IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF FEBRUARY 2019

BEFORE

THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

CRIMINAL APPEAL No.293 OF 2018

BETWEEN:

S.Narayan, S/o.Late Siddappa, Aged 61 years, Occ: Business, R/at No.32/1, 18th Cross, Sadashivanagar, Bengaluru – 560 080. .. Appellant ( By Sri S.M.Chandrashekar, Senior Counsel For Sri S.Kalyan Basavaraj, Advocate )

AND:

State of Karnataka By Police of Malleshwaram Police Station, Bengaluru. (Investigated by CID) Represented by The Special Public Prosecutor, For KCOCA Cases, High Court of Karnataka, Dr.Ambedkar Veedhi, Bengaluru – 560 001. .. Respondent ( By Sri Ashok N. Naik, Spl.Public Prosecutor)

®

Crl.A.No.293/2018

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This Criminal Appeal is filed under Section 12 of Karnataka Control of Organised Crimes Act, praying to set aside the order dated 20.11.2017, passed by the Prl. City Civil & Sessions Judge, Bengaluru, in Spl.C.C.No.417/2016, and discharge the appellant in Spl.C.C.No.417/2016 of the Prl.City Civil & Sessions Judge, Bengaluru, in respect of all the charges leveled against him under Sections 3(2) and 3(5) of KCOCA and Section 120-B, 109 and 411 of IPC.

This Criminal Appeal having been heard and reserved

for Judgment on 29.1.2019, this day, the Court delivered the following:

JUDGMENT

The appellant herein had made an application

under Section 227 of Code of Criminal Procedure, 1973,

(hereinafter for brevity referred to as `Cr.P.C.’), seeking

his discharge in respect of the offences punishable under

Sections 3(2), 3(5) of Karnataka Control of Organised

Crimes Act, 2000, (hereinafter for brevity referred to as

`KCOCA’), Sections 120(B), 109, 411 of Indian Penal

Code, 1860, (hereinafter for brevity referred to as `IPC’)

read with Sections 115 and 23 of the Karnataka

Education Act, 1983 (hereinafter for brevity referred to

as `Education Act’), in Special C.C.No.417/2016, on the

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file of Prl.City Civil & Sessions Judge, Bengaluru,

(hereinafter for brevity referred to as `Special Court’).

The Special Court by its order dated 20.11.2017, along

with other similar applications filed by accused Nos.17

and 18, rejected the application filed by the present

appellant also. Challenging the said order of the Special

Court, the appellant has preferred this appeal.

2. The summary of the case of the prosecution as

could be gathered from the materials placed before this

Court is that, on the basis of a written information laid

by the Joint Director of Pre-University Board, Karnataka,

on 22.3.2016, the respondent/complainant police

registered a case in their station Crime No.37/2016,

against unknown persons for the offences punishable

under Sections 418, 420, 381 of IPC, and under Sections

115 and 23 of Education Act, and took up the

investigation.

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The summary of the allegations made in the first

information is that the examination of Second Year

Pre-University Course (hereinafter for brevity referred to

as `PUC’), was scheduled to be held between 11.3.2016

and 28.3.2016. On 21.3.2016, the examination in the

subject – Chemistry, was scheduled and on the same

day, at about 7.29 a.m., the informant learnt that the

question papers of Chemistry examination of Second

Year PUC was leaked in manuscript and on comparison

with the original, the same were similar. Hence, the

informant laid the information with the respondent-

police seeking appropriate legal action. Based on the

said information, the jurisdictional police registered a

case as stated above and commenced the investigation.

3. Subsequently, vide requisition of the

Investigating Officer dated 11.4.2016, Section 120-B

and Section 201 of IPC were proposed to be added

during the course of investigation and the present

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appellant was arraigned as accused No.13. Thereafter,

the respondent invoked Section 3 of KCOCA, as such,

the entire case stood transferred to Special Court

constituted under KCOCA.

4. In the meantime, on 31.3.2016, one more case

in Crime No.48/2016, was registered on the file of the

respondent/complainant police for the offences

punishable under Sections 418, 420, 381 of IPC and

under Section 115 and Section 23 of the Education Act,

in connection with leakage of question papers pertaining

to PUC examination rescheduled to be held on

31.3.2016.

Since the offences in both the crime numbers were

allegedly similar in nature and alleged to have been

carried out by the same group, which circumstances

indicate proximity in time, place and commonality of

purpose and constituted same part of transaction carried

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out with a common object, by virtue of the order dated

6.9.2016, passed by the Addl.Director General of Police

(hereinafter for brevity referred to as `ADGP’), CID,

Bengaluru, both cases were investigated together and a

common comprehensive charge sheet was filed against

eighteen accused persons. The appellant had been

re-arraigned as accused No.10 in the charge sheet.

5. The summary of the allegation made in the

charge sheet in so far as present appellant is concerned

is that, he had conspired with accused Nos.7 and 9 to

secure question papers before hand with an intention to

facilitate ………………….. (name concealed in the charge

sheet), to enable to secure more marks than other

deserving students and through them, had contacted

accused No.6 and also paid consideration totaling to a

sum of `13 lakhs. Accordingly, the appellant was

alleged to have obtained the question papers before

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hand and facilitated ………………… (name concealed in the

charge sheet) and ………………….. (name concealed in the

charge sheet), at his residence and enabled them to

prepare for examination in terms of the said question

papers. Apart from conspiring and obtaining stolen

question papers, as noted above, he had abetted and

facilitated leakage of question papers and accordingly,

he alleged to have committed offences punishable under

Sections 3(2) and 3(5) of KCOCA Act and under Sections

120-B, 109 and 411 of IPC and under Section 115 and

Section 23 of Education Act. Subsequently, the

respondent-police filed an additional charge sheet under

Section 173(8) of Cr.P.C.

