Appa @ Prakash Haribhau Londhe ] v. State of Maharashtra ]

689 of Petitions from Criminal Writ Petition Nos. 689 of Petitions from Criminal Writ Petition Nos. 689 of 2005 and others. Question involved in that case 2005 and others. 2005 and others. appears to be "Whether a person can be subjected to criminal proceedings under a particular statute which defines the act committed by such persons to be offences punishable thereunder" that will depend upon the facts as to whether the said law has been in force or not at the time when the acts complained of are committed by concerned person. In the said judgment the Division Bench has held : "Therefore, "commission of cognizable "Therefore, "commission of cognizable "Therefore, "commission of cognizable offence" is the essence of FIR. Moment offence" is the essence of FIR. Moment offence" is the essence of FIR. Moment commission of cognizable offence is commission of cognizable offence is commission of cognizable offence is recorded, the police are bound to recorded, the police are bound to recorded, the police are bound to investigate in view of the provisions of law investigate in view of the provisions of law investigate in view of the provisions of law comprised under Section 157 read with comprised under Section 157 read with comprised under Section 157 read with Section 154 of the Code.

The law on this Section 154 of the Code. The law on this Section 154 of the Code. The law on this point is well settled by the decision of the point is well settled by the decision of the point is well settled by the decision of the Apex Court in Bhajan Lal’s case. There can Apex Court in Bhajan Lal’s case. There can Apex Court in Bhajan Lal’s case. There can be no investigation without FIR and there be no investigation without FIR and there be no investigation without FIR and there can be no FIR without cognizable offence can be no FIR without cognizable offence can be no FIR without cognizable offence Similarly, there can be no being disclosed. " Similarly, there can be no being disclosed. " Similarly, there can be no being disclosed. " FIR under the MCOC Act unless there being FIR under the MCOC Act unless there being FIR under the MCOC Act unless there being commission of offence under the MCOC Act is commission of offence under the MCOC Act is commission of offence under the MCOC Act is disclosed". disclosed". disclosed".

Then in paragraph 38, the Division Bench has :6: observed: "The fall out of the above discussion is "The fall out of the above discussion is "The fall out of the above discussion is that it is to be held that in the absence of that it is to be held that in the absence of that it is to be held that in the absence of material about commission of the offence material about commission of the offence material about commission of the offence under the MCOC Act by the petitioners on or under the MCOC Act by the petitioners on or under the MCOC Act by the petitioners on or after 24th February, 1999, the authority after 24th February, 1999, the authority after 24th February, 1999, the authority could not have granted the approval for could not have granted the approval for could not have granted the approval for recording FIR under the MCOC Act, nor there recording FIR under the MCOC Act, nor there recording FIR under the MCOC Act, nor there could have recorded the FIR under the MCOC could have recorded the FIR under the MCOC could have recorded the FIR under the MCOC Act for the alleged activities, unless the Act for the alleged activities, unless the Act for the alleged activities, unless the activities were done on or after 24th activities were done on or after 24th activities were done on or after 24th February, 1999." February, 1999." February, 1999." The Division Bench, partly allowed the petitions and the approval granted under Section 23(1)(a) of the MCOC Act for recording of FIR in relation to the said mal practices at the September 1998 examination, i.e. before the MCOC Act came into force, and the FIR No. 6 of 2005 so far as it relates to the offences under the MCOC Act is concerned, were quashed and set aside.

Undoubtedly, for totally different footing. Undoubtedly, for totally different footing. Undoubtedly, for the purpose of organised crime there has to the purpose of organised crime there has to the purpose of organised crime there has to be a continuing unlawful activity. There be a continuing unlawful activity. There be a continuing unlawful activity. There cannot be continuing unlawful activity cannot be continuing unlawful activity cannot be continuing unlawful activity unless at least two charge-sheets are to be unless at least two charge-sheets are to be unless at least two charge-sheets are to be found to have been lodged in relation to the found to have been lodged in relation to the found to have been lodged in relation to the offence punishable with three years’ offence punishable with three years’ offence punishable with three years’ imprisonment during the period of ten years. imprisonment during the period of ten years. imprisonment during the period of ten years.

