Bombay High Court
Sham S/O. Balbhim Sachane vs The State Of Maharashtra on 2 May, 2019
Bench: S.S. Shinde
Cri. Appeal No.100-18 and ors.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.100 OF 2018Tanaji s/o. Narayan Sathe,Age : 36 years, Occ.Agri.,r/o. Corakhali, Tq. Kallamb,Dist. Osmanabadat present in Harsul Central Jail,Aurangabad ..Appellant Vs.The State of Maharashtra,Through P.S. Yermala andDy. S.P. Kallamb, Dist. Osmanabad ..Respondent WITH CRIMINAL APPEAL NO.101 OF 2018Sambhaji s/o. Pandurang Sathe,Age : 20 years, Occ.Agri.,r/o. Corakhali, Tq. Kallamb,Dist. Osmanabadat present in Harsul Central Jail,Aurangabad ..Appellant Vs.The State of Maharashtra,Through P.S. Yermala andDy. S.P. Kallamb, Dist. Osmanabad ..Respondent WITH CRIMINAL APPEAL NO.170 OF 2019Sham s/o. Balbhim Sachane,Age : 32 years, Occ.Agri., ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 2 Cri. Appeal No.100-18 and ors.docr/o. Corakhali, Tq. Kallamb,Dist. Osmanabad ..Appellant Vs.The State of Maharashtra ..Respondent WITH CRIMINAL APPEAL NO.37 OF 2019Ganesh @ Prashant s/o. ShivajiShinde,Age : 24 years, Occ.Agri.,r/o. Corakhali, Tq. Kallamb,Dist. OsmanabadAt present in Harsul Central Jail,Aurangabad ..Appellant Vs.The State of Maharashtra,Through P.S. Yermala andDy. S.P. Kallamb, Dist. Osmanabad ..Respondent WITH CRIMINAL APPEAL NO.146 OF 2019Balaji s/o. Bishram Pawar,Age : 55 years, Occ.Agri.,r/o. Yermala, Tq. Kalam,Dist. Osmanabad ..Appellant Vs.1. The State of Maharashtra, Through District Superintendent of Police, Osmanabad ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 3 Cri. Appeal No.100-18 and ors.doc2. The Sub-Divisional Police Officer, Sub-Division-Kalam, Dist. Osmanabad3. The Police Inspector, Yermala Police Station, Tq. Kalam ..Respondents WITH CRIMINAL APPEAL NO.35 OF 2019Karan s/o. Bapurao Dongre,Age : 21 years, Occ.Agri.,r/o. Corakhali, Tq. Kallamb,Dist. OsmanabadAt present in Harsul Central Jail,Aurangabad ..Appellant Vs.The State of Maharashtra,Through P.S. Yermala andDy. S.P. Kallamb,Dist. Osmanabad ..Respondent WITH CRIMINAL APPEAL NO.36 OF 2019Ajit s/o. Laximan Sathe,Age : 21 years, Occ.Agri.,r/o. Corakhali, Tq. Kallamb,Dist. OsmanabadAt present in Harsul Central Jail,Aurangabad ..Appellant Vs. ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 4 Cri. Appeal No.100-18 and ors.docThe State of Maharashtra,Through P.S. Yermala andDy. S.P. Kallamb,Dist. Osmanabad ..RespondentMr.G.J.Kore, Advocate for appellants for appellantsin Criminal Appeal Nos.170, 36, 35, 37 of 2019 and100 and 101 of 2018Mr.S.A.Gaikwad, Advocate for appellant in CriminalAppeal No.146 of 2019Mr.S.B.Joshi, APP for respondents —- CORAM : S.S. SHINDE AND R.G. AVACHAT, JJ. RESERVED ON : FEBRUARY 18, 2019 PRONOUNCED ON : MAY 02, 2019JUDGMENT (PER R.G. AVACHAT, J.) :
Heard.