After laying of charge sheet, the Special Court

proceeded to take cognizance of the offences. The

proceeding was renumbered as Special

C.C.No.417/2016. It is then the appellant filed an

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application under Section 227 of Cr.P.C., seeking his

discharge in the case.

6. The first point in the argument of learned Senior

Counsel Sri S.M.Chandrashekar appearing for the

appellant is that, the very objective of the KCOCA is to

curb the organised crimes involving the criminal

activities of contract killings, smuggling in contraband,

illicit trade in narcotics, kidnappings for ransom,

collection of protection money from business

establishments and individuals and money laundering

etc., The activities of the organised crime must be

oriented in promoting insurgency. In the instant case,

the alleged activity of the alleged organised crime

syndicate, even if it is taken on its facial value as alleged

in the charge sheet, still, it would not constitute any

activity of promoting insurgency, as such, KCOCA is not

applicable. In that connection, learned counsel relied

upon the judgment of Bombay High Court in

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State of Maharashtra –vs- Jagan Gagansingh

Nepali and others, MANU/MH/1155/2011, and

drew the attention of the Court to Paragraph-27 of the

said judgment wherein the Bombay High Court was

pleased to refer to Paragraph Nos.14 and 16 of the

judgment of Hon’ble Apex Court in Sanjay Dutt –vs-

State, MANU/SC/0554/1994, which is reproduced

here below :

“ 14. The construction made of any provision of

this Act must, therefore, be to promote the

object of its enactment to enable the machinery

to deal effectively with persons involved in, and

associated with, terrorist and disruptive

activities while ensuring that any person not in

that category should not be subjected to the

rigours of the stringent provisions of the TADA

Act. It must, therefore, be borne in mind that

any person who is being dealt with and

prosecuted in accordance with the provisions of

the TADA Act must ordinarily have the

opportunity to show that he does not belong to

the category of persons governed by the TADA

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Act. Such a course would permit exclusion from

its ambit of the persons not intended to be

covered by it while ensuring that any person

meant to be governed by its provisions, will not

escape the provisions of the TADA Act, which is

the true object of the enactment. Such a course

while promoting the object of the enactment

would also prevent its misuse or abuse. Such a

danger is not hypothetical but real in view of

serious allegations supported by statistics of the

misuse of provisions of the TADA Act and the

concern to this effect voiced even by the

National Human Rights Commission.

16. It is the duty of Courts to accept a

construction which promotes the object of the

legislation and also prevents its possible abuse

even though the mere possibility of abuse of a

provision does not affect its constitutionality or

construction. Abuse has to be checked by

constant vigilance and monitoring of individual

cases and this can be done by screening of the

cases, by a suitable machinery at a high level.

It is reported that in some States, after the

decision of this Court in Kartar Singh, high

powered committees have been constituted for

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screening all such cases. It is hoped that this

action will be taken in all the States throughout

the country, Persons aware of instances of

abuse, including the National Human Rights

Commission, can assist by reporting such

instances with particulars to that machinery for

prompt and effective cure. However, that is no

reason, in law, to doubt its constitutionality or to

alter the proper construction when there is a felt

need by the Parliament for enacting such a law

to cope with, and prevent terrorist and

disruptive activities threatening the unity and

integrity of the Country.”

7. The Statement of Objects and Reasons for

introducing the Bill for the KCOCA which was also relied

upon by the learned senior counsel is reproduced here

below :

“ STATEMENT OF OBJECTS AND REASONS

Organised crime is a very serious threat to

our society. It knows no national boundaries.

It is fuelled by illegal wealth generated by

contract killings, smuggling in contraband, illicit

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trade in narcotics, kidnappings for ransom,

collection of protection money from business

establishments and individuals and money

laundering etc. The illegal wealth generated by

the organised crime is so huge that after a

stage, its perpetrators are trying to interfere

with the vital institutions of the state by their

money power or through threat or intimidation.

In fact, many criminal activities tend to put a

question mark on the very existence of the

State. The experience in our country as well as

in other countries of the world shows that

organised criminal syndicates make a common

cause with terrorist gangs and foster nacro-

terrorism. There is a reason to believe that

organised criminal gangs are operating in our

cities and thus, there is immediate need to curb

their activities.

The existing penal laws and the

adjudicatory system, are not adequate to curb

or control the menace of organised crime.

Therefore, it is considered necessary to enact a

law to control the menace of organised crimes in

the State.”

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The above statement of Objects & Reasons of the

KCOCA makes it clear that the law was enacted to

control the menace of organised crimes in the state.

The word “organised crimes” has been defined under

Section 2(1)(e) of the KCOCA, which reads as below :

“ Section 2 (1)(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.”

The word “organised crime” has to be read along

with the definition of the term “continuing unlawful

activity”, which is defined under Section 2(1)(d) of the

KCOCA, which reads as below :

Crl.A.No.293/2018

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“ 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-sheet have been filed

before a competent Court within the preceding

period of ten years and that Court has taken

cognizance of such offence.”

