Criminal

STATE (NCT OF DELHI) Versus BRIJESH SINGH @ ARUN KUMAR AND ANR. …

09-10-2017

Supreme Court-min

Criminal Appeal @SLP(Crl.) No.5497 of 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1750 of 2017
( Arising out of Special Leave Petition (Criminal) No.5497 of 2015)

STATE (NCT OF DELHI) ….Appellant(s)
Versus
BRIJESH SINGH @ ARUN KUMAR
AND ANR. …Respondent(s)

J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The Respondents were discharged by the Special Judge
MCOCA, New Delhi District, Patiala House, New Delhi in S.C.
No.139 of 2013 dated 5th February, 2014 pertaining to
offences under Sections 3 and 4 of the Maharashtra Control
of Organised Crime Act, 1999 (hereinafter referred to as
‘MCOCA’). The Appellant- State of NCT of Delhi filed an
appeal under Section 12 of MCOCA before the High Court of
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Delhi which was dismissed on 16th April, 2015. Aggrieved,
the Appellant-State has approached this Court by filing the
above Appeal.
2. FIR No. 10 of 2013 was registered in the Special Cell (SB) PS
Special Cell (SB) on 5th March, 2013 on the basis of
information received from Shri S.K. Giri, Assistant
Commissioner of Police (the ACP for short). The ACP
prepared a proposal for registration and investigation of a
case under Sections 3/4 of MCOCA. According to the
proposal, the first Respondent who was arrested in
connection with the FIR No.69 dated 8th October, 2007 under
Sections 384, 387, 417, 419, 471, 506 and 34 of the Indian
Penal Code (the ‘IPC’ for short), registered in P.S., Special
Cell, New Delhi, was also involved in 20 cases of attempt to
murder, murder, extortion, rioting, cheating, forgery and for
offences under the Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986 (hereinafter referred to as
‘the UP Gangsters Act’). Respondent No.1 was involved in
committing unlawful activities along with other members of a
crime syndicate since 1985 in an organized manner. The
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particulars of eight crimes, the cognizance of which was
taken by the competent criminal Courts in and outside Delhi
were referred to. It was also mentioned that Respondents
manipulated a fake identity for themselves and have floated
several companies from the ill-gotten wealth. Several
properties were acquired by these companies, the details of
which have been specified in the proposal. Considering the
magnitude of the criminal activities of the Respondents and
their organised crime syndicate, the informant felt that it was
necessary to invoke the stringent provisions of MCOCA. The
particulars of 14 members of the syndicate was given in the
proposal and approval was sought for conducting a thorough
investigation into the role of each of them for offences under
Section 3 and 4 of MCOCA.
3. A final report under Section 173(2) Cr.P.C. was filed on 26th
September, 2013. Briefly, the contents of the charge sheet
are as follows:
I. The first Respondent was involved in 39 crimes of
different nature including murder, attempt to murder,
waging war against the State, extortion, rioting, etc.
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between 1985 and 2008. On several occasions, he was
booked under the UP Gangsters Act but had managed
to evade arrest. He was finally arrested on 23rd
January, 2008 from Bhubaneswar in connection with
FIR No.69 of 2007, PS Special Cell, Delhi.
II. FIR No.69 of 2007 was registered on a complaint made
by Sudhir Singh who alleged that at 7.15 p.m. on 28th
July, 2007, he received a call from the Respondents
who demanded payment of Rs.50 Lakhs as protection
money. The Respondents threatened him of dire
consequences in case the demand was not met.
III. Another FIR bearing No.122 of 2010 was registered on
17th May, 2010 under Sections 341,506 r/w 34 of the
IPC at Subzi Mandi Police Station, Delhi on the
complaint filed by Sudhir Singh alleging that Narender
alias Mamu and Sushil Singh, MLA, who was the
nephew of Respondent No.1, along with others
threatened him to withdraw the cases filed against the
Respondents. This incident, according to Sudhir Singh,
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happened when he was attending proceedings in the
Tis Hazari Court Complex, Delhi.
IV. There is a reference in the final report of six other
cases against the Respondents, cognizance of which
was taken up by the competent Courts in Uttar
Pradesh. The details of the said six cases are as under:
Sr.
No
.
ST No. FIR No.,U/s, & PS Name of Court &
Date of cognizance
& Charge
Name of Gang
Member
1 303/0
9
26/91 & 98/91 dt.02/05/1991
U/s 147/148/149/302/307 IPC
PS Bhavarcool, Distt. Gazipur
ASJ Anupati Ram
Yadav, Distt. Gazipur
(UP) 09/11/2012
Brijesh Singh
Tribhuvan Singh
Uma Kant
Salander @ Papu
2 165/9
8
120/95 U/s 3(1) Gangster Act,
PS Chobey Pur Varanasi
(Original FIR & Rukka Missing
from Court.)
