65 of the judgment, which reads as below :
“ 63. …..…….. In the instant case, both Lalit Somdatta Nagpal and Anil Somdatta Nagpal have been shown to have been involved in several cases of a similar nature which are pending trial or are under investigation. As far as Kapil Nagpal is concerned, his involvement has been shown only in respect of CR No.25 of 2003 of Rasayani Police Station, Raigad, under Sections 468, 420 and 34 of the Penal Code and Sections 3, 7, 9 and 10 of the Essential Commodities Act. In our view, the facts as disclosed justified the application of the provisions of MCOCA to Lalit Nagpal and Anil Nagpal. However, the said ingredients are not available as far as Kapil Nagpal is concerned, since he has not been shown to be involved an any continuing unlawful activity. Furthermore, in the approval that was given by the Special Inspector General of Police, Kolhapur Range, granting approval to the Deputy Commissioner of Police (Enforcement), Crime Branch, CID, Mumbai to commence investigation under Section 23(1) of MCOCA, Kapil Nagpal has not been mentioned. It is only at a later stage with the registering of CR No.25 of 2003 of Rasayani Police Station, Raigad, that Kapil Nagpal was roped in with Lalit Nagpal and Somdatta Nagpal and permission was granted to apply the provisions of MCOCA to him as well by order dated:22.08.2005.
64. In addition to the above, a glance at the permission sought by PI LCB, Raigad, on 18.8.2005 seeking permission for registering an offence under Section 1 (ii) of MCOCA, 1999 against Lalit Nagpal, Anil Nagpal, Kapil Nagpal and one Parasnath Ramdular Singh will reveal that such permission was being sought for, as far as Kapil Nagpal is concerned, in respect of an offence allegedly under Section 63 of the Sales Tax Act, which in our opinion would not attract the provisions of MCOCA.
65. We, therefore, have no hesitation in holding that as far as Kapil Lalit Nagpal is concerned, the provisions of MCOCA have been misapplied to him.
The second judgment relied upon by the learned counsel for the appellant on the point is Mahipal Singh’s case (supra). In the said case, at Paragraph No.13, while discussing the definition of the term “continuing unlawful activity”’, the Hon’ble Apex Court was pleased to observe that, it is required to be established that the accused was involved in activities prohibited by law which are cognizable offence punishable with imprisonment of three years or more and in respect thereof, more than one charge sheets have been filed against such person before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence.
The third judgment relied upon by the learned Senior Counsel for the appellant on the point is in State of Maharashtra –vs- Shiva alias Shivaji Ramaji Sonawane and others, reported in {(2015) 14 SCC 272}, wherein the learned Senior Counsel relied upon a portion of Paragraph No.10 in the judgment, which reads as below :
“10.………. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act.”
The fourth judgment relied upon by the learned Senior Counsel for the appellant on the point is Brijesh Singh’s case (supra). Paragraph No.25 of the judgment, to which the attention of this Court was drawn by the learned Senior Counsel for the appellant, reads as below :
“25. Organised crime which is an offence punishable under Section 3 of MCOCA means a continuing unlawful activity committed by the use of force or violence for economic gain. One relevant pre-condition which has to be satisfied before any activity can be considered as a continuing unlawful activity is that there should be atleast two charge sheets filed against the members of an organised crime syndicate within the previous 10 years and a ‘competent Court’ has taken cognizance of such charge sheets. In the instant case, there are eight charge sheets filed against the Respondents, six out of which are in the State of Uttar Pradesh. The submission of the Respondents, which was accepted by the Courts below, is that such charge sheets which are filed in the State of Uttar Pradesh are not relevant for the purpose of determining whether the Respondents have indulged in a continuing unlawful activity. The Courts below held that only charge sheets filed in competent Courts within Delhi have to be taken into account. We are not in agreement with the Courts below.
17. On the other hand, learned Special Public Prosecutor for the respondent in his argument submitted that the present appellant is accused No.10 and that he has been alleged to be an abettor in the commission of the organised crime by accused Nos.1 to 3. As such, as against an abettor, previous involvement in more than one cognizable case are not necessary. He further submitted that, it is sufficient to attract KCOCA once it is shown that the abettor had some nexus with the organised crime syndicate or its member or the person act on behalf of the syndicate. He relied upon few judgments in support of his argument.
