# ZAKIR ABDUL MIRAJKAR v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2022] 9 S.C.R. 150
- **Court:** Supreme Court of India
- **Decided:** 2022-08-24
- **Case number:** Criminal Appeal No. 1125 of 2022
- **Bench:** Dr Dhananjaya Y. Chandrachud, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/zakir-abdul-mirajkar-v-the-state-of-maharashtra-ors-36568
- **Pages:** 57

## Headnote

Maharashtra Control of Organized Crime Act,1999 -
ss.2(1)(f), 3(1)(ii), 3(2), 3(4), 3(5), 18, 23 and 427 - Penal Code
1860 - ss. 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323
and 427 - Maharashtra Prevention of Gambling Act 1887 - s. 4
and 5 -Maharashtra Prohibition Act 1949 - s.65(e) - Bombay Police
Act 1951 - s. 37 - Interpretation of the provisions of s.18 MCOCA
- Case of the prosecution was that the appellants are members of
an organized crime syndicate which has engaged in systematic
course of activities for cheating members of public by conducting
the 'Mumbai Matka' (Gambling den) - Police personnel raided one
of the Matka den - FIR was registered on the basis of a complaint
made by one of the members of raiding party - During the course
of investigation, the Additional Superintended of Police recorded
the confession made by many of the accused including the
appellants - The competent authority sanctioned the prosecution
of the appellants for the offences under the MCOCA - Appellants
and other accused were arrested - The appellants instituted writ
petition before the High Court for quashing of the FIR, which was
dismissed by the High Court - On appeal, the appellant submitted
that : (i) Confession recorded by an Additional Superintended of
Police (Addl. SP) u/s 18 MCOCA cannot be proved against the
accused (As s.18(1) provides for, confession made by a police officer
"not below the rank of the superintendent of Police" shall be
admissible in trial) and (ii) The provisions of MCOCA have not
been validly invoked - Held:- (i) The expression "rank" must be
understood as a class or category which encompasses multiple posts
- The posts of SP, Addl. SP ,and DCP all fall within the same rank
- (ii) The approval order under s.23(1)(a) MCOCA is with respect
to the offence and not the offender - Though illegal gambling is
not an organized crime but it may be route through which the accused
[2022] 9 S.C.R. 150
150
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were abetting the commission of organized crime, therefore the
appellants may be charged with some offences punishable under
MCOCA in relation to the charge of illegal gambling - Further,
more than one chargesheet is not required to be filed with respect to
each accused.
Dismissing the appeals, the Court
HELD:1. It is view of this court that the expression "rank"
must be understood as a class or category which encompasses
multiple posts. The posts of SP, Addl. SP, and DCP all fall within
the same rank as they exercise similar functions and powers and
operate within similar spheres of authority. Every person within
a particular rank will not be of the same seniority. Officers of the
same rank may have been in service for a different number of
years. At times, this may even bear on the post to which they are
appointed but their rank remains undisturbed. A difference in
the seniority of a particular officer is not the same as a difference
in their ranks. The insignia on officers' uniforms denote, in this
case, their seniority as well as their designations. [Para 63][197F-G]
2. The order of approval under Section 23(1)(a) MCOCA
need not name every accused person at the outset. Often, limited
information is available to the investigating authorities at the time
of recording information about the commission of an offence. The
involvement of persons other than those named initially may come
to light during the course of investigation by the police. In fact,
the very purpose of an investigation is to determine whether a
crime has been committed and if so, to shed light on the details
of the crime including the identity of the perpetrators. This is
true of every crime but especially true in the case of organized
crime, where an organized crime syndicate may consist of scores
of persons involved in unlawful activities in different capacities.
Section 23(1)(a) MCOCA speaks of recording information about
the commission of an offence of organized crime, and not of
recording information about the offender. T

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SUPREME COURT REPORTS
[2022] 9 S.C.R.
ZAKIR ABDUL MIRAJKAR
v.
THE STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 1125 of 2022)
AUGUST 24, 2022
[DR DHANANJAYA Y. CHANDRACHUD AND
SURYA KANT, JJ.]
