# PRASAD SH RI KANT PU ROH IT , A v. STATE OF MAHARASHTRA&ANR

- **Citation:** [2015] 8 S.C.R. 575
- **Court:** Supreme Court of India
- **Decided:** 2015-04-15
- **Case number:** Criminal Appeal Nos. 1969-1970 of 2010
- **Bench:** Fakkir Mohamed Ibrahim Kalifulla, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prasad-sh-ri-kant-pu-roh-it-a-v-state-of-maharashtra-anr-30803
- **Pages:** 87

## Headnote

B
Maharashtra Control of Organized Crime Act, 1999:
c
Object and reason of enactment - Discussed.
s.2(1)(d) - Continuing unlawful activity - Essential
ingredients to come within the definition of 'continuing
unlawful activity' - Discussed.
D
s.2(1)(e) - Organized crime - Essential ingredients to
come within the definition of 'organized crime' - Discussed.
s.2(1)(e), (f)- Organized crime- Facts disclosed nexus E
of A-7 with the members of 'organized crime syndicate' and
nexus with offence in the nature of an 'organized crime' of
the two earlier cases namely Parbhani and Jalna and also
direct involvement in the present bomb blast at Malegaon -
Therefore, activity and involvement of A-7 in all three F
occurrences disclosed nexus in the crime and also with the
other accused involved in the crime and thereby the
satisfaction of the definition of 'continuing unlawful activity' of
an organized crime' on behalf of an organized crime
syndicate was sufficiently shown - Thus, by virtue of s.21 (4) G
A-7 not entitled to bail - In case of rest of the appellants for
invoking s.21 (4)(b), namely, to consider their claim for bail, it
can be held that for the present juncture with the available
575
H
576
SUPREME COURT REPORTS
(2015] 8 S.C.R.
A materials on record, it is not possible to show any nexus of
the appellants who have been proceeded against for their
involvement in Malegaon blast with the two earlier cases,
namely, Parbhani and Jalna - There is considerable doubt
about their involvement in Parbhani and Jalna and, therefore,
B they are entitled for their bail applications to be considered
on merits.
ss.2(1)(d), (e), (f), 11 - Malegaon bomb blast case -
Special judge passed the order of discharge on the footing
C that cognizance of two earlier cases within preceding 10 years
from the date of third occurrence was not satisfied and
simultaneously ordered transfer of the case to regular court
- On appeal, Division Bench held that the Special court
misdirected himself by stating that the cognizance was with
D reference to the offender and not the offence which led to the
passing of such illegal order and that cognizance of offence
was taken as early as on 7.9.2006 in Parbani case and
30. 9. 2006 in Jalna case which were within the preceding 10
years from the date of Malegaon case and therefore the order
E of discharge was not sustainable -
On appeal, held:
Cognizance is always of the offence and not the offender and
once the magistrate applies his judicial mind with reference
to the commission of an offence, the cognizance is taken at
F that very moment- The cognizance· of the offence taken into
account in respect of Parbhani and Jalna based on the
charge-sheets dated 07. 09. 2006 and 30. 09.2006 respectively
was perfectly in order to apply the definition of 'continuing
unlawful activity' for the purpose of invoking MCOCA with
G reference to Malegaon occurrence.
s.2(1)(d) -.Requirement offiling of charge-sheet in two
earlier cases before the competent court in respect of offence
uls.2(1)(d) can be held to be satisfied once cognizance is
H taken by a Judicial Magistrate of first class or for that matter
an empowered second class Magistrate in the event of filing
PRASAD SHRIKANT PUROHITv. STATE OF
577
MAHARASHTRA
of a police report as prescribed u/s. 173(2)(i) by virtue of power A
vested uls. 190(1 )(b) - If ingredients of the said requirement
are fulfilled, it will have to be held that that part of the
requirement u/s.2(1)(d) namely the competent court taking
cognizance of offence as stipulated u/s.2(1 )(d) in respect of
two earlier cases will get fulfilled.
B
s.2(1)(d) - Whether taking of cognizance of offence by
the competent court uls.2(1)(d) is referable only to the court
of sessions or even to a Magistrate of first class u/s. 190 -
Held: On fulfillment of s.190, when a Judicia/Magistrate of C
first class or an empowered second class Magistrate takes
cognizance of any offence that would fulfill the requirement
of s. 2(1 )(d) relating to

## Text

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[2015] 8 S.C.R. 575
PRASAD SH RI KANT PU ROH IT
, A
v.
STATE OF MAHARASHTRA&ANR
(Criminal Appeal Nos. 1969-1970 of 2010)
APRIL 15, 2015
[FAKKIR MOHAMED IBRAHIM KALIFULLA AND
ABHAY MANOHAR SAPRE, JJ.)
B
Maharashtra Control of Organized Crime Act, 1999:
c
Object and reason of enactment - Discussed.
s.2(1)(d) - Continuing unlawful activity - Essential
ingredients to come within the definition of 'continuing
unlawful activity' - Discussed.
D
s.2(1)(e) - Organized crime - Essential ingredients to
come within the definition of 'organized crime' - Discussed.
s.2(1)(e), (f)- Organized crime- Facts disclosed nexus E
of A-7 with the members of 'organized crime syndicate' and
nexus with offence in the nature of an 'organized crime' of
the two earlier cases namely Parbhani and Jalna and also
direct involvement in the present bomb blast at Malegaon -
Therefore, activity and involvement of A-7 in all three F
occurrences disclosed nexus in the crime and also with the
other accused involved in the crime and thereby the
satisfaction of the definition of 'continuing unlawful activity' of
an organized crime' on behalf of an organized crime
syndicate was sufficiently shown - Thus, by virtue of s.21 (4) G
A-7 not entitled to bail - In case of rest of the appellants for
invoking s.21 (4)(b), namely, to consider their claim for bail, it
can be held that for the present juncture with the available
575
H
576
SUPREME COURT REPORTS
(2015] 8 S.C.R.
