Surjitsingh Bhagatsingh Gambhir v. State of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 1172 OF 2023Surjitsingh Bhagatsingh GambhirAge: 55 years, Occu.: Business,R/o Tarakpur, Ahmednagar, Tq. & Dist. Ahmednagar..APPELLANTVERSUS1. State of Maharashtra Through MIDC Police Station, Ahmednagar2. Crime Investigation Department Maharashtra State Headquarters Near Pune University, Pashan Road, Pune3. Baban Rangnath Ahwad Age: 45 years, Occu.: Driver, R/o Pangarmal, Ahmednagar Presently R/o Room No.1, Chawl No.1, Anandwadi, R.V. Tiwarchawl, Suman Kirana Store, Kolsewadi, Kalyan (East), Mumbai..RESPONDENTS....Mr. G.V. Wani, Advocate h/f Mr. G.M. Kumar More, Advocate for appellantMr. S.D. Ghayal, Addl.P.P. for respondent nos. 1 and 2Mr. S.D. Hiwrekar, Advocate for respondent no.3....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 18th DECEMBER, 2024PRONOUNCED ON : 07th JANUARY, 2025JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.This is an appeal under Section 12 of the Maharashtra Control ofOrganised Crime Act, 1999 (‘MCOCA’). The challenge in this appeal is to anorder dated 18th January, 2023 passed by the Special Court, Ahmednagar, in1 / 10 APEAL-1172-23.odtSpecial Case No. 570 of 2020, refusing to grant the appellant discharge fromthe case.2.The facts in brief, giving rise to the present appeal, are asfollows :-The elections for the memberships of Zilla Parishad, Ahmednagarwere held in February 2017. One Bhagyashree Mokate and Mangal Avhadwere in the fray on behalf of a political part, “Shivsena”. Both the candidatesheld a party (wining and dining) for their followers on 12th February, 2017.The liquor served in the said party was found to have been spurious. As aresult thereof, nine persons lost their lives and thirteen suffered grievousinjuries. A crime vide C.R. No. 31 of 2017 was, therefore, registered withMIDC Police Station for the offences punishable under Sections 304 and 328read with Section 34 of the Indian Penal Code (‘I.P.C.’). During investigation, it was revealed that co-accused viz. Mohan Duggal, Jagjit Singh Gambhirand Zakir Shaikh would run the Civil Hospital Canteen. The trio with theassistance of other co-accused viz. Hamid Shaikh, Shekhar Jadhav, BharatJoshi, Dada Wani, Ajit Sevani, Yakub Shaikh, Navnath Dhadge, AmitGotiyani, Rajendra Ghuge would prepare/manufacture illicit liquor and sell itto the consumers. Considering the Zilla Parishad elections, the co-accusedhad prepared such hooch in large scale and sold it. The hooch was servedin the party that was held by Bhagyashree Mokate and Mangal Avhad. As aresult, the tragedy took place.2 / 10 APEAL-1172-23.odt3.During investigation, it was revealed that Jagjit Singh Gambhir ,Mohan Duggal and Zakir Shaikh were the members of an organised crimesyndicate. Jagjit Singh Gambhir was the head of syndicate. Provisions ofMCOCA were, therefore, invoked against them. Meaning thereby, they werealleged to have committed an organised crime punishable under Section 3 ofthe MCOCA and related offences thereunder besides offences under I.P.C.4.In this appeal, we are concerned with the role of the appellant inthe alleged crime. As per the case of prosecution, the canteen of CivilHospital was leased out to the present appellant. The lease period was overby the end of the year 2014. Fresh tender was floated. Since no responsewas received, the appellant was asked to continue the canteen. Insteadrunning the canteen by himself, he sub-let it to the prime accused – ZakirShaikh. In short, according to the prosecution, the appellant has committedthe offence of abetment of organised crime.5.Learned counsel for the appellant would submit that there was noshred of material to indicate that post 2014, the appellant run the canteen orhe himself paid the rent to Civil Hospital. According to him, there are noother allegations against the appellant. Learned counsel relied on followingauthorities to ultimately urge for allowing the appeal :-I)P. Vijayan Vs. State of Kerala, AIR 2010 SC 663II)Sajjan Kumar Vs. Central Bureau of Investigation, 2011AIR SCW 37303 / 10 APEAL-1172-23.odtIII)State of M.P. Vs. Sheetla Sahai and Ors., 2009 AIR SCW5514IV)Central Bureau of Investigation Vs. K. Narayan Rao,2012 AIR SCW 51396.Learned A.P.P. would, on the other hand, submit that a seriousoffence took place. Nine persons lost their lives and thirteen persons wereseriously affected. During investigation, it was revealed that it was theappellant, who was running the canteen for the year 2013-14. After the leaseperiod was over, he was asked to continue to run the canteen. The appellantunauthorisedly sub-let the canteen to prime accused – Zakir Shaikh. Ourattention was drawn to the police statement of the Superintendent and otherofficials of the civil hospital. Confessional statements of the co-accused havealso been relied on. Some bank documents indicating the appellant to havereceived a sum of Rs.21,000/- way back in 2014 from the prime accused –Zakir Shaikh towards premium for sub-letting of the canteen were also reliedon. Learned A.P.P. would submit that prima facie involvement of theappellant was made out. He relied on the judgment of this Court in case ofGovind Sakharam Ubhe Vs. State of Maharashtra, AIR OnLine 2009Bom 2. He, therefore, urged for dismissal of the appeal.7.Section 227 of the Code of Criminal Procedure reads thus :-“227. Discharge.