Spl. Judge Gangster
Act, Varanasi
21/11/08
Brijesh Singh Hari
Singh @ Harday
Narayar Singh
3 304/0
9
113/01 & 251/01/ U/s
147/148/149/307/302/427/120
-B IPC, 7 Criminal Law Act, PS
Mohamedabad
ASJ-3 Distt. Ghazipur
11/01/13
Brijesh Singh
Tribhuvan Singh
4 125/0
7
8/04 & 09/04 U/s
147/148/149/307/427 IPC, 2/3
UP Gunda Act, PS Cantt. Sadar
Lucknow
Spl. Judge Gangster
Act, Lucknow
14/08/07
Brijesh Singh
Tribhuvan Singh
Ajay @ Guddu
Sunil Rai Anand
Rai
5 523/1
0
62/09 & 81/09 U/s
147/148/149/307/120-B IPC 7
Criminal Law Act. PS Lanka
Varanasi
ASJ – 3 Varanasi Sh.
Sanga M Lal
20/12/10
Tribhuvan Singh
Brijesh Singh
Sushil Singh
Narender @
Mama Ajay Singh
@ Khain Ayak.
6 9/13 112/90 & 232/90 U/s
147/148/149/323/379/427 IPC,
PS Saidpur, Varanasi
CJM Saidpur, Gazipur
Sh. Parksh Chand
Shukla 25/08/12
Brijesh Singh
Tribhuvan Singh
Vijay Shankar
Singh
4. The involvement of the Respondents and the other members
of the crime syndicate in several criminal cases was
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Criminal Appeal @SLP(Crl.) No.5497 of 2015
comprehensively dealt with in the charge sheet dated
26.09.2013, the details of which are not relevant for the
purpose of adjudication of this case. Though investigation
was still in progress regarding involvement of the other
accused persons, the charge sheet was filed against the
Respondents. After 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 3/4 of MCOCA.
5. After hearing both sides, the Special Court held that it had no
jurisdiction to frame charges under Sections 3 and 4 of
MCOCA and discharged the Respondents. The Special Court
recorded a finding that except FIR No.69 of 2010, there was
no other case which has been taken cognizance by a
competent Court in Delhi for application of MCOCA. FIR
No.122 of 2010 registered at PS Sabzi Mandi was not
relevant as it was not a case where there is any allegation
against the members of the crime syndicate acquiring any
pecuniary benefits or other advantages.
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6. The Special Court held that the criminal cases of which
cognizance was taken by Courts situated outside Delhi
cannot be taken into account for the purpose of satisfying
the ingredients of ‘continuing unlawful activity’ under Section
2(1)(d) of MCOCA. Ignoring that six cases in which
cognizance was taken by competent Courts outside the
National Capital Territory of Delhi as well as FIR No.122 of
2010 registered at police station Sabzi Mandi, the Special
Court held that it had no jurisdiction to frame charges under
MCOCA against the Respondents only on the basis of one FIR
i.e. No.69 of 2007. The Special Court further held that three
out of eight cases referred to in the charge sheet were at the
instance of Sudhir Singh and that the offences complained of
are in the nature of a gang war between the rival groups in
the State of Uttar Pradesh.
7. The Appellant-State preferred an appeal against the
judgment of the Special Court discharging the Respondents
before the High Court of Delhi. The High Court rejected the
submissions made on behalf of the Appellant and held that
the charge sheets filed and taken cognizance of by the
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Courts outside the National Capital Territory of Delhi are not
relevant for the purpose of registering a case under MCOCA.
The High Court approved the findings of the Special Court
that FIR No.122 of 2010 was not in pursuance of activities of
organized crime syndicate falling within the purview of
MCOCA. As the requirement of a minimum of two charge
sheets being taken cognizance of by a competent Court in
Delhi was not satisfied, the High Court felt that there was
nothing wrong with the decision of the Special Court.
8. Mr. Sidharth Luthra, learned Senior Counsel appearing for the
Appellant submitted that organized crime is a serious threat
to the society and that statement of objects and reasons
have to be taken into account for interpretation of the
provisions of the Act. He submitted that the restriction
placed by the Courts below on the expression “Competent
Court” in the definition of continuing unlawful activity is not
correct. According to him, criminal cases in which
cognizance was taken by Courts outside Delhi are relevant
for the purpose of proceeding against the respondents under
MCOCA. He further submitted that organized crime is not
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restricted to territory within a State and a restrictive reading
of the word ‘Competent Court’ would defeat the purpose for
which the statute was enacted.