Undisputedly, the period of ten years may Undisputedly, the period of ten years may Undisputedly, the period of ten years may relate to the period prior to 24-2-1999 or relate to the period prior to 24-2-1999 or relate to the period prior to 24-2-1999 or thereafter. In other words, it provides thereafter. In other words, it provides thereafter. In other words, it provides that the activities which were offences that the activities which were offences that the activities which were offences under the law in force at the relevant time under the law in force at the relevant time under the law in force at the relevant time and in respect of which two charge-sheets and in respect of which two charge-sheets and in respect of which two charge-sheets have been filed and the Court has taken have been filed and the Court has taken have been filed and the Court has taken cognizance thereof, during the period of cognizance thereof, during the period of cognizance thereof, during the period of preceding ten years, then it will be preceding ten years, then it will be preceding ten years, then it will be considered as continuing unlawful activity considered as continuing unlawful activity considered as continuing unlawful activity on 24-2-1999 or thereafter.

It nowhere by on 24-2-1999 or thereafter. It nowhere by on 24-2-1999 or thereafter. It nowhere by itself declares any activity to be an itself declares any activity to be an itself declares any activity to be an offence under the said Act prior to offence under the said Act prior to offence under the said Act prior to 24-2-1999. It also does not convert any 24-2-1999. It also does not convert any 24-2-1999. It also does not convert any activity done prior to 24-2-1999 to be an activity done prior to 24-2-1999 to be an activity done prior to 24-2-1999 to be an offence under the said Act. It merely offence under the said Act. It merely offence under the said Act. It merely considers two charge-sheets in relation to considers two charge-sheets in relation to considers two charge-sheets in relation to the acts which were already declared as the acts which were already declared as the acts which were already declared as offences under the law in force to be one of offences under the law in force to be one of offences under the law in force to be one of the requisites for the purpose of the requisites for the purpose of the requisites for the purpose of identifying continuing unlawful activity identifying continuing unlawful activity identifying continuing unlawful activity and/or for the purpose of an action under and/or for the purpose of an action under and/or for the purpose of an action under the said Act.

This by itself cannot be said the said Act. This by itself cannot be said the said Act. This by itself cannot be said to be in any manner violative of the mandate to be in any manner violative of the mandate to be in any manner violative of the mandate of Article 20(1) considering the law laid of Article 20(1) considering the law laid of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur down by the Apex Court in Rao Shiv Bahadur down by the Apex Court in Rao Shiv Bahadur Singh’s case as well as in Sajjan Singh’s Singh’s case as well as in Sajjan Singh’s Singh’s case as well as in Sajjan Singh’s case. case. case.

The Apex same provision does not arise. The Apex same provision does not arise. The Apex Court in Electronics Corporation of India Court in Electronics Corporation of India Court in Electronics Corporation of India Ltd. and others vs. Secretary Revenue Ltd. and others vs. Secretary Revenue Ltd. and others vs. Secretary Revenue Department, Government of Andhra Pradesh and Department, Government of Andhra Pradesh and Department, Government of Andhra Pradesh and others reported in (1999) 4 SCC 458 has held others reported in (1999) 4 SCC 458 has held others reported in (1999) 4 SCC 458 has held that " the question of reading down comes in that " the question of reading down comes in that " the question of reading down comes in if it is found that the provisions are ultra if it is found that the provisions are ultra if it is found that the provisions are ultra vires as they stand. We have held that vires as they stand.