— If, upon consideration of the record of the case andthe documents submitted therewith, and after hearing the submissionsof the accused and the prosecution in this behalf, the Judge considersthat there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”4 / 10 APEAL-1172-23.odt8.In the case of Govind Ubhe (supra), after having referred to a fewjudgments of the Apex Court, it has been observed thus :- (Para 25)“25. The principles laid down by the Supreme Court in the above casesneed to be summarized. It is settled law that at the stage of Section 227of the Code, the court has power to sift the materials collected by theprosecution to find out whether there is prima facie case against theaccused or not. The court has to be satisfied that there is ground forpresuming that the accused has committed the offence or that there isno sufficient ground for proceeding against him. The Court's enquirymust not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court canconsider whether the material collected by the prosecution if acceptedas it is without being subjected to cross-examination gives rise to strongand grave suspicion for presuming that the accused has committed theoffence and that unrebutted material will lead to a conviction. If at thestage of Section 227 or Section 228, the scales as to the guilt orinnocence of the accused are even then the court must proceed to framea charge. There is no question of giving benefit of doubt to the accusedand discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strongsuspicion which leads the court to think that there is a ground forpresuming that the accused has committed an offence, then the courtwill proceed to frame the charge. But if two views are possible and thecourt is satisfied that the evidence gives rise to some suspicion but notgrave suspicion against the accused, the court will be within its right todischarge the accused. Suspicion has to be strong and grave suspicionleading the court to presume that the accused has committed anoffence. While basic infirmities and broad probabilities can beconsidered, the court cannot make a roving enquiry into the pros andcons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage.”9.In the case of Union of India Vs. Prafulla Kumar Samal, AIR1979 SC 366, it has been held as follows (reference of paragraph 17 ofGovind Ubhe’s judgment (supra)) :-“17. In Union of India v. Prafulla Kumar Samal, the Supreme Courtreiterated the same principles but added that at the stage of Section5 / 10 APEAL-1172-23.odt227 of the Code, the Court has power to sift and weigh the evidence tofind out whether there is prima facie case against the accused but if twoviews are equally possible and the Judge is satisfied that the evidencegives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The SupremeCourt further observed that the Judge cannot act as a mouth-piece ofthe prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and soon. The Supreme Court clarified that this however does not mean thatthe Judge should make a roving enquiry into the pros and cons of thematter and weigh the evidence as if he was conducting a trial.”10.The facts of Govind Ubhe’s case (supra) would indicate that hehad made a demand of extortion amount. He was present during the talkswhen money was to be handed over. He accepted the money and handed itover to the person and thereafter the witness stopped receiving threats fromthat time onwords, was found to be sufficient material to prima facie indicatehis complicity. He was, therefore, denied discharge.11.The charge against the present appellant is that he abettedcommission of an organised crime. Section 2(a) of the MCOCA defines theterm ‘abet’ as under :-"abet", with its grammatical variations and cognate expression, includes,-(i)the communication or association with any person with the actualknowledge or having reason to believe that such person is engaged inassisting in any manner, an organised crime syndicate;(ii)the passing on or publication of, without any lawful authority, anyinformation likely to assist the organised crime syndicate and thepassing on or publication of or distribution of any document or matterobtained from the organised crime syndicate; and(iii)the rendering of any assistance, whether financial or otherwise, tothe organised crime syndicate;6 / 10 APEAL-1172-23.odt12.In case of Ranjitsing Brahmajeetsing Sharma Vs. State ofMaharashtra and Ors., AIR 2005 SC 2277, it has been observed as under :-“30. The interpretation clause as regard the expression 'abet' does notrefer to the definition of abetment as contained in Section 107 of IPC. Itrefers to such meaning which can be attributed to it in the general sensewith grammatical variations and cognate expressions. However, havingregard to the cognate meaning, the term may be read in the light of thedefinition of these words under Sections 107 and 108 of the IndianPenal Code. The inclusive definition although expansive in nature,"communication" or "association" must be read to mean suchcommunication or association which is in aid of or render assistance inthe commission of organized crime. In our considered opinion, anycommunication or association which has no nexus with the commissionof organized crime would not come within the purview thereof. It mustmean assistance to Organized crime or Organized crime syndicate or toa person involved in either of them. It, however, includes (a)communication or (b) association with any person with the actualknowledge or (c) having reason to believe that such person is engagedin assisting in any manner, an Organized crime syndicate. Communication to, or association with, any person by itself, as wascontended by Mr. Sharan, would not, in our considered opinion, comewithin meaning of the aforementioned provision. The communication orassociation must relate to a person. Such communication or associationto the person must be with the actual knowledge or having reason tobelieve that he is engaged in assisting in any manner an Organizedcrime syndicate. Thus, the offence under Section 3(2) of MCOCA musthave a direct nexus with the offence committed by an Organized crimesyndicate. Such abetment of commission of offence must be by way ofaccessories before the