# ABHISHEK v. STATE OF MAHARASHTRA & ORS

- **Citation:** [2022] 4 S.C.R. 1128
- **Court:** Supreme Court of India
- **Decided:** 2022-05-20
- **Case number:** Criminal Appeal No. 869 of 2022
- **Bench:** Dinesh Maheshwari, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abhishek-v-state-of-maharashtra-ors-36079
- **Pages:** 43

## Headnote

Penal Code, 1860 - ss. 363, 364A, 384, 386, 387, 397 and
504 - Sanction order - Challenge to - FIR was registered against
the appellant for offences u/s 363, 364A, 384, 386, 387, 397 and
504 IPC - The appellant having remained out of reach, a
proclamation was issued u/s 82 of the CrPC r/w. s.20(3) of MCOCA,
declaring him as an 'absconder' - ADGP and Commissioner of
Police after examining the proposal of Assistant Commissioner of
Police for according sanction in terms of s.23(2) of MCOCA,
granted the sanction for prosecution of appellant under IPC, Arms
Act and MCOCA due to the previous involvement of the appellant
in other criminal cases - After the sanction, police filed the chargesheet against the accused persons including appellant - Appellant
approached the High Court challenging the sanctioning order -
The High Court examined the contents of sanction order and, after
finding no legal flaw or shortcoming therein, proceeded to dismiss
the writ petition - High Court rejected the contention raised by the
appellant that the sanctioning authority did not apply its mind - On
appeal, held: The suggestions on behalf of the appellant to limit the
activity only to the use of violence is obviously incorrect when it
omits to mention the wide-ranging activities contemplated by clause
(e) of s.2(1) of MCOCA, i.e., threat or violence or intimidation or
coercion or other unlawful means - Actual use of violence is not
always a sine qua non for an activity falling within the mischief of
organised crime - The second part of the requirement of the nature
of activity, i.e., pecuniary benefit, has also not been projected
correctly on behalf of the appellant - The requirement of law is not
limited to pecuniary benefits but it could also be of 'gaining undue
economic or other advantage - Sanctioning Authority, was
conscious of the requirement of law and indeed examined the matter
only with reference to such requirement and issued the sanction
order in question only after arriving at the requisite satisfaction -
[2022] 4 S.C.R. 1128
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Challenge to the judgment as passed by the High Court, and to the
sanctioning order, required to be rejected when the appellant had
been declared absconder.
Maharashtra Control of Organised Crime Act, 1999 - ss.
2(1)(d), 2(1)(e), 3(1)(ii), 3(2), 3(4) & 23(2) - Object of - This
enactment is for making special provisions for dealing with the
menace of organised crime causing serious threat to the society -
No doubt, the enactment makes stringent provisions with several
extraordinary measures but, the peculiar nature of the mischief
sought to be tackled, i.e., of organised crime, has obviously led to
such extraordinary measures, particularly when the existing legal
framework was found to be rather inadequate to control the menace.
Dismissing the appeal, the Court
HELD: 1. A comprehensive look at the objects and reasons
for enactment of Maharashtra Control of Organised Crime Act,
1999 (MCOCA), its overall purpose signified in its Preamble,
and the relevant definitions in Section 2 as also the punishments
provided in Section 3, leave nothing to doubt that this enactment
is for making special provisions for dealing with the menace of
organised crime causing serious threat to the society. No doubt,
the enactment makes stringent provisions with several
extraordinary measures but, the peculiar nature of the mischief
sought to be tackled, i.e., of organised crime, has obviously led
to such extraordinary measures, particularly when the existing
legal framework was found to be rather inadequate to control the
menace. [Para 11][1151-G-H; 1152-A]
2. The provisions of MCOCA need to be strictly construed
and for their application, an unlawful activity has to fall within the
periphery of organised crime. However, the question still remains
as to the import of the requirement of 'strict construction' of the
stringent provisions? A brief reference to the fundamental legal
principles in that regard shall be apposite.

## Text

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SUPREME COURT REPORTS
[2022] 4 S.C.R.
1128
ABHISHEK
v.
STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 869 of 2022)
MAY 20, 2022
[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
Penal Code, 1860 - ss. 363, 364A, 384, 386, 387, 397 and
504 - Sanction order - Challenge to - FIR was registered against
the appellant for offences u/s 363, 364A, 384, 386, 387, 397 and
504 IPC - The appellant having remained out of reach, a
proclamation was issued u/s 82 of the CrPC r/w. s.20(3) of MCOCA,
declaring him as an 'absconder' - ADGP and Commissioner of
Police after examining the proposal of Assistant Commissioner of
Police for according sanction in terms of s.23(2) of MCOCA,
granted the sanction for prosecution of appellant under IPC, Arms
Act and MCOCA due to the previous involvement of the appellant
in other criminal cases - After the sanction, police filed the chargesheet against the accused persons including appellant - Appellant
approached the High Court challenging the sanctioning order -
The High Court examined the contents of sanction order and, after
finding no legal flaw or shortcoming therein, proceeded to dismiss
the writ petition - High Court rejected the contention raised by the
appellant that the sanctioning authority did not apply its mind - On
appeal, held: The suggestions on behalf of the appellant to limit the
activity only to the use of violence is obviously incorrect when it
omits to mention the wide-ranging activities contemplated by clause
(e) of s.2(1) of MCOCA, i.e., threat or violence or intimidation or
coercion or other unlawful means - Actual use of violence is not
always a sine qua non for an activity falling within the mischief of
organised crime - The second part of the requirement of the nature
of activity, i.e., pecuniary benefit, has also not been projected
correctly on behalf of the appellant - The requirement of law is not
limited to pecuniary benefits but it could also be of 'gaining undue
economic or other advantage - Sanctioning Authority, was
conscious of the requirement of law and indeed examined the matter
only with reference to such requirement and issued the sanction
order in question only after arriving at the requisite satisfaction -
[2022] 4 S.C.R. 1128
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Challenge to the judgment as passed by the High Court, and to the
sanctioning order, required to be rejected when the appellant had
been declared absconder.
Maharashtra Control of Organised Crime Act, 1999 - ss.
2(1)(d), 2(1)(e), 3(1)(ii), 3(2), 3(4) & 23(2) - Object of - This
enactment is for making special provisions for dealing with the
menace of organised crime causing serious threat to the society -
No doubt, the enactment makes stringent provisions with several
extraordinary measures but, the peculiar nature of the mischief
sought to be tackled, i.e., of organised crime, has obviously led to
such extraordinary measures, particularly when the existing legal
framework was found to be rather inadequate to control the menace.
Dismissing the appeal, the Court
HELD: 1. A comprehensive look at the objects and reasons
for enactment of Maharashtra Control of Organised Crime Act,
1999 (MCOCA), its overall purpose signified in its Preamble,
and the relevant definitions in Section 2 as also the punishments
provided in Section 3, leave nothing to doubt that this enactment
is for making special provisions for dealing with the menace of
organised crime causing serious threat to the society. No doubt,
the enactment makes stringent provisions with several
extraordinary measures but, the peculiar nature of the mischief
sought to be tackled, i.e., of organised crime, has obviously led
to such extraordinary measures, particularly when the existing
legal framework was found to be rather inadequate to control the
menace. [Para 11][1151-G-H; 1152-A]
2. The provisions of MCOCA need to be strictly construed
and for their application, an unlawful activity has to fall within the
periphery of organised crime. However, the question still remains
as to the import of the requirement of 'strict construction' of the
stringent provisions? A brief reference to the fundamental legal
principles in that regard shall be apposite. So far as the applicability
of the rule of strict construction qua MCOCA is concerned, it
being a special penal statute, this much is clear that no one is to
be made subject to this law by implication or by presumption;
and all doubts concerning its application would, ordinarily, be
resolved in favour of the accused. However, the rule of strict
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construction cannot be applied in an impracticable manner so as
to render the statute itself nugatory. In other words, the rule of
strict construction of a penal statute or a special penal statute is
not intended to put all the provisions in such a tight iron cast that
they become practically unworkable, and thereby, the entire
purpose of the law is defeated. As regards application of MCOCA,
what is required to be seen is as to whether the basic and threshold
requirements, as per combined reading of clauses (d), (e) and (f)
of Section 2(1) thereof, are fulfilled. If they are not so fulfilled,
mere use of the expressions of the statute in the sanction order
would be of no effect but, on the other hand, if the requirements
are fulfilled, mere want of any expression or word in a particular
passage in the sanction order would not take away the substance
of the matter. In other words, strict adherence by the authorities
concerned to the requirements of MCOCA also cannot be
stretched beyond common sense and practical requirements in
terms of the letter and spirit of the statute. [Paras 12.3, 12.6 and
12.7][1154-G-H; 1156-B-D; G-H; 1157-A-B]
3. A bare look at clause (e) of Section 2(1) of MCOCA
makes it clear that 'organised crime' means any unlawful activity
by an individual singly or jointly, either as a member of 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. The suggestions on behalf of the appellant to limit the
activity only to the use of violence is obviously incorrect when it
omits to mention the wide-ranging activities contemplated by
clause (e) of Section 2(1) of MCOCA, i.e., threat or violence or
intimidation or coercion or other unlawful means. Actual use of
violence is not always a sine qua non for an activity falling within
the mischief of organised crime, when undertaken by an individual