9. Mr. U.R. Lalit, learned Senior Counsel appearing for
Respondent No.1 urged that MCOCA is a special legislation
which deals with organized crime and unless the essential
ingredients of the offences under Sections 3 and 4 are made
out, a case under the said statute cannot be registered. He
submitted that MCOCA operates only within the territorial
limits of National Capital Territory of Delhi. He submitted
that there is no offence of organized crime which was
committed within the territory of Delhi. He also argued that
it is clear from the material on record that there is no
property belonging to the Respondents within the territory of
Delhi and hence, Section 4 of MCOCA is not attracted. He
also argued that crime is local and anything that is done
outside the State cannot be subject matter of consideration
for registration of an offence under MCOCA. Reliance was
placed on Articles 245 and 246 of the Constitution of India to
submit that MCOCA which extended to the National Capital
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Territory of Delhi cannot have extra territorial operation. He
relied upon the judgment of the Bombay High Court in The
State of Bombay v. Narayandas Mangilal Dayame1
in
support of the said submissions. Mr. Lalit argued that the
complainant in FIR No.69 of 2007, Sudhir Singh, is a resident
of Varanasi and according to him, he came to Delhi on a
business trip and was threatened over phone by the
Respondents. After investigating into the said offence, it was
found that a call was made from a public telephone booth at
Varanasi, U.P. All the antecedent events that were
mentioned in the said FIR pertain to activities in the State of
Uttar Pradesh. He submitted that no organised crime was
committed in Delhi and FIR No.69 of 2007 cannot be taken
into consideration for proceeding against the Respondents
under MCOCA. Referring to FIR No.122 of 2010, Mr. Lalit
submitted that Section 506 IPC was a non-cognizable offence
at the relevant time. As there was no cognizable offence, FIR
No.122 of 2010 is of no use for proceeding against the
Respondents under MCOCA.
1 AIR 1958 Bom 68 (FB)
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10. The menace of organized crime posed a serious threat to
civil society and a need for making special provisions for
prevention and control of criminal activities of the organized
crime syndicates and gangs was recognised by the
Maharashtra Legislature which passed “the Maharashtra
Control of Organized Crime Act, 1999 (hereinafter referred to
as “MCOCA”). It was brought into force w.e.f. 24th April,
1999. It is clear from the statement of objects and reasons
that rapid increase in organised crime was causing serious
threat to public order apart from adversely affecting the
economy. The Government was of the opinion that the
existing legal regime was inadequate to deal with the
problem and hence, the necessity for a special law to curb
the menace of organised crime. By a Notification dated 2nd
January, 2002 the Ministry of Home Affairs, Govt. of India
extended the provisions of MCOCA to the National Capital
Territory of Delhi.
11. At this stage, it is necessary to refer to the provisions of
the Act which are relevant for adjudication of the dispute in
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this case. Section 5 of the Act2
provides for constitution of
‘Special Courts’ for trying offences under MCOCA. These
Special Courts are competent to try all offences punishable
under MCOCA which are committed within its local
jurisdiction as provided in Section 6 of the Act3
. An offence
of organized crime is punishable under Section 3 of the Act4
.
2 5. Special Courts
(1) The State Government may, by notification in the Official Gazette, constitute one or
more Special Courts for such area or areas, or for such case or class or group of cases, as
may be specified in the notification.
(2) Where any question arises as to the jurisdiction of any Special Court, it shall be
referred to the State Government whose decision shall be final.
(3) A Special Court shall be presided over by a judge to be appointed by the State
Government, with the concurrence of the Chief Justice of the Bombay High Court. The
State Government may also appoint, with the concurrence of the Chief Justice of the
Bombay High Court, additional judges to exercise jurisdiction in a Special Court-
(4)A person shall not be qualified for appointment as a judge or an additional judge of a
Special Court, unless he immediately before such a appointment, is a sessions judge or
an additional sessions judge.
(5) Where any additional judge is or additional judges are appointed in a Special Court,
the judge of the Special Court may, from time to time, by general or special order in
writing, provide for the distribution of the business of the Special Court among himself
and the additional judge or additional judges and also for the disposal of urgent business
in the event of his absence or the absence of any additional judges.
3 6. Jurisdiction of Special Court
Notwithstanding anything contained in the Code, every offence. punishable under this
Act shall, be triable only by the Special Court within whose local jurisdiction it was
committed or at the case may be, by the Special Court constituted for trying such
offence under subsection (1) of section 5.