The first judgment relied upon by him is Prasad Shrikant Purohit –vs- State of Maharashtra and another, Criminal Appeal Nos.1969-1970 of 2010, dated 15.4.2015. In the said judgment, at Paragraph No.89, the Hon’ble Apex Court referring to its previous judgment in Ranjitsingh Brahamjeetsingh Sharma’s case (supra), was pleased to observe as below :
“ 89 : A reading of paragraph 31 shows that in order to invoke MCOCA even if a person may or may not have any direct role to play as regards the commission of an organised crime, if a nexus either with an accused who is a member of an `organised crime syndicate’ or with the offence in the nature of an `organised crime’ is established that would attract the invocation of Section 3(2) of MCOCA. Therefore, even if one may not have any direct role to play relating to the commission of an `organised crime’, but when the nexus of such person with an accused who is a member of the `organised crime syndicate’ or such nexus is related to the offence in the nature of `organised crime’ is established by showing his involvement with the accused or the offence in the nature of such `organised crime’, that by itself would attract the provisions of MCOCA. The said statement of law by this Court, therefore, makes the position clear as to in what circumstances MCOCA can be applied in respect of a person depending upon his involvement in an organised crime in the manner set out in the said paragraph.”
The second judgment relied on by the learned Special Public Prosecutor is in Govind Sakharam Ubhe –vs- The State of Maharashtra, (Indian Kanoon – http://indiankanoon.org/doc/1453468). In the said case, while analysing the definition of “continuing unlawful activity” under Section 2(1)(d) of MCOCA, a Division Bench of the Bombay High Court was pleased to observe at Paragraph No.36 of the judgment that the words `in respect of which more than one charge sheet have been filed’, cannot go with the words `a member of a crime syndicate’, because, in that case, these words would have read as `in respect of whom more than one charge sheet have been filed’.
In the very same judgment, at Paragraph Nos.39 and 40, the Bombay High Court was further pleased to observe as below :
“ 39 …………… What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as AJN described therein have been undertaken either singly or jointly as a member of organised crime syndicate and in respect of which more than one charge- sheets have been filed. Stress is on the unlawful activities committed by the organised crime syndicate. Requirement of one or more charge-sheet is qua the unlawful activities of the organised crime syndicate.
40. In our opinion, in this connection, reliance placed by Mr.Desai on Lalit Nagpal’s case is misplaced. The ratio of the said judgment is misconstrued by the appellant. In that case, the issue whether the words `more than one charge-sheet’ refer to the unlawful activities of an organised crime syndicate or to the individual members was neither raised nor canvassed. Consequently, the said issue did not fall for consideration and was not decided.”
In the concluding paragraphs, in the same judgment at Paragraph No.44, the Bombay High Court has observed as below :
“ 44. In the light of this, we are of the opinion that the words `more than one charge-sheet’ contained in Section 2(1)(d) refer to unlawful activities of the organised crime syndicate.
Requirement of more than one charge- sheet is qua the unlawful activities of the organised crime syndicate and not qua individual member thereof.”
In the third judgment relied upon by the learned Special Public Prosecutor in Narender Kumar –vs- State of Delhi (Indian Kanoon – http:
/indiankanoon.org/doc/1614279), the High Court of Delhi in its order dated 1.11.2011, also has observed with respect to attraction of Section 3 of MCOCA that requirement of one or more charge sheet is qua the unlawful activities of the organised crime syndicate. Accordingly, holding that in the matter pending before it, necessary ingredients of offence under Section 3 of MCOCA were made out against the petitioner and in view of the bar under Section 21(3) of MCOCA, the application for anticipatory bail of the petitioner was held not maintainable.
The fourth judgment relied upon by the learned Special Public Prosecutor is in Sandeep –vs- State, reported in {2014 (214) DLT 738}, decided by the Delhi High Court. In the said case, the petitioner was charged under Section 3(2) and Section 3(4) of MCOCA. The petitioner, along with fifteen other persons were charge sheeted under Section 3 of MCOCA. It was the prosecution case that the petitioner had engaged the services of one Amit @ Babloo and his associates for killing his uncle Jai Prakash, for which he had paid an advance sum of `2 lakhs. FIR was registered under Section 302/34 of IPC. Further, Section 3 of MCOCA was also attracted in the matter. When the applicability of Section 3 of MCOCA was challenged, contending that even according to the prosecution, the petitioner was only a client, who had engaged the services of Amit @ Babloo and his gang, which was a professional gang, the petitioner not being a member of the organised crime syndicate or acting on behalf of the syndicate, is disqualified to be charge sheeted under Section 3 of MCOCA, the Delhi High Court observed that nexus and role of the petitioner with organised crime syndicate once prima facie established and the records shows that petitioner had hired the services of `A’ to kill his uncle by rendering financial assistance to an organised crime syndicate of `A’ to commit the act of murder, the same amounts to abetment, as such, no illegality was found in the impugned order. Consequently, the Revision Petition of the petitioner was dismissed.