singly or jointly as part of organised crime syndicate or on behalf
of such syndicate. Threat of violence or even intimidation or even
coercion would fall within the mischief. This apart, use of other
unlawful means would also fall within the same mischief. The
second part of the requirement of the nature of activity, i.e., its
objective, has also not been projected correctly on behalf of the
appellant. The requirement of law is not limited to pecuniary
benefits but it could also be of 'gaining undue economic or other
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advantage'. The frame of the proposition that the object ought to
be gaining pecuniary benefit or other 'similar' benefit is not
correct as it misses out the specific phraseology of the enactment
which refers to undue economic or other advantage apart from
pecuniary benefit. The Full Bench of the High Court in Jagan
Gagansingh Nepali @ Jagya has rightly said that there could be
advantage to a person committing a crime which may not be
directly leading to pecuniary advantage or benefit but could be of
getting a strong hold or supremacy in the society or even in the
syndicate itself. As noticed above, the purpose of this enactment
is to be kept in view while interpreting any expression therein
and in the name of strict construction, its spirit and object cannot
be whittled down. [Paras 14.1, 14.2 and 14.4][1158-H; 1159-A-E;
1161-G-H; 1162-A]
3. The common thread of "violence" or "threat of violence"
or "unlawful means" running through all of these cases is not a
matter requiring any analysis, for the same being apparent on
the face of record. Significantly, the aforesaid had not been the
cases involving the appellant singularly; and more significantly,
the alleged team leader RS is the co-accused in at least three
previous cases. This is apart from the recurrence of other coaccused persons in one case or the other. It has rightly been
pointed out on behalf of the respondent-State that in order to
attract MCOCA, every previous case need not be of the object
of gaining pecuniary benefit alone. The cases in question, apart
from involving the offences against human body and property,
also include variety of other offences including those of rioting
while armed with deadly weapons; causing insult to provoke
breach of peace; and criminal intimidation. They also include the
offence under the Arms Act. In all the referred cases, use of
violence has specifically been alleged. In the crime chart, the
nature of activities and the persons involved leave nothing to
doubt that the involvement of the appellant in such crimes and
unlawful activities which are aimed at gaining pecuniary
advantages or of gaining supremacy and thereby, leading to other
unwarranted advantages is clearly made out. The criticism of the
impugned sanction order dated 05.11.2020, that it had been of
mere repetition of the expression of statute, is also difficult to be
accepted. The High Court, in the impugned order, has rightly
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observed that the said order is required to be viewed in its totality,
and its substance cannot be ignored by isolated reference to a
particular line or expression. This Court has not an iota of doubt
that firstly, the approving authority, and then, the sanctioning
authority, were conscious of the requirement of law and indeed
examined the matter only with reference to such requirement;
and issued the orders in question only after arriving at the requisite
satisfaction. It has rightly been pointed out on behalf of the
respondent that in such matters, the competent authority has to
focus essentially on the factum whether the material in question
reveals the commission of crime, which is an organised crime,
committed by the organised crime syndicate. [Para 15.1, 15.2
and 16][1162-G-H; 1163-AF]
4. The submissions about taking irrelevant factors into
account with reference to the said two cases resulting in acquittal
and discharge must fail for the simple reason that for the purpose
of clause (d) of Section 2(1) of MCOCA, the result of a particular
matter is not decisive of the question as to whether the activity
in question answers to the description of 'continuing unlawful
activity' or not. These had not been offences committed singlehanded by the appellant and charge-sheets were indeed filed
therein. The matter of settlement because of cross-cases or a
matter of acquittal because of the witnesses not turning up, could
hardly be of any relevance so far as clause (d) of Section 2(1) of
MCOCA is concerned. Therefore, it cannot be said that any
irrelevant matter has been taken into consideration by the
sanctioning authority. What is significant and pertinent for the
purpose of Section 2(1)(d) is the involvement of the person
concerned in the referred activity and filing of charge-sheet and
taking of cognizance in the offence as predicated. Acquittal or
discharge is of no significance. The reference in the confessional
statements of the two co- accused persons in relation to the
appellant is not a factor entirely irrelevant for the appellant being
a co-accused person with them. The detailed discussion by the
sanctioning authority to the substantial pieces of evidence
collected in the matter rather fortifies the conclusion that the
sanctioning authority has meticulously applied its mind to all the
relevant factors and has taken an overall view of the matter before
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forming the final opinion in favour of granting the sanction. The
contention in that regard also fails. Thus, challenge to the judgment
as passed by the High Court on 16.12.2021, and to the sanctioning
order dated 05.11.2020, was required to be rejected when the
appellant had indeed been declared absconder. However, as
observed hereinbefore, this Court has considered it proper to
first examine the matter on merits because notices had been
issued to the respondents and it had appeared serving the cause
of justice to deal with the matter on merits. As noticed, all the
contentions urged on behalf of the appellant remain baseless
and challenge herein ought to fail. [Paras 17.5, 18.1 and 22]
[1166-F-H; 1167-B; 1168-B-C; 1170-B-D]
State of Maharashtra v. Jagan Gagansingh Nepali @
Jagya & Anr.: (2011) SCC OnLine Bombay 1049 -
approved.