A materials on record, it is not possible to show any nexus of
the appellants who have been proceeded against for their
involvement in Malegaon blast with the two earlier cases,
namely, Parbhani and Jalna - There is considerable doubt
about their involvement in Parbhani and Jalna and, therefore,
B they are entitled for their bail applications to be considered
on merits.
ss.2(1)(d), (e), (f), 11 - Malegaon bomb blast case -
Special judge passed the order of discharge on the footing
C that cognizance of two earlier cases within preceding 10 years
from the date of third occurrence was not satisfied and
simultaneously ordered transfer of the case to regular court
- On appeal, Division Bench held that the Special court
misdirected himself by stating that the cognizance was with
D reference to the offender and not the offence which led to the
passing of such illegal order and that cognizance of offence
was taken as early as on 7.9.2006 in Parbani case and
30. 9. 2006 in Jalna case which were within the preceding 10
years from the date of Malegaon case and therefore the order
E of discharge was not sustainable -
On appeal, held:
Cognizance is always of the offence and not the offender and
once the magistrate applies his judicial mind with reference
to the commission of an offence, the cognizance is taken at
F that very moment- The cognizance· of the offence taken into
account in respect of Parbhani and Jalna based on the
charge-sheets dated 07. 09. 2006 and 30. 09.2006 respectively
was perfectly in order to apply the definition of 'continuing
unlawful activity' for the purpose of invoking MCOCA with
G reference to Malegaon occurrence.
s.2(1)(d) -.Requirement offiling of charge-sheet in two
earlier cases before the competent court in respect of offence
uls.2(1)(d) can be held to be satisfied once cognizance is
H taken by a Judicial Magistrate of first class or for that matter
an empowered second class Magistrate in the event of filing
PRASAD SHRIKANT PUROHITv. STATE OF
577
MAHARASHTRA
of a police report as prescribed u/s. 173(2)(i) by virtue of power A
vested uls. 190(1 )(b) - If ingredients of the said requirement
are fulfilled, it will have to be held that that part of the
requirement u/s.2(1)(d) namely the competent court taking
cognizance of offence as stipulated u/s.2(1 )(d) in respect of
two earlier cases will get fulfilled.
B
s.2(1)(d) - Whether taking of cognizance of offence by
the competent court uls.2(1)(d) is referable only to the court
of sessions or even to a Magistrate of first class u/s. 190 -
Held: On fulfillment of s.190, when a Judicia/Magistrate of C
first class or an empowered second class Magistrate takes
cognizance of any offence that would fulfill the requirement
of s. 2(1 )(d) relating to the competent court.
s. 3(2) - Invocation of- Held: In_ order to invoke MCOCA o
even if a person may or may not have any direct role to play
as regards the commission of an organized crime, if a nexus
either with an accused who is a member of an 'organized
crime syndicate' or with the offence in the nature of an
'organized crime' is established that would attract the E
invocation of s. 3(2) of the Act.
Code of Criminal Procedure, 1973:
ss. 173(2), 190(1 )(b) - Scope of - Held: Reading F
s.173(2)(i) along with s.190(1)(b), a duty is cast upon the
officer in-charge of the police station mandatorily to forward
the report to the Magistrate who is empowered to take
cognizance of the offence on a police report - Under
s. 190(1 )(b) any Magistrate empowered for taking cognizance G
under sub-section (1) can take cognizance of any offence
based on filing of a police report furnished with the facts as
stipulated uls.173(2)(i) (a to h).
s.173(8) - Filing of supplementary charge-sheet -
H
Implication of -
Held: It does not amount to taking
578
SUPREME COURT REPORTS
[2015] 8 S.C.R.
A
cognizance by the court afresh with reference to the vel)I same
offence.
B
c
Words and phrases:
Cognizance - Meaning of
Insurgency- Meaning of.
Disposing of the appeals, the Court
HELD: 1.1 The Scheme of MCOCA disclose that
organized crime has been posing very serious threat to
our society for quite some years and it was also noted
that organized crime syndicates had a common cause
with terrorist gangs. In the Objects and Reasons, it was
o found that the existing legal framework, that is the penal
and procedural laws and the adjudicatory system, were
found to be inadequate to curb or control the menace of
'organized crime'. The Objects and Reasons also state
that such 'organized crimes' were filled by illegal wealth
E generated by contract killing, extrusion, smuggling in
contraband, illegal trade in narcotics, kidnapping for
ransom, collection of protection money, money
laundering etc. The definition of 'continuing unlawful
activity' under Section 2(1)(d) mainly refers to an activity
F prohibited by law. The said activity should be a
cognizable offence, punishable with imprisonment of
three years or more. The commission of such offence
should have been undertaken either by an individual
singly or by joining with others either as a member of an
G 'organized crime syndicate' or even if as an individual
or by joining hands with others even if not as a member
of a 'organized crime syndicate' such commission of an
offence should have been on behalf of such syndicate.