commission of an offence. An offence may becommitted by a public servant by reason of acts of omission andcommission which would amount to tampering with the investigation orto help an accused. Such an act would make him an accessory after thecommission of the offence. It is interesting to note that whereas Section3(2) having regard to the definition of the term 'abet' refers directly tocommission of an offence or assisting in any manner an Organizedcrime syndicate, Section 24 postulates a situation where a publicservant renders any help or support both before or after the commissionof an offence by a member of an Organized crime syndicate or abstainsfrom taking lawful measures under this Act.7 / 10 APEAL-1172-23.odt31. Interpretation clauses contained in Sections 2(d), 2(e) and 2(f) areinter-related. An 'Organized crime syndicate' refers to an 'Organizedcrime' which in turn refers to 'continuing unlawful activity'. As atpresent advised, it may not be necessary for us to consider as towhether the words "or other lawful means" contained in Section 2(e)should be read "exude generics"/ "noscitur-a-sociis" with the words (i)violence, (ii) threat of violence, (iii) intimidation or (iv) coercion. Wemay, however, notice that the word 'violence' has been used only inSection 146 and 153A of the Indian Penal Code. The word 'intimidation'alone has not been used therein but only Section 506 occurring inChapter XXII thereof refers to 'criminal intimidation'. The word'coercion' finds place only in the Contract Act. If the words 'unlawfulmeans' is to be widely construed as including any or other unlawfulmeans, having regard to the provisions contained in Sections 400, 401and 413 of the IPC relating to commission of offences of cheating orcriminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by theParliament32. ….33. Furthermore, mens rea is a necessary ingredient for commission of acrime under MCOCA.34. In Shri Ram v. The State of U.P., [1975] 2 SCR 622 , it was stated: "6...Thus, in order to constitute abetment, the abettor must be shownto have "intentionally" aided the commission of the crime. Mereproof that the crime charged could not have been committedwithout the interposition of the alleged abettor is not enoughcompliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose andthat may facilitate the murder of the invitee. But unless theinvitation was extended with intent to facilitate the commission ofthe murder, the person inviting cannot be said to have abetted themurder. It is not enough that an act on the part of the allegedabettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of theoffence of abetment under the third paragraph of Section 107."13.We have now to peruse the police papers to find whether the actof the appellant in sub-letting the canteen to the co-accused – Zakir Shaikh8 / 10 APEAL-1172-23.odtprima facie amounts to commission of an offence of abetment of organisedcrime. True, there are statements of the officials of office of Civil Hospital, Ahmednagar indicating the canteen was leased out to the present appellant. The appellant also did not dispute the said fact. The lease was said to havebeen continued up to the mid of 2014. After the lease period was over, untila fresh arrangement was made or new lease agreement is created, theappellant was asked to continue to run the canteen.14.The organised crime syndicate means a group of two or morepersons who, acting either singly or collectively, as a syndicate or gangindulge in activities of organised crime.15.In the case in hand, the co-accused are alleged to havecommitted an organised crime in the nature of manufacturing illicit liquor andsell thereof, on consumption of which nine persons lost their lives andthirteen were badly affected. The illicit liquor was allegedly said to have beenmanufactured at the canteen premises. The incident took place on 12thFebruary, 2017 i.e. about two and half years after the lease period was overand the appellant sub-let it to one of the co-accused – Zakir Shaikh. We donot come across any shred of material to indicate the appellant to have beenprivy to the activities of the members of the organised crime syndicate or hewas in the know or had reason to believe that his act of sub-letting thecanteen was such that he thereby engaged himself in assisting the organisedcrime syndicate.9 / 10 APEAL-1172-23.odt16.We are conscious of the parameters to be considered for grant orrefusal to grant discharge. Even prima facie, the act of the appellant in sub-letting the canteen premises in no way could be termed to be an act ofabetment of organised crime syndicate. At the cost of repetition it is statedthat the crime took place in the year 2017 while the act of sub-letting thecanteen precedes by two and half years of the incident.17.At the cost of repetition it is observed that we have not comeacross any other material nor has anything been brought to our notice tosuggest the applicant to have assisted the organised crime syndicate incommission of organised crime in relation to which the charge-sheet hasbeen filed. In view of the same, we find the appellant entitled for grant ofdischarge.18.In the result, appeal succeeds in terms of following order :-Impugned order dated 18th January, 2023 passed by the SpecialJudge, Special Court (MCOCA) & Additional Sessions Judge, Ahmednagarin Special Case no. 570 of 2020 is hereby quashed and set aside. Theappellant is hereby discharge from Special Case no. 570 of 2020, pending onthe file of the Special Judge, Special Court (MCOCA) & Additional SessionsJudge, Ahmednagar, registered vide F.I.R. No. 36 of 2017 dated 14thFebruary, 2017 with MIDC Police Station, Ahmednagar. Record andProceedings be sent back to the trial Court forthwith.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD10 / 10