HIGH COURT OF BOMBAY
Balasaheb Barku Kolhe v. Commissioner of Police
WRIT PETITION NO. 2431 OF 2021;
12th AUGUST, 2021.
Control of Organized Crime Act, 1999 (Maharashtra)
ICL 2021 (8) Bom. 137
1. Rule. Rule made returnable forthwith and, with the consent of the Counsels for the parties, heard fnally.
2. This petition under Article 226 of the Constitution of India takes exception to an order dated 6th May, 2021, passed by the Commissioner of Police, Nashik City, whereby approval under (“the MCOC Act”) has been granted to invoke the provisions of Sections 3(1)(i),(ii), 3(2) and 3(4) of the MCOC Act to CR No.37 of 2021, registered with Gangapur Police Station, Nashik, for the offences punishable under Section 302, 201, 120-B, 115 read with 34 of the Indian Penal Code, 1860 (“the Penal Code”) and Section 4 read with 25 of the Indian Arms Act, 1959, against the petitioner and co-accused.
3. The petition arises in the backdrop of the following facts:
(a) Vishal Mandlik – the frst informant, lodged FIR with the allegations that on 17th February, 2021, at about 5.30 pm. while his father Ramesh (the deceased) was working in their feld situated at Survey No.69/1 at Gangapur road, he was stabbed in the neck. The deceased was shifted to Civil Hospital. However, he was declared dead. The frst informant alleged that his father was done to death by Sachin Mandlik (A1) and his associates, including the petitioner, in pursuance of a criminal conspiracy as there was a dispute between the deceased and Sachin Mandlik over an immovable property. On the very day of occurrence, Sachin Mandlik (A1) had threatened the deceased out of his life when the deceased and the accused had attended the Court in connection with a criminal case, which was fnally heard on that day.
(b) The petitioner herein was named as the person through whom Sachin Mandlik and his associates were exerting pressure on the deceased to enter into a settlement and withdraw the cases instituted against Sachin Mandlik and others. The petitioner came to be arrested on 18 th February, 2021.
(c) Investigation commenced. A proposal came to be submitted to the Commissioner of Police, the competent authority under Section 23(1)(a) of the MCOC Act, by the Investigating Offcer to invoke the provisions of MCOC Act as the investigation revealed that there was an organized crime syndicate headed by Sachin Mandlik (A1), and Balasaheb Kolhe
– the petitioner, Abasaheb Paraji Bhandage (A7) and Rammi Rajput, the absconding accused, were the kingpins and mentors of the said organized crime syndicate. The said crime syndicate had indulged in heinous crimes such as murder, extortion, forgery, cheating, land grabbing etc. by means of violence, intimidation and coercion to gain pecuniary advantage.
(d) The competent authority was persuaded to accord the approval under Section 23(1)(a) of the MCOC Act as more than two charge-sheets were submitted in respect of the unlawful activities of the organized crime syndicate, for the offences punishable with imprisonment for three years or more in the preceding ten years. It was noted that the absconding accused Rammi Rajput was the kingpin of the land grabbing activities in the city and he used financial power through various conduits including the petitioner Balasaheb to grab the lands which were entangled in litigation. After adverting to the modus operendi of the syndicate and the continuing unlawful activity, the competent authority passed the impugned approval order dated 6th May, 2021.
(e) The petitioner has assailed the invocation of the provisions of MCOC Act on the ground that, on the one hand, there was no material to connect the petitioner with the alleged organized crime syndicate, and, on the other hand, the impugned order suffers from manifest non-application of mind. The petitioner has not been arrayed as an accused in the two charge-sheets, bearing CR No.151 of 2013, registered at Gangapur Police Station, and CR No.176 of 2018, registered at Vani Police Station, referred to and relied upon by the competent authority. In any event, those offences are of individualistic nature and there is no nexus of the petitioner with the accused therein or the alleged organized crime syndicate.
(f) An affdavit-in-reply is fled. The respondents have resisted the challenge to the invocation of the MCOC Act by banking upon the material which indicates that the petitioner had fnancial transactions with the co-accused and also had communication with the kingpin Rammi Rajput, even on the day of occurrence. According to the respondent, the correctness and legality of the approval order cannot be tested at this stage and in this proceeding. Once the competent authority grants sanction under Section 23(2) of the MCOC Act, for taking cognizance of the offences punishable under the MCOC Act, the question of legality and validity can be validly inquired into at the stage of trial.
4. The first informant Vishal Mandlik has fled intervention application seeking impleadment, and rejection of the petition.
5. We have heard Mr. Pasbola, the learned Counsel for the petitioner, Mr. Yagnik, the learned APP for the State and Mr. Bankapur, for the intervenor. With the assistance of the learned Counsels for the parties, we have perused the material on record including the documents tendered by the investigating agency alongwith affidavit-in-reply.