It further states that in order to come within the definition
H of 'continuing unlawful activity' there should have been
PRASAD SHRIKANT PUROHITv. STATE OF
579
MAHARASHTRA
more than one charge-sheet filed before a competent A
Court within the preceding period of 10 years and that
the said Court should have taken cognizance of such
offence. [Paras 38, 39] [618-E,F; 619-B-Hj'
Ajit Kumar Pa/it v. State of West Bengal Al R 1963 SC B
765: 1963 Suppl. SCR 953; R.R. Chari v. State of Uttar
Pradesh AIR 1951SC207: 1951SCR312; Darshan Singh
Ram Kishan v. State of Maharashtra AIR 1971SC2372: 1972
(1) SCR 571; CREF Finance Limited v. Shree Shanthi
Homes (P) Ltd. and Anr. 2005 (7) SCC 467: 2005 (2) Suppl. C
SCR 873 - relied on.
1.2. An 'organized crime' should be any 'continuing
unlawful activity' either by an individual singly or jointly,
either as a member of an 'organized crime syndicate' or o
on behalf of such syndicate. The main ingredient of the
said definition is that such 'continuing unlawful activity'
should have been indulged in by use of violence or threat
of violence or intimidation or coercion or other unlawful
means. Further, such violence and other activity should E
have been indulged in with an objective of gaining
pecuniary benefits or gaining undue economic or other·
advantage for himself or for any other person or for
promoting insurgency. The mere indulgence in a violent
actiyity etc. either for pecuniary gain or o~her advantage F
or for promoting insurgency as an individual, either
singly or jointly as a member of 'organized crime
syndicate' or on behalf of a such syndicate would be
sufficient for bringing the said activity within the four
corners of the definition of 'organized crime'. An G
'organized crime syndicate' is a group of two or more
persons who by acting singly or collectively as a
syndicate or gang indulge in activities of 'organized
crime'. By conspectus reading of the above three H
definitions, if in the preceding 10 years from the date of
580
SUPREME COURT REPORTS
[2015] 8 S.C.R.
A third continuing unlawful activity if more than one
charge-sheet has been filed before a competent Court
which had taken cognizance of such offence which
would result in imposition of a punishment of three years
or more, undertaken by a person individually or jointly
B either as a member of an 'organized crime syndicate' or
on its behalf, such crime if falls within the definition of
'organized crime', the invocation of MCOCA would be
the resultant position. [Paras 40 to 42] [620-B-H; 621-AC BJ
1.3. Under Section 21 (4) notwithstanding anything
contained in the Code, no person· accused of an offence
punishable under MCOCA, when he is in custody, should
be released on bail on his own bond unless under subD clause (b) of sub-section (4) even when the Public
Prosecutor opposes the application for bail, the Court
is satisfied that there are reasonable grounds for
believing that the said accused is not guilty of such
offence and that he is not likely to commit any offence
E while on bail. Under Section 22, there is a rebuttable
presumption of commission of organized crime
punishable under Section 3 unless the contrary is
proved. Under Section 23, a safeguard is provided to the
effect that under Section 23(1)(a) no information about
F the commission of an offence of organized crime under
MCOCA should be recorded by a police officer without
the prior approval of a police officer not below the rank
of Deputy Inspector General of Police. Further, under
Section 23(1)(b), no investigation of an offence under
G M'COCA shall be carried out by a police officer below the
rank of Deputy Superintendent of Police. Under subsection (2) of Section 23, no Special Court should take
cognizance of any offence under MCOCA without the
H previous sanction of the police offi-::;;r not below the rank
of Additional Director General of Police. The Act is thus
-
PRASAD SHRIKANT PUROHITv. STATE OF
581
MAHARASHTRA
very stringent in its operation when it comes to the A
question of dealing with an 'organized crime' committed
by an 'organized crime syndicate' in respect of a
'continuing unlawful activity'. [Paras 44 and 46] [622-DH; 623-A-B]
.
2.1. The cognizance of the offence as stated to have B
_been rightly taken into account in respect of Parbhani and
Jalna based on the charge-sheets dated 07.09.2006 and
30.09.2006 respectively was perfectly in order to apply the
definition of 'continuing unlawful activity' for the purpose c
of invoking MCOCA with reference to Malegaon
occurrence. Since Section 2(1 )(d) uses the expression 'an
activity' in the very opening set of expressions, which is
prohibited by law, the date of such activity, namely, the third
one can be taken as the relevant date for the purpose of o
finding out the two earlier charge-sheets in the preceding
10 years, in which event in the present case, the preceding
10 years will have to be counted from 29.09.2008 which
was the date when the third occurrence ofMalegaon bomb
blast took place.With reference to Malegaon bomb blast, E
A-7 is the key person. The contention put forward is that
the supplementary charge-sheet in respect of A-7 in
Parbhani case was filed only on 13.11.2008 and on
15.11.2008 in Jain a case and if those two dates with regard
toA-7 are taken.as the relevant dates, then the requirement F .
of two earlier cases as stipulated under Section 2(1)(d)
preceding 10 years period was not satisfied, inasmuch as,
the date of third occurrence was 29.09.2008 and the date
of charge-sheets as against the A-7 were subsequent to G
· that date and not earlier. [Paras 50 to 53] [625~0-E; 626-CD; 627-C-E]
2.2. A minute reference to Section 2(1 )(d) shows that
in the event of the fulfillment of the rest of the
requirements, namely, the nature of offence providing H
for punishment of three years and more, the involvement
582
SUPREME COURT REPORTS
[2015) 8 S.C.R.
A of the offender as required under the said definition,
when it comes to the question of filing of the chargesheet, the requirement of such filing should be before a
competent court within a period preceding 10 years and
that such court has taken cognizance of such offence.
