Post on 31-Jan-2023
1 APL-488-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.488 OF 2020
Hemant Dhirajlal Banker …. ApplicantVersus
The State of Maharashtra and another …. Respondents
....Mr. Aabad Ponda, Senior Advocate a/w. Majeed Memon, WaseemPangarkar, Ravi Mishra, Mahesh Ahire, Drishti Singh, SwapnilSrivastava i/b. MZM Legal for the Applicant.Ms. A.S. Pai, Public Prosecutor for Respondent No.1-State.Mr. Nitin Gaware Patil, Advocate for Respondent No.2.
.…
CORAM : NITIN JAMDAR AND SARANG V. KOTWAL, JJ.
RESERVED ON : 03 DECEMBER 2021 PRONOUNCED ON : 14 DECEMBER 2021
JUDGMENT : (Per Sarang V. Kotwal, J.)
1. The Applicant has preferred this application for various
reliefs. Initially the substantive prayer was made for quashing of
the FIR which was registered vide C.R. No.303/2020 dated 27th
August 2020 at Worli Police Station, Mumbai under Section 387
read with 34 of the Indian Penal Code. It was transferred to Anti-
Extortion Cell, Crime Branch, Mumbai and it was registered vide
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C.R. No.122/2020. Subsequently, by an amendment of the prayers,
the Applicant has; in addition, prayed for quashing and setting
aside of the order dated 22nd September 2021 issued by the Joint
Commissioner of Police (Crime) granting approval under Section
23(1) of the Maharashtra Control of Organized Crime Act (for
short, ‘MCOCA’) against the Applicant.
2. Heard Shri Aabad Ponda, learned Senior counsel for the
Applicant, Smt Aruna Pai, learned Public Prosecutor for the State
and Shri Nitin Gaware Patil, learned counsel for the Respondent
No.2.
3. The FIR was lodged on 27th August 2020 by the
Respondent No.2 Kailash Agarwal. He has stated that he was in the
construction business and was having his firm by name ‘Nish
Developers’. He also had another business by name ‘Nishant
Import Export’ at Dubai. In that connection he has an office in
Switzerland. The Respondent No.2 is mainly resident of Dubai. In
January 2018, through a common acquaintance, he was introduced
to one Rupin Banker and his family. The present Applicant is father
of Rupin Banker. It is mentioned in the FIR, that, Rupin Banker
was given financial help by the Respondent No.2 and initially there
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were smooth financial transactions between them. After some
time, Rupin and his wife Meenakshi, by using forged stamps and
forged signatures removed about Rs.35 Crores from the account of
the first informant maintained with the Bank of Baroda, Dubai
Branch. In that connection, the first informant–2nd Respondent has
lodged a police complaint against the Applicant, Rupin and
Meenakshi in Dubai. It is his case that Rupin and Meenakshi had
left Dubai and started residing in London. The Applicant was
staying in Dubai. Rupin Banker stopped receiving the informant’s
phone calls. The informant had gone to Mauritius on 15th July
2019 in connection with his business. On 16th July 2019, at about
5:30 p.m., the informant received a phone call from one Vijay. The
informant was busy in a meeting and, therefore, asked the caller to
call back after some time. Again after one hour, the same caller
called the informant and told him that he was Vijay Shetty and that
he had committed six murders. He threatened the informant that
the informant should not insist on police investigation against
Rupin Banker otherwise the informant would be killed when he
returned to Mumbai. The informant returned to Dubai on 20 th July
2019. On 22nd July 2019, again the same caller called and
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threatened him. The informant realized that the caller was in
contact with the Applicant and Rupin Banker and at their behest
the informant was threatened by Vijay Shetty. The same thing was
repeated after two days. The informant tried to contact the present
Applicant who was residing in Dubai, but, the Applicant did not
accept his phone call. On 27th July 2019, the informant returned to
India out of fear caused by these threats. On 8 th August 2019, the
Applicant called the informant and told him that repayment of his
dues would be delayed. That time, the informant questioned him
about the threatening calls made by Vijay Shetty. At that time, the
Applicant had denied about it. On 10th August 2019, Vijay Shetty
again called the informant and threatened him that the informant
should not demand repayment from Rupin Banker and that Rupin
should be given period of six months for that. On 22nd August
2019, again Vijay Shetty made a threatening call to the informant.