2. Admit. Learned APP waives notice on behalfof the respondents. With the consent of learnedCounsel for the parties, appeals are heard finally.
3. These appeals are directed against thejudgments and orders passed by the Special Court ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 5 Cri. Appeal No.100-18 and ors.docconstituted for trial of the offences under theMaharashtra Control of Organised Crime Act, 1999(M.C.O.C. Act), rejecting discharge applicationsmoved by the appellants herein. The appellants aresome of the accused in Special (M.C.O.C.) Case No.4of 2014.

Since common questions of law and factsarise, the appeals were heard together and are beingdecided by this common judgment.

4. Brief facts, giving rise to these appeals,are as follows :-

Dinesh Kumar (first informant) hails fromvillage Manjani, Tq.Atur, Dist.Selum (State of TamilNadu). He is a driver by profession. He was employedto drive truck, bearing registration No.TN-34-E-8071.One Punrasu Kannan (deceased) was the co-driver. Inthe last week of April, 2014, the first informant anddeceased Punrasu were carrying 324 bags of Sago, ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 6 Cri. Appeal No.100-18 and ors.docworth Rs.10,00,000/-, from Selum to Bhilwada(Rajasthan). On 30.04.2014, they were passing throughMaharashtra. By 09.00 p.m. on 30.04.2014, the firstinformant and Punrasu took dinner at Solapur andstarted for onward journey. It was about 02.00 a.m.on 01.05.2014 they were travelling along Tuljapur -Osmanabad road. Near village Yedshi, one Scorpiovehicle overtook the truck and blocked its way. Fourpersons alighted from Scorpio vehicle. They enteredthe truck’s cabin; two from driver’s side and othersfrom cleaner’s. Two of them were armed with woodenrods. The FIR contained their description. Two ofthem started assaulting the first informant and othertwo dealt with Punrasu. They tied their hands with aLungi. One of them took control of the truck andproceeded towards Kallam. After proceeding for about10-12 kms., they robbed two cell-phones of the firstinformant and Punrasu, besides Rs.15,000/-. Then,the four made the duo to get down from the truck and ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 7 Cri. Appeal No.100-18 and ors.docboard Scorpio vehicle and proceeded towards Yermala.The first informant and Punrasu were severely beatenup and then dropped in a dry well behind Yedeshwaritemple. The first informant regained consciousness onthe next day by 12.00 noon. Punrasu was not around tobe seen. The first informant came up on the road andapproached Police Station, Yermala and lodged reportof the incident.

5. Crime came to be registered for the offencespunishable under Sections 396, 397, 364, 412 and 201of the Indian Penal Code (“I.P.C.”, for short). Onthe next day, the dead body of Punrasu was found neara pond behind Yedeshwari temple.

6. On completion of investigation of the crimeregistered under Indian Penal Code, charge-sheet wasfiled. During further investigation, it was foundthat the offence was committed by an organised crimesyndicate headed by one Raja Pawar. Prior approval ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 8 Cri. Appeal No.100-18 and ors.docfor registration of the offences under the M.C.O.C.Act was, therefore, granted by the competentauthority. The Deputy Superintendent of Police tookup the investigation. Some of the accused gaveconfessional statements. It was revealed that Punrasuwas murdered. Some of the stolen Sago bags were sold.On completion of investigation and after obtainingsanction for prosecution, charge-sheet for theoffences punishable under the M.C.O.C. Act, came tobe submitted. The Special Court took cognizance ofthe offence.

7. The appellants herein moved the applicationsfor discharge. The Special Court rejected theapplications by separate orders.

8. Mr.Kore and Mr.Gaikwad, learned Counselappearing for the appellants, would submit (averredin the appeal memos) that as the FIR was filedagainst five unknown persons only, how come ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 9 Cri. Appeal No.100-18 and ors.docinvolvement of eighteen persons in the offences inquestion. The appellants were arrested on suspicion.A co-accused, who was similarly situated with most ofthe appellants herein, has been discharged from theoffence under M.C.O.C. Act. His case has beentransferred to the regular Court. As such, none ofthe appellants could be said to have committed anorganised crime. Learned Counsel referred to therelevant provisions of the M.C.O.C. Act. Accordingto learned Counsel, the Special Court, in the factsand circumstances of the case, should have dischargedthe appellants.