Khaja Bilal Ahmed v. State of Telangana & Ors.: (2020)
13 SCC 632 : 2020 (1 ) SCALE 41 - held inapplicable.
State of Maharashtra & Ors. v. Lalit Somdatta Nagpal
& Anr.: (2007) 4 SCC 171 : [2007] 2 SCR 473;
Ranjitsing Brahmajeetsing Sharma v. State of
Maharashtra & Anr.: (2005) 5 SCC 294 : [2005] 3 SCR
345; Jagannath Misra v. State of Orissa: (1966) 3 SCR
134; Mohindhr Singh Gill & Anr. v. Chief Election
Commissioner, New Delhi & Ors.: (1978) 1 SCC 405 :
[1978] 2 SCR 272; State of Maharashtra v. Kamal
Ahmed Mohammed Vakil Ansari & Ors.: (2013) 12 SCC
17 : [2013] 5 SCR 128; Kavitha Lankesh v. State of
Karnataka & Ors.: (2021) SCC OnLine 956; Vinod G.
Asrani v. State of Maharashtra: (2007) 3 SCC 633 :
[2007] 2 SCR 1023; Balram Kumawat v. Union of India
& Ors.: (2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24;
Prem Shankar Prasad v. State of Bihar and Anr.: (2021)
SCC OnLine SC 955 - referred to.
Case Law Reference
[2007] 2 SCR 473
referred to
Para 6.1
[2005] 3 SCR 345
referred to
Para 6.2
ABHISHEK v. STATE OF MAHARASHTRA & ORS.
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[2022] 4 S.C.R.
[1966] 3 SCR 134
referred to
Para 6.4
[1978] 2 SCR 272
referred to
Para 6.4
[2013] 5 SCR 128
referred to
Para 7.4
[2007] 2 SCR 1023
referred to
Para 7.6
[2003] 3 Suppl. SCR 24
referred to
Para 12.6
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
869 of 2022.
From the Judgment and Order dated 16.12.2021 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition
No.667 of 2020.
Vinay Navare, Sr. Adv., Mehul M. Gupta, R. P. Gupta, Advs. for
the Appellant.
Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms.
Shwetal Shepal, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Leave granted.
2. By way of this appeal, the appellant has challenged the judgment
and order dated 16.12.2021, as passed by the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur in Criminal Writ Petition No. 667 of
2020 whereby, the High Court has rejected his challenge to the order
dated 05.11.2020, as issued by the Additional Director General of Police
and Commissioner of Police, Nagpur City1 under Section 23(2) of the
Maharashtra Control of Organised Crime Act, 19992 sanctioning
prosecution of the appellant with five other accused persons in Crime
No. 251 of 2020 of Sadar Police Station, Nagpur City for varying offences
under the Indian Penal Code, 18603, the Arms Act, 19594 as also MCOCA.
3. The genesis of the present appeal is in the complaint filed on
08.05.2020 at Police Station Sadar, Nagpur City. Therein, the complainant
1 Hereinafter also referred to as the 'sanctioning authority'.
2 For short, 'MCOCA'.
3 For short, 'IPC'.
4 Hereinafter also referred to as 'the Arms Act'.
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alleged that on 02.05.2019, he was forcefully kidnapped from Motimahal
Restaurant, Sadar, Nagpur; and was intimidated with knife and a ransom
of Rs. 20 lakhs was demanded by the accused persons. The complainant
alleged that three of the accused persons were known to him, being the
present appellant Abhishek Singh, as also one Ankit Pali and another
Roshan Sheikh. The complainant also alleged that the accused persons
asked him to give them papers of his ancestral property and to hand
over the shop; threatened him from time-to-time to kill; forcefully took
his son in a vehicle; created terror of killing him and his son; and forcefully
took out an amount of Rs. 9,000 to Rs. 11,000 from his pocket. The
complainant further alleged that the accused persons visited his house
from time-to-time demanding money; and that out of fear, he had left his
house and was staying at other places.
3.1. On the basis of the complaint aforesaid, the said Crime No.
251 of 2020 came to be registered for offences under Sections 363,
364A, 384, 386, 387, 397 and 504 IPC.
3.2. It is noticed that the appellant, apprehending arrest, applied
for pre-arrest bail and on 11.05.2020, the Sessions Judge, Nagpur granted
him ad interim bail.
3.3. However, on 02.06.2020, the Additional Commissioner of
Police (Crime), Crime Branch, Nagpur City examined the proposal
submitted by the Police Inspector, Crime Branch, Nagpur City for addition
of Sections 3(1)(ii), 3(2) and 3(4) of MCOCA in the said Crime No. 251
of 2020 against six accused persons, including the appellant. The said
Additional Commissioner of Police, in his approval order dated 02.06.2020,
inter alia, observed that more than one charge-sheet had been filed
against the accused persons involving offences for which, punishment
of three years or more of imprisonment had been prescribed; and the
previous record made out that the accused persons had committed
offences of very serious nature under IPC and related special enactments.
The Additional Commissioner of Police recorded his satisfaction while
granting approval in the following terms: -
"Previous preventive actions taken against the above mentioned
accused failed to show desired results. According to the record, it
seems that ultimate intention of the accused persons is to gain
pecuniary benefit, establishing supremacy in the locality, create
terror in the minds of the people in order to have pecuniary gain
ABHISHEK v. STATE OF MAHARASHTRA & ORS.