The informant had recorded two clips of these calls. He had also
recorded one clip from the Applicant’s conversation. On this basis,
the FIR was lodged.
4. As mentioned earlier the FIR was lodged at Worli police
station and then it was taken over by Anti-Extortion Cell, Crime
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Branch, Mumbai.
5. The Applicant filed this application for quashing of the
FIR, in November 2020. During pendency of this application the
Applicant was arrested on 21st August 2021. The Additional Chief
Metropolitan Magistrate, 37th Court, Esplanade, Mumbai vide his
order dated 30th August 2021 granted bail to the present Applicant
but rejected the bail application of co-accused Anant Shetty. After
that on 22nd September 2021, the Applicant’s wife was served with
a summons from the police stating that approval was granted to
initiate proceedings against the Applicant under Section 3(1)(ii)
and 3(4) of the MCOCA in connection with the same FIR. The
Applicant was asked to remain present before MCOCA Special
Court on 23rd September 2021. On that day, the Applicant
remained present before the Special Court. The prosecution
preferred an application for cancellation of bail qua the Applicant.
In the present proceedings, the Applicant is challenging the
approval under Section 23(1) of the MCOCA.
The first informant has filed an affidavit opposing this
application.
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Submissions on behalf of the Applicant :
6. In support of this application, the learned Senior
Counsel Shri Ponda made his submissions as follows:
i. From careful perusal of the FIR, the offence under Section 387
of IPC is not made out. ‘Extortion’ is defined under Section 383
of IPC and the essential ingredient of the definition is “delivery
of property”. In the present case, even as per the prosecution
case the threats did not refer to any ‘delivery of property’. The
first informant was not asked to ‘deliver’ any property.
Therefore, Section 387 of IPC is not made out from the
contents of the FIR.
ii. There is no mens rea as far as the present Applicant is
concerned. The Applicant did not know Vijay Shetty and in the
FIR also the first informant has stated that the Applicant had
denied telling anything to Vijay Shetty.
iii. The last call allegedly was made by Vijay Shetty on 22nd August
2019. The provisions of MCOCA were applied much belatedly
on 22nd September 2021.
iv. No specific role is attributed to the present Applicant. The
monetary transactions were allegedly made between the
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informant and the Applicant’s son Rupin. The Applicant had
nothing to do with those transactions. Similarly the Applicant
had no connection with Vijay Shetty.
v. There is no continuing unlawful activity. The transaction which
is the subject matter of FIR has no connection with the alleged
activities of a crime syndicate headed by Vijay Shetty.
vi. The requirement of cognizance having been taken by the
competent Courts in respect of two offences previously, is not
made out.
vii. The approval under Section 23 of the MCOCA granted does not
disclose proper application of mind; as in any case the
ingredients of MCOCA are not made out at all. The relevant
day for satisfying this condition was 22nd August 2019 i.e. date
of last call. In this case this condition is not satisfied.
viii. The prosecution cannot support the correctness and contents of
prior approval granted by the competent authority by making
oral submissions or by filing an affidavit.
. In support of these contentions, Shri Ponda relied on
various judgments, which are referred to in the following
paragraphs.