The word “organised crime syndicate” is defined

under Section 2(1)(f) of KCOCA, which reads as below :

“ 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, indulged in activities of

organised crime.”

8. The above three terms defined under Section

2(1)(d), 2(1)(e) and 2(1)(f) of the KCOCA are

interrelated to each other. As observed by the Hon’ble

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15

Apex Court in Ranjitsing Brahmajeetsing Sharma

–vs- State of Maharashtra and another, reported in

{(2005) 5 SCC 294}, at paragraph-23 of the

judgment, the interpretation clause contained in Section

2(d) 2(e) and 2(f) of the MCOCA are interrelated (in the

said judgment, reference was to the Act of Maharashtra

Control of Organised Crimes Act, 1999 - MCOCA.

KCOCA is similar in those Sections with MCOCA).

9. In the above context, another decision relied

upon by the Senior Counsel for the appellant in Jagan

Gagansingh Nepali (supra) also to be considered,

wherein the Full Bench of the High Court of Bombay

while dealing with the matter under MCOCA, at

Paragraph-27 of its judgment was pleased to rely upon

the judgment of Hon’ble Apex Court in Sanjay Dutt’s

case (supra), wherein at Paragraph-14 of its judgment,

the Hon’ble Apex Court had observed that the

Crl.A.No.293/2018

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construction made of any provision of this Act must,

therefore, be to promote the object of its enactment to

enable the machinery to deal effectively with persons

involved in, and associated with it, terrorist and

disruptive activities while ensuring that any person not

in that category should not be subjected to the rigours

of the stringent provisions of the TADA Act.

The above judgments make it clear that Act must

be interpreted keeping its objective in mind and the Act

should not be so interpreted that a person who does not

fall within the ambit of the Act, is subjected to rigours of

the stringent provisions of the Act like TADA, MCOCA

and KCOCA etc.,

10. As noted above, the object of the Act was to

define as to what is organised crime and to control the

menace of organised crime. A reading of Section

2(1)(e) of KCOCA makes it clear that any continuing

Crl.A.No.293/2018

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unlawful activity can be by an individual, singly or

jointly, either as a member of an organised crime

syndicate or on behalf such syndicate and it can be by

use of violence or threat of violence or intimidation or

coercion, or other unlawful means, with the objective of

gaining pecuniary benefit or gaining undue economic or

other advantage for himself or any other person or

promoting insurgency.

11. Learned Special Public Prosecutor appearing for

the respondent in his argument submitted that KCOCA

can be invoked against any organised crime

syndicate/gangs indulged in unlawful activities. Such

activities may be of violent mode or of soft crimes also.

He also submitted that since the year 2008, many

similar cases have been booked against accused Nos.1

to 3. Thus, the syndicate continued the similar unlawful

activities attracting KCOCA provisions. Learned Special

Public Prosecutor submitted that in many instances

Crl.A.No.293/2018

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where insurgency was not the activity involved in the

crime, then also MCOCA or KCOCA provisions were

attracted. He quoted the following cases in his support :

(i) State of Maharashtra and others –vs- Lalit

Somdatta Nagpal and another, reported in { (2007)

4 SCC 171}. The crime alleged under the said case

was involving seizure of two iron tanks of 12,000 and

6,000 litres capacity, greenish lubricating oil in 200 litres

barrel, 45 kilos of white chemical powder in five gunny

bags and ten motor tankers containing petroleum

products and two empty tankers, worth `77,14,195/-.

The crime was registered under Sections 3 and 7 of the

Essential Commodities Act, 1955, and under Section 3 of

the Petroleum Storage and Distribution Act, 2000.

Subsequently, in the said crime, MCOCA was also

attracted.

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(ii) Ranjitsing Brahmajeetsing Sharma’s case

(supra) – The case pertains to the offences of printing

counterfeit stamps and forgery in various States,

including the State of Maharashtra. The case was

popularly called as Fake Stamp Paper case. Though

initially FIR was registered under Sections 120-B, 255,

249, 260, 263(a) and (b), 478, 472 and 474 read with

Section 34 of IPC, but, later Section 3 of MCOCA was

also brought on the scene.

(iii) Mahipal Singh –vs- Central Bureau of

Investigation and another, reported in { (2014) 11

SCC 282}. The case pertains to rigging of results of

various entrance examinations for admission to Post-

Graduate course in medical colleges conducted by the All

India Institute of Medical Sciences and also in

connection with admission to under-Graduate courses in

medical colleges. The accused was alleged to have

committed the offences punishable under Sections

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120-B read with Sections 420, 467, 471 and 511 of IPC.

Later, the Deputy Inspector General of CBI had accorded

approval for invoking Section 3 of MCOCA.

(iv) Shiv Murat Dwivedi –vs- State, reported in

2012 Crl.LJ 4237. The FIR was registered for the

offences punishable under Sections 4, 5 and 8 of

Immoral Traffic (Prevention) Act, 1956. During the

course of investigation, Section 3 and 6 of Immoral

Traffic (Prevention) Act, 1956, was also added. Later,

the competent authority granted approval to apply

Section 3 of MCOCA also. When challenged, the Delhi

High Court held that attraction of MCOCA in the said

case was proper.