[DINESH MAHESHWARI, J.]
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& other advantages by committing such serious offence. The
preventive actions taken against them on multiple occasions till
date have failed to produce desired results and also after taking
preventive actions on multiple times above named criminals in an
organized way committed serious offences. Hence, it is very much
clear that preventive actions taken against them failed to produce
desired results.
I am prima facie satisfied that every other time above mentioned
accused commit the offence with new offender thereby creates
crime syndicate and there is enough material evidence available
and record to give prior approval for investigation under the
provisions of section 3(1)(ii), 3(2) & 3(4) of M.C.O.C. Act, 1999
against the above mentioned accused as per authority vested in
me under section 23(1) (A) of the M.C.O.C. Act 1999."
3.4. On the invocation of MCOCA in terms of the approval
aforesaid, the application for pre-arrest bail filed by the appellant was
rejected by the Sessions Judge, Nagpur. However, for the appellant having
remained out of reach, a proclamation was issued on 14.10.2020 under
Section 82 of the Code of Criminal Procedure, 19735 read with Section
20(3) of MCOCA, declaring him as an 'absconder'.
3.5. On 05.11.2020, the Additional Director General of Police and
Commissioner of Police, Nagpur City, examined the proposal of the
Assistant Commissioner of Police (Crime), Crime Branch, Nagpur dated
31.10.2020 for according sanction in terms of Section 23(2) of MCOCA
for prosecution of the accused persons in Crime No. 251 of 2020 for the
offences under IPC, Arms Act as also MCOCA; and proceeded to issue
such sanction as per the proposal. This sanction order dated 05.11.2020
is the bone of contention in the present matter. Its relevant contents,
particularly in relation to the appellant, could be usefully noticed as under:-
"...It is also revealed that preventive actions have been taken
against the Team Leader and accused No. 5 Abhishek u/s 110 of
the Cr. P.C. at Sitaburdi Police station. It is also revealed that the
Team leader continues to commit the heinous offences involving
different members of his crime syndicate mainly for pecuniary
benefit and other advantage.
5 For short, 'CrPC'.
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The Team leader Roshan Sheikh has committed total 9 offences,
out of which, he has committed 4 offences jointly with accused
No. 5 Abhishek, out of which charge sheets have been filed in the
court in 3 cases and one present offence is under investigation...
It is thus revealed that in total 4 cases charge sheets have been
filed in the court against the Team Leader, accused No. 5 Abhishek,
accused no. 4 Irfan Khan jointly. Thus in total 4 cases charge
sheet have been filed jointly in respect of their crime syndicate
and court has also taken the cognizance. The Chart showing charge
sheets jointly filed in respect of their crime syndicate is annexed
herewith as Annexure-B.
***
***
***
The Accused No. 5 Abhishek has committed total 7 offences, out
of which, he has committed 3 offences jointly with Team Leader
i.e. crime No. 482/15 of Nandanwan P.S., Crime No. 196/16
Sitaburdi P. S., and crime No. 83/17 Sitaburdi and one offence
jointly with their present crime syndicate. The accused no. 5 has
committed remaining 2 offences U/s 307 of IPC of Burdi P.S.
with other different members of their crime syndicate and one
offence under section 4/25 of Arms Act of Ambazari P. S. with
other different members of their crime syndicate and charge sheets
have been filed in all above cases against the accused No. 5. The
accused No. 5 had obtained Anticipatory Bail on registration of
present FIR and after application of the MCOCA he is absconding.
The Chart showing total 7 offences committed by the accused
No. 5 is annexed herewith as Chart- F.
***
***
***
It is further revealed that the Preventive action also has been
taken against Team Leader and accused No. 5 Abhishek, but in
vain. Offences under Arms Act are also found registered against
the Team leader and accused No. 5 and 6 but could not deter
them from committing such offences for pecuniary benefit. It is
thus appears that there is fulfillment of the essential ingredients of
the section 2 (d) and (e) of MCOCA.
EVIDENCE COLLECTED IN PRESENT OFFENCE: -
1. It is revealed that the Team Leader and accused No. 3 Sallim
Kaji have given Confession u/s 18 of MCOCA and disclosed
ABHISHEK v. STATE OF MAHARASHTRA & ORS.
[DINESH MAHESHWARI, J.]
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modus adopted for committing such serious offences punishable
under above said provisions for pecuniary benefit and for other
advantage.
2. It reveals that the accused No. 3 has disclosed in his Confession
about how and in what manner all other members of present crime
syndicate are involved in the present crime and what is exact role
of each member and also the modus opted by the Team leader in
committing such heinous offences, by deceiving various victims
for pecuniary benefits.
3. The Team leader also has disclosed all his illegal acts, names of
the victims, instances of extortion and modus of blackmailing
adopted by him for extortion for pecuniary benefits. The I. O. has
recorded statements of all such victims as evidence relating to
the illegal heinous acts of the Team leader. In all total 24 statements
of witnesses have been recorded by the I.O.