B Significantly, when it comes to the question of fulfillment
of the requirement of cognizance what is prescribed is
the cognizance of such offence and not the offender. As
far as the court is concerned, here again the specific
reference used is 'competent court' and not 'Sessions
C Court'. Therefore, keeping aside the rest of the
requirements to be fulfilled under Section 2(1 )(d) for the
present, when considering the requirement of filing of
the.charge-sheet before the Competent Court and such
0
Court taking cognizance of such offence, it can be stated
without any scope of controversy that two earlier cases
which would attract a punishment of more than three
years and prohibitetl by law, undertaken singly or jointly
as a member of an organized crime syndicate or on its
E behalf, if more than one charge-sheet is filed in respect
of such offence before the Competent Court and the said
Court had taken cognizance of such offence, the
definition of "continuing unlawful activity" would be
satisfied. Keeping the said prescription of the definition
F of "continuing unlawful activity" under Section 2(1 )(d)
in mind when examining the question as to taking of
cognizance and the Competent Court before whom more
than one charge-sheet to be filed, there is no other
provision under MCOCA which deals with or prescribes
G any stipulation for fulfillment of the said requirement.
[Paras 58 and 59] [630-A-H]
2.3. Under Section 173(2)(i), Cr.P.C., it is stipulated
that as soon as the investigation is completed, the officer
H in-charge of the Police Station should forward to the
f
PRASAD SH RI KANT PUROHIT v. STATE OF
MAHARASHTRA
583
Magistrate who is empowered to take cognizance of the A
offence on a police report in the form prescribed by the
State Government, which should contain among other
things the names of the parties, the nature of information,
the names of the persons who appear to be acquainted
with the circumstances of the case and various other . B
details. When reading Section 173(2)(i) along with Section
190 ofCr.P.C., it can be seen that any Magistrate of the
first class or any Magistrate of the second class specially
empowered as provided under sub-section (2) of the said
Section may take cognizance of any offence upon a C
police report of such facts. Therefore, reading Section
173(2)(i) along with Section 190(1)(b), a duty is cast upon
the officer in-charge of the police station mandatorily to
forward to the Magistrate who is empowered to take 0
cognizance of the offence on a police report. Under
Section 190(1)(b) any Magistrate of the first class and
for that matter any Magistrate of second class who is
empowered by the Chief Judicial Magistrate for taking
cognizance under sub-Section (1) can take cognizance E
of any offence based on filing of a police report furnished
with the facts as stipulated under Section 173(2)(i) (a to
h). A conjoint reading of Section 173(2)(i) and Section
190(1 )(b), therefore, makes the position crystal clear that
taking of cognizance of any offence by a Magistrate of F
the First Class ~r the Second Class subject to
empowerment created under sub-Section (2) of Section
190 can take cognizance upon a police report. Under
Section 190 (1) (b) where the Police Report as stated in
Section 173(2) (i) is filed before a Magistrate under G
Section 190(1) (b), irrespective of the nature of offence,
the said Magistrate has been invested with all the powers
to take cognizance by applying his judicial mind. Once
the Police Report is filed before a judicial Magistrate as
prescribed under Section 190(1)(b), who has been H
584
SUPREME COURT REPORTS
[2015] 8 S.C.R.
A invested with the judicial authority to take cognizance
of any offence in the first instance, the requirement of
taking cognizance gets fulfilled at that very moment.
Further the very fact that proceedings pertaining to
Parbhani and Jalna were pending before the Magistrate
B where such proceedings were initiated by the filing of
the police report till the occurrence in Malegaon took
place itself was sufficient to demonstrate that judicial
mind was very much applied to the proceedings based
on the police report consequent upon cognizance taken.
C The requirement of filing of the charge-sheet in two earlier
cases before the competent court in respect of an
offence stipulated under Section 2(1)(d) can be held to
be satisfied once. cognizance is taken by a Judicial
0
Magistrate of first class or for that matter an empowered
second class Magistrate, in the event of filing of a police
report as prescribed under Section 173(2)(i) by virtue of
the power vested under Section 190(1 )(b) of Cr.P.C. If the
ingredients of the above requirements are fulfilled it will
E have to be held, that that part of the requirement under
Section 2(1)(d), namely, the competent court taking
cognizance of the offence as stipulated under Section
2(1 )(d) in respect of two earlier cases will get fulfilled.
[Paras 59 to 61] [631-A-H; 632-A-C]
F
2.4. Section 193 Cr.P.C. states "Cognizance of
offences by Courts of Session". The said Section is
negatively couched and states that except as otherwise
expressly provided by this Code or by any other law for
G the time being in force, no Court of Session shall take
cognizance of any offence as a Court of Original
Jurisdiction unless the case has been committed to it
by a Magistrate under this Code. Under Section 193, the
Court of Session can take hold of the case as a Court of
H Original Jurisdiction only after committal order is passed
PRASAD SH RI KANT PU ROH IT v. STATE OF
585
MAHARASHTRA
to it by a Magistrate under the provisions of Cr.P.C., A
whereas under Section 190(1 )(b), the power of a
Magistrate has been pithily stated to mean that he can
take cognizance of any offence subject to the fulfillment
of the requirements (a), (b) and (c) and no further. On
fulfill~ent of Section 190, when a Judicial Magistrate of B
first class or an empowered second class Magistrate,
takes cognizance of any offence that would fulfill the
requirement of Section 2(1)(d) relating to competent
court. The implication of MCOCA would come into play
only after the third occurrence takes pface a"nd only after C
that it will have to be seen whether on the earlier two
such occasions involvement of someone jointly or
singly, either as a member of an 'organized crime
syndicate' or on its behalf indulged in a crime iri respect 0
of which a charge-sheet has already been filed before
the Competent Court which Court had taken cognizance
of such offence. In the event of a Judicial first class
Magistrate or an empowered second Class Magistrate
having taken cognizance of an offence based on a police E
report as stipulated under Section 173(2)(i), such
cognizance of an offence would fulfill the requirement
of that part of the definition under Section 2(1)(d) of
MCOCA. [Paras 62 to 64}{632-G,H; 633-A-C, E-H; 634-A-
~
F
3. The filing of the supplementary charge-sheet does
not and will not amount to taking cognizance by the
Court afresh against whomsoever again with reference
to the very same offence. Section 173(8) states that by G
virtue of the supplementary charge-sheet further offence
may also be alleged and charge to that effect may be
filed. While cognizance is already taken of the main
offence against the accused already arrayed, the
supplementary charge-sheet may. provide scope for H
taking cognizance of additional charges or against more
586
SUPREME COURT REPORTS
(2015] 8 S.C.R.