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Submissions on behalf of the State :
i. The learned Public Prosecutor Smt. Aruna Pai made her
submissions opposing this application. She submitted that the
investigation is still in progress. The FIR need not contain all
the details. The FIR is not supposed to be an encyclopedia
about the incident. The Applicant’s complicity is seen from the
investigation carried out so far. The Applicant had contacted
co-accused Anant Shetty in this connection. The co-accused
Anant Shetty, in turn, had contacted Vijay Shetty, who had
issued threats to the first informant.
ii. She submitted that Section 387 of IPC is properly applied as
the threats issued to the informant for not claiming his rightful
dues will result in wrongful loss to him and, therefore, the
offence punishable under Section 387 of IPC is made out from
the FIR and the investigation.
iii. She submitted that the scope of judicial review regarding
approval of the competent authority under Section 23 of
MCOCA is very limited. This is not a case or the stage where
the approval can be quashed and set aside. Mrs. Pai also relied
on some judgments in support of her contentions.
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Submissions on behalf of the Respondent No.2 :
i. The learned counsel Shri Nitin Gaware Patil made his
submissions on behalf of the Respondent No.2-first informant.
He submitted that for attracting Section 387 of IPC, the threats
need not only be for ‘delivery of property’. The effect of the
threats is important.
ii. While granting approval, the authority is not obliged to see
which section of the Penal Code is actually applied and as to
whether it is properly applied. The authority needs to look at
the overall material to arrive at his satisfaction as to whether
approval under Section 23(1) of MCOCA can be granted.
iii. He submitted that, besides Section 387 of IPC, Section 120B of
IPC is also attracted in the present case. Apart from these
Sections, the allegations show that the ingredients of Section
506 Part II of IPC are attracted.
iv. He submitted that this is an initial stage and the Court should
not quash the approval granted by the competent authority for
investigation into the offence under the provisions of MCOCA.
v. He submitted that Section 22 of MCOCA which raises
presumption regarding certain offences is important in the
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context of the present facts. He particularly relied on Sub-
Section (2) of Section 22 of MCOCA. According to him, Section
4 of the Indian Evidence Act mentions relevant categories in
this regard.
vi. He further submitted that Section 23 of MCOCA provides
sufficient safeguards and there are two different stages under
Sections 23(1) & 23(2) of MCOCA.
Rebuttal by Shri Ponda :
7. In response to the submissions made by Smt Pai and
Shri Patil; Shri Ponda learned Senior Counsel responded with
following submissions:
i. Section 22(2) of MCOCA requires certain conditions to be
satisfied before the presumption can be raised. It is necessary
to prove that the accused has rendered any financial assistance
to a person accused of or reasonably suspected of an offence of
organized crime. In this particular case, these important
ingredients are missing. There is nothing to show that the
Applicant had paid money to any of the accused, and in
particular, there is nothing to show that he had paid money
before August 2019, which was the last time when a
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threatening call was received by the informant.
ii. He further submitted that from the FIR, second part of Section
506 of IPC is not made out as far as phone call received in
Mumbai is concerned. An important distinction will have to be
made as the telephonic calls received by the informant in Mumbai
did not have an element of threat to cause his murder. Such
threats were allegedly given when the informant was in Dubai.
The first part of Section 506 of IPC speaks of general threats
which is a non-cognizable offence. Therefore, there was no
occasion and no legal basis to lodge an FIR in Mumbai as the case
in Mumbai was not in respect of causing death of the informant.
iii. According to Shri Ponda, it is the last substantive offence to
which MCOCA applied, must necessarily be a cognizable
offence, which is the requirement of Section 2(d) of MCOCA.
Reasons :
8. We have considered these submissions. One of the main
contentions of Shri Ponda was that the ingredients of Section 383
read with 387 of IPC are not made out because there was no
question of ‘delivery of any property’ from the informant. The
threats were issued to him for not asking for payment from Rupin
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Banker and for giving him at least six months’ time for repayment.
In this context, Shri Ponda relied on the observations of the Hon’ble
Supreme Court in the cases of (i) Isaac Isanga Musumba and
others Vs. State of Maharashtra and others1 and (ii) Dhananjay
alias Dhananjay Kumar Singh Vs. State of Bihar and another2 as
also the observations of a Division Bench of this Court in the case of
GIC Housing Finance Ltd Vs. State of Maharashtra3.