9. Learned APP would, on the other hand, submitthat during investigation, complicity of theappellants in the offences in question, has beensurfaced. Call Data Records (C.D.R.) indicate thatthey were in contact with each other and the gang-leader before and even after the offence in questionwas committed. Some of them have been identified by ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 10 Cri. Appeal No.100-18 and ors.docthe first informant in T.I. Parade. The appellantshave given confessional statements. All of them werein association with the gang-leader and facilitatedcommission of the crime.

10. Before adverting to appreciate the factualmatrix, it would be apposite to refer to relevantprovisions of M.C.O.C. Act.

Section 2.(1) In this Act, unless the context otherwise requires,-

(a) “abet”, with its grammatical variations and cognate expressions, includes,- (i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate;
(b) ….

(c) ….
::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 11 Cri. Appeal No.100-18 and ors.doc
(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 competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

(e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;
(f) “organised crime syndicate” means a group of two or more persons who, acting::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 12 Cri. Appeal No.100-18 and ors.doc either singly of collectively, as a syndicate or gang indulge in activities of organised crime;

11. In the case of Prasad Shrikant Purohit Vs.State of Maharashtra and anr., AIR 2015 SC 2514, theHon’ble Supreme Court observed thus :- 38. In the first instance, it will be profitable to examine the scheme of MCOCA by making a cursory glance to the Objects and Reasons and thereafter to make an intensive reading of the above referred two provisions. When we peruse the Objects and Reasons, it discloses 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. ………………………….. ………………………………… It was further found that the existing legal framework, that is the penal and procedural laws and the adjudicatory ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 13 Cri. Appeal No.100-18 and ors.doc system, were found to be inadequate to curb or control the menace of ‘organized crime’. 39. The definition of ‘continuing unlawful activity’ under Section 2(1) (d) mainly refers to an activity 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 ‘organized crime syndicate’ or even if as an individual or by joining hands with others even if not as a member of an ‘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 of ‘continuing unlawful activity’ there should have been more than one charge- sheet filed before a competent Court within the preceding period of 10 years::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 14 Cri. Appeal No.100-18 and ors.doc and that the said Court should have taken cognizance of such offence.
40. Before getting into the nuances of the said definition of ‘continuing unlawful activity’, it will be worthwhile to get a broad idea of the definition of ‘organized crime’ under Section 2(1)(e) and ‘organized crime syndicate’ under Section 2(1)(f). 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 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 have been indulged in with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 15 Cri. Appeal No.100-18 and ors.doc himself or for any other person or for promoting insurgency. Therefore, an ‘organized crime’ by nature of violent action indulged in by an individual singly or jointly either as a member of an ‘organized crime syndicate’ or on behalf of such syndicate should have been either with an object for making pecuniary gains or undue economic or other advantage or for promoting insurgency. If the object was for making pecuniary gains it can be either for himself or for any other person. But we notice for promoting insurgency, there is no such requirement of any personal interest or the interest of any other person or body. The mere indulgence in a violent activity etc. either for pecuniary gain or other advantage 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::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 16 Cri. Appeal No.100-18 and ors.doc ‘organized crime’. 41. An ‘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’.
42. By conspectus reading of the above three definitions, if in the preceding 10 years from the date of 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 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. 