***
***
***
I am satisfied that the accused No. 1 to 6 are members of an
"Organized crime syndicate" and have jointly & singly committed
serious and violent offences for pecuniary benefit. I am satisfied
that the Team leader Roshan Sheikh and above named other coaccused No. 2 to 6 in the present crime No.251/2020 of Sadar
P.S., are involved in "Continuing Unlawful Activity", defined in
section 2 (1) (d) and (e) of MCOCA i. e. they are indulging in use
of violence, threats of violence, intimidation to gain pecuniary
benefit or undue economic or other advantage for themselves or
any other person, by committing cognizable offences, punishable
with imprisonment of 3 years or more, singly or jointly, and also
undertaken as members of syndicate, in respect of which more
than one charge sheets have been filed in competent Court.
***
***
***"
3.6. In view of the above, the sanctioning authority recorded its
satisfaction that all the essential ingredients of Sections 2(1)(d) and
2(1)(e) of MCOCA were fulfilled and hence, proceeded to grant sanction
in terms of Section 23(2) of MCOCA for prosecution of the six accused
persons including the appellant for the aforesaid offences, inclusive of
the offences under MCOCA.
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3.7. After the sanction aforesaid, the police filed the charge-sheet
on 07.11.2020 in the said Crime No. 251 of 2020. This led the appellant
to file Writ Petition No. 667 of 2020 in the High Court, questioning the
sanction order dated 05.11.2020.
4. As noticed from the contents of the impugned sanction order
dated 05.11.2020, the previous involvement of the appellant in other
criminal cases with at least three of them jointly with the alleged team
leader, had been the part of consideration in the sanctioning authority
ultimately issuing sanction for prosecution in relation to the offences
under MCOCA alongwith the other offences in Crime No. 251 of 2020.
The involvement of the appellant in other cases had gone into
consideration of the High Court too. As shall be noticed hereafter, the
nature of other cases and the results of a couple of them forms a part of
the submissions in support of this appeal. It would, therefore, be
appropriate to take note of the cases in which the appellant is, or had
been, involved. The particulars and status of these cases with the nature
of offences and the names of accused persons are as follows: -
Serial number 1
Police Station:
Sitabuldi
Crime No. & Date:
3283/2012, dated 15.07.2012
Accused persons:
1. Abhishek Singh 2. Keval Patel
Offences:
Sections 4/25 of Arms Act and 135 of
Maharashtra Police Act
Status:
Pending before JMFC, Nagpur.
Serial number 2
Police Station:
Sitabuldi
Crime No. & Date:
13/2012, dated 11.01.2012
Accused persons:
1. Abhishek Singh 2. Harsh Modi
Offences:
Sections 307, 34 IPC
Status:
The appellant Abhishek and co-accused
were acquitted by the Sessions Court on
09.05.2017.
ABHISHEK v. STATE OF MAHARASHTRA & ORS.
[DINESH MAHESHWARI, J.]
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[2022] 4 S.C.R.
Serial number 3
Police Station:
Nandanvan
Crime No. & Date:
482/2015, dated 20.12.2015
Accused persons:
1. Shashank Chaudhari, 2. Roshan Sheikh,
3. Pankaj Dharwal, 4. Abhishek Singh
5. Divyam Samrit, 6. Harsh Modi
Offences:
Sections 143, 147, 148, 149, 294, 324, 325
IPC
Status:
This was a cross-case with Crime No. 481
of 2015 and the parties having arrived at
settlement, the High Court, by its order
dated 13.04.2016, quashed the
proceedings.
Serial number 4
Police Station:
Sitabuldi
Crime No. & Date:
196/2016, dated 06.05.2016
Accused persons:
1. Sameer Sharma, 2. Kammu @ Kamlesh
Yadav, 3. Abhishek Singh 4. Roshan Sheikh,
5. Jaiprakash @ Vinod @ Pande Shukla
Offences:
Sections 143, 147, 148, 149, 294, 323, 326,
324 IPC.
Status:
Charge-sheet has been filed and the case
is said to be pending.
Serial number 5
Police Station:
Sitabuldi
Crime No. & Date:
517/2016, dated 18.11.2016
Accused persons:
1. Sameer Sharma, 2. Abhishek Singh 3.
Shrikant Wanwe 4. Shubham Jaiswal 5.
Rakesh Samrutwar 6. Vishnu Tripathi 7.
Rajlannan Pande 8. Ramashankar Mishra
9. Mohd. Wasim
Offences:
Sections 143, 147, 148, 149, 307 IPC and
3/25 Arms Act.
Status:
Charge-sheet has been filed and the case
is said to be pending.
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Serial number 6
Police Station:
Sitabuldi
Crime No. & Date:
83/2017, dated 08.03.2017
Accused persons:
1. Roshan Sheikh, 2. Sunil Kuril, 3.
Kamlesh Yadav, 4. Divyam Samit, 5.
Rudram Samrit, 6. Abhishek Singh
Offences:
Sections 143, 147, 148, 149, 323, 294 and
506 IPC.
Status:
Charge-sheet has been filed and the case
is said to be pending.