(v) State –vs- Vipin Sharma and others,

reported in 2014 (3) JCC 1846, was about alleged

illegal activities of cheating, forgery of passports and

Visas and playing fraud upon the authorities. Apart from

Crl.A.No.293/2018

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the offences under Indian Penal Code, Section 3 of

MCOCA was also attracted. It was held by the Delhi

High Court that in the said facts of the case, provisions

of Section 3 of MCOCA cannot be held unjustified.

12. Thus, it is clear that KCOCA, which is similar to

MCOCA, is not just confined to the acts of promotion of

insurgency alone, but, it also includes other unlawful

means having obtained for gaining pecuniary benefits or

gaining undue economic or other advantage for the

benefit of an individual or for any other person.

Thus, the first point of argument of learned Senior

counsel for the appellant that in the absence of any

activity of insurgency or violence in the alleged offences,

the KCOCA would not be attracted, is not acceptable.

13. The second point of argument of learned

Senior counsel for the appellant was that there is

non-compliance of Section 24 (1)(a) of the KCOCA, as

Crl.A.No.293/2018

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such, also the charge sheet against the appellant

deserves to be quashed.

14. Section 24(1)(a) of the KCOCA reads as below:

“ 24. Cognizance of and investigation into

an offence.- (1) Notwithstanding anything

contained in the Code, -

(a) No information about the commission of

an offence of organised crime under this

Act, shall be recorded by a police officer

without the prior approval of the police

officer not below the rank of the Deputy

Inspector General of Police.”

According to the learned Senior Counsel for the

appellant, the complainant-police ought not to have

registered FIR and recording of the first information

should have been only by a police officer not below the

Rank of Deputy Inspector General of Police. In this

regard, learned Senior Counsel also relied upon the

judgment of Lalit Somdatta Nagpal’s case (supra),

Crl.A.No.293/2018

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where at Paragraph No.66 of the judgment, the Hon’ble

Apex Court was pleased to observe; “Section 23(1)(a) of

MCOCA provides a safeguard to the accused in that

notwithstanding anything contained in the Code of

Criminal Procedure, no investigation of an alleged

offence of organised crime under MCOCA, 1999, can be

commenced without the prior approval of a police officer

not below the rank of Deputy Inspector General of

Police”.

It is further submitted that in the said Lalit

Somadatta Nagapal’s case (supra), the Hon’ble Apex

Court has no where observed that the police are

prevented or barred from registering a FIR for the

offence under Indian Penal Code and subsequently

based on the progress made in the investigation and the

availability of materials attracting the provisions of

MCOCA, with the due permission of a police officer, not

below the rank of Deputy Inspector General of Police.

Crl.A.No.293/2018

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The said judgment no where says that the registration of

FIR for offences other than MCOCA and more

particularly, for the offences under Indian Penal Code

also should have been by a police officer not below the

rank of Deputy Inspector General of Police. Even in the

said case also, the approval by a police officer not below

the rank of Deputy Inspector General of Police for

attracting the provisions of MCOCA was at a subsequent

date. However, the Hon’ble Apex Court observed that

“the organised crime referred to in its approval order

was with regard to the alleged violation of Sales Tax and

Excise Laws which was not intended to be the basis for

the application of provisions of MCOCA”.

15. In State (N.C.T.Delhi) –vs- Brijesh Singh

and others, reported in { (2017) 10 SCC 779}, the

fact reveals that the FIR registered in the said case was

for offences punishable under Sections 384, 387, 417,

419, 471, 506 read with Section 34 of IPC.

Crl.A.No.293/2018

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Subsequently, the Assistant Commissioner of Police

prepared for a proposal for registration and investigation

of the case under Sections 3/4 of MCOCA. That the

particulars of fourteen members of the syndicate were

given for the proposal and approval was sought for

conducting thorough investigation into the role of each

of them for the offences under Sections 3 and 4 of

MCOCA. Thereafter, obtaining the requisite sanction

under Section 23(2) of MCOCA from the competent

authority, the Special Court was requested to take

cognizance of the offences under Sections 3 and 4 of the

MCOCA. From these, it is clear that the first information

report to attract or incorporate the provisions of KCOCA

in a pending crime, it is not necessary that the first

information report should necessarily be registered and

the FIR to be filed by a police officer not below the rank

of the Director General of Police. As such, the argument

Crl.A.No.293/2018

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of learned Senior Counsel for the appellant on the said

point is not convincing.

16. The third point of argument of learned Senior

Counsel for the appellant, on which he gave emphasis

was that, the appellant herein, who is the accused No.10

in the crime, being only an alleged abettor, against

whom, there is no antecedent of involvement in a similar

crime or filing of charge sheet of an offence punishable

with more than three years imprisonment in the

preceding ten years, the provisions of KCOCA will not

apply. In that regard, he relied upon few cases of the

Hon’ble Apex Court in his support.