43 to 55 ….. . . . . .::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 17 Cri. Appeal No.100-18 and ors.doc 56. Keeping the respective submissions of the learned counsel in mind when we examine the said issue, in the first instance we wish to refer to relevant provisions touching upon this issue, namely, Section 2(1)(d) of MCOCA and Section 173(2) and (8) as well as Sections 190 and 193 of Criminal Procedure Code. When we refer to Section 2(1)(d) of MCOCA the definition of ‘continuing unlawful activity’ is defined to mean an activity prohibited by law and that it should be a cognizable offence punishable with imprisonment of three years or more. For the purpose of ascertaining the issue relating to cognizance, the other part of the said definition which requires to be noted is that more than one charge-sheet should have been filed before a Competent Court within the preceding period of 10 years and that Court should have taken cognizance of such offence. The offence should alleged to have been committed either::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 18 Cri. Appeal No.100-18 and ors.doc singly or jointly as a member of an organized crime syndicate or on its behalf. In so far as the offences are concerned, if the offence would attract a punishment of three years or more that would suffice for falling within the said definition. The charge-sheet should have been filed before a Competent Court with reference to such offence against the offenders. 57. One of the contentions raised and which was countered by the respondents was that such two earlier offences should also satisfy the other requirements stipulated under MCOCA, namely, as a member of an organized crime syndicate or on behalf of an organized crime syndicate either singly or jointly. A strict interpretation of Section 2(1)(d) would definitely mean the fulfillment of such requirement since the definition specifically reads to the effect ‘undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 19 Cri. Appeal No.100-18 and ors.doc syndicate’. Therefore, even if the earlier offences were not initiated under the provisions of MCOCA such initiations should have been capable of being brought within the provisions of MCOCA, namely, as part of an activity of an organized crime syndicate either by its own members either singly or jointly or though not as a member but such participation should have been on behalf of an ‘organized crime syndicate’. As far as filing of the charge-sheet is concerned what all it refers to is such filing before a Competent Court and that Court should have taken cognizance of such offence. 58. A minute reference to the said Section, therefore, shows that in the event of the fulfillment of the rest of the requirements, namely, the nature of offence providing for punishment of three years and more, the involvement of the offender as required under the said definition, when it comes to the question of filing of the charge-sheet,::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 20 Cri. Appeal No.100-18 and ors.doc 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. …. 63. …………. In this respect, we will have to bear in mind that the implication of MCOCA would come into play only after the third occurrence takes place and only after 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 in respect of which a charge-sheet has already been filed before the Competent Court which Court had taken cognizance of such offence.
12. The police papers/charge sheet undoubtedlyindicate that against the appellants herein, not a ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 21 Cri. Appeal No.100-18 and ors.docsingle charge-sheet had been filed before competentCourt within preceding period of ten years nextbefore the crime in question came to be registered.It could, thus, be seen that involvement, if any, ofthe appellants in the crime could not be termed to betheir continuing unlawful activity and resultantly,being an offence of organised crime within themeaning of Sections 2(d) and 2(e), respectively, ofthe M.C.O.C. Act.

13. The charge-sheet indicates that againstaccused nos.1, 2, 6 and 9, there have been more thanone charge-sheets filed before the competent Courtwithin the preceding period of ten years next beforethe present crime came to be registered. Needless tomention that those charge-sheets pertain tocognizable offences punishable with imprisonment ofthree years or more, undertaken with an objective ofgaining pecuniary benefits. Accused Nos.1, 2, 6 and9 are not before this Court. Prima facie finding as ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 22 Cri. Appeal No.100-18 and ors.docto whether the crime is an organised crime, isrequired to be given. True, these accused may takeexception to the crime, contending it to be not anoffence of organised crime or any other offence underM.C.O.C. Act. It is reiterated that in spite ofthose accused being not before this Court, atentative finding as to the offence being anorganised crime is required to be given for decidingthese appeals. It, therefore, cannot be said that itis not an offence of organised crime under M.C.O.C.Act.

14. It is now to be considered whetherinvolvement of the appellants constitute an offenceof abetment of organised crime.

Section 2(1)(a) defines the term “abet”, tomean – (i) the communication or association with anyperson with the actual knowledge or having reason tobelieve that such person is engaged in assisting in ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 23 Cri. Appeal No.100-18 and ors.docany manner, an organised crime syndicate; (ii) thepassing on or publication of, without any lawfulauthority, any information likely to assist theorganised crime syndicate and the passing on orpublication of or distribution of any document ormatter obtained from the organised crime syndicate;and; (iii) rendering of any assistance, whetherfinancial or otherwise, to the organised crimesyndicate.