A accused with reference to the offence already taken
cognizance of and the only scope would be for the added
offender to seek for discharge after l:he filing of the
supplementary charge-sheet against the said offender.
[Para 75] [640-F-H; 641-A-B]
B
4. In Parbhani, the occurrence was on 21.11.2003.
and in Jalna it was on 27 .08.2004. In the Parbhani case,
the first charge-sheet was filed as early as on 07 .09.2006
before the Chief Judicial Magistrate and in Jalna it was
C filed on 30.09.2006 before the concerned Chief Judicial
Magistrate and in both the cases, cognizance was taken
and the proceedings before the respective Magistrates
concerned were continued. Therefore, the definition
under Section 2(1 )(d) relating to "continuing unlawful
D activity" in respect of more than one case of an offence
punishable for more than three years is fully satisfied.
Therefore, the submission that the cognizance was
taken by Sessions Court much later after its committal
E (i.e.) in the case of Parbhani only on 29.04.2009 that is
after the bomb blast in Malegaon and thereby the
definition of 'continuing unlawful activity' in respect of
more than one case under Section 2(1 )(d) is not satisfied
cannot be accepted. [Para 84] [644-E-H; 645-A-C]
F
State of Karnataka v. Pastor P. Raju 2006 (6) SCC 728:
2006 (4) Suppl. SCR 269; S.K. Sinha, Chief Enforcement
Officer v. Videocon International Ltd. & Ors. (2008) 2 SCC
492: 2008 (2) SCR 36; Mona Panwar v. High Court of
Judicature at Allahabad Through its Registrar & Ors. (2011)
G 3 SCC 496: 2011 (2) SCR 413; Sarah Mathew v. Institute of
Cardio Vascular Diseases By its Director Dr. K.M. Cherian
& Ors. (2014) 2 SCC 62: 2013 (12) SCR 674- relied on.
5. A-7 has been charge-sheeted in Parbhani, Jalna
H as well as, the Malegaon bomb blast. The materials
PRASAD SHRIKANT PUROHIT v. STATE OF
587
MAHARASHTRA
available on record disclose that he furnished certain A
materials at the asking of the prime accused involved in
Parbhani and Jalna, which also related to bomb blasts
in both the places. Going by the charge-sheet filed
againstA-7 in Malegaon, his direct involvement has been
alleged. A conspectus consideration of th~ above facts B
discloses that insofar as A-7 was concerned, he had a
nexus with the member of an 'organized crime syndicate'
and also had every nexus with the offence in the nature
of an 'organized crime' of the two earlier cases, namely,
Parbhani and Jalna and also direct involvement in the C
present bomb blast at Malegaon. In such circumstances,
there is no difficulty in coming to a definite conclusion
that insofar as, A-7 is concerned, his activity and
involvement in all the three occurrences, namely, 0
Parbhani, Jalna and Malegaon disclose nexus with ~he
crime and also with the other accused involved in· the
crime and thereby the satisfaction of the definition' of
'continuing unlawful activity' of an 'organized crime; on
behalf of an 'organized crime syndicate' is satisfactorily E
shown. In such cir~umstances, by virtue of Section 21
(4) of MCOCA, he is not entitled for the grant of bail and
that he does not fall within the excepted category
stipulated in sub-clause (a) or (b) of the said sub-Section
(4) of Section 21. There is no dispute that in respect of F
other appellants, their involvement is with reference·to
the present occurrence, namely, Malegaon bomb blast.
Admittedly they are not proceeded against for the offence
relating to Parbhani and Jalna. But still at the present
juncture, with the materials available on record as on date, G
the involvement of the appellants either' by way of their
nexus with any accused who is a member of an
'organized crime syndicate' or such nexus with the
offence of an 'organized crime' ·which pertains to
Parbhani and Jalna cannot be ascertained. The H
588
SUPREME COURT REPORTS
[2015] 8 S.C.R.
A possibility of the evidence based on the investigation
by the prosecuting agency to come out with reliable
materials in support of such nexus to be shown with an
accused or with the crime in respect of the earlier two
cases, namely, Parbhani and Jalna is also not ruled out.
B Therefore, it cannot be held that MCOCA was not
attracted. But, forthe purpose of the requirement under
Section 21(4)(b) having regard to the absence of any
material as on date to disclose any nexus with the
accused of an 'organized crime syndicate' or with the
C offence in the nature of an 'organized crime', in Parbhani
and Jalna as of now in respect of appellants other than
A-7, their application for bail can be considered by the
Special Court. [Paras 90, 91 and 92] [650-A-H; 651-A-E]
D
6. As per Section 2(1)(e), the use of violence etc.
should have been carried out with the object of either
gaining pecuniary benefits or for gaining undue
economic or other advantage for oneself or for any other
person or for promoting insurgency. The expected
E benefit for indulging in any violent or related activity
could be for any of the above purposes independently
and one such purpose may be for promoting insurgency.