Serial number 7
Police Station:
Sadar
Crime No. & Date:
251/2020, dated 08.05.2020
Accused persons:
1. Roshan Sheikh, 2. Sohil Khan, 3. Salim
Kazi, 4. Irfan Khan, 5. Abhishek Singh, 6.
Ankit Pali
Offences:
Sections 363, 364A, 384, 386, 387, 397, 504,
506 IPC, 4/25 Arms Act, and 3(1)(ii), 3(2)
and 3(4) MCOCA.
Status:
It is the present case where charge-sheet
has been filed.
5. Having taken note of the relevant background aspects, we may
now refer to the submissions made before, and considerations of, the
High Court.
5.1. In challenge to the sanction order dated 05.11.2020, it was
urged on behalf of the appellant before the High Court that the sanctioning
authority had not recorded specific satisfaction about the existence of
'organised crime syndicate' in terms of Section 2(1)(f) of MCOCA; and
mere satisfaction about the alleged existence of the ingredients of Section
2(1)(d), which defines 'continuing unlawful activity' and Section 2(1)(e),
which defines 'organised crime', was not sufficient for according
sanction. In other words, the contention had been that there was no
question of granting sanction in terms of Section 23(2) of MCOCA, for
the vital predicate, being the existence of 'organised crime syndicate',
as defined by Section 2(1)(f) of MCOCA, having not been fulfilled.
ABHISHEK v. STATE OF MAHARASHTRA & ORS.
[DINESH MAHESHWARI, J.]
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5.2. The High Court took note of the background aspects, including
the facts pertaining to the appellant and his involvement in various other
cases, some of them in league with the team leader Roshan Sheikh and
other persons. The High Court also examined the contents of sanction
order dated 05.11.2020 and, after finding no legal flaw or shortcoming
therein, proceeded to dismiss the writ petition while, of course, making it
clear that any observations occurring in the order would not influence or
prejudice the trial or pre-empt any legitimate defence of the appellant.
The High Court, inter alia, observed, held and concluded as follows: -
"13. It is only after the record of satisfaction in the aforesaid
terms that the sanctioning authority, in terms of Section 23 (2) of
the said Act, has proceeded to record further satisfaction in terms
of focus by Mr. Mishra, learned Senior Advocate and quoted at
para no. 5 of this order. Even the quotation makes it clear that
satisfaction about the existence of the essential ingredients is "in
view of the forgoing observations". The satisfaction is not
restricted to the ingredients of Section 2(d) and 2(e) of the said
Act but to the ingredients of the said Act in general though,
particular reference may have been made in the above-quoted
portion to Section 2(d) and 2(e) of the said Act.
14. Therefore, based upon the reading of only the above-quoted
portion, it will not be proper to hold that the sanctioning authority
has either not applied its mind and failed to record any satisfaction
about the existence of "organized crime syndicate" as defined
under Section 2(f) of the said Act or satisfaction that these accused
persons including the petitioner herein are a part of or are the
members of this organized crime syndicate. The impugned sanction
order is to be read in its entirety and based on some truncated
portion, no contention can be advanced or at least sustained about
any alleged non-application of mind by the sanctioning authority
to the requirements of Section 2(1) of the said Act. Besides, the
contention raised by Mr. Mishra, learned Senior Advocate not
only over focusses on the above-quoted portion but tends to
completely ignore the specific satisfaction recorded in the
impugned sanction order about not only the existence of an
organized crime syndicate in terms of Section 2(f) of the said Act
but, also that the accused persons including the petitioner are
members of such syndicate and further, have singly or jointly
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committed serious and violent offenses for pecuniary and other
benefits. Therefore, we are satisfied that the impugned sanction
order warrants no interference on the ground now urged before
us.
15. At the request of Mr. Mishra, learned Senior Advocate, however,
we clarify that observations in this order are only prima facie and
nothing in this order is even remotely intended to either influence
or prejudice the trial and merits or to preempt any legitimate
defenses that the petitioner may have in the course of such trial.
16. This petition is therefore dismissed. The rule is discharged.
There shall be no order as to costs."
6. Assailing the judgment and order of the High Court as also the
sanction order dated 05.11.2020, the learned senior counsel for the
appellant has taken us through the scheme of the Maharashtra Control
of Organised Crime Act, 1999, as also the record of the case and has
put forth a variety of submissions for consideration, which could be
summarised as follows:
6.1. Learned senior counsel, with reference to various provisions
of MCOCA, has made the opening submissions that this enactment is of
drastic consequences where not only minimum period of sentence is
provided under Section 3, several measures of extraordinary nature have
been provided, like interception of communications (Section 14); special
rules of evidence overriding ordinary rules as contained in CrPC and the
Indian Evidence Act, 18726, with converse burden of proof on the accused
(Section 17); use of confessions made to the police officer (Section 18);
forfeiture and attachment of property (Section 20) and modified
application of CrPC with several protections being overridden. The
learned counsel would submit that looking to the drastic and serious
consequences, this Court has clearly provided that the provisions of
MCOCA have to be strictly construed by the Courts; and the authorities
concerned must strictly adhere to the same. The learned counsel has
referred to the decision in the case of State of Maharashtra & Ors. v.