In the case of Ranjitsing BrahmajeetsingSharma Vs. State of Maharashtra and anr., 2005 SCC(Cri.) 1057, the Hon’ble Supreme Court observedthus :-
22. The interpretation clause as regard the expression ‘abet’ does not refer to the definition of abetment as contained in Section 107 of IPC. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 24 Cri. Appeal No.100-18 and ors.doc expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under Sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, “communication” or “association” must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. In our considered opinion, any communication or association which has no nexus with the commission of organized crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate. Communication to, or association with, any person by itself, as was contended::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 25 Cri. Appeal No.100-18 and ors.doc by Mr.Sharan, would not, in our considered opinion, come within meaning of the aforementioned provision. The communication or association must relate to a person. Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organised crime syndicate. Thus, the offence under Section 3(2) of MCOCA must have a direct nexus with the offence committed by an organised crime syndicate. Such abetment of commission of offence must be by way of accessories before the commission of an offence. ……..It is interesting to note that whereas Section 3(2) having regard to the definition of the term ‘abet’ refers directly to commission of an offence or assisting in any manner an organised crime syndicate…….
15. We have, therefore, now to appreciate,whether the police papers, prima facie, make out a ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 26 Cri. Appeal No.100-18 and ors.doccase of abetment of organised crime. We propose totake case of each of the appellants separately.
APPELLANT IN CRIMINAL APPEAL NO.100 OF 2018 (Tanaji s/o. Narayan Sathe)
16. This appellant has made confessionalstatement before the Superintendent of Police (S.P.),Beed, on 14.08.2014. The legal position regardingadmissibility of confessional statement would bestated lateron. The appellant was on the driver’sseat of Scorpio vehicle. It is he, who had blockedthe way of the truck driven by the first informant.We do not propose to reproduce the entireconfessional statement of the appellant, suffice itto say that the appellant has confessed hisinvolvement in the offence. He has been identified bythe first informant in his identification parade.There are C.D.Rs. to indicate the appellant to havebeen in continuous contact with the others involved ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 27 Cri. Appeal No.100-18 and ors.docin the crime. The confessional statements of some ofthe co-accused further indicate involvement of thisappellant.

APPELLANT IN CRIMINAL APPEAL NO.101 OF 2018 (Sambhaji s/o. Pandurang Sathe)
17. This appellant is sought to be tied with hisown confessional statement recorded by the S.P., Beedon 14.08.2014. We have carefully perused theconfessional statement to find him to have been inthe company of the leader of the organised crimesyndicate and the co-accused during commission of thecrime. His confessional statement, however,undoubtedly, indicate him to have not made any overt-act. There is also nothing to suggest him to havedone anything to facilitate commission of theorganised crime. The confessional statement of someof the co-accused are on the lines of theconfessional statement of this appellant. Thisappellant has been identified by the first informant ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 28 Cri. Appeal No.100-18 and ors.docin the test identification parade.
APPELLANT IN CRIMINAL APPEAL NO.170 OF 2019 (Sham s/o. Balbhim Sachane)
18. So far as regards this appellant isconcerned, we have before us his own confessionalstatement and the confessional statement of one VinodHarbhare. Admittedly, there is nothing to indicatethe appellant’s involvement in the main offence inquestion. He came on the scene post commission of theoffence. The main offence is of road robbery,wherein one of the victims had been murdered. Therobbery is of 324 bags of Sago worth Rs.10,00,000/-.The appellant runs a grocery shop. He has madeconfessional statement before S.P., Beed, on12.08.2014. It is, prima facie, evident from hisconfessional statement that two days after therobbery, accused Vinod Harbhare contacted him oncell-phone and inquired, whether he (appellant)would like to purchase Sago. The appellant readily ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 29 Cri. Appeal No.100-18 and ors.docagreed. The co-accused – Vinod Harbhare, therefore,took 60 bags of Sago to the house of the appellant.The appellant paid him Rs.25,000/- towards cost of 10bags of Sago. He allowed Vinod Harbhare to keep theremaining 50 bags in his house.