Maharashtra Control of Organized Crime Act,1999 -
ss.2(1)(f), 3(1)(ii), 3(2), 3(4), 3(5), 18, 23 and 427 - Penal Code
1860 - ss. 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323
and 427 - Maharashtra Prevention of Gambling Act 1887 - s. 4
and 5 -Maharashtra Prohibition Act 1949 - s.65(e) - Bombay Police
Act 1951 - s. 37 - Interpretation of the provisions of s.18 MCOCA
- Case of the prosecution was that the appellants are members of
an organized crime syndicate which has engaged in systematic
course of activities for cheating members of public by conducting
the 'Mumbai Matka' (Gambling den) - Police personnel raided one
of the Matka den - FIR was registered on the basis of a complaint
made by one of the members of raiding party - During the course
of investigation, the Additional Superintended of Police recorded
the confession made by many of the accused including the
appellants - The competent authority sanctioned the prosecution
of the appellants for the offences under the MCOCA - Appellants
and other accused were arrested - The appellants instituted writ
petition before the High Court for quashing of the FIR, which was
dismissed by the High Court - On appeal, the appellant submitted
that : (i) Confession recorded by an Additional Superintended of
Police (Addl. SP) u/s 18 MCOCA cannot be proved against the
accused (As s.18(1) provides for, confession made by a police officer
"not below the rank of the superintendent of Police" shall be
admissible in trial) and (ii) The provisions of MCOCA have not
been validly invoked - Held:- (i) The expression "rank" must be
understood as a class or category which encompasses multiple posts
- The posts of SP, Addl. SP ,and DCP all fall within the same rank
- (ii) The approval order under s.23(1)(a) MCOCA is with respect
to the offence and not the offender - Though illegal gambling is
not an organized crime but it may be route through which the accused
[2022] 9 S.C.R. 150
150
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were abetting the commission of organized crime, therefore the
appellants may be charged with some offences punishable under
MCOCA in relation to the charge of illegal gambling - Further,
more than one chargesheet is not required to be filed with respect to
each accused.
Dismissing the appeals, the Court
HELD:1. It is view of this court that the expression "rank"
must be understood as a class or category which encompasses
multiple posts. The posts of SP, Addl. SP, and DCP all fall within
the same rank as they exercise similar functions and powers and
operate within similar spheres of authority. Every person within
a particular rank will not be of the same seniority. Officers of the
same rank may have been in service for a different number of
years. At times, this may even bear on the post to which they are
appointed but their rank remains undisturbed. A difference in
the seniority of a particular officer is not the same as a difference
in their ranks. The insignia on officers' uniforms denote, in this
case, their seniority as well as their designations. [Para 63][197F-G]
2. The order of approval under Section 23(1)(a) MCOCA
need not name every accused person at the outset. Often, limited
information is available to the investigating authorities at the time
of recording information about the commission of an offence. The
involvement of persons other than those named initially may come
to light during the course of investigation by the police. In fact,
the very purpose of an investigation is to determine whether a
crime has been committed and if so, to shed light on the details
of the crime including the identity of the perpetrators. This is
true of every crime but especially true in the case of organized
crime, where an organized crime syndicate may consist of scores
of persons involved in unlawful activities in different capacities.
Section 23(1)(a) MCOCA speaks of recording information about
the commission of an offence of organized crime, and not of
recording information about the offender. The competent authority
may record information under Section 23(1)(a) once it is satisfied
that an organized crime has been committed by an organized crime
syndicate. [Para 72][201-D-G]
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA
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3. The appellants' submission that the allegation of engaging
in illegal gambling would not sustain the invocation of the penal
provisions of Section 3(2) MCOCA is simplistic. Although
gambling may not, by itself, constitute an organized crime, it may
be the route through which the accused are abetting the
commission of organized crime. The question of whether the
appellants are in fact abetting organized crime in this manner, is
to be determined at the stage of trial. Similarly, the question of
whether offences under the IPC would attract MCOCA in the
present case is to be determined at the stage of trial and depends
on the facts and circumstances of each case. The appellants have
argued that in the preceding ten years, more than one chargesheet has not been filed in respect of each of them. This
submission does not hold water. It is settled law that more than
one charge sheet is required to be filed in respect of the organized
crime syndicate and not in respect of each person who is alleged
to be a member of such a syndicate. Other courts, too, have held
that persons who are alleged to be members of an organized crime
syndicate need not have more than one charge-sheet filed against
them in an individual capacity. Rather, charge-sheets with respect
to the organized crime syndicate are sufficient to fulfil the
condition in Section 2(1)(d). [Para 77, 79][204-E-F, H; 205-A, GH]
State of Maharashtra v. Keshav Bhaurao Mulik,
Criminal Appeal No 835 of 1974; Kartar Singh v. State
of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; State
of Rajasthan v. Ajit Singh, (2008) 1 SCC 601 : [2007]
11 SCR 251; State of Maharashtra v. Kamal Ahmed
(2013) 12 SCC 17 : [2013] 5 SCR 128; Yakub Abdul
Razak Memon v. State of Maharashtra, (2013) 13 SCC
1 : [2013] 15 SCR 1; Ranjit Singh v. State of Punjab
(2002) 8 SCC 73 : [2002] 2 Suppl. SCR 247; Supreme
Court Advocates-on-Record Association v. Union of
India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659;
Nyadar Singh v. Union of India (1988) 4 SCC 170 :
[1988] 2 Suppl. SCR 546; State of Maharashtra v. Lalit
Somdatta Nagpal (2007) 4 SCC 171 : [2007] 2 SCR
473; Vinod G. Asrani v. State of Maharashtra, (2007) 3
SCC 633 : [2007] 2 SCR 1023; Kavitha Lankesh v.