We have held that vires as they stand. We have held that these provisions are not ultra vires because these provisions are not ultra vires because these provisions are not ultra vires because Article 285 does not apply when the property Article 285 does not apply when the property Article 285 does not apply when the property that is to be taxed is not of the Union of that is to be taxed is not of the Union of that is to be taxed is not of the Union of India but of a distinct and separate legal India but of a distinct and separate legal India but of a distinct and separate legal entity. " Similarly, in K. G. Ashok and entity. " Similarly, in K. G. Ashok and entity. " Similarly, in K. G. Ashok and others, vs. Kerala Public Service others, vs. Kerala Public Service others, vs. Kerala Public Service Commission and others reported in (2001) 5 Commission and others reported in (2001) 5 Commission and others reported in (2001) 5 SCC 419, wherein though the candidates had SCC 419, wherein though the candidates had SCC 419, wherein though the candidates had applied for selection in more than one applied for selection in more than one applied for selection in more than one district, they could appear only in one district, they could appear only in one district, they could appear only in one district in view of the fact that the test district in view of the fact that the test district in view of the fact that the test was conducted in all the districts on one was conducted in all the districts on one was conducted in all the districts on one day, it was sought to be contended that the day, it was sought to be contended that the day, it was sought to be contended that the rule restricting filing of application for rule restricting filing of application for rule restricting filing of application for one district incorporated in Note 2 of the one district incorporated in Note 2 of the one district incorporated in Note 2 of the notification should be read down in its notification should be read down in its notification should be read down in its application to the cases of the appellants application to the cases of the appellants application to the cases of the appellants in those appeals before the Apex Court, in those appeals before the Apex Court, in those appeals before the Apex Court, while rejecting the said contention, it was while rejecting the said contention, it was while rejecting the said contention, it was ruled that "the submission has been made ruled that "the submission has been made ruled that "the submission has been made only to be rejected as in the present case only to be rejected as in the present case only to be rejected as in the present case we have already held that the aforesaid we have already held that the aforesaid we have already held that the aforesaid restriction contained in Note 2 is not restriction contained in Note 2 is not restriction contained in Note 2 is not violative of Article 14 of the Constitution. violative of Article 14 of the Constitution. violative of Article 14 of the Constitution.

Therefore, the question of reading down the Therefore, the question of reading down the Therefore, the question of reading down the same does not arise. " The very fact that the same does not arise. " The very fact that the same does not arise. " The very fact that the expression used in the section 2(d) contains expression used in the section 2(d) contains expression used in the section 2(d) contains the word ’preceding’ knowing well that the the word ’preceding’ knowing well that the the word ’preceding’ knowing well that the Act has to come into force from 24-2-1999, Act has to come into force from 24-2-1999, Act has to come into force from 24-2-1999, it is apparent that it has to relate to the it is apparent that it has to relate to the it is apparent that it has to relate to the period even prior to 24-2-1999. period even prior to 24-2-1999. period even prior to 24-2-1999. Undoubtedly, had it been directly related to Undoubtedly, had it been directly related to Undoubtedly, had it been directly related to declaring any act as an offence under a declaring any act as an offence under a declaring any act as an offence under a present Act prior to the date of enforcement present Act prior to the date of enforcement present Act prior to the date of enforcement of the said Act, certainly it would have of the said Act, certainly it would have of the said Act, certainly it would have been in violation of the mandate of Article been in violation of the mandate of Article been in violation of the mandate of Article 20(1) of the Constitution.

However, as 20(1) of the Constitution. However, as 20(1) of the Constitution. However, as already observed above, the period specified already observed above, the period specified already observed above, the period specified :10: in section 2(d) of the said Act relates to in section 2(d) of the said Act relates to in section 2(d) of the said Act relates to merely one of the requisites to consider merely one of the requisites to consider merely one of the requisites to consider whether the activity is a continuing whether the activity is a continuing whether the activity is a continuing unlawful activity or not for the purpose of unlawful activity or not for the purpose of unlawful activity or not for the purpose of taking action under the said Act and being taking action under the said Act and being taking action under the said Act and being so, applying the law laid down by the Apex so, applying the law laid down by the Apex so, applying the law laid down by the Apex Court in Rao Shiv Bahadur’s case and Sajjan Court in Rao Shiv Bahadur’s case and Sajjan Court in Rao Shiv Bahadur’s case and Sajjan Singh’s case the same cannot be held to be Singh’s case the same cannot be held to be Singh’s case the same cannot be held to be in any manner violative of Article 20(1) of in any manner violative of Article 20(1) of in any manner violative of Article 20(1) of the Constitution. " the Constitution. " the Constitution. "