In all these cases, the ingredients of the offence of
‘extortion’ as defined under Section 383 of IPC were explained.
‘Delivery of property’ was one of the main ingredients as defined
under Section 383 of IPC.
9. In the present case, it is not necessary to decide
whether Section 387 of IPC is applicable to the present facts of the
case. We have to examine as to whether any cognizable offence is
reflected in the FIR. It is only in the eventuality that absolutely no
cognizable offence is made out in the FIR, then only it can be
quashed. Wrong application of a particular section cannot be the
sole ground for quashing of the FIR. In this case, we find that the
1 (2014) 15 SCC 357
2 (2007) 14 SCC 768
3 2015 SCC OnLine Bom 6231
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threat of committing murder of the first informant was issued to
him by Vijay Shetty. That threat was issued for not asking for
repayment from Rupin Banker and at least to wait for six months.
In that context, definition of ‘criminal intimadation’ mentioned in
section 503 of IPC is important which reads thus :
“503.Criminal intimidation.–Whoever threatensanother with any injury to his person, reputation orproperty, or to the person or reputation of any onein whom that person is interested, with intent tocause alarm to that person, or to cause that personto do any act which he is not legally bound to do, orto omit to do any act which that person is legallyentitled to do, as the means of avoiding theexecution of such threat, commits criminalintimidation. Explanation.--A threat to injure the reputationof any deceased person in whom the personthreatened is interested, is within this section.”
It is made punishable under Section 506 of IPC which reads thus :
“506. Punishment for criminal intimidation. –Whoever commits, the offence of criminalintimidation shall be punished with imprisonmentof either description for a term which may extend totwo years, or with fine, or with both; If threat be to cause death or grievous hurt,
etc.-- And if the threat be to cause death or grievoushurt, or to cause the destruction of any property byfire, or to cause an offence punishable with death or
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imprisonment for life, or with imprisonment for aterm which may extend to seven years, or toimpute, unchastity to a woman, shall be punishedwith imprisonment of either description for a termwhich may extend to seven years, or with line, orwith both.”
10. Therefore it can be observed with reasonable certainty
that offence under Section 506 Part II of IPC is definitely made out,
which is punishable with imprisonment of either description for a
term which can extend to seven years or with fine or with both.
Part II of Section 506 of IPC is made cognizable within the
Commissionerate area of Greater Mumbai. Therefore, it cannot be
said that no cognizable offence is made out. Therefore, the FIR
cannot be quashed.
11. Shri Ponda has submitted that the FIR shows that the
Applicant has no role to play at all in the entire transaction. He
was not even aware of Vijay Shetty. As pointed out by Smt Aruna
Pai, the investigation has progressed further and it has revealed
that the Applicant had contacted co-accused Anant Sheety, who in
turn, had contacted Vijay Shetty. There is telephone call record
showing this connection. Vijay Shetty has given threats to the first
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informant. Therefore, at this stage, there is sufficient material to
show the Applicant’s connection with the present crime.
12. Shri Ponda further submitted that the Applicant did not
have mens rea and there is nothing to show from the material that
he had any such mens rea in commission of the alleged offence.
He relied on the observations of a Division Bench of this Court in
the case of Surjitsingh Bhagatsingh Gambhir Vs. The State of
Maharashtra4 . It is observed in paragraph-16 of the said judgment
that before invoking and applying the offences under the said
enactment, mens rea is a necessary ingredient for charging a person
with an offence under MCOCA. In paragraph-18, it is observed that
the offence under MCOCA would necessarily require establishment
of mens rea.