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State of Karnataka 2021 SCC OnLine SC 956; Govind
Sakharam Ubhe v. State of Maharashtra, 2009 SCC
OnLine Bom 770 - Referred to.
State Inspector of Police Vishakhapatnam v. Surya
Sankaram Karri (2006) 7 SCC 172 : [2006] 5 Suppl.
SCR 229; State of Madhya Pradesh v. Chunni Lal (2009)
12 SCC 649 : [2009] 6 SCR 145; State of Madhya
Pradesh v. Babbu Rathore (2020) 2 SCC 577 : 2020
(1) JT 243; State of Punjab v. Hardial Singh, (2009)
15 SCC 106 : [2009] 8 SCR 559 - held inapplicable.
Case Law Reference
[1994] 2 SCR 375
referred to
Para 38
[2007] 11 SCR 251
referred to
Para 40
[2013] 5 SCR 128
referred to
Para 41
[2013] 15 SCR 1
referred to
Para 41
[2002] 2 Suppl. SCR 247
referred to
Para 41
[1993] 2 Suppl. SCR 659
referred to
Para 47
[1988] 2 Suppl. SCR 546
referred to
Para 62
[2006] 5 Suppl. SCR 229
held inapplicable
Para 66
[2009] 6 SCR 145
held inapplicable
Para 67
[2009] 8 SCR 559
held inapplicable
Para 68
[2007] 2 SCR 473
referred to
Para 71
[2007] 2 SCR 1023
referred to
Para 73
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1125 of 2022.
From the Judgment and Order dated 21.04.2020 of the High Court
of Judicature at Bombay in Writ Petition No. 3418 of 2019.
With
Criminal Appeal Nos. 1127, 1126, 1129, 1128 and 1130 of 2022.
Amit Desai, Aabad Ponda, Sidharth Luthra, Pradeep Rai, Sr. Advs.,
Sandeep Sudhakar Deshmukh, Sajid Imtiyaz Mahat, Irshad Malik,
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA
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Ms. Bansuri Swaraj, Siddhesh Kotwal, Ms. Ana Upadhyay, Ms. Manya
Hasija, Akash Singh, Nihar Dharmadhikari, Akshat Kumar, Sheezan
Hasmi, Nirnimesh Dube, Kunal Verma, Mrs. Yugandhara Pawar Jha,
Swapnil Wagh, Ashwin Nair, Ms. Lavanya Dhawan, Sheezan Hashmi,
Kumar Kashyap, Ritik Gupta, Kunal Verma, Atmaram NS Nadkarni,
Kunal Verma, Mrs. Yugandhara Pawar Jha, Salvador Santosh Rebello,
Swapnil Wagh, Ashwin Kumar Nair, Ms. Lavanya Dhawan, Ms. Deepti
Arya, Adiraj Bali, Ritik Gupta, Ms. Rajshri Rai, Anand Mishra, Amrendra
Kumar Singh, Vinay Rai, Mohnis Nirwan, Ms. Ritika Gaur, Shashank
Rai, Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha,
Nawalendra Kumar, Rishabh Gupta, Shekhar Kumar, Advs. for the
Appellant.
Raja Thakare, Sr. Adv., Rahul Chitnis, Sachin Patil, Aaditya A.
Pande, Geo Joseph, Ms. Shwetal Shepal, Akash Kavade, Advs. for the
Respondent.
The Judgment of the Court was delivered by
DR DHANANJAYA Y. CHANDRACHUD, J.
Contents
A. Facts ................................................................................ 3*
B. Issues ................................................................................8*
C. Submissions ......................................................................9*
D. Analysis ......................................................................... 18*
i. An overview of the Maharashtra Control of Organized
Crime Act 1999 ............................................................ 18*
ii. Confession made before a police officer "not below
the rank of the Superintendent of Police" ............... 22*
iii.Conditions for invocation of the MCOCA....... . 65*
A. Facts
1. The prosecution alleges that the appellants are members of an
organized crime syndicate which has engaged in a systematic course of
activities for cheating members of the public by conducting the 'Mumbai
Matka'. To explain 'matkas' in simple terms, those who wish to gamble
place bets on numbers/playing cards. At the end of the cycle, the results
are to be declared based on a random draw of numbers / playing cards
*Ed. Note : Pagination is as per the original judgment.
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and those who correctly guess the winning digits / playing cards win
while the others lose. Instead of declaring the winning digits on the basis
of a random draw, the organizers of the Mumbai Matka are alleged to
identify the number on which the least bets are placed and declare that
to be the winning digit. This is allegedly done in order to ensure that the
pay-out is minimal and the profit is as large as possible.