The first case he relied upon is on Lalit

Somadatta Nagpal’s case (supra). In the said

judgment, learned counsel drew the attention of this

Court to a portion of Paragraph No.63 and Paragraphs

64 and 65 of the judgment, which reads as below :

Crl.A.No.293/2018

27

“ 63. …..…….. In the instant case, both Lalit

Somdatta Nagpal and Anil Somdatta Nagpal

have been shown to have been involved in

several cases of a similar nature which are

pending trial or are under investigation. As far

as Kapil Nagpal is concerned, his involvement

has been shown only in respect of CR No.25 of

2003 of Rasayani Police Station, Raigad, under

Sections 468, 420 and 34 of the Penal Code and

Sections 3, 7, 9 and 10 of the Essential

Commodities Act. In our view, the facts as

disclosed justified the application of the

provisions of MCOCA to Lalit Nagpal and Anil

Nagpal. However, the said ingredients are not

available as far as Kapil Nagpal is concerned,

since he has not been shown to be involved an

any continuing unlawful activity. Furthermore,

in the approval that was given by the Special

Inspector General of Police, Kolhapur Range,

granting approval to the Deputy Commissioner

of Police (Enforcement), Crime Branch, CID,

Mumbai to commence investigation under

Section 23(1) of MCOCA, Kapil Nagpal has not

been mentioned. It is only at a later stage with

the registering of CR No.25 of 2003 of Rasayani

Police Station, Raigad, that Kapil Nagpal was

Crl.A.No.293/2018

28

roped in with Lalit Nagpal and Somdatta Nagpal

and permission was granted to apply the

provisions of MCOCA to him as well by order

dated:22.08.2005.

64. In addition to the above, a glance

at the permission sought by PI LCB, Raigad, on

18.8.2005 seeking permission for registering an

offence under Section 1 (ii) of MCOCA, 1999

against Lalit Nagpal, Anil Nagpal, Kapil Nagpal

and one Parasnath Ramdular Singh will reveal

that such permission was being sought for, as

far as Kapil Nagpal is concerned, in respect of

an offence allegedly under Section 63 of the

Sales Tax Act, which in our opinion would not

attract the provisions of MCOCA.

65. We, therefore, have no hesitation in

holding that as far as Kapil Lalit Nagpal is

concerned, the provisions of MCOCA have been

misapplied to him.

The second judgment relied upon by the learned

counsel for the appellant on the point is Mahipal

Singh’s case (supra). In the said case, at Paragraph

Crl.A.No.293/2018

29

No.13, while discussing the definition of the term

“continuing unlawful activity”’, the Hon’ble Apex Court

was pleased to observe that, it is required to be

established that the accused was involved in activities

prohibited by law which are cognizable offence

punishable with imprisonment of three years or more

and in respect thereof, more than one charge sheets

have been filed against such person before a competent

Court within the preceding period of ten years and that

Court has taken cognizance of such offence.

The third judgment relied upon by the learned

Senior Counsel for the appellant on the point is in State

of Maharashtra –vs- Shiva alias Shivaji Ramaji

Sonawane and others, reported in {(2015) 14 SCC

272}, wherein the learned Senior Counsel relied upon a

portion of Paragraph No.10 in the judgment, which

reads as below :

Crl.A.No.293/2018

30

“10.………. Continuation of unlawful activities is

the second and equally important requirement

that ought to be satisfied. It is only if an

organised crime is committed by the accused

after the promulgation of MCOCA that he may,

seen in the light of the previous charge-sheets

and the cognizance taken by the competent

court, be said to have committed an offence

under Section 3 of the Act.”

The fourth judgment relied upon by the learned

Senior Counsel for the appellant on the point is Brijesh

Singh’s case (supra). Paragraph No.25 of the

judgment, to which the attention of this Court was

drawn by the learned Senior Counsel for the appellant,

reads as below :

“25. Organised crime which is an offence

punishable under Section 3 of MCOCA means a

continuing unlawful activity committed by the

use of force or violence for economic gain.

One relevant pre-condition which has to be

satisfied before any activity can be considered

as a continuing unlawful activity is that there

Crl.A.No.293/2018

31

should be atleast two charge sheets filed

against the members of an organised crime

syndicate within the previous 10 years and a

‘competent Court’ has taken cognizance of

such charge sheets. In the instant case, there

are eight charge sheets filed against the

Respondents, six out of which are in the State

of Uttar Pradesh. The submission of the

Respondents, which was accepted by the

Courts below, is that such charge sheets which

are filed in the State of Uttar Pradesh are not

relevant for the purpose of determining

whether the Respondents have indulged in a

continuing unlawful activity. The Courts below

held that only charge sheets filed in

competent Courts within Delhi have to be

taken into account. We are not in agreement

with the Courts below.

17. On the other hand, learned Special Public

Prosecutor for the respondent in his argument submitted

that the present appellant is accused No.10 and that he

has been alleged to be an abettor in the commission of

the organised crime by accused Nos.1 to 3. As such, as

Crl.A.No.293/2018

32

against an abettor, previous involvement in more than

one cognizable case are not necessary. He further

submitted that, it is sufficient to attract KCOCA once it is

shown that the abettor had some nexus with the

organised crime syndicate or its member or the person

act on behalf of the syndicate. He relied upon few

judgments in support of his argument.

The first judgment relied upon by him is Prasad

Shrikant Purohit –vs- State of Maharashtra and

another, Criminal Appeal Nos.1969-1970 of 2010,

dated 15.4.2015. In the said judgment, at Paragraph

No.89, the Hon’ble Apex Court referring to its previous

judgment in Ranjitsingh Brahamjeetsingh Sharma’s

case (supra), was pleased to observe as below :

“ 89 : A reading of paragraph 31 shows that in

order to invoke MCOCA even if a person may

or may not have any direct role to play as

regards the commission of an organised crime,

if a nexus either with an accused who is a

Crl.A.No.293/2018

33

member of an `organised crime syndicate’ or

with the offence in the nature of an `organised

crime’ is established that would attract the

invocation of Section 3(2) of MCOCA.