4 3. Punishment for organised crime-
(1) Whoever commits an offence of organised crime shall,
(i) if such offence has resulted in the death of any person, be punishable with death or
imprisonment for life and shall also be liable to a fine, subject to a minimum fine of
rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life and shall also be liable to a
fine, subject to a minimum fine of rupees five lacs.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates
the commission of an organised crime or any act preparatory to organised crime, shall be
punishable with imprisonment for a term which shall be not less than five years but
which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a
minimum of rupees five lacs.
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Section 45
of the Act provides for punishment for possessing
unaccountable wealth on behalf of a member of organized
crime syndicate. ‘Organized crime’, as defined in Section 2
(1)(e)6
of the Act simply means a continuing unlawful activity
committed by use of violence for economic gain. ‘Continuing
unlawful activity’ is defined in Section 2(1)(d)7
of the Act as
any activity prohibited by law for the time being in force if it
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an
organised crime syndicate; shall be punishable, With imprisonment for a term which shall
not be less than five years but which may extend to imprisonment for life and shall also
be liable to a, fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall be punishable
with imprisonment for a term which shall not be less, than five years but which may
extend to imprisonment for life and shall also be liable to a fine, subject to a minimum
fine of rupees five lacs.
(5) Whoever holds any property derived of obtained from commission of an organised
crime or which has been acquired through the organised crime syndicate funds shall be
punishable with a term which, shall not be less than three years but which may extend to
imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees
two lacs
5 4. Punishment for possessing unaccountable wealth on behalf of member of
organised crime syndicate.
If any person on behalf of a member of an organised crime syndicate is, or, at any time
bus been, in possession of movable or immovable property which he cannot satisfactorily
account for, he shall be punishable with imprisonment for a term which shall not be less
than three years but which may extend to ten years and shall also be liable to fine,
subject to a minimum fine of rupees one lac and such property shall also liable for
attachment and forfeiture, as provided by section 20.
Organised criminals are undoubtedly hard core criminals. They have no derth of most
modern weapons. Extorting money by spreading terrorism in society is their aim. They
target elite class of society. Naturally, the money they recover is of unusual proportion.
The money is not spent on just causes but to derail state economy. It is therefore,
essential to provide for strictest punishment. Punishment envisaged in the Act is 3 to 10
years of imprisonment which can be extended to life imprisonment. Death penalty can
also be imposed on the criminals kill anyone. So also a fine of 3 to 10 lacs can also be
imposed.
It will be interesting to compare the criminals under this Act with criminals under recently
repealed Tada Act. Criminals under both Acts differ in attitude and approach. Criminals
under Tada aim at disruptive activities. They are threat to the sovereignty of Nation. On
the contrary criminals under present law are extortionist.
This law also proposes punishment to those who possess any type of property
accumulated through illegal means.
13
Criminal Appeal @SLP(Crl.) No.5497 of 2015
is a cognizable offence punishable with imprisonment of
three years or more and if it is committed by a member of an
‘organized crime syndicate’8
either singly or jointly within the
preceding period of 10 years. Another requirement is the
existence of at least two charge sheets which have been
taken cognizance of by competent Courts.
12. The points that arise for consideration in this case are:
i) Whether charge sheets filed in
competent Courts outside the National
Capital Territory of Delhi can be taken into
account for the purpose of constituting a
“continuing unlawful activity”, and
ii) Whether there can be prosecution under
MCOCA without any offence of organised
crime being committed within Delhi.
6 (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 person or promoting insurgency;
7 (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 field before a competent Court within the preceding period of ten years and that
Court has taken cognizance of such offence;
8 (f) “organised crime syndicate” means a group of two or more persons who, acting
either singly or collectively, as a syndicate of gang indulge in activities of organised
crime;
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13. The principles of strict construction have to be adopted for
interpretation of the provisions of MCOCA, which is a penal
statute9
. However, it is no more res integra that even a
penal provision should be interpreted to advance the object
which the legislature had in view10. The interpretation of
Section 2(1)(d) of the Protection of Children from Sexual
Offences Act, 2012 came up for consideration before this
Court and Justice R.F. Nariman held as follows:
“24. It is thus clear on a reading of English, U.S.,
Australian and our own Supreme Court judgments
that the ‘Lakshman Rekha’ has in fact been
extended to move away from the strictly literal rule
of interpretation back to the rule of the old English
case of Heydon, where the Court must have
recourse to the purpose, object, text, and context of
a particular provision before arriving at a judicial
result. In fact, the wheel has turned full circle. It
started out by the rule as stated in 1584 in Heydon’s
case, which was then waylaid by the literal
interpretation rule laid down by the Privy Council
and the House of Lords in the mid 1800s, and has
come back to restate the rule somewhat in terms of
what was most felicitously put over 400 years ago in
Heydon’s case.”11
9 Ranjitsing Brahamajeetsing Sharma v. Maharashtra (2005) 5 SCC 294 (Para
42); State of Maharashtra and ors. v. Lalit Somdutta Nagpal and anr. (2007) 4
SCC 171 (para 62)
10 Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684 ¶6
11 Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi)
and Anr. in SLP (Crl.) Nos. 2640-42 OF 2016 at para 24 (concurring judgment of R.F.