19. On the same lines is the confessionalstatement of Vinod Harbhare. It is in his statementthat on the request of co-accused – Popat Pawar, hecontacted the appellant herein to see, whether he(appellant) would like to buy Sago. There is nomaterial to indicate the appellant to have been inthe know that the Sago bags were property derived orobtained from commission of an organised crime, beingan offence punishable under Section 3(5) of M.C.O.C.Act.

20. In our view, the Special Court erred inobserving that the material creates strong and gravesuspicion leading to presume the appellant to be a ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 30 Cri. Appeal No.100-18 and ors.docmember of the organised crime syndicate and hasinvolved in its continuous activities. The SpecialCourt also observed the appellant to have abettedunlawful activities of organised crime syndicate.
21. The observations made by the Special Courtare incongruous with the material on record. Section2(1)(f) of the M.C.O.C. Act defines the term”organised crime syndicate” means a group of two ormore persons who, acting either singly orcollectively, as a syndicate or gang, indulge inactivities of organised crime. To constitute anoffence of being member of organised crime syndicate,it is, therefore, required to be shown that themember is involved in organised crime i.e. continuingunlawful activity.

As already observed herein above, theoffence of abetment can be committed by beingaccessory before, or at the most, during the offence. ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 31 Cri. Appeal No.100-18 and ors.docIt is reiterated that there is no material evenslightly to suggest the appellant to have been waryof the offence in question and he consciously boughtthe Sago bags. He could only be said to havecommitted the offence of dishonestly receiving thestolen property, punishable under Section 411 of theI.P.C.

APPELLANT IN CRIMINAL APPEAL NO.37 OF 2019 (Ganesh @ Prashant s/o. Shivaji Shinde)
22. This appellant made confessional statementbefore the S.P., Beed, on 14.08.2014. He was awarethat the gang-leader and other co-accused have beeninvolved in the offences of road-robbery, housebreaking, etc. The co-accused Tanaji Sathe (appellantin Crime No.100 of 2018) was employed by thisappellant as a driver on his Scorpio vehicle. Thevehicle involved in the crime belongs to thisappellant. He was, however, not in the know that hisvehicle was being used in commission of the offence. ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 32 Cri. Appeal No.100-18 and ors.docHe joined the co-accused at his brick-kiln from themidnight of 01.05.2014. He remained in the company ofthe co-accused thereafter. His confessionalstatement, however, suggest him to have not made anyovert-act in the commission or facilitatingcommission of the offence in question. The facts,however, indicate him to have consciously remained inthe company of the co-accused during commission ofthe offence. He allowed his place (brick-kiln) to beused to keep the victims thereat for a while. True,the material relied on against this appellant may beshaky. We are, however, considering his claim fordischarge. We only hope that the Trial Court wouldconsider his claim, if any, for bail.
APPELLANT IN CRIMINAL APPEAL NO.146 OF 2019 (Balaji s/o. Bishram Pawar)
23. This appellant is father of accused nos.4, 6and 12. The police papers undoubtedly indicate theappellant to have not been involved in commission of ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 33 Cri. Appeal No.100-18 and ors.docthe main offence. He appears to have not made anyconfessional statement. What is relied on against himis the confessional statement of co-accused – Govind@ Rama Pawar. The only incriminating material againstthis appellant is – “मम आमररई कडड न घररकडड परयम जरत असतरनर वरटडतबरलरजम बबसररम पवरर हर भडटलर व तयरनड पण मलर झरलडलर पकरर ककणरलर सरसगड नकक असडमहणडन चरपट मररलयर व धमकक बदलम.”