18. In my opinion, the reliance placed by the learned Senior Counsel for the appellant in Lalit Somadatta Nagapal’s case (supra), would not enure to the benefit of the appellant, for the reason that, the ratio of the said judgment is misconstrued by the appellant. In Lalit Somadatta Nagapal’s case (supra), as observed by the Division Bench of Bombay High Court, in Govind Sakharam Ubhe’s case (supra), the issue whether the words `more than one charge sheet’ refers to the unlawful activities of an organised crime syndicate or to the individual members, was neither raised nor canvassed. Consequently, the said issue did not fall for consideration and was not decided.
19. In Mahipal Singh’s case (supra), the question was not of abettor assisting the crime by the organised crime syndicate, but, the question was whether the accused was involved as a member of the organised crime and whether more than one charge sheet was filed against him before the competent Court within the preceding period of ten years. As such, the said issue would not enure to the benefit of the appellant.
20. In Shiva @ Shivaji Ramaji Sonawane’s case (supra), the question was as to when the alleged crime was said to have been committed? Whether it was after the promulgation of MCOCA or earlier to that? In the instant case, undisputedly, the alleged crime is said to have been committed after promulgation of KCOCA. The said case also would not enure to the benefit of the appellant.
21. Brijesh Singh’s case (supra) also searched for filing of atleast two charge sheets against the members of organised crime syndicate within the previous ten years and taking of cognizance by competent Court on such charge sheets. However, the said judgment since has not considered the role of the one who has undertaken `on behalf of’ any organised crime syndicate or with respect to role of an `abettor’, the same also would not be of much help to the appellant since he has been arraigned in the matter as an abettor of the unlawful activities of organised crime syndicate.
22. On the other hand, a careful reading of Section 2(1)(d) of KCOCA, which defines `continuing unlawful activity’ is to be understood in such a way that the words `in respect of which more than one charge sheet have been filed’, go with the word `syndicate’. A reading of the said definition clause would not give a meaning that even as against an abettor, who is alleged to have assisted and abetted the continuing unlawful activity of an organised crime syndicate, there had to be necessarily filed more than one charge sheet before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offences.
23. Learned Senior Counsel for the appellant had also relied upon the judgment of Hon’ble Apex Court in Ranjithsing Brahmajeetsing Sharma’s case (supra). In Paragraph Nos.31, 36 and 37 of the said judgment, the Hon’ble Apex Court was pleased to observe as below :
“ 31. The High Court does not say that the appellant has abetted Telgi or had conspired with him. The findings of the High Court as against the appellant are attributable to allegations of abetting Kamat and Mulani. Both Kamat and Mulani were public servants. They may or may not have any direct role to play as regard commission of an organised crime but unless a nexus with an accused who is a member of the organised crime syndicate or an offence in the nature of organised crime is established, only by showing some alleged indulgence to Kamat or Mulani, the appellant cannot be said to have conspired or abetted commission of an organised crime. Prima facie, therefore, we are of the view that Section 3(2) of MCOCA is not attracted in the instant case.
36. Does this statue require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.”
It is after referring to these paragraphs in subsequent judgment, the Hon’ble Apex Court in Prasad Shrikant Purohit’s case (supra), observed that even if a person not having any direct role to play as regards the commission of an organised crime, if the nexus either with an accused, who is a member of an organised crime syndicate or with the offence in the nature of organised crime is established, that would attract invocation of Section 3(2) of MCOCA. (Emphasis supplied).
24. In the instant case, even though the appellant is accused No.10, the role alleged against him in the charge sheet which are shown to be supported by incriminating materials are that;
(i) He was in contact with co-accused even prior to the commencement of PUC II year Science Examination which commenced from 11.3.2016. Even though the learned Senior Counsel for the appellant submits that the alleged entrance of accused No.10 in the scene of offence was after the occurrence of the offence, but, the call details in the form of documents produced by the prosecution in Annexure-2, Part-6 at Page Nos.1117-1184, at this stage, go to show that accused No.10/appellant had contacts with the main accused even prior to the commencement of the PUC II year Science examination and alleged leakage of question papers.
(ii) The accused No.10 alleged to have met the co-accused i.e., accused No.6 – Manjunath N., accused No.9 – Anil Kumar U.R. and accused No.17 – Satish, conspiring and demanding the question paper for the sake of his daughter even prior to the examination. The prosecution has produced alleged confession statements of accused Nos.1 to 6 in Annexure-2, Part-1, Page Nos.450-493.
(iii) On 10.3.2016, in the night, accused No.10 is alleged to have received the question paper in the subject Biology examination, in which subject, examination was scheduled to be held on the next day, in his house at Sadashivanagar from co-accused. The prosecution relies upon the alleged confession statements of accused Nos.1 and 6 in this regard.