2. Salim Mulla is alleged to be a bookie who accepts bets for the
Mumbai Matka. It is the prosecution's case that he would transfer the
money he received through the Mumbai Matka to Rakesh Agarwal and
Manish Agarwal if he anticipated that he would be unable to repay in the
event that the number on which he accepted the highest number of bets
was declared the winning number. Rakesh Agarwal and Manish Agarwal
would allegedly accept the risk and discharge the obligation to pay the
gamblers if that particular number was indeed declared the winning
number. Further, they would in turn allegedly transfer the money they
received from Salim Mulla to Samrat Korane, the appellant in SLP
(Criminal) No. 3722 of 2020, and Zakir Mirajkar, the appellant in SLP
(Criminal) No. 3213 of 2020. The latter two, along with Sharad Korane,
the appellant in SLP (Criminal) No. 3629 of 2020 would assume the risk
and transfer the money once again to Viral Savla, the appellant in SLP
(Criminal) No. 3915 of 2020 and Jayesh Savla, the appellant in SLP
(Criminal) No. 4170 of 2020, amongst others. It is alleged that in this
fashion, the petitioners and various others are members of an organized
crime syndicate, of which the lynchpin is Salim Mulla. The main organizers
of the Mumbai Matka are alleged to be Prakash Savla, the appellant in
SLP (Criminal) No. 3943 of 2020, his son Viral Savla and his brother
Jayesh Savla. Finally, Rajendra Dave, the appellant in SLP (Criminal)
No. 6034 of 2022 is alleged to assist Salim Mulla and the Savla family by
distributing protection money to various gangsters and purchasing property
from the proceeds of the illegal gambling business. According to the
prosecution, the proceeds from the matka business are used to finance
criminal gangs and underworld dons.
3. On 8 April 2019, the Assistant SP, Kolhapur and a team of
police personnel raided what is alleged to be a gambling den (colloquially
known as a 'matka' den) controlled by Salim Mulla. It is the prosecution's
case that Salim Mulla's wife, Shama Mulla, along with some others,
assaulted the police team when they were recording the panchnama at
the gambling den.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
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4. FIR 136 of 2019 for offences punishable under Sections 143,
147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the Indian
Penal Code 1860,1 Sections 4 and 5 of the Maharashtra Prevention of
Gambling Act 1887,2 Section 65(e) of the Maharashtra Prohibition Act
1949 and Sections 37 and 135 of the Bombay Police Act 1951 was
registered in PS Rajarampuri, Kolhapur on the basis of a complaint made
by one of the members of the raiding party. The Investigating Officer
was of the opinion that the accused were members of an organized
crime syndicate led by Salim Mulla, as defined in Section 2(1)(f)
Maharashtra Control of Organized Crime Act 1999.3 She consequently
submitted a proposal seeking to invoke offences punishable under the
MCOCA, to the competent authority under Section 23(1)(a). The
competent authority approved the proposal on 10 April 2019 and Sections
3(1)(ii), 3(2), 3(4), and 3(5) MCOCA were added to the FIR. During the
course of investigation, the Additional Superintendent of Police4 recorded
the confessions made by many of the accused, including the appellants.
Statements of various persons under Section 161 Code of Criminal
Procedure 19735 were also recorded.
5. On 4 October 2019, the competent authority sanctioned the
prosecution of the appellants (amongst others) for offences under the
MCOCA. Upon the completion of the investigation, the IO submitted a
charge-sheet/final report under Section 173 CrPC on 5 October 2019.
The charge-sheet was filed with reference to Sections 109, 120(B), 143,
147, 149, 155, 332, 353, 307, 395, 427 and 420 IPC, Sections 21(2), 21(3)
and 23 of the Banning of Unregulated Deposit Schemes Act 2019,
Sections 4 and 5 of the Gambling Act, Section 65(e) of the Maharashtra
Prohibition Act 1949, Sections 37 and 135 of the Bombay Police Act
1951, and Sections 3(1)(ii), 3(2), 3(4), and 3(5) of the MCOCA.
6. Some of the appellants as well as other accused were arrested
at different points in time following the registration of the FIR. Two of
them (Samrat Korane and Prakash Savla) are absconding. The petitioners
in SLP (Criminal) Nos. 3213 of 2020, 3722 of 2020, 3629 of 2020, 3915
of 2020, 3943 of 2020 and 4170 of 2020 instituted writ petitions before
the Bombay High Court for quashing of the FIR. By a judgment dated
1 "IPC"
2 "Gambling Act"
3 "MCOCA"
4 "Addl. SP"
5 "CrPC"
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21 April 2020 a Division Bench of the Bombay High Court dismissed the
petitions for the following reasons:
a.
Though gambling may not by itself constitute an organized
crime, an organized crime syndicate may utilize the profits
from the illegal activity for other unlawful activities such as
contract killing, abduction and dacoity. If the state becomes
aware of the existence of an organized crime syndicate
while conducting a raid on a gambling establishment, it may
take recourse to MCOCA and carry out an investigation;
b.