The term 'insurgency' has been understood to mean
F raising an active revolt or rebellion in the common
par.lance. It is not necessary that promoting insurgency
should always be linked to pecuniary advantage ..
Whenever an organized gang indulges in a violent act,
such indulgence in violence or threat of violence or
G intimidation or coercion or other unlawful means can be
for promoting an insurgency. Indulging in any violent
or other related activity by an organized gang and
thereby an effort to promote insurgency i.e. to damage
the peace and tranquility in the State is made, that by
H itself would fall within the four corners of the definition
PRASAD SH RI KANT PUROHIT v. STATE OF
589
MAHARASHTRA
of "organized crime" under Section 2(1)(e). [Paras 94, A
· 97 and 98) [652-C-E; 656-G-H; 657-C]
La/it Somdatta Nagpa/ & Anr. (2007) 4 SCC 171 : 2007
(2) SCR 473; State of Mafwrashtra v. Bharat Shanti Lal Shah
and Ors. 2008 (13) SCC 5 : 2008 (12) SCR 1083; Ranjitsing B
Brahamjeetsing Sharma v. State of Maharashtra & Anr.
(2005) 5 SCC 294: 2005 (3) SCR 345; Zameer Ahmed
Latifur Rehman Sheikh v. State of Maharashtra & Ors. 2010
(5) SCC 246: 2010 (4) SCR 1042; State of u.p· Through
CBI v. Amarrnani Tripathi 2005 (8) SCC 21: 2005 (3) Suppl. C
SCR 454 - relied on.
Dilawar Singh v. Parvinder Singh @ Iqbal Singh & Anr.
2005 (12) sec 709: 2005 (5) Suppl. SCR 83; Fakhruddin
Ahmad v. State of Uttaranchal and Anr. (2008) 17 SCC 157: D
2008 (13) SCR 66; Central Bank of India v. State of Kera/a
and O~, (2009) 4 SCC 94: 2009 (3) SCR 735; Mahipal
Singh v. Central Bureau of/nvestigation & Anr. 2014 (11) SCC
282: 2014 (4) SCR 529; State ofMaharashtra & Ors. v.
Tolaram Re/umal &Anr. v. The State of Bombay AIR 1954 E
SC 496: 1955 SCR 439; Raghubans Dubey v. State of Bihar
AIR 1967 SC 1167: 1967 SCR 423; State of West Bengalv.
Salap Service station & Ors. 1994 (3) Suppl. SCC 318; State
of Maharashtra v. Jagan Gagansingh Nepali@ Jagya 2011
(5) Mh.L.J. 386; Gopal Marwari & Ors. v. Emperor AIR 1943 F
Patna 245; State of West Bengal & Anr. v. Mohd. Khalid & ·
Ors. (1995) 1 SCC 684: 1994 (6) Suppl. SCR 16; - referred
to.
Case Law Reference
G
1963 Suppl. SCR 953
relied on
Para 16
2005 (5) Suppl. SCR 83
referred to.
Para 16
2008 (13) SCR 66
referred to.
Para 17
H
590
SUPREME COURT REPORTS
(2015] 8 S.C.R.
A
2009 (3) SCR 735
relied on.
Para 20
2005 (3) SCR 345
referred to.
Para 20
2014 (4) SCR 529
referred to.
Para 23
B
2007 (2) SCR 473
relied on.
Para 23
2008 (12) SCR 1083
relied on.
Para 23
1955SCR 439
referred to.
Para 23
c
1951 SCR 312
relied on .
Para 25
. 1967 SCR 423
referred to.
Para 25
1972 (1) SCR 571
relied on.
Para 25
D
1994 (3) Suppl. sec 318
referred to. . Para 25
2005 (2 ) Suppl. SCR 873 relied on.
Para 25
2006 (4) Suppl. SCR 269
relied on.
Para 25
E
2008 (2) SCR 36
relied on .
Para 25 ·
._
2013 (12) SCR 674
relied on.
Para 25
2010 (4) SCR 1042
relied on.
Para 26
F
2011 (5) Mh.L.J. 386
referred to.
Para 26
AIR 1943 Patna 245
referred to.
Para 27
1994 (6) Suppl. SCR 16
referred to.
Para 27
G
2011 (2) SCR 413
relied on.
Para 27
2005 (3) Suppl. SCR 454
relied on.
Para 100
H
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
Nos.1969-1970of2010.
PRASAD SH RI KANT PUROHIT v. STATE OF
591
MAHARASHTRA
From the Judgment and Order dated 09.11.2011 of the A
High Court of Judicature at Bombay in Criminal Bail Application
No. 333 of 2011 with Criminal Application No. 464 of 2011.
WITH
Crl. A. Nos. 1971 and 1994-98 of 201 O
Crl. A. No. 58 of 2011
Crl. A. Nos. 636 and 639-40 of 2015
SIP (Crl.) Nos. 9303 and 9369 of 2011
B
c
Basava Prabhu Patil, Neela Gokhale, Shivaji M. Jadhav,
Vikas Mehta, Varun Singh, A. Menon, Amol Chitale, Pragya
Baghel, Nirnimesh Dube, R. C. Kohli, Anand, P. Khanna, J.P. D
. Sharma, Rajshree N. Reddy, Harendra Singh Rana, Ajay
Singh, Dr. Sushil Balwada, Triloki Nath _Razdan for the
Appellant.