(iv) Accused No.10 is said to have paid a sum of `5 lakhs on 12.3.2016 to an organised crime syndicate member i.e., accused No.6, through accused No.9 and accused No.17. In this regard, prosecution relies upon the alleged confession statement of accused No.6.
(v) On 13.3.2016, accused No.10 is alleged to have received question paper in the subject of Mathematics, the examination in which subject was scheduled to be held on the next day, in his house at Sadashivanagar, from co-accused and in the said house of accused No.10 at Sadashivanagar, it is alleged that several other beneficiary students were trying. In this regard, the prosecution has produced the alleged confession statement of accused No.1.
(vi) The accused No.10 is alleged to have once again paid a sum of `8 lakhs to accused No.6, through accused No.9, on 15.3.2016.
(vii) On 16.3.2016, it is alleged that accused No.10 received question paper in Physics subject, on which subject, the examination was scheduled to be held on the next day, in his house at Sadashivanagara from co-accused No.6. The prosecution has produced the alleged confession statements of accused Nos.1 and 6 in this regard.
(viii) The wife of accused No.10 is alleged to have taken her daughter (one among the alleged beneficiaries) on 20.3.2016 to a house of one of the students at Basaveshwaranagar, where question paper of Chemistry subject was received and the beneficiary was trained. The prosecution forwards the alleged confession statements of accused Nos.1 and 6 in this regard.
(ix) It is further alleged in the charge sheet that leakage of Chemistry question paper on 21.3.2016, in view of which, the Government canceling the examination and registering a FIR in respondent-police station in Crime No.37/2016, were all within the knowledge of accused No.10.
(x) The prosecution has also placed materials alleging that on 30.3.2016, after scheduling the re-examination in the Chemistry subject, which was to be held on 31.3.2016, the next day’s question paper in Chemistry subject was made available in the house of accused No.10 at Sadashivanagar, whereat, several other beneficiary students are said to have been trained by the syndicate. The same is said to have been made possible because of active involvement of accused No.10 with the syndicate. The prosecution has forwarded the alleged confession statements of accused No.1 and accused No.6 in Annexure-2, Part-3.
25. Thus, the constant assistance and abetment by accused No.10/appellant in the commission of alleged crime by the alleged organised crime syndicate has been placed before the trial Court by the respondent-police along with materials, which, prima facie, and at this stage appears to be relevant and makes out a case against accused No.10 for the alleged offences.
26. Lastly, learned Senior Counsel for the appellant in his argument also submitted that there is no mens rea on the part of the appellant/accused No.10 for the alleged abetment of the commission of the crime, as such, the charge sheet filed against him deserves to be quashed. In that regard, learned Senior Counsel for the appellant relied upon Ranjithsing Brahmajeetsing Sharma’s case (supra), where at Paragraph 24 of its judgment, the Hon’ble Apex Court was pleased to observe that, “only because a person cheats or commits a criminal breach of trust, more than once, the same may by itself is not sufficient to attract the provisions of the MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA.”
27. As narrated above, when the charge sheet alleges that accused No.10 in order to give benefits to his daughter, who was a student, appearing for second year Pre-University examination in Science, has accommodated, assisted and abetted the commission of the crime by the organised crime syndicate, (which syndicate and its alleged crime, the appellant/accused No.10 has not denied in the appeal) and more particularly, by financially aiding the organised crime syndicate on more than one occasion, by paying huge sum of money, not less than `13 lakhs in total, and also manuscript of questions, which incidentally were reflected in the next day’s examination question paper on the subject and also permitted the syndicate to make use of his house at Sadashivanagar to siphon the details of next day’s questions coming in the examination to other beneficiary students and also training them up, cannot be called as an act done without any intention to assist the syndicate in the commission of crime.
28. Further, the question of mens rea can only be ascertained during the course of the trial. As such, at this stage, it cannot be called that the alleged act of appellant/accused No.10 in abetting and assisting the commission of crime by the organised crime syndicate was without any mens rea.
29. Since the Special Court in its impugned order though has not considered each of the above aspects in detail, but, after taking note of the above aspects, has appropriately rejected the application filed by the present appellant under Section 227 of Cr.P.C. I do not find any reason to interfere in the said order of the Special Court.
Accordingly, the Appeal stands dismissed as devoid of merits. The order passed by the learned Prl.City Civil & Sessions Judge, Bengaluru, in Special C.C.No.417/2016, dated 20.11.2017, is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the concerned Court immediately.
Sd/- JUDGE *bk/