According to the liable to be struck down. According to the liable to be struck down. According to the learned counsel unequals are being treated learned counsel unequals are being treated learned counsel unequals are being treated as equals. Persons charged only once are as equals. Persons charged only once are as equals. Persons charged only once are not brought within the purview of the Act not brought within the purview of the Act not brought within the purview of the Act but a person with several charges framed and but a person with several charges framed and but a person with several charges framed and cognizance taken by competent court who cognizance taken by competent court who cognizance taken by competent court who later on are acquitted are covered by the later on are acquitted are covered by the later on are acquitted are covered by the definition. According to him therefore a definition.

According to him therefore a definition. According to him therefore a person is acquitted of ten charges cannot be person is acquitted of ten charges cannot be person is acquitted of ten charges cannot be treated as equal to a person who is charged treated as equal to a person who is charged treated as equal to a person who is charged and convicted of only one offence. In our and convicted of only one offence. In our and convicted of only one offence. In our :11: opinion, there is no violation of article 14 opinion, there is no violation of article 14 opinion, there is no violation of article 14 by this definition. If we read the by this definition. If we read the by this definition. If we read the definition again, what has been defined as definition again, what has been defined as definition again, what has been defined as continuing unlawful activity is a member of continuing unlawful activity is a member of continuing unlawful activity is a member of organized crime syndicate in respect of organized crime syndicate in respect of organized crime syndicate in respect of which any activity prohibited by law and which any activity prohibited by law and which any activity prohibited by law and done repeatedly i.e. more than once for done repeatedly i.e. more than once for done repeatedly i.e. more than once for which charge sheet has been filed in the which charge sheet has been filed in the which charge sheet has been filed in the court of competent jurisdiction in the past court of competent jurisdiction in the past court of competent jurisdiction in the past ten years.

The purpose of definition is to ten years. The purpose of definition is to ten years. The purpose of definition is to define what continuing unlawful activity is define what continuing unlawful activity is define what continuing unlawful activity is and it is for the purposes of defining what and it is for the purposes of defining what and it is for the purposes of defining what is continued unlawful activity that those is continued unlawful activity that those is continued unlawful activity that those charges are to be taken into consideration. charges are to be taken into consideration. charges are to be taken into consideration. Mere taking into consideration of such Mere taking into consideration of such Mere taking into consideration of such charges cannot result in discrimination of charges cannot result in discrimination of charges cannot result in discrimination of the kind alleged by Shri Manohar.

The the kind alleged by Shri Manohar. The the kind alleged by Shri Manohar. The activity must be continuing unlawful activity must be continuing unlawful activity must be continuing unlawful activity and to define it with clarity it is activity and to define it with clarity it is activity and to define it with clarity it is provided that any person who in the past was provided that any person who in the past was provided that any person who in the past was charge sheeted for more than one charge of charge sheeted for more than one charge of charge sheeted for more than one charge of such activity or crime the cognizance of such activity or crime the cognizance of such activity or crime the cognizance of which has been taken and imprisonment for which has been taken and imprisonment for which has been taken and imprisonment for which is more than three years should be which is more than three years should be which is more than three years should be taken into account.

The fact of the person taken into account. The fact of the person taken into account. The fact of the person having been charge sheeted in such having been charge sheeted in such having been charge sheeted in such cognizable offences in the past makes the cognizable offences in the past makes the cognizable offences in the past makes the unlawful activity, continuing unlawful unlawful activity, continuing unlawful unlawful activity, continuing unlawful activity. This section only defines what activity. This section only defines what activity. This section only defines what the activity is. It does not itself provide the activity is. It does not itself provide the activity is. It does not itself provide for any punishment for that activity. Had for any punishment for that activity. Had for any punishment for that activity. Had punishment been provided the submission that punishment been provided the submission that punishment been provided the submission that it treats while punishing unequals as equals it treats while punishing unequals as equals it treats while punishing unequals as equals may carry weight age.