Nariman J.)
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14. The commission of crimes like contract killings, extortion,
smuggling in contrabands, illegal trade in narcotics,
kidnappings for ransom, collection of protection money and
money laundering, etc. by organised crime syndicates was
on the rise. To prevent such organised crime, an immediate
need was felt to promulgate a stringent legislation. The
Government realized that organised crime syndicates have
connections with terrorist gangs and were fostering narcotic
terrorism beyond the national boundaries. MCOCA was
promulgated with the object of arresting organised crime
which was posing a serious threat to the society. The
interpretation of the provisions of MCOCA should be made in
a manner which would advance the object of MCOCA.
Extra Territoriality and Territorial nexus:
15. It was submitted on behalf of the Respondents that
MCOCA is applicable only within the territories of Delhi as per
Section 1(2) of the Act. Therefore, according to the learned
senior counsel for the Respondents, the charge sheets filed
in a competent Court outside the NCT of Delhi cannot be
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taken into account for satisfying the requisites of continuing
unlawful activity. Support was sought from a judgment of
the Privy Council in Macleod v. Attorney General for New
South Wales12. The Appellant in that case married Mary
Manson in the Colony of New South Wales. During her
lifetime, the Appellant married another lady at St. Louis in
the State of Missouri, United States of America. He was
indicted, tried and convicted in the Colony of New South
Wales for the offence of bigamy under the Section 54 of the
Criminal Law Amendment Act of 1883. Section 54 provided
for servitude for seven years for bigamy ‘wheresoever’ it
takes place. Lord Halsbury, Lord Chancellor, held that the
Appellant was not liable for prosecution as the offence of
bigamy was not committed by him within the Colony of New
South Wales. The laws made by the Colony of New South
Wales would operate only within its territory.
16. Macleod’s case (supra) was considered by the High Court
of Australia in Trustees Executors and Agency Co. Ltd. v.
Federal Commissioner of Taxation13 wherein it was held
12 (1891) A.C. 455
13 (1933) 49 C.L.R. 220
17
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that there is no legal restriction of legislative power on the
so-called extra territorial ground. It was further held that the
mere existence of non-territorial elements in any challenged
legislation does not invalidate the law and that the
legislation cannot be said to be invalid if the dominion has
some real concern or interest in the matter, thing or
circumstances dealt with by the legislation.
17. Macleod’s case (supra) was again considered in a later
judgment of the High Court of Australia in Union
Steamship Co. of Australia PTY. Ltd. v. King14 wherein it
was held that a power to make laws for the peace, order and
good governance for the territory was, initially, understood
to be limited to the area of the territory. The objection taken
by the employer to an award passed by a compensation
Court to the jurisdiction of the Courts under Section 46 of the
Workers’ Compensation Act, 1926 (State Act of New South
Wales) was rejected by following an earlier judgment in
Broken Hill South Limited (Public Officer) v. The
14 (1988) 166 CLR 1
18
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Commissioner of Taxation (New South Wales)15 in which
it was held as follows:
“… … . But it is within the competence of the
State Legislature to make any fact,
circumstance, occurrence or thing in or
connected with the territory the occasion of
the imposition upon any person concerned
therein of a liability to taxation or of any
other liability. It is also within the
competence of the legislature to base the
imposition of liability on no more than the
relation of the person to the territory. The
relation may consist in presence within the
territory, residence, domicile, carrying on
business there, or even remoter connections.
If a connection exists, it is for the legislature
to decide how far it should go in the exercise
of its powers. As in other matters of
jurisdiction or authority courts must be exact
in distinguishing between ascertaining that
the circumstances over which the power
extends exist and examining the mode in
which the power has been exercised. No
doubt there must be some relevance to the
circumstances in exercise of the power. But it
is of no importance upon the question of
validity that the liability imposed is, or may
be, altogether disproportionate to the
territorial connection or that it includes many
cases that cannot have been foreseen.”