Therefore, even if one may not have any direct

role to play relating to the commission of an

`organised crime’, but when the nexus of such

person with an accused who is a member of

the `organised crime syndicate’ or such nexus

is related to the offence in the nature of

`organised crime’ is established by showing his

involvement with the accused or the offence in

the nature of such `organised crime’, that by

itself would attract the provisions of MCOCA.

The said statement of law by this Court,

therefore, makes the position clear as to in

what circumstances MCOCA can be applied in

respect of a person depending upon his

involvement in an organised crime in the

manner set out in the said paragraph.”

The second judgment relied on by the learned

Special Public Prosecutor is in Govind Sakharam Ubhe

–vs- The State of Maharashtra, (Indian Kanoon –

http://indiankanoon.org/doc/1453468). In the

Crl.A.No.293/2018

34

said case, while analysing the definition of “continuing

unlawful activity” under Section 2(1)(d) of MCOCA, a

Division Bench of the Bombay High Court was pleased to

observe at Paragraph No.36 of the judgment that the

words `in respect of which more than one charge sheet

have been filed’, cannot go with the words `a member

of a crime syndicate’, because, in that case, these words

would have read as `in respect of whom more than one

charge sheet have been filed’.

In the very same judgment, at Paragraph Nos.39

and 40, the Bombay High Court was further pleased to

observe as below :

“ 39 …………… What is contemplated under

Section 2(1)(d) of the MCOCA is that activities

prohibited by law for the time being in force

which are punishable as AJN described therein

have been undertaken either singly or jointly

as a member of organised crime syndicate and

in respect of which more than one charge-

sheets have been filed. Stress is on the

Crl.A.No.293/2018

35

unlawful activities committed by the organised

crime syndicate. Requirement of one or more

charge-sheet is qua the unlawful activities of

the organised crime syndicate.

40. In our opinion, in this connection,

reliance placed by Mr.Desai on Lalit Nagpal’s

case is misplaced. The ratio of the said

judgment is misconstrued by the appellant. In

that case, the issue whether the words `more

than one charge-sheet’ refer to the unlawful

activities of an organised crime syndicate or to

the individual members was neither raised nor

canvassed. Consequently, the said issue did

not fall for consideration and was not decided.”

In the concluding paragraphs, in the same

judgment at Paragraph No.44, the Bombay High Court

has observed as below :

“ 44. In the light of this, we are of the opinion

that the words `more than one charge-sheet’

contained in Section 2(1)(d) refer to unlawful

activities of the organised crime syndicate.

Crl.A.No.293/2018

36

Requirement of more than one charge-

sheet is qua the unlawful activities of the

organised crime syndicate and not qua

individual member thereof.”

In the third judgment relied upon by the learned

Special Public Prosecutor in Narender Kumar –vs-

State of Delhi (Indian Kanoon – http:

/indiankanoon.org/doc/1614279), the High Court

of Delhi in its order dated 1.11.2011, also has observed

with respect to attraction of Section 3 of MCOCA that

requirement of one or more charge sheet is qua the

unlawful activities of the organised crime syndicate.

Accordingly, holding that in the matter pending before it,

necessary ingredients of offence under Section 3 of

MCOCA were made out against the petitioner and in

view of the bar under Section 21(3) of MCOCA, the

application for anticipatory bail of the petitioner was

held not maintainable.

Crl.A.No.293/2018

37

The fourth judgment relied upon by the learned

Special Public Prosecutor is in Sandeep –vs- State,

reported in {2014 (214) DLT 738}, decided by the

Delhi High Court. In the said case, the petitioner was

charged under Section 3(2) and Section 3(4) of MCOCA.

The petitioner, along with fifteen other persons were

charge sheeted under Section 3 of MCOCA. It was the

prosecution case that the petitioner had engaged the

services of one Amit @ Babloo and his associates for

killing his uncle Jai Prakash, for which he had paid an

advance sum of `2 lakhs. FIR was registered under

Section 302/34 of IPC. Further, Section 3 of MCOCA

was also attracted in the matter. When the applicability

of Section 3 of MCOCA was challenged, contending that

even according to the prosecution, the petitioner was

only a client, who had engaged the services of Amit @

Babloo and his gang, which was a professional gang, the

petitioner not being a member of the organised crime

Crl.A.No.293/2018

38

syndicate or acting on behalf of the syndicate, is

disqualified to be charge sheeted under Section 3 of

MCOCA, the Delhi High Court observed that nexus and

role of the petitioner with organised crime syndicate

once prima facie established and the records shows that

petitioner had hired the services of `A’ to kill his uncle

by rendering financial assistance to an organised crime

syndicate of `A’ to commit the act of murder, the same

amounts to abetment, as such, no illegality was found in

the impugned order. Consequently, the Revision

Petition of the petitioner was dismissed.