That being not the may carry weight age. That being not the may carry weight age. That being not the case in the challenge to section 2(1)(d) of case in the challenge to section 2(1)(d) of case in the challenge to section 2(1)(d) of the Act we see no vagueness or violation of the Act we see no vagueness or violation of the Act we see no vagueness or violation of article 14 by the definition. We find that article 14 by the definition. We find that article 14 by the definition. We find that the provision treats all those covered by it the provision treats all those covered by it the provision treats all those covered by it in a like manner and does not suffer from in a like manner and does not suffer from in a like manner and does not suffer from the vice of class legislation. " the vice of class legislation. " the vice of class legislation. " Both the cases relied upon by Mr. Pradhan, are of no help to him because of the peculiar facts of these cases. :12:

At any rate, the Petitioners in both the petitions were members of organised crime syndicate or organised crime, because being a member is itself made punishable under Section 3 sub section 4 of MCOC Act. As rightly held by this Court in the "...Yet judgment reported in [2003(3) Mh.L.J. 866 "...Yet "...Yet by referring to the expression ’preceding period of by referring to the expression ’preceding period of by referring to the expression ’preceding period of ten years’ in section 2(d) which is a definition ten years’ in section 2(d) which is a definition ten years’ in section 2(d) which is a definition clause of the term "continuing unlawful activity" clause of the term "continuing unlawful activity" clause of the term "continuing unlawful activity" inference was sought to be drawn that in fact it inference was sought to be drawn that in fact it inference was sought to be drawn that in fact it takes into its ambit the acts done prior to the takes into its ambit the acts done prior to the takes into its ambit the acts done prior to the enforcement of the said Act as being offences under enforcement of the said Act as being offences under enforcement of the said Act as being offences under the said Act. " the said Act. " the said Act. "

In other words, becomes an organised crime. In other words, becomes an organised crime. In other words, the singular unlawful activity would attract the singular unlawful activity would attract the singular unlawful activity would attract the provisions of ordinary law, but if it is the provisions of ordinary law, but if it is the provisions of ordinary law, but if it is continuing one, and, to wit, third offence continuing one, and, to wit, third offence continuing one, and, to wit, third offence of specified type which fulfils the of specified type which fulfils the of specified type which fulfils the requirement of provisions of the Act, it requirement of provisions of the Act, it requirement of provisions of the Act, it becomes an organised crime to be registered becomes an organised crime to be registered becomes an organised crime to be registered as an offence under the MCOCA. In such a as an offence under the MCOCA. In such a as an offence under the MCOCA. In such a situation, there are two options available situation, there are two options available situation, there are two options available to the police, either they can separately to the police, either they can separately to the police, either they can separately record information about the commission of record information about the commission of record information about the commission of an offence of organised crime under the Act an offence of organised crime under the Act an offence of organised crime under the Act after successive unlawful activity of the after successive unlawful activity of the after successive unlawful activity of the specified type are reported to have been specified type are reported to have been specified type are reported to have been committed, by or for and on behalf of committed, by or for and on behalf of committed, by or for and on behalf of organised crime syndicate; or invoke the organised crime syndicate; or invoke the organised crime syndicate; or invoke the provisions of the said enactment to the provisions of the said enactment to the provisions of the said enactment to the unlawful activity already reported, which is unlawful activity already reported, which is unlawful activity already reported, which is the successive in point of time.

" the successive in point of time. " the successive in point of time. " It is to be noted here from the copy of the FIR given that C.R. No. 70 of 2004 is the C.R. under the MCOC Act. In the FIR details of all the activities prior to 1999 and after 1999 have been given showing the continuous chains, link of events fulfilling the requirement of the organized crime or organised crime syndicate or continuing unlawful activities.