MCOCA penalizes not only persons who engage in
organized crime but also those who are members of an
organized crime syndicate and those who abet the
commission of organized crime. The appellants are alleged
to have assisted Salim Mulla by providing him
accommodation in the contingency of excessive risks
incurred by him. Such assistance is sufficient to invoke the
provisions of the MCOCA;
c.
Some of the appellants are absconding and their
interrogation is necessary for a proper investigation;
d.
If certain persons are found to be involved in the commission
of organized crime and their names were not mentioned in
the order granting approval to record information under
Section 23(1)(a) MCOCA, they may nevertheless be
proceeded against once sanction is obtained under Section
23(2) MCOCA;
e.
The confessions recorded by the Addl. SP are admissible
because Addl. SPs are in the same rank as Superintendents
of Police,6 in terms of clause 25(2) of the Bombay Police
Manual 1959.7
Aggrieved by the judgment of the High Court, the appellants
invoked the jurisdiction of this court under Article 136 of the
Constitution. Rajendra Dave, filed SLP (Criminal) No. 6034 of
2022 to challenge an order of aSingle Judge of the Bombay High
Court dated 11 August 2021 declining bail in connection with the
same FIR for the following reasons:
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
6 "SP"
7 "Police Manual"
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a.
Prima facie, there is sufficient evidence to show the
complicity in the commission of the alleged offences;
b.
The charge-sheet alludes to sufficient material to show
active membership of an organized crime syndicate.
c.
A case for the grant of bail is not made out in light of the
restrictions contained in Section 21(4) MCOCA.
B.
Issues
7.
Based on the submissions which have been canvassed on
behalf of the appellants, two questions arise for
determination:
a. Whether a confession recorded by an Addl. SP under
Section 18 MCOCA can be proved as against the
accused; and
b. Whether the provisions of MCOCA have been validly
invoked.
8. Since similar issues arise in the batch of cases, the appeals
have been heard together.
C. Submissions
9. Mr. Amit Desai, Mr. Siddharth Luthra, Mr. Abad Ponda, Mr. V.
Giri, Mr. Pradeep Rai, and Mr. ANS Nadkarni, senior counsel, led
arguments on behalf of the appellants. Mr. Amit Desai, learned senior
counsel who led the arguments (supported by Mr. Abad Ponda)
specifically stated that the challenge in the cases he is arguing is confined
to the authority of an Addl. SP to record a confession, in view of the
interdict of Section 18. Mr Desai submitted that the individual facts in
the appeal are not being put forth in this proceeding since the appellants
would follow their remedies at the appropriate stage when they apply
for regular bail.
10. Their submissions were:
a. Several statutory safeguards have been introduced in the
MCOCA including:
i.
Informing the accused that the statement would be used
against them;
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ii. Certification of the statement in writing;
iii. Transmission of the statement to the CJM/CMM to ensure
that no tampering takes place and requiring that the
statement be forwarded to the court taking cognizance; and
iv. Mandate of production before the CMM/CJM who has to
record either a complaint or an absence of a complaint.
These statutory safeguards are a facet of Article 21 of the
Constitution, to ensure the protection of the accused who has
made the statement to a police officer while in custody. Their
object is to ensure a fair trial in a serious crime involving an
organized crime syndicate.
b.
Section 25 commences with a non-obstante provision
conferring overriding effect to the MCOCA, notwithstanding
anything inconsistent contained in other legislations. The High
Court has erred in holding that an Addl. SP is empowered to
record a confession under the MCOCA, by relying on Para
25(2) of the Police Manual. Moreover, the Police Manual is
a compendium of administrative circulars and cannot
override the statutory provisions contained in Section 18 of
the MCOCA which mandate that no police officer below
the rank of an SP can record a confession;
c.
Section 18 MCOCA, which stipulates that confessions made
to "a police officer not below the rank of Superintendent of
Police" are admissible in evidence, is an exception to the
general rule in Section 25 of the Indian Evidence Act 18728
and must be construed strictly. An Addl. SP is not of the
same rank as an SP because:
i.
Section 8 of the Bombay Police Act 1951 provides that
the state government "may empower an Additional
Superintendent to exercise and perform ... all or
any of the powers, functions or duties to be exercised
or performed by a Superintendent ...". Hence, the
power vested in the Addl. SP is not inherent but must
be conferred by the state government. The State of
Maharashtra has not empowered Addl. SPs to exercise
the powers of SPs.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
8 "Evidence Act"
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ii.
Para 25(2) of the Police Manual indicates that an Addl.
SP "performs such duties and exercises such powers
of the Superintendent the State Government might
have assigned to him". The manual recognizes that
the Addl. SP is not in the same rank as the SP. It is only
by a fiction of law that they become of the same rank.
The State of Maharashtra has not issued a notification
assigning the power of recording a confession under
MCOCA to Addl. SPs;
iii.