18. In my opinion, the reliance placed by the

learned Senior Counsel for the appellant in Lalit

Somadatta Nagapal’s case (supra), would not enure

to the benefit of the appellant, for the reason that, the

ratio of the said judgment is misconstrued by the

appellant. In Lalit Somadatta Nagapal’s case

(supra), as observed by the Division Bench of Bombay

Crl.A.No.293/2018

39

High Court, in Govind Sakharam Ubhe’s case

(supra), the issue whether the words `more than one

charge sheet’ refers to the unlawful activities of an

organised crime syndicate or to the individual members,

was neither raised nor canvassed. Consequently, the

said issue did not fall for consideration and was not

decided.

19. In Mahipal Singh’s case (supra), the

question was not of abettor assisting the crime by the

organised crime syndicate, but, the question was

whether the accused was involved as a member of the

organised crime and whether more than one charge

sheet was filed against him before the competent Court

within the preceding period of ten years. As such, the

said issue would not enure to the benefit of the

appellant.

20. In Shiva @ Shivaji Ramaji Sonawane’s

case (supra), the question was as to when the alleged

Crl.A.No.293/2018

40

crime was said to have been committed? Whether it

was after the promulgation of MCOCA or earlier to that?

In the instant case, undisputedly, the alleged crime is

said to have been committed after promulgation of

KCOCA. The said case also would not enure to the

benefit of the appellant.

21. Brijesh Singh’s case (supra) also searched

for filing of atleast two charge sheets against the

members of organised crime syndicate within the

previous ten years and taking of cognizance by

competent Court on such charge sheets. However, the

said judgment since has not considered the role of the

one who has undertaken `on behalf of’ any organised

crime syndicate or with respect to role of an `abettor’,

the same also would not be of much help to the

appellant since he has been arraigned in the matter as

an abettor of the unlawful activities of organised crime

syndicate.

Crl.A.No.293/2018

41

22. On the other hand, a careful reading of Section

2(1)(d) of KCOCA, which defines `continuing unlawful

activity’ is to be understood in such a way that the

words `in respect of which more than one charge sheet

have been filed’, go with the word `syndicate’.

A reading of the said definition clause would not give a

meaning that even as against an abettor, who is alleged

to have assisted and abetted the continuing unlawful

activity of an organised crime syndicate, there had to be

necessarily filed more than one charge sheet before a

competent Court within the preceding period of ten

years and that Court has taken cognizance of such

offences.

23. Learned Senior Counsel for the appellant had

also relied upon the judgment of Hon’ble Apex Court in

Ranjithsing Brahmajeetsing Sharma’s case

(supra). In Paragraph Nos.31, 36 and 37 of the said

Crl.A.No.293/2018

42

judgment, the Hon’ble Apex Court was pleased to

observe as below :

“ 31. The High Court does not say that the

appellant has abetted Telgi or had conspired

with him. The findings of the High Court as

against the appellant are attributable to

allegations of abetting Kamat and Mulani.

Both Kamat and Mulani were public servants.

They may or may not have any direct role to

play as regard commission of an organised

crime but unless a nexus with an accused who

is a member of the organised crime syndicate

or an offence in the nature of organised crime

is established, only by showing some alleged

indulgence to Kamat or Mulani, the appellant

cannot be said to have conspired or abetted

commission of an organised crime. Prima

facie, therefore, we are of the view that

Section 3(2) of MCOCA is not attracted in the

instant case.

36. Does this statue require that before a

person is released on bail, the court, albeit

prima facie, must come to the conclusion that

he is not guilty of such offence? Is it

Crl.A.No.293/2018

43

necessary for the court to record such a

finding? Would there be any machinery

available to the court to ascertain that once

the accused is enlarged on bail, he would not

commit any offence whatsoever?

37. Such findings are required to be

recorded only for the purpose of arriving at an

objective finding on the basis of materials on

record only for grant of bail and for no other

purpose.”

It is after referring to these paragraphs in

subsequent judgment, the Hon’ble Apex Court in

Prasad Shrikant Purohit’s case (supra), observed

that even if a person not having any direct role to play

as regards the commission of an organised crime, if the

nexus either with an accused, who is a member of an

organised crime syndicate or with the offence in the

nature of organised crime is established, that would

attract invocation of Section 3(2) of MCOCA. (Emphasis

supplied).

Crl.A.No.293/2018

44

24. In the instant case, even though the appellant

is accused No.10, the role alleged against him in the

charge sheet which are shown to be supported by

incriminating materials are that;

(i) He was in contact with co-accused even prior

to the commencement of PUC II year Science

Examination which commenced from 11.3.2016. Even

though the learned Senior Counsel for the appellant

submits that the alleged entrance of accused No.10 in

the scene of offence was after the occurrence of the

offence, but, the call details in the form of documents

produced by the prosecution in Annexure-2, Part-6 at

Page Nos.1117-1184, at this stage, go to show that

accused No.10/appellant had contacts with the main

accused even prior to the commencement of the PUC II

year Science examination and alleged leakage of

question papers.

Crl.A.No.293/2018

45

(ii) The accused No.10 alleged to have met the

co-accused i.e., accused No.6 – Manjunath N., accused

No.9 – Anil Kumar U.R. and accused No.17 – Satish,

conspiring and demanding the question paper for the

sake of his daughter even prior to the examination. The

prosecution has produced alleged confession statements

of accused Nos.1 to 6 in Annexure-2, Part-1, Page

Nos.450-493.