(emphasis supplied)
18. In Christopher Strassheim v. Milton Daily 16 (supra), a
question arose whether the Respondent was liable to be tried
15 50 C.L.R. 337
16 221 U.S. 280 (1911)
19
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in the State of Michigan for an offence committed outside the
State. Justice O.W. Holmes held that the State of Michigan is
justified in punishing the Respondent for acts done outside
its jurisdiction which were intended to produce a detrimental
effect within the State. It was held that:
“Acts done outside a jurisdiction, but intended
to produce and producing detrimental effects
within it, justify a State in punishing the
cause of the harm as if he had been present
at the effect, if the State should succeed in
getting him within its power”.
19. The Judgment of Justice Holmes was followed by the
United States Courts of Appeal in Chua Han Mow v. United
States17 where the Petitioner’s contention that the United
States of America lacked subject-matter jurisdiction to
prosecute him for unlawful acts committed in Malaysia was
rejected. Prosecution of the Petitioner was held justified
under the objective territorial and protective principles as the
Petitioner intended to create detrimental effects in the
United States and commit acts which resulted in such effect
when heroin was unlawfully brought into the United States.
17 730 F.2D. 1308 (1984) (p. 1312) cert. denied, 470 U.S.1031(1985)
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20. The Indian Federal Court considered the extra territorial
powers of the Union Legislature in The Governor General
in Council v. The Raleigh Investment Co. Ltd.18 and held
that the provisions of the impugned legislation cannot be
vitiated on the ground of extra territoriality in view of the
concern or interest the dominion had with the subject matter.
The Federal Court took note of the judgments subsequent to
Macleod (supra) in which the limitation imposed by a
doctrine forbidding extra territorial legislation was held to be
a ‘doctrine of somewhat obscure extent’.
21. In State of Bombay v. RMD Chamarbaugwala19, this
Court considered the point whether the legislature
overstepped the limits of its legislative field when the
impugned act purported to affect men residing and carrying
on business outside the State. It was held that on the basis
of the doctrine of territorial nexus between the State and
activities of the Petitioners which are not in the State, the
impugned legislation cannot be held to be beyond the
competence of the legislature. This Court recognized the
18 (1944) FCR 229
19 [1957] SCR 874 (p.901)
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existence of two elements to establish territorial nexus which
are:
a. The connection must be real and not illusory, and
b. The liabilities sought to be imposed must be pertinent
to that connection.
22. The doctrine of territorial nexus applied in the
Chamarbaugwala case (supra) which was concerned with
tax on crossword competitions, was extended to sales tax
legislation in The Tata Iron & Steel Co., Ltd. v. The
State Of Bihar20 . This Court found that the doctrine of
territorial nexus which was applied in Income Tax legislation
can be extended to Sales Tax legislation as well. However,
this Court did not consider the broad proposition as to
whether the theory of nexus, as a principle of legislation, is
applicable to all kinds of legislation. The doctrine of
territorial nexus was also applied by this Court in State of
Bihar v. Charusila Dasi21 which dealt with trust properties.
20 [1958] SCR 1355 (p.1375)
21 (1959) Supp. 2 SCR 619
22
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23. As stated above, the doctrine forbidding extra territorial
legislation as held in Macloed’s case (supra) was
subsequently held to be of somewhat obscure extent.
Statutes made by a Sovereign States cannot be said to be
invalid on the ground of extra territoriality subject to certain
conditions as is clear from the judgments referred to supra.
The same principle was applied to State legislations in the
United States of America. There is no distinction between
the applicability of the aforesaid principle to civil or criminal
statutes.
24. In the present case, it is sufficient to examine whether
there is a territorial nexus between the charge sheets filed in
competent Courts within the State of Uttar Pradesh and the
State of NCT of Delhi where the Respondents are being
prosecuted. The prosecution of the Respondents under
MCOCA cannot be said to be invalid on the ground of extra
territoriality in case the nexus is sufficiently established.
25. Organised crime which is an offence punishable under
Section 3 of MCOCA means a continuing unlawful activity
23
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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 should be at least 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.
26. Organised crime is not an activity restricted to a particular
State which is apparent from a perusal of the Statement of
Objects and Reasons. A restrictive reading of the words
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“competent Court” appearing in Section 2 (1)(d) of MCOCA
will stultify the object of the Act. We disagree with the
learned senior counsel for the Respondents that it is
impermissible for the Special Courts to take into account
charge sheets filed outside the National Capital Territory of
Delhi as that would result in giving extra territorial operation
to MCOCA. A perusal of the charge sheets filed against the
Respondents in the State of Uttar Pradesh which are relied
upon by the prosecution to prove that organised crime was
being committed by them shows clear nexus between those
charge sheets and the National Capital Territory of Delhi
where prosecution was launched under MCOCA. The twin
conditions to establish territorial nexus in RMD
Chamarbaugwala’s case (supra) are fulfilled. If members
of an organised crime syndicate indulge in continuing
unlawful activity across the country, it cannot by any stretch
of imagination said, that there is no nexus between the
charge sheets filed in Courts in States other than Delhi and
the offence under MCOCA registered in Delhi. In such view,
we are unable to accept the submission of the Respondents
that charge sheets filed in competent Courts in the State of
25
Criminal Appeal @SLP(Crl.) No.5497 of 2015
Uttar Pradesh should be excluded from consideration. We
hold that ‘competent Courts’ in the definition of ‘continuing
unlawful activity’ is not restricted to Courts in Delhi alone.