Even if such notifications existed or were to be issued,
they would be contrary to Section 25 MCOCA which
is an overriding provision.
iv.
The insignia on the Addl. SP's uniform is different from
that on the SP's uniform, indicating that their ranks are
not the same.
v.
The Model Police Act 2006 prepared by the Union
Government is meant to serve as a benchmark for the
states to follow. Clause 32, of the Model Police Act
2006 stipulates that a commandant "equivalent in rank
to Superintendent of Police, shall head each Armed
Police Battalion. The Commandant shall be assisted
by a Deputy Commandant, equivalent in rank to
Additional Superintendent of Police". This
recognizes the difference in rank between an Addl. SP
and an SP. The Police Acts in Sikkim and Himachal
Pradesh contain similar provisions.
d.
Trial courts must not be required to answer the question of
whether one post is equivalent to another. Rather, they must
be required to ask and answer the simple question of
whether the police officer recording the confession is an
SP. To allow persons other than SPs to record the confession
would lead criminal justice down a slippery slope;
e.
In Sangli district, the post of an SP was in fact available
and hence there was no reason to pick and choose officers
from the rank of Addl. SP for the purpose of recording the
confession.
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f.
It is a well settled principle of law that where the statute
lays down a procedure, it must be scrupulously followed.
In the MCOCA, the legislature has disclosed an intent of
seeking a proper investigation of a serious crime while at
the same time preserving fairness to the accused.
g.
The legislative intent behind Section 18 MCOCA is to
prevent the harassment of the accused. The provision is
mandatory and must be strictly construed. There exists a
legal presumption that senior, experienced officers will not
indulge in inappropriate methods of interrogation during the
course of investigation. There is a significant misuse of
police powers and hence there is a need to exercise caution
while expanding the scope of Section 18 MCOCA.
Recording a confession is different from exercising the
ordinary power of investigation. The recording of a
confession is not a ministerial act - a confession recorded
under the MCOCA is a piece of substantive evidence and
can be used against the maker of the statement. The
MCOCA embodies stringent provisions for bail in section
21(4);
h.
The mere existence of sanction under Section 23(2)
MCOCA does not cure the defect in following the procedure
under Section 23(1) MCOCA, as it is non-est and suffers
from non-application of mind.
i.
Gambling by itself is not an organized crime. Gambling is
punishable with a maximum sentence of 2 years and does
not, therefore, fall within the scope of MCOCA (which
requires the commission of a crime punishable with
imprisonment of 3 years or more). The offences under the
IPC do not fall within the ambit of Section 2(d) MCOCA
and do not constitute a continuing unlawful activity. MCOCA
has been incorrectly invoked; it is impermissible to invoke
MCOCA for ordinary crimes.
j.
Rule 3(4) of the Maharashtra Control of Organised Crime
Rules 19999 stipulates that the police officer recording the
confession must give the accused not less than 24 hours to
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
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reconsider their decision to confess. This rule was not
adhered to in the present case.
k.
The legislature was cognizant of the difference between
various ranks while enacting MCOCA. Section 23(1)(b)
refers to a Deputy SP. Sections 14(10) and 23(2) refer to
the Additional Director General of Police. In contrast,
Section 18 MCOCA does not refer either to Deputy SPs or
to Addl. SPs. If the legislature intended to include Addl.
SPs within the ambit of Section 18 MCOCA, it would have
done so expressly.
11. Apart from the above submissions, Mr. Siddharth Luthra,
learned senior counsel made the following submissions with respect to
Sharad Korane, Prakash Savla, Jayesh Savla, Suresh Sawant and
Meghraj Kambhar:
a.
They are not named either in the FIR or in the approval order;
and
b.
There is no connection between them and the activities of the
gang in question;
c.
All the confessions barring one are not recorded by an officer
of the rank of an SP but by an Addl. SP.
Learned counsel also submitted that there was no confession as
against Suresh Sawant.
12. Mr. ANS Nadkarni, learned senior counsel urged that the name
of Viral Savla is missing regarding the filing of a charge sheet against
him. Mr. Pradeep Rai submitted that Samrat Korane was named for the
first time in the sanction order, and that he had been discharged in 3 out
of 5 FIRs registered in relation to his alleged gambling activities.
13. Shree Prakash Sinha appeared on behalf of Rajendra Dave
i.e., the petitioner who was denied bail. He submitted that his client's
name was not mentioned either in the FIR or in the order granting approval
under Section 23(1)(a). He also argued that his client has been in custody
for 3 years and deserves to be released on bail.
14. The submissions urged on behalf of the petitioners have been
opposed by the State of Maharashtra. Mr. Raja Thakare, learned senior
counsel made the following submissions:
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a. Section 18 MCOCA confers the power to record confessions
by rank and hence, no separate authorisation from the state
government is necessary. Section 25 contains an overriding
provision and MCOCA does not require a separate authorisation
under any other statute.
b. Addl. SPs and SPs are of the same rank because:
i.
