- (1.) High Court of Bombay has, by a common order dated 18th November, 2008, impugned in these appeals, set aside orders passed by the Special Court under Maharashtra Control of Organised Crime Act, 1999 and acquitted the respondents of the charges framed against them. The High Court has relying upon several earlier pronouncements on the subject, held that mere proof of filing of charge sheets in the past was not enough to hold the persons accused in such charge sheets to be guilty of the offences of committing organised crime punishable under Section 3 of MCOCA for such charge sheets satisfy but one of the requirements under the said Act. What is according to the High Court equally important is to prove that the accused were guilty of committing the offence of organised crime by reason of their continuing unlawful activities. The High Court further held that any such unlawful activity should be by use of threat of violence, intimidation, coercion or other unlawful means with the objective of "gaining pecuniary or other advantages", and that the provisions of MCOCA can be invoked only by strictly complying with the provisions of Section 23 of the Act. The competent authority was, declared the High Court, duty bound to apply its mind to the attendant facts while permitting registration of an FIR under MCOCA or granting sanction for prosecution. The High Court held that the competent authority, in the case at hand, had not applied its mind properly which rendered the registration of the cases and the filing of the charge sheets against the respondents legally unsustainable. The High Court further held that the respondents were, in the facts of the cases before it, not shown to have committed any offence for pecuniary, economic or similar other advantage which was one of the requirements to be satisfied before they could be held guilty of an organised crime. The orders of conviction recorded by the Special Court, and the sentences awarded to the respondents were on those findings set aside.
(2.) We have heard learned counsel for the parties at considerable length. We have also been taken through the record including the judgments of the trial court and that passed by the High Court. The factual matrix in which the respondents were prosecuted and found guilty for offences punishable under MCOCA, have been set out at great length by the Trial Court and even by the High Court. Recapitulation of the same all over again would, therefore, serve no useful purpose. All that need be mentioned is that the respondent Shiva @ Shivaji Sonwane, accused in Special Criminal Case No.1 of 2001 and Mehmood Khan Pathan, accused in Special Case No.2 of 2001 started off as partners in crimes which they committed with the help of other gangsters in the industrial town of Khaparkheda situate on the outskirts of the city of Nagpur. The gang, in due course, appears to have split into two, one each led by Shivaji Ramaji Sonwane and Mehmood Khan Pathan.
(3.) The prosecution case is that the two gangs have over ten years prior to the enactment of MCOCA been involved in commission of several crimes which constitutes "continuing unlawful activity" within the meaning of Section 2(d) of MCOCA. This, according to the prosecution, was evident from the fact that a very large number of charge sheets had been filed against them in which the competent jurisdictional Courts had taken cognizance. To be precise, as many as 42 charge-sheets had been filed against the gang led by Shiva Sonwane, whereas 30 similar charge-sheets were presented against the rival gang led by Mehmood Khan Pathan. What led to the invocation of MCOCA in Criminal Case No.1 of 2002 against the gang led by Shiva Sonwane is an incident that took place on 16th March, 2001 at about 9.15 a.m. when Shiva Sonwane is alleged to have gone to the shop of one Rameshwar Bawankar in which one Sunil Bante PW-8/I was working as an employee. Respondent- Shiva and his companion gangsters are alleged to have beaten up Sunil Bante and set the shop on fire resulting in a loss of 1.5 lacs to the owner. Crime No.37 of 2001 for several offences punishable under the Indian Penal Code and the Arms Act was registered with the police station Khaparkheda, in connection with the incident.;