This appellant can only be said to haveconcealed proof of the organised crime syndicate ofthe accused in this case. He could, at the most, besaid to have committed an offence punishable underSection 3(3) of the M.C.O.C. Act. We hope that theSpecial Court would consider his case for bail, ifany, uninfluenced by our observations herein.
In our view, the Special Court erred inobserving the appellant to have been a member oforganised crime syndicate and involved in theorganised crime. This appellant even cannot be saidto have abetted the organised crime as he came at the ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 34 Cri. Appeal No.100-18 and ors.docscene post commission of the offence.
APPELLANT IN CRIMINAL APPEAL NO.35 OF 2019 (Karan s/o. Bapurao Dongre)
24. This appellant too, made a confessionalstatement on 14.08.2014 before S.P., Beed. Also,There are confessional statements of some of theaccused suggesting this appellant’s involvement.Those confessional statements indicate the appellantto have been associated with the gang-leader andthree others since beginning. His role appears to beof the facilitator of the organised crime. He hasbeen identified by the first informant in the T.I.parade. As such, the appellant could not make out acase for discharge altogether.

APPELLANT IN CRIMINAL APPEAL NO.36 OF 2019 (Ajit s/o. Laximan Sathe)
25. This appellant too, has made confessionalstatement on 14.08.2014 before S.P., Beed. He was in ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 35 Cri. Appeal No.100-18 and ors.docthe company of the gang-leader and others duringcommission of the main offence. He has beenidentified in the T.I. parade. True, the appellantappears to have not made any overt-act. There is,however, material to indicate that his consciouspresence, prima facie, facilitated commission of theorganised crime. No case for altogether discharge,thus, could be made out by him.

26. If the material relied upon by theprosecution remained unrebutted, it may warrantconviction of the appellants in one or the otheroffence. None of the appellants, therefore, could besaid to have made out a case for discharge from oneand all offences.

27. We are conscious of the fact that the FIRhas been lodged against unknown persons. It has beenlodged by a Tamil Nadu based person, who did notunderstand Marathi. One may be amazed of the fact ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 36 Cri. Appeal No.100-18 and ors.docthat when the FIR was against five unknown person,how-come involvement of nine more. This could only bemade out due to the confessional statements. UnderSection 18 of the M.C.O.C. Act, confessions made tothe police officer are to be taken intoconsideration.

Section 18. Certain confessions made to police officer to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (I of 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, ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 37 Cri. Appeal No.100-18 and ors.doc abettor or conspirator is charged and tried in the same case together with the accused.
(2) to (6) . . . . . ….
There are the Maharashtra Control ofOrganised Crime Rules, 1999 prescribing procedure forrecording of confession under Section 18 of theM.C.O.C. Act. Rule 3(6) mandates that the confessionrecorded under sub-rule (5) shall, if it is inwriting, be signed by the person who has made suchconfession and by Police Officer, who has recordedthe said confession. Such Police Officer shall, underhis own hand, also make a memorandum at the end ofthe confession to the following effect :-
” I have explained to (name of the confessor) that he is not bound to make a confession and that, if he does so, any confession that he makes, may be used as evidence against him and I am satisfied that this confession has been voluntarily. It has been made before me ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 38 Cri. Appeal No.100-18 and ors.doc and in my hearing and has been recorded by me in the language in which it is made and as narrated by, the confessor. I have read it over to the confessor and he has admitted it to be verbatim and correct, and containing also full and true account of the confession/ statement made by him.”

28. Upon perusal of the confessional statementsavailable on record, it is found that there is non-compliance of this Rule except in case of theconfessional statement of accused – Govind @ RamaPawar. A confessional statement, sans memorandumunder Rule 3(6), is not admissible in evidence.[Bharatbhai Vs. State of Gujarat, 2003 ALL MR (Cri.)164 (SC)] and [Mohammad Iqbal Shaikh Vs. State ofMaharashtra, 2007 ALL MR (Cri.) 631]. It would,however, be a question of appreciation of theevidence during trial of the case. A contemporaneousrecord about satisfaction of recording officer after ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 39 Cri. Appeal No.100-18 and ors.docwriting of confession that confession was voluntarilymade may cure the defect. We have, therefore, lookedinto the confessional statements at this stage. Theoffence dates back to April, 2014.