However, this judgment does not take note of certain
presumptions under Section 22 of MCOCA. The said Section reads
thus:
4 Decided on 13.9.2019 in Cr.WP No.913/2019 [Bombay High Court]
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“22. Presumption as to offences under section 3..-(1) In a prosecution for an offence of organisedcrime punishable under section 3, if it is proved-
(a) that unlawful arms and other materialincluding documents or papers wererecovered from the possession of theaccused and there is reason to believe thatsuch unlawful arms and other materialsincluding documents or papers were usedin the commission of such offence; or
(b) that by the evidence of an expert, thefinger prints of the accused were found atthe site of the offence or on anythingincluding unlawful arms and othermaterial including documents or papersand vehicle used in connection with thecommission of such offence,
the Special court shall presume, unless thecontrary is proved, that the accused hadcommitted such offence.
(2) In a prosecution for an offence oforganised crime punishable under subsection (2) ofsection 3, if it is proved that the accused renderedany financial assistance to a person accused of, orreasonably suspected of, an offence of organisedcrime, the Special Court shall presume, unless thecontrary is proved, that such person has committedthe offence under the said sub-section (2).”
In the present case, this presumption, particularly under Sub-
Section (2) of Section 22 of MCOCA, in the backdrop of the factual
aspects before us, is important and definitely is applicable. As
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rightly submitted by Smt Pai and Shri Nitin Gaware Patil for
Respondent No.2 that it is an initial stage; and the investigating
agency needs to investigate the offence in depth.
13. As mentioned earlier, prior approval under Section
23(1)(a) of MCOCA was granted by the Joint Commissioner of
Police (Crime), Mumbai on 22nd September 2021. In the initial part
of the approval, there are recitals showing how the matter was
placed before him for according approval. In that portion, there is
a reference to the present C.R. No.122/2020 as ‘D.C.B. C.I.D. C.R.’
registered under Sections 387, 120B read with 34 of IPC.
Thereafter, he has mentioned that after going through the
investigation papers, such as, panchnamas, statements of witnesses,
evidence against arrested and wanted accused and after applying
his mind, he was satisfied that the accused, including the present
Applicant, are active members of organized crime syndicate headed
by wanted accused Vijay Shetty. He has further recorded his
satisfaction that Vijay Shetty was the leader of the organized crime
syndicate which was indulging in continuous unlawful activities
and that within the preceding period of ten years more than one
charge-sheets in cognizable offences i.e. D.C.B. C.I.D. C.R.
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No.72/2015 under Sections 387, 120B, 34 of IPC read with 3(1)
(ii), 3(2), 3(4) of MCOCA; and C.R. No.92/2015 registered at
Barke Police Station, Mangalore, Karnataka under Sections 143,
147, 148, 149, 341, 332, 353, 302, 120B of IPC were filed and the
competent Courts have taken cognizance of those charge-sheets.
Thereafter he has referred to the facts of the present case and has
further mentioned that the crime was committed to terrorize the
complainant and other businessmen in the society for gaining
pecuniary benefits for continuing nefarious and illegal activities of
the organized crime syndicate and that the crime amounted to an
organized crime as defined under Section 2(1) of the MCOCA.
Observing thus, he has accorded approval to apply the provisions of
MCOCA to C.R. No.122/2020 of D.C.B. C.I.D.
14. We have examined this approval within the parameters
of limited judicial review as laid down by the Hon’ble Supreme
Court in various judgments. The main ingredient of this approval is
his satisfaction that there were two previous charge-sheets against
Vijay Shetty of which cognizance was taken by the competent
Courts and that the activity which is subject matter of the approval
was covered by the definition of Section 2(1) of MCOCA. This is
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sufficient compliance of the requirement of grant of approval.
15. It was neither necessary nor incumbent on the authority
granting approval to explain as to how Section 387 of IPC was
attracted in the present case. The important consideration was
about the facts of the offence under consideration and the previous
two charge-sheets. In the facts of C.R. No.122/2020 registered at
DCB CID, the offence of issuing threats as defined under Section
503 of IPC is made out. The threat was to cause death and,
therefore, Section 506 Part II of IPC is also attracted. Section 506
Part II of IPC is cognizable in Mumbai and, therefore, the FIR can
be registered in respect of this offence. Perusal of the FIR does
make out commission of cognizable offence and, therefore, we do
not find any infirmity in the order of approval in that behalf.