The posts of Addl. SP, SP, Deputy Commissioner of
Police,10 and Commandant are interchangeable upon
transfer. The post of DCP is attached to a
Commissionerate. A DCP posted in a Commissionerate
can be transferred to a district either as an Addl. SP or as
an SP. Likewise an Addl. SP or SP in a district can be
posted on transfer as a DCP in a Commissionerate.
Illustratively, Mr. Nikhil Pingale and Mr. Samadhan Pawar
were DCPs who became Addl. SPs upon being
transferred in 2018. MCOCA does not mention DCPs or
their powers under the enactment. Yet, a DCP may record
a confession under Section because she would not be
below the rank of an SP. If the petitioner's arguments
were to be accepted, a person can record a confession
under MCOCA while posted as a DCP in a particular
district but the same person would be unable to record a
confession upon transfer to another district as Addl. SP.
ii.
The pay scale for Addl. SPs and SPs is the same.
iii.
SPs as well as Addl. SPs can be promoted to the post of
Deputy Inspector General of Police.
iv.
Addl. SP is a non-cadre post. Specific rules in that regard
have been framed under Article 309 of the Constitution
on 25 August 1975. The appointment on promotion is from
the rank of ACP, Deputy SP or SDPO with a stipulated
number of years of service.
c. The State of Maharashtra has complied with the requirements
of Section 18 MCOCA and Rule 3, MCOC Rules.
d. The approval granted by the competent authority under Section
23(1)(a) MCOCA is with respect to the offence and not with
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
10 "DCP"
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respect to the offender. The approval granted is akin to an
FIR, where the names of all the offenders need not be
mentioned. Hence, non-inclusion of any accused person's name
in the order of approval is not fatal to the investigation. The
approval was granted on the basis of a proposal submitted by
the Police Inspector, Rajarampuri Police Station to the Special
IG.
e. The validity of the approval granted under Section 23(1)(a) or
of the sanction under Section 23(1)(b) cannot be tested at this
stage. Their validity can only be determined at the stage of
trial, when the prosecution has the opportunity to adduce
evidence.
f. Sub-sections 1, 2, 3 and 5 of Section 3 commence with the
expression "whoever". Unlike the above provisions, sub-section
4 of Section 3 does not contain the word 'whoever' and hence
any person who is a member of an organised crime syndicate
is liable. The MCOCA was validly invoked as the petitioners
have abetted organized crime by rendering financial assistance
to the organized crime syndicate by taking on any potential
losses from the matka. The material on record points towards
a financial link between the petitioners and the organized crime
syndicate.
D. Analysis
i. An overview of the Maharashtra Control of Organized
Crime Act 1999
15. The Maharashtra Control of Organized Crime Act 1999, as
its long title indicates, is "an Act to make special provisions for the
prevention and control of, and for coping with, criminal activity by
organized crime syndicate or gang and for matters connected therewith
or incidental thereto". The statement of objects and reasons contains
the reasons which constituted the foundation for the legislature to step
in:
Firstly, organized crime which is in existence for some years poses
a serious threat to society;
Secondly, organized crime is not confined by national boundaries;
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Thirdly, organized crime is fuelled by illegal wealth generated by
contract killing, extortion, smuggling and contraband, illegal trade
in narcotics, kidnapping for ransom, collection of protection money
and money laundering, and other activities;
Fourthly, the illegal wealth and black money generated by organized
crime pose adverse effects on the economy;
Fifthly, organized crime syndicates make common cause with
terrorists fostering narcoterrorism which extends beyond national
boundaries;
Sixthly, the existing legal framework in terms of penal and
procedural laws and the adjudicatory system were found inadequate
to curb and control organized crime; and
Seventhly, the special law was enacted with "stringent and deterrent
provisions" including in certain circumstances, the power to
intercept wire, electronic or oral communication.
16. In understanding the ambit of the enactment, emphasis must
be given to three definitions:
a. Organized crime (Section 2(1)(e));11
b. Organized crime syndicate (Section 2(1)(f));12 and
c. Continuing unlawful activity (Section 2(1)(d).13
17. The expression 'organised crime' is defined with reference to
a continuing unlawful activity. The definition is exhaustive since it is
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
11 Section 2(1)(e) - "organized crime" means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organized crime syndicate or on
behalf of such syndicate, by use of violence or threat of violence or intimidation or
coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or
gaining undue economic or other advantage for himself or any other person or promoting
insurgency.
12 Section 2(1)(f) - "organised crime syndicate" means a group of two or more persons
who, acting either singly or collectively, as a syndicate or gang indulge in activities of
organised crime.