The offence is serious one. Without makingany observation about the evidenciary value of thematerial relied upon, suffice it to say that it isnecessary to direct the Special Court to frame Chargeand conclude trial within a period of one year. TheSpecial Court may simultaneously consider bailapplications, if any, that may be filed by theappellants or any one of them or even by the co-accused, presently not before this Court.
29. Since we, prima facie, found it to be a caseof organised crime, the case in respect of one andall the accused connected with the crime, need to betried by the Special Court only. This observation isrequired to be made because, in our opinion, accused ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 40 Cri. Appeal No.100-18 and ors.doc
– Sham s/o. Balbhim Sachane (appellant in CriminalAppeal No.170 of 2019) can only be charged with theoffence under Section 411 of I.P.C. or any otherrelated offence under the I.P.C. His case cannot beseparated and sent to the regular Court for trial.Law does not expect more than one simultaneous trialbased on the same evidence against different accused.Section 7(1) of the M.C.O.C. Act permits the SpecialCourt to try any other offence, with which theaccused may, under the I.P.C., be charged with at thesame trial, if the offence is connected with suchother offence, when trying any offence punishableunder this Act.

Section 11 of M.C.O.C. Act states – “Where,after taking cognizance of an offence, a SpecialCourt is of the opinion that the offence is nottriable by it, it shall, notwithstanding that it hasno jurisdiction to try such offence, transfer thecase for trial of such offence to any Court having ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 41 Cri. Appeal No.100-18 and ors.docjurisdiction under the Code and the Court to whichthe case is transferred may proceed with the trial ofthe offence as if it had taken cognizance of theoffence.”

Terminology of Section 11 undoubtedlyindicates that, if the Special Court finds that it isnot an offence punishable under any of the Sectionsof M.C.O.C. Act, but it makes out an offence underIndian Penal Code or any other Statute, then only itshall transfer the case for trial of such offence toany Court having jurisdiction under the Code to trythe same.

When we have prima facie found it to be anorganised crime, the Special Court has jurisdictionto try the same, the persons accused of differentoffences committed in the course of same transactionneed to be charged and tried together. Section 7 ofthe M.C.O.C. Act gives the Special Court jurisdiction ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 42 Cri. Appeal No.100-18 and ors.docto try persons accused of different offencescommitted in the course of same transaction.
30. For the reasons given hereinabove, theAppeals partly succeed in terms of the followingorder :-
O R D E R
(i) Criminal Appeals No.100/2018, 101/2018, 170/2019, 37/2019, 146/2019, 35/2019 and 36/2019 are partly allowed.
(ii) The appellants stand discharged of offences of organised crime and being members of the organised crime syndicate.
(iii) The appellants namely – Tanaji Sathe, Sambhaji Sathe, Ganesh Shinde, Karan Dongre and Ajit Sathe shall be charged with the offence of abetment of organised crime.
(iv) Appellant – Balaji Pawar is also discharged of the offence of abetment of the organised crime. He shall, however, be charged with an offence ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 ::: 43 Cri. Appeal No.100-18 and ors.doc punishable under Section 3(3) of M.C.O.C. Act and any other offence as may be made out against him from the police papers.
(v) Appellant – Sham Sachane stands discharged of offences punishable under M.C.O.C. Act. He shall, however, be charged and tried for offence punishable under Sections 411 and 414 of the Indian Penal Code and/ or any other offence that may be made out against him.
(vi) Rest of the appellants may also be charged and tried for offences punishable under Indian Penal Code or any other law, as may be made out against them from the police papers.[R.G. AVACHAT, J.] [S.S. SHINDE, J.]kbp ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:09:29 :::

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