16. In this context, we have taken into consideration the
submissions made by Shri Ponda, learned Senior Counsel for the
Applicant. He has submitted that ingredients of Section 506 are
admittedly made out from the FIR. However, he sought to make a
distinction that threats to cause death were issued when the
complainant was in Dubai. The threats which were issued when
the complainant was in Mumbai did not mention that the
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complainant would be murdered. Therefore, according to Shri
Ponda only the first part of Section 506 of IPC is committed in
Mumbai and the FIR could not have been lodged as there was no
cognizable offence committed in Mumbai. We are unable to accept
the submissions of Shri Ponda. The allegations in the FIR are
required to be read as a whole. It was continuing cause of action.
In the first part some threats were issued when the complainant
was in Dubai and in the later part, threats were issued when the
complainant was in Mumbai. These threatening calls cannot be
separated from one another as they are part of a common chain.
17. Both Shri Ponda as well as Mrs. Pai relied on the
judgment of the Hon’ble Supreme Court in the case of Kavitha
Lankesh Vs. State of Karnataka and others5 to support their
respective contentions. Shri Ponda submitted that in paragraph-26
of the said judgment it is observed that, what was essential was the
satisfaction of the competent authority that the material placed
before him did reveal presence of credible information regarding
commission of an offence of organized crime by the organized
crime syndicate. According to Shri Ponda this particular
5 2021 SCC OnLine SC 956
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observation helps his cause as there is no credible information
regarding commission of an offence of organized crime as far as the
Applicant is concerned in the present case.
18. On the other hand, Mrs. Pai relied on the decision in
the case of Kavitha Lankesh (supra) to contend that the prior
approval is qua the offence and not the offender as such. As long
as the incidents referred to in earlier crimes were committed by a
group of persons and one common individual was involved in all
the incidents, the offence under the MCOCA can be invoked.
. This judgment was rendered in connection with the
provisions of Karnataka Control of Organized Crimes Act, 2000.
The provisions of Section 24(1)(a) in that Act for according
approval are similar to those under Section 23(1)(a) of MCOCA.
Therefore, observations of the Hon’ble Supreme Court in this
judgment are applicable to the present case. The important
paragraph-27 of the said judgment reads thus:
“27. At the stage of granting prior approval UnderSection 24(1)(a) of the 2000 Act, therefore, thecompetent authority is not required to wadethrough the material placed by theInvestigating Agency before him along with theproposal for grant of prior approval to ascertain
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the specific role of each accused. Thecompetent authority has to focus essentially onthe factum whether the information/materialreveals the commission of a crime which is anorganized crime committed by the organizedcrime syndicate. In that, the prior approval isqua offence and not the offender as such. Aslong as the incidents referred to in earliercrimes are committed by a group of personsand one common individual was involved in allthe incidents, the offence under the 2000 Actcan be invoked. This Court in Prasad ShrikantPurohit v. State of Maharashtra, (2015) 7 SCC440 in paragraphs 61 and 98 expounded thatat the stage of taking cognizance, thecompetent Court takes cognizance of theoffence and not the offender. This analogyapplies even at the stage of grant of priorapproval for invocation of provisions of the2000 Act. The prior sanction under Section24(2), however, may require enquiry into thespecific role of the offender in the commissionof organized crime, namely, he himself singlyor jointly or as a member of the organizedcrime syndicate indulged in commission of thestated offences so as to attract the punishmentprovided Under Section 3(1) of the 2000 Act.However, if the role of the offender is merelythat of a facilitator or of an abettor as referredto in Section 3(2), 3(3), 3(4) or 3(5), therequirement of named person being involved inmore than two chargesheets registered againsthim in the past is not relevant. Regardless ofthat, he can be proceeded under the 2000 Act,
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if the material collected by the InvestigatingAgency reveals that he had nexus with theaccused who is a member of the organizedcrime syndicate or such nexus is related to theoffence in the nature of organized crime. Thus,he need not be a person who had direct role inthe commission of an organized crime as such.”