13 Section 2(1)(d) - "continuing unlawful activity" means an activity prohibited by law
for the time being in force, which is a cognizable offence punishable with imprisonment
of three years or more, undertaken either singly or jointly, as a member of an organised
crime syndicate or on behalf of such syndicate in respect of which more than one
charge-sheets have been filed before a comptent Court within the preceding period of
ten years and that Court has taken cognizance of such offence ;
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prefaced by the word "means". The ingredients of an organized crime
are:
a. The existence of a continuing unlawful activity;
b. Engagement in the above activity by an individual;
c. The individual may be acting singly or jointly either as a member
of an organized crime syndicate or on behalf of such a
syndicate;
d. The use of violence or its threat or intimidation or coercion or
other unlawful means; and
e. The object being to gain pecuniary benefits or undue economic
or other advantage either for the person undertaking the activity
or any other person or for promoting insurgency.
18. The above definition of organized crime, as its elements
indicate, incorporates two other concepts namely, a continuing unlawful
activity and an organized crime syndicate. Hence, it becomes necessary
to understand the ambit of both those expressions. The ingredients of a
continuing unlawful activity are:
a. The activity must be prohibited by law for the time being in
force;
b. The activity must be a cognizable act punishable with
imprisonment of three years or more;
c. The activity may be undertaken either singly or jointly as a
member of an organized crime syndicate or on behalf of such
a syndicate;
d. More than one charge-sheet should have been filed in respect
of the activity before a competent court within the preceeding
period of ten years; and
e. The court should have taken cognizance of the offence.
19.The elements of the definition of "organized crime syndicate"
are :
a. A group of two or more persons;
b. Who act singly or collectively, as a syndicate or gang; and
c. Indulge in activities of organized crime.
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20. Both Section 2(1)(d) while defining "continuing unlawful
activity" and Section 2(1)(e) while defining "organized crime" contain
the expression "as a member of an organized crime syndicate or on
behalf of such syndicate". While defining an organized crime syndicate,
Section 2(1)(f) refers to "activities of organized crime".
21. Section 3 provides for the punishment for organized crime.14
Sub Section (1) of Section 3 covers "whoever commits an offence of
organized crime". Sub Section (2) covers whoever conspires or attempts
to commit or advocates, abets or knowingly facilitates the commission
of an organized crime or any act preparatory to organized crime. Sub
Section (3) covers whoever harbours or conceals or attempts to harbour
or conceal any member of an organized crime syndicate. Sub Section
(4) covers any person who is a member of an organized crime syndicate.
Sub Section (5) covers whoever holds any property derived or obtained
from the commission of an organized crime or which has been acquired
through the funds of an organized crime syndicate. Section 4 punishes
the possession of unaccountable wealth on behalf of a member of an
organized crime syndicate.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
14 Section 3 - (1) Whoever commits an offence of organised crime shall,- (i) if such
offence has resulted in the death of any person, be punishable with death or
imprisonment for life and shall also be liable to a fine, subject to a minimum fine of
rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or
attempts to commit or advocates, abets or knowingly facilitates the commission of an
organised crime or any act preparatory to organised crime, shall be punishable with
imprisonment for a term which shall be not less than five years but which may extend
to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of
rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an
organised crime syndicate shall be punishable with imprisonment for a term which shall
not be less than five years but which may extent to imprisonment for life, and shall also
be liable to a fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall be punishable
with imprisonment for a term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to a fine, subject to a minimum
fine of rupees five lacs.
(5) Whoever holds any property derived or obtained from commission of an organised
crime or which has been acquired through the organised crime syndicate funds shall be
punishable with a term which shall not be less than three years but which may extend
to imprisonment for life and shall also be liable to fine, subject to a minimum fine of
rupees two lacs.
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ii. Confession made before a police officer "not below the
rank of the Superintendent of Police"
22. The crux of the controversy in the present batch of cases
turns on the interpretation of the provisions of Section 18.15 Sub Section
(1) of Section 18 is prefaced with a non obstante provision which
operates notwithstanding anything contained in the CrPC16 or the Evidence
Act.
23. Having incorporated a non obstante clause in sub Section
(1), the statute uses the expression "but subject to the provisions of this
15 Section 18 - (1) Notwithstanding anything in the Code or in the Indian Evidence Act,
1872, but subject to the provisions of this section, a confession made by a person
before a police officer not below the rank of the Superintendent of Police and recorded
by such police officer either in writing or on any mechanical devices like cassettes,
tapes or sound tracks from which sounds or images can be reproduced, shall be admissible
in the trial of such person or co-accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is charged and tried in the same
case together with the accused.
(2) The confession shall be recorded in a free atmosphere in the same language in which
the person is examined and as narrated by him.
 (3) The police officer shall, before recording any confession under sub-section (1),
explain to the person making it that he is not bound to make a confession and that, if he
does so, it may be used as evidence against him and such police officer shall not record
any such confession unless upon questioning the person making it, he is satisfied that
it is being made voluntarily.