Anil Singh, Tushar Mehta, ASGs, Aniruddha P. Mayee;
Ranjana Narayan, Sushma Suri, B. Krishna Prasad, Asha E
Gopalan Nair, Manoj Prasad for the Respondents.
The Judgment of the Court was delivered by
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. Leave
F
granted in SLP (Crl.) No.8132 of 2010 and SLP (Crl.)
Nos.93.70-71 of2011.
2. As in all the above appeals the issue that arises for
consideration is the applicability 9f the Maharashtra Control G
of Organized Crime Act, 1999 (hereinafter called "MCOCA"),
all these appeals are disposed of by this common judgment.
3. Criminal Appeal Nos.1969-70/2010 have be~n
H
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SUPREME COURT REPORTS
[2015] 8 S.C.R.
A
preferred by Lt. Col. Prasad Shrikant Purohit challenging the
judgment in Criminal Appeal No.8&7 of 2009 which was
disposed of by the common order passed by the Division
Bench of the Bombay High Court in Criminal Appeal Nos.866,
867, 868, 869 and 1024 of 2009 dated 19.07.2010. By the
B said order the Division Bench reversed the order of the Special
Judge dated 31.7.2009 passed in Special Case No.1 of 2009
wherein he held that the charges against the accused in
C.R.No.18 of 2008 registered with Anti-Terrorist Squad,
Mumbai (hereinafter referred to as "ATS") under the MCOCA
C do not survive and were discharged from the case. The Special
Court by invoking Section 11 of the MCOCA directed the case
to be tried by the regular Court. The Division Bench while
allowing the Criminal Appeal Nos.866 to 869 of 2009 set aside
0
the order of the Special Judge 31.07.2009 in Special Case
No.1 of 2009 as well as orders passed in Bail Application
Nos.40 to 42 of 2008, restored those applications to the file in
MCOCA Special Case No. 01 of 2009 for being decided on
merits by Special Judge himself. In Criminal Appeal No.1024
E of 2009 while allowing the said appeal, Bail Application No.41
of 2008 was directed to be restored in MCOCA Special Case
No. 01 of 2009 for being heard and decided on merits.
4. The appellant-Lt. Col. Prasad Shrikant Purohit is the
F first respondent in Criminal Appeal No.867 of 2009.
5. The appeals arising out of SLP (Crl.) No.9370-71/2011
have also been preferred by the very same appellant, namely,
Lt. Col. Prasad Shrikant Purohit challenging the common order
passed in Criminal Bail Application No.333 of 2011 with
G Criminal Application No.464 of 2011 along with Criminal
Application No.556 of 2011 dated 9'h November 2011 by the
learned Single Judge of the Bombay High Court. By the said
order the learned Judge allowed the Criminal Application
H No.556 of 2011 filed by Ajay Ekanath Rahirkar by granting him
"" I
PRASAD SHRIKANT PU ROH IT v. STATE OF MAHARASHTRA 593
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
bail by imposing certain conditions. In the case of appellant A
herein, the challenge made in Criminal Application No.464 of
2011 was the order of the Special Judge after the order of
remand passed by the Division Bench dated 19.07.2010. The
Special Judge by the order dated 30.12.2010 rejected the
appellant's application for bail. The learned Single Judge after B
detailed discussion, dismissed the Criminal Bail Application
. No.333 of2011 as well as CriminalApplication.No.464 of2011
by the order impugned in these appeals. ·
6. The appeal arising out of SLP(Crl.) No.8132/2010 has C
been filed by one Pragyasinh Chandrapalsinh Thakur
challenging the common order dated 19.07.2010 passed by
the Division Bench of the Bombay High Court in Criminal
Appeal No.866 of 2009 which is identical to the case of the
appellant in Criminal Appeal Nos.1969-70 of 2010.
D
7. Criminal Appeal No.1971 of 2010 is preferred by one
Rakesh Dattaray Dhawade challenging the order dated
19.07.2010 passed by the Division Bench of the Bombay High
Court in Criminal Appeal No.868 of 2009.
E
8. The appeal arising out ofSLP (Crl.) No.9303/2011 is
preferred by one Sudhakar Dhar Dwivedi and Ramesh Shivji
Upadh.yay challenging the order dated 20.10.2011 of the
learned Single Judge of the Bombay High Court. By the said
F
judgment, the learned Single Judge declined to interfere with
the order of Special Judge in Misc. Application No.98/2011
permitting police custody to the first respondent, namely,
National Investigation Agency (NIA) for 8 days from 22.07.2011
up to 30.07.2011. In fact, the said case was originally G
investigated by ATS and final report was submitted on
30.01.2009 and supplementary charge-sheet vide MCOCA
No.8/2011 was filed on 21.4.2011. Thereafter by order dated
1.4.2011 of the Ministry of Home Affairs, Government of India,
investigation was transferred to NIA and an FIR was registered
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[2015] 8 S.C.R.
A as Crime No.5/2011 by police station NIA on 13.4.2011.
Thereafter NIA sought for police custody which was grant~d
by order passed in Misc. Application No.98/2011 dated
19.07.2011. The said SLP is not argued before us and,
therefore, the same is delinked from this batch of cases and
B the same shall be heard separately.
9. We heard arguments of Mr. U.R. Lalit, learned senior
counsel who appeared before us for the appellants in Criminal
Appeal Nos.1969-70/2010 as well as Criminal Appeal
C Nos.1994-98/2010, Mr. Triloki Nath Razdan, learned counsel
for the appellant in appeal arising out of SLP (Crl.) No.9303/
2011, Mr. Basava"Prabhu S. Patil, learned senior counsel in
the appeal arising out of SLP (Crl.) No.8132/2010 and Mr.