Therefore we find that the previous charge-sheets against Vijay
Shetty of which cognizance was taken by the competent Courts
shows continuity of activities as far as the present case is concerned
as Vijay Shetty is also one of the main accused in the present case
though he is shown as ‘absconding’. The approval is accorded qua
the offence and not the offender as such. Vijay Shetty is a common
individual involved in all the incidents and, therefore, the authority
was well within its rights to accord approval.
19. Shri Ponda relied on the judgment of the Hon’ble
Supreme Court in the case of Prasad Shrikant Purohit Vs. State of
Maharashtra and another6. He relied on the observation that for
ascertaining the legal position under Section 2(1)(d) of MCOCA,
the date of third occurrence should be the relevant date for
counting the preceding ten years. That is because Section 2(1)(d)
6 (2015) 7 SCC 440
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uses the expression “an activity” which is prohibited by law and the
date of such activity. The last one can be taken as the relevant
activity for the purpose of considering the two earlier charge-sheets
in the preceding ten years. According to Shri Ponda the earlier two
charge-sheets against Vijay Shetty had nothing to do with the
offence of issuing threats to the informant in this case.
20. Here again it is important to note that the earlier two
offences against Vijay Shetty were lodged under Section 387 of IPC
and under Section 302 of IPC. In C.R. No.72/2015 of D.C.B. C.I.D.
MCOCA provisions were also applied. Thus, there is a common
thread between these two previous offences and the present offence
where also threats were issued to commit murder of the informant.
It cannot be said that the last activity, which is subject matter of the
present application, is entirely different and has no connection with
the earlier two offences of which cognizance was taken by the
competent courts.
21. Shri Ponda further submitted that the charge-sheet
pertaining to D.C.B. C.I.D. C.R. No.72/2015 mentions in column
No.12 that the co-accused Vijay Shetty was not charge-sheeted
because he was residing out of country and that a provision was
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made for filing supplementary charge-sheet against him. To
counter this contention, Mrs. Pai and Shri Patil rightly submitted
that cognizance is taken of the offence and not of the offender as
mentioned in Kavitha Lankesh’s case (supra). Therefore, in that
offence of D.C.B. C.I.D. registered vide C.R. No.72/2015 the
competent court had taken cognizance of the offence itself. The
fact that Vijay Shetty could not be arrested in that offence was
immaterial because the cognizance of the offence was rightly taken.
Considering the view expressed in Kavitha Lankesh’s case (supra),
we agree with the submissions of Mrs. Pai and Shri Patil in that
behalf. The cognizance of the entire offence was taken by a
competent court and Vijay Shetty, not being available, is not a
material fact as far as that offence is concerned.
22. As far as the presumption raised under Section 22(2) of
MCOCA is concerned, in the present case the prosecution needs to
be given chance to prove the basic fact that the accused has
rendered financial assistance to a person accused of an offence of
organized crime or reasonably suspected of an offence of organized
crime. The stage is yet to arise. This is an initial stage in which the
investigation is in progress. The stage of trial is yet to arise. At this
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26 APL-488-20.odt
stage there is sufficient material to show that there was financial
transaction involving the informant when money was taken by the
Applicant’s son and wife. Threats were issued to the informant.
According to the prosecution case, there was a link connecting the
present Applicant with those threats. The financial angle is a
matter of investigation which is still going on. Therefore, at this
stage, we do not find any infirmity in according approval under
Section 23(1) of the MCOCA.
23. Considering the above discussion, we do not find any
merit in the application and same is accordingly dismissed.
(SARANG V. KOTWAL, J.) (NITIN JAMDAR, J.)
Deshmane (PS)
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