Lalit Somdatta Nagpal & Anr.: (2007) 4 SCC 171, particularly
paragraph 62 thereof.
6 Hereinafter also referred to as 'the Evidence Act'.
ABHISHEK v. STATE OF MAHARASHTRA & ORS.
[DINESH MAHESHWARI, J.]
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6.2. The learned senior counsel has further submitted that by virtue
of Section 2(1)(d) read with Sections 2(1)(e) and 2(1)(f) of MCOCA, to
invoke its provisions, a minimum of two charge-sheets are required to
have been filed with twin allegations, i.e., of a) violence and b) the object
being of gaining pecuniary benefit or other similar benefit. The learned
counsel would submit that in view of these twin requirements, the
prosecution cannot rely upon the cases where the allegations only relate
to violence but not to the object of gaining pecuniary or other benefit.
The learned counsel has particularly referred paragraph 24 of the decision
of this Court in the case of Ranjitsing Brahmajeetsing Sharma v.
State of Maharashtra & Anr.: (2005) 5 SCC 294.
6.3. With reference to the facts of the present case, learned senior
counsel for the appellant has strongly contended that even as per the
stand of the respondents, the allegations concerning pecuniary benefit
occur only in the present case of Crime No. 251 of 2020 and not in other
cases. Therefore, according to the learned counsel, the threshold
requirement of involvement of the appellant in two or more cases involving
the object of gaining pecuniary or similar benefit being not existing, even
if those cases are taken on their face value, the provisions of MCOCA
are inapplicable to the present case.
6.4. With reference to the contents of the sanction order and the
stand of the respondents, the learned senior counsel has submitted that
the cases forming the basis of the sanction order did not relate to any
pecuniary benefit nor any such consideration had occurred in the order
impugned but, in the concluding part, the sanctioning authority had
mechanically used the expressions 'to gain pecuniary benefit or undue
economic or other advantage'. According to the learned counsel, the
use of alternative, i.e., "or" has no basis whatsoever and thus, the order
impugned remains baseless where the propositions of the sanctioning
authority do not meet with the threshold requirements of Section 2(1)(f)
of MCOCA. The learned counsel has referred to the decision in the
case of Jagannath Misra v. State of Orissa:(1966) 3 SCR 134 and
has submitted that mere use of the expressions of the statute without
proper application to the facts is not countenanced, particularly in the
matters where the question of liberty of a person is involved. Thus,
according to the learned counsel, there being no such element of 'other
advantage' and these words having been used in an arbitrary and formal
manner, the prosecution is not entitled to rely upon the same. It has also
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been contended that, in fact, the plea of 'other advantage', as taken
before this Court, is rather an afterthought and is of an attempt at
improvement over the reasons recorded in the sanction order, which is
entirely impermissible in view of the decision of this Court in the case of
Mohindhr Singh Gill & Anr. v. Chief Election Commissioner, New
Delhi & Ors.: (1978) 1 SCC 405.
6.5. In other limb of submissions, the learned senior counsel has
particularly referred to the cases pertaining to Crime Nos. 13 of 2012
and 482 of 2015 and has submitted that these cases could not have been
considered at all for the reason that in the case relating to Crime No. 13
of 2012, the appellant was, in fact, acquitted by the Trial Court whereas
in the case relating to Crime No. 482 of 2015, the proceedings were
quashed by the High Court. It has been submitted that the order impugned
ought to have given specific reasons for placing reliance on such cases
despite acquittal and quashing. Therefore, again, learned counsel would
submit that the order issuing sanction deserves to be set aside.
6.6. Learned senior counsel has further submitted that the
sanctioning authority has placed reliance on the confessions recorded
under Section 18 of MCOCA and this could not have been done as selfserving exercise. In any case, according to the learned counsel, without
meeting the threshold requirement of two charge-sheeted cases with
the allegations applicable to MCOCA, no number of confessions in one
case could be taken as sufficient. The learned counsel has submitted
that any order having drastic consequences like those of application of
MCOCA, if proceeding on the basis of irrelevant material, while ignoring
the relevant considerations, cannot be approved and has referred to the
decision of this Court in the case of Khaja Bilal Ahmed v. State of
Telangana & Ors.: (2020) 13 SCC 632. The learned counsel would
submit that when the irrelevant material is excluded in the present case,
the sanction order falls to the ground and deserves to be set aside.
6.7. As regards the allegations of the respondents that the appellant
was an absconder, it has been submitted that the appellant had no intention
to abscond or not to face the judicial process and he has always been
available in Nagpur; and had travelled to Delhi to swear the affidavit
before this Court. It has been contended that the appellant, like in other
cases in the past, would fully cooperate with the investigation and with
the Trial Court but the arbitrary, illegal and mala fide invocation of the
drastic provisions of MCOCA, severely impinging the fundamental rights
ABHISHEK v.