CRIME IS LOCAL
27. The learned senior counsel for the Respondents relied
upon the judgment of a full Bench of the High Court of
Bombay in Narayandas Mangilal Dayame case (supra)
wherein the constitutional validity of Section 4 of Bombay
Prevention of Hindu Bigamous Marriage Act was considered.
A second marriage contracted outside the State was a
bigamous marriage and void as per Section 4 of the said Act
and was also made punishable under Section 5 with an
imprisonment which may extend to seven years. The
Petitioner was tried for contracting a second marriage at
Bikaner and was found guilty for committing an offence of
bigamy. Chief Justice Chagla following Macleod’s case
(supra) held that crime is local and that Section 4 was ultra
vires the Bombay legislature as it suffered from the vice of
26
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extraterritoriality. It was further held that the principle of
territorial nexus is not applicable to cases of marriage or
crime.
28. According to us, the said principle is not applicable to the
facts of this case. The offences alleged to have been
committed by the Respondents beyond the territories of
Delhi are not being tried within the National Capital Territory
of Delhi. The existence of filing of the charge sheets, as a
matter of fact, is taken into consideration merely for the
purpose of determining the antecedents of the
Respondents.22 The Respondents would still be liable to face
trial in competent Courts where the charge sheets are filed.
29. Even if a crime is committed in one State, the accused can
be tried in another State if the detrimental effect is in that
State – Christopher Strassheim v. Milton Daily(supra)
followed by the Federal Court of Appeals in Rocha23 and Chua
22 Bharat Shanti Lal Shah v. State of Maharashtra (2003) Bom. L.R. (Cri.)947 (para
25-27) (to which Justice Bobde was a party) subsequently approved in State of
Maharashtra v. Bharat Shanti Lal Shah & Ors. (2008) 13 SCC 5 (Para 29-33); Om
Prakash Shrivastava v. State of NCT of Delhi 164 (2009) DLT 218 (Para 33-36);
Jaisingh v. Maharashtra (2003)BomCR(Cri) 1606 (para 19)
23 Rocha v. United States 288 F.2d. 545 (1961) (p. 548), cert. denied 366 U.S.
948(1961)
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Han Mow24. It is also relevant to refer to the judgment of the
House of Lords in Director of Public Prosecutions v.
Stonehouse25. A well known politician who was in financial
difficulties simulated his death by drowning to start life
afresh with a new identity in Australia. He made
arrangement with five British insurance companies to issue a
policy in his wife’s name which would be payable to her on
his death. After creating the circumstance of his drowning in
Miami, he fled to Australia on a false passport. He was
extradited to England where he was prosecuted in respect of
several offences including attempt to obtain property by
deception. It was held by the House of Lords that the English
Courts had jurisdiction to try the offences against the
Appellant on the ground that the instant consequences of the
physical acts of the accused in United States of America was
in England.
30. In Lawson v. Fox & ors.
26 the House of Lords decided the
following points of law of general importance:
24 Chua Han Mow v. United States 730 F.2D. 1308 (1984) (p. 1312) cert. denied, 470
U.S.1031(1985)
25 [1977] 2 All ER 909)
26 [1974] 1 All ER 783
28
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‘Whether in deciding if an offence has been committed
under section 96 (1) and 96 (3) (a) of the Transport Act
1968 it is right to take into account hours of work and
hours of driving done and hours of rest taken outside
Great Britain which if done or taken inside Great Britain
would fall to be taken into account for the purpose of
computing a driver’s working day and hours of driving.
The Respondent/ driver was convicted for the offence of
driving a vehicle for more than 10 hours in a working day,
contrary to Section 96(1) of the 1968 Act and for working as
a driver of a goods vehicle for a working day which exceeded
11 hours, contrary to Section 96(3)(a) of the 1968 Act. The
Respondent was driving a goods vehicle on round trips by
channel ferry between his employer’s depot in England and a
destination in France. The Respondent contended that the
period during which he drove outside England i.e. in France,
cannot be taken into account. It was held that this
presumption based on international comity that Parliament,
while enacting a penal statute, unless it uses plain words to
the contrary, did not intend to make it an offence in English
Law to do acts in places outside the territorial jurisdiction of
the English Courts- unless the act is one which has harmful
consequences in England. The Respondent was not charged
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with anything that he did in France but the fact that he was
on duty in the course of his employment was taken into
consideration for trying him in England.