(iii) On 10.3.2016, in the night, accused No.10 is

alleged to have received the question paper in the

subject Biology examination, in which subject,

examination was scheduled to be held on the next day,

in his house at Sadashivanagar from co-accused. The

prosecution relies upon the alleged confession

statements of accused Nos.1 and 6 in this regard.

(iv) Accused No.10 is said to have paid a sum of

`5 lakhs on 12.3.2016 to an organised crime syndicate

Crl.A.No.293/2018

46

member i.e., accused No.6, through accused No.9 and

accused No.17. In this regard, prosecution relies upon

the alleged confession statement of accused No.6.

(v) On 13.3.2016, accused No.10 is alleged to

have received question paper in the subject of

Mathematics, the examination in which subject was

scheduled to be held on the next day, in his house at

Sadashivanagar, from co-accused and in the said house

of accused No.10 at Sadashivanagar, it is alleged that

several other beneficiary students were trying. In this

regard, the prosecution has produced the alleged

confession statement of accused No.1.

(vi) The accused No.10 is alleged to have once

again paid a sum of `8 lakhs to accused No.6, through

accused No.9, on 15.3.2016.

(vii) On 16.3.2016, it is alleged that accused

No.10 received question paper in Physics subject, on

Crl.A.No.293/2018

47

which subject, the examination was scheduled to be held

on the next day, in his house at Sadashivanagara from

co-accused No.6. The prosecution has produced the

alleged confession statements of accused Nos.1 and 6 in

this regard.

(viii) The wife of accused No.10 is alleged to have

taken her daughter (one among the alleged

beneficiaries) on 20.3.2016 to a house of one of the

students at Basaveshwaranagar, where question paper

of Chemistry subject was received and the beneficiary

was trained. The prosecution forwards the alleged

confession statements of accused Nos.1 and 6 in this

regard.

(ix) It is further alleged in the charge sheet that

leakage of Chemistry question paper on 21.3.2016, in

view of which, the Government canceling the

examination and registering a FIR in respondent-police

Crl.A.No.293/2018

48

station in Crime No.37/2016, were all within the

knowledge of accused No.10.

(x) The prosecution has also placed materials

alleging that on 30.3.2016, after scheduling the

re-examination in the Chemistry subject, which was to

be held on 31.3.2016, the next day’s question paper in

Chemistry subject was made available in the house of

accused No.10 at Sadashivanagar, whereat, several

other beneficiary students are said to have been trained

by the syndicate. The same is said to have been made

possible because of active involvement of accused No.10

with the syndicate. The prosecution has forwarded the

alleged confession statements of accused No.1 and

accused No.6 in Annexure-2, Part-3.

25. Thus, the constant assistance and abetment by

accused No.10/appellant in the commission of alleged

crime by the alleged organised crime syndicate has been

Crl.A.No.293/2018

49

placed before the trial Court by the respondent-police

along with materials, which, prima facie, and at this

stage appears to be relevant and makes out a case

against accused No.10 for the alleged offences.

26. Lastly, learned Senior Counsel for the appellant

in his argument also submitted that there is no mens

rea on the part of the appellant/accused No.10 for the

alleged abetment of the commission of the crime, as

such, the charge sheet filed against him deserves to be

quashed. In that regard, learned Senior Counsel for the

appellant relied upon Ranjithsing Brahmajeetsing

Sharma’s case (supra), where at Paragraph 24 of its

judgment, the Hon’ble Apex Court was pleased to

observe that, “only because a person cheats or commits

a criminal breach of trust, more than once, the same

may by itself is not sufficient to attract the provisions of

the MCOCA. Furthermore, mens rea is a necessary

ingredient for commission of a crime under MCOCA.”

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50

27. As narrated above, when the charge sheet

alleges that accused No.10 in order to give benefits to

his daughter, who was a student, appearing for second

year Pre-University examination in Science, has

accommodated, assisted and abetted the commission of

the crime by the organised crime syndicate, (which

syndicate and its alleged crime, the appellant/accused

No.10 has not denied in the appeal) and more

particularly, by financially aiding the organised crime

syndicate on more than one occasion, by paying huge

sum of money, not less than `13 lakhs in total, and also

manuscript of questions, which incidentally were

reflected in the next day’s examination question paper

on the subject and also permitted the syndicate to make

use of his house at Sadashivanagar to siphon the details

of next day’s questions coming in the examination to

other beneficiary students and also training them up,

Crl.A.No.293/2018

51

cannot be called as an act done without any intention to

assist the syndicate in the commission of crime.

28. Further, the question of mens rea can only be

ascertained during the course of the trial. As such, at

this stage, it cannot be called that the alleged act of

appellant/accused No.10 in abetting and assisting the

commission of crime by the organised crime syndicate

was without any mens rea.

29. Since the Special Court in its impugned order

though has not considered each of the above aspects in

detail, but, after taking note of the above aspects, has

appropriately rejected the application filed by the

present appellant under Section 227 of Cr.P.C. I do not

find any reason to interfere in the said order of the

Special Court.

Crl.A.No.293/2018

52

Accordingly, the Appeal stands dismissed as

devoid of merits. The order passed by the learned

Prl.City Civil & Sessions Judge, Bengaluru, in Special

C.C.No.417/2016, dated 20.11.2017, is confirmed.

The Registry is directed to transmit a copy of this

judgment along with lower Court records to the

concerned Court immediately.

Sd/-

JUDGE

*bk/