Vikas Mehta, learned counsel in Criminal Appeal No.1971 of
D 2010.
10. Mr. U.R. Lalit, learned senior .counsel in his
submissions referred to the brief facts which led to the initiation
of the proceedings against the appellants under the provisions
E of MCOCA. As the narration goes, there was a bomb blast at
the place called Malegaon in Mumbai on 29.9.2008. With
reference to the said occurrence: FIR No.130/2008 was
registered in the Azad Nagar police station in Malegaon on
30.9.2008. On 26.10.2008, the said FIR was transferred and
F registered as C.R. No. 18/2008 and the investigation was taken
over by ATS. Thereafter the appellant in Criminal Appeal No.
1971/2010, namely, one Rakesh Dattaray Dhawade was
arrested by ATS on 02.11.2008. Subsequentto his arrest, the
appellant in Crl. Appeal Nos. 1969-1970/2010 was arrested
G on 05.11.2008. On 20.11.2008, approval was given as per
Section 23(1) (a) of MCOCA by DIG, ATS for recording of
information about the commission of an offence and for
applying the provisions of Section 3(1)(i),3(2) and 3(4) of
H MCOCA against all the accused in C.R. No. 18/2008.
'•
PRASAD SH RI KANT PUROHIT v. STATE OF MAHARASHTRA 595
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)
11. Be that as it may, earlier on 21.11.2003, there was a A
bomb explosion at Mohmedia Masjid, Nanalpeth, Parbhani
which was registered as C.R. No.161 of 2003/Parbhani. There
was another bomb explosion at Kaderia Masjid, Jalna during
Friday Namaz which was registered as C.R.No. 194 of 2004/
Jalna.
B
12. In the case pertaining to Parbhani, the charge-sheet
was filed on 07 .09 .2006 against A 1-Sanjay Choudhary for the
offences punishable under Sections 302, 307, 324, 337, 338,
285, 286 and 295 read with 34, IPC and Sections 3, 4, 6 of C
the Explosives Act and Section 25( 1) and (3) of the Arms Act.
The case was registered as RCC No.467/2006. A
supplementary chargesheet-1 was filed in Parbhani case
against four accused forthe above referred to offences as
well as Sections 120-B & 153-A rear! with 34 of IPC on D
29.9.2006 .
. 13. In Jalna case, charge-sheet was filed againstA-1 for
the offences punishable under Sections 307, 436, 324, 323,
120-B, 153-A read with 34 of IPC and Sections 3,. 4, 6 of E
Explosives Act on 30.9.2006. In Jalna case, two supplementary
charge-sheets were filed on 7 .1.2008 against four additional
accused and against five accused on 14.1.2008 .. On
13.11.2008, supplementary charge-sheet-2 was filed against
the appellant in Crl. Appeal No.1971 of 2010-Rakesh Dattaray
F
Dhawade. in Parbhani Case and a supplementary chargec
sheet-3 was filed against him in Jalna Case on•15.11.2008.
Thereafter, on 20.11.2008, charge-sheet in Malegaon Blast
Case was filed by ATS against the appellants herein under
the MCOCA. On 15.01.2009, sanction under Section 23(2) of G
MCOCA was also granted.
14. In the above stated background, Mr. U.R. Lalit, learned
senior counsel made as many as five submissions to contend
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SUPREME COURT REPORTS
[2015] 8 S.C.R.
A
that MCOCA was not attracted as against the appellants and,
therefore, the orders impugned are liable to be set aside.
15. Mr. U.R. Lalit, learned senior counsel prefaced his
submissions by stating that appellants were all proceeded
B against based on the footing that they were members of an
organization called "Abhinav Bharat" which was registered in
2007 and that they were now being prosecuted under the
provisions of MCOCA. The learned senior counsel submitted
that in order to prosecute the appellants under the MCOCA,
C the definition of"continuing unlawful activity", "organized crime"
and :'organized crime syndicate" as defined under Section
2(1 )( d) ,( e) and (f) of MCOCA should be satisfied. The learned
senior counsel while referring to the above definitions submitted
that the prosecuting agency were relying upon the Parbhani
D case and Jalna case which occurred in 2003 and 2004 and
which were organized by RSS and Bajrang Dal with which
neither Abhinav Bharat nor the appellants were in anyway
connected and, therefore, the definition of"continuing unlawful
activity" or "organized crime" as well as "organized crime
E syndicate" was not fully established.
16. The next submission of Mr. U.R. Lalit, learned senior
counsel was that in order to attract Section 2(1 )(d) for an
offence to be a 'continuing unlawful activity' within a p~riod of
F · preceding ten years from the date of the third occurrence, two
prior cases falling under the said Section should have been
filed and taken cognizance of and that the date with reference
to which the preceding ten years is to be counted is the date
of third occurrence. The learned senior counsel, therefore,
G submitted that the Malegaon bomb blast occurred on
29.09.2008, the arrest of Rakesh Dattaray Dhawade was on
02.11.2008, supplementary charge-sheet against him was filed
in Parbhani case on 13.11.2008 and in Jalna case on
H 15.11.2008 and in Parbhani, the :dse was committed to
-
PRASAD SHRIKANT PUROHITv. STATE OF MAHARASHTRA 597
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Sessions Court only on 29.4.2009 i.e. not within the preceding A
10 years of the occurrence in Malegaon and, therefore, the
definition of Section 2(1) (d) was not satisfied.