31. The judgments of the House of Lords pertain to offences
committed outside the country being tried when the
consequences of such offences are within the country. We
have referred to these judgments only to explain that the
principle of ‘Crime is local’ is not applicable where the
detrimental effect is in another State which can try the
offender. In any event, the Respondents are not being tried
for the offences which are subject matter of charge sheets
filed in the State of Uttar Pradesh. The cases in which
charge sheets are filed in competent Courts outside Delhi
shall be tried in those Courts and are taken into account only
for determining the antecedents of the Respondents.
Therefore, the submission on behalf of the Respondents that
the crimes committed outside the State cannot be
considered for any purpose whatsoever is rejected. The
upshot of the above discussion is that there should be a
minimum of two charge sheets of organized crime registered
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against the members of the syndicate either separately or
jointly for the purpose of constituting a continuing unlawful
activity. Charge sheets filed outside Delhi can also be taken
into account.
32. However, we are in agreement with the submission of the
learned Senior Counsel for the Respondents that an activity
of organized crime in Delhi is a sine qua non for registration
of a crime under MCOCA. In the absence of an organized
crime being committed in Delhi, the accused cannot be
prosecuted on the basis of charge sheets filed outside Delhi.
33. FIR No.122 of 2010 is registered under Sections 341, 506
read with Section 34 of the IPC. Section 341 IPC is
punishable with a maximum sentence of one month, though
it is cognizable offence. Section 506 IPC is a non-cognizable
which was made a cognizable offence by a notification issued
by the Delhi Government. This notification was quashed by
the High Court of Delhi on 13.01.2003. A second
notification for the same purpose was issued by the Delhi
Government on 31.03.2004 which was challenged in W.P. (C)
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No.2596 of 2007. The High Court of Delhi initially stayed and
ultimately struck down the second notification on
18.01.2016. As such, Section 506 IPC was a non-cognizable
offence at the date of registration of the FIR and filing of the
charge sheet. Only an unlawful activity which is a cognizable
offence punishable with minimum sentence of three years or
more would be a continuous unlawful activity under section
2(1)(d) of the Act. Hence, the FIR No.122 of 2010 cannot be
taken into account.
34. FIR No.69 of 2007 was registered on the basis of
information given by one Sudhir Singh, who is admittedly a
resident of Plot No.103, Saket Nagar, Varanasi, Uttar
Pradesh. He is a politician and a businessman and when he
was on a trip to Delhi, he was threatened by the
Respondents due to their business rivalry. Several facts
pertaining to the illegal activities of the Respondents in Uttar
Pradesh have been mentioned in the FIR. Sudhir Singh
complained of extortion by the Respondents for payment of
Rs.50 Lakhs as protection money. During the course of
investigation, it was found that the call that was made on the
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mobile phone of Sudhir Singh was from a PCO at Varanasi. It
appears from a close reading of the FIR and the charge sheet
in FIR No.69 of 2007, that there was no criminal activity
pertaining to organised crime within the territory of Delhi and
the complaint was filed by the informant at Delhi only for the
purpose of invoking MCOCA. We have thoroughly examined
the material placed on record by the prosecution including
the charge sheet and found that there is no mention of any
property belonging to the Respondents in Delhi. We gave
sufficient time to Shri Sidharth Luthra to show us anything
from the record pertaining to possession of property by the
Respondents in Delhi. After making enquiries with the
authorities concerned, Mr. Luthra fairly submitted that the
Respondents are not in possession of any property in Delhi.
As there is no organised crime committed by the
Respondents within the territory of Delhi, there is no cause of
action for initiation of proceedings under MCOCA.
35. The Appeal is disposed of as follows:-
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(a) The words ‘competent Court’ in Section 2(d) of
MCOCA is not restricted to Courts in Delhi and charge
sheets filed in Courts in other States can be taken into
account for the purpose of constituting continuing
unlawful activity;
(b) There cannot be a prosecution under MCOCA without
an organised crime being committed within Delhi; and
(c) The judgment of the High Court is upheld though for
different reasons.
……………………………J.
[S.A. BOBDE]
…………………………….J.
[L. NAGESWARA RAO]
NEW DELHI;
OCTOBER 09, 2017
34