6. Mr. Pasbola, the learned Counsel for the petitioner, submitted that the petitioner had no role in the alleged property dispute, which the deceased had with accused Sachin Mandlik and his relatives/associates. An earnest endeavour was made to draw home the point that the dispute between the petitioner and the deceased in respect of the agricultural land bearing Survey no.32/2 located at Anandballi, Nashik, was resolved way back in the year 2011. Though the deceased had instituted a suit bearing Civil Suit No.467/2019, to which the petitioner was impleaded as defendant no.4, the principal dispute was with defendant no.5. Thus, there was no subsisting dispute between the petitioner and the deceased. In this context, the stray allegation in the FIR that Sachin Mandlik and his associates were administering threats to the deceased through the petitioner is by no stretch of imagination suffcient to establish the nexus between the petitioner and alleged organized crime syndicate, urged Mr. Pasbola. It was further submitted that the allegations against the petitioner that there were fnancial transactions with the co-accused and the petitioner communicated with the alleged kingpin Rammi Rajput are also ex facie untenable.
7. Per contra, Mr. Yagnik, the learned APP for the State stoutly submitted that the endeavour of the petitioner to question the legality and validity of approval under Section 23(1)
(a) of the MCOC Act is simply premature. If an accused desires to challenge the legality and validity of the approval and sanction under Section 23 of the Act, he has to assail the same at the stage of trial so that the prosecution gets an opportunity to lead evidence in justifcation thereof. Mr. Yagnik further submitted that the fact that the petitioner is not named as an accused in the crime in which charge-sheets have been lodged in respect of continuing unlawful activity, is of no consequence. It is not the requirement of law that two charge-sheets should have been lodged against each and every member of the organized crime syndicate. If the material on record, prima facie, indicates that the accused is a member of such syndicate, no further inquiry is warranted at this stage, and the question as to whether the accused has committed the offences punishable under MCOC Act is then a matter for trial.
8. In order to lend support to the submission that the question of legality and validity of the approval and sanction under Section 23 of the MCOC Act can properly be decided at the stage of trial, Mr. Yagnik placed a strong reliance on the judgments of this Court in the cases of Anil Sadashiv Nanduskar vs. State of Maharashtra, 2008(3) Mh.L.J.(Cri.) 650 and Farman Imran Shah @ Karu vs. State of Mahrashtra, 2014 All MR (Cri.) 1571.
9. In the case of Anil Nanduskar (supra), a Division Bench of this Court after adverting to the previous pronouncements including the judgment of the Supreme Court in the case of State of Bihar vs. P. P. Sharma, 1992 (Suppl) SCC 222 enunciated the legal position as regards the material by which the validity of sanction can be sustained and the stage of consideration of the challenge to legality and validity of the sanction in the following words:
“13. The settled law by a catena of decisions of the Apex Court is to the effect that it is desirable that every order whether the approval or sanction it should speak for itself, i.e. ex-facie it should disclose consideration of the materials placed before it and application of mind thereto. However, failure to reproduce or refer those recitals in the resolution or order itself would not render the order of approval or sanction to be invalid unless the prosecution fails to establish by leading evidence that all the materials necessary for the grant of approval or sanction were placed before the concerned authority for due application of mind by such authority before the grant of approval and or sanction. It apparently discloses that question of validity of approval or sanction cannot be decided unless the prosecution is afforded opportunity to lead evidence in that regard. Undoubtedly, an accused desiring to raise objection regarding the defects in such approval or sanction, or grant, he can raise such objection; however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to inherent lack of jurisdiction to the concerned authority to grant sanction or approval and such issue can be decided on undisputed facts. The law being well settled to the effect that the prosecution in a case where sanction or the approval order does not ex-facie show consideration of all the materials and/or application of mind, is entitled to establish the same by leading necessary evidence regarding production of materials before the concerned authority, the question of discharge of accused merely on the basis of such objection being raised cannot arise. The decision on the point of defect, if any, in the order of approval or sanction will have to be at the conclusion of the trial.
24. The contention that the order of approval or order of sanction should disclose consideration of material qua each of the accused sought to be prosecuted is devoid of substance. That is not the import of section 23 of MCOC Act. Section 23(1)(a) as well as Section 23(2) with reference to approval and sanction speaks of commission of offence and cognizance of the offence. In fact the law on this aspect is also well settled and reiterated by the Apex Court in Dilawar Singh’s case (AIR 2006 SC 389) (supra) itself. It was held therein that, court takes cognizance of offence and not of an offender when a Magistrate takes cognizance of an offence, under Section 190 Cr.P.C. Undoubtedly, it was also held that it was necessary for the Sanctioning Authority to take note of the persons against whom the sanction is sought to be granted. However, those were the requirement under Section 19 of the Prevention of Corruption Act. The said section specifcally requires sanction with reference to a particular person. That is not the case under Section 23 either in relation to the approval or in relation to the sanction. As already seen above section 23(1)(a) of MCOC Act speaks of approval for recording of information about commission of offence of organized crime under MCOC Act, whereas sanction is for initiating proceeding for the offence under MCOC Act. The sanction order or the approval order on the face of it need not speak of the individual role of each of the accused. Being so, contention that the order of approval or sanction should reveal consideration of the overt acts or otherwise of each of the accused while granting approval or sanction is totally devoid of substance. Of course, the involvement in organized crime of each of the persons sought to be prosecuted should necessarily be considered by the concerned authority before the grant of approval or sanction, but need not be specifcally stated in the order and the consideration thereof can be established in the course of trial.”
10. The aforesaid pronouncement, was followed by this Court in the case of Sachin Bansilal Ghaiwal vs. State of Maharashtra, 2014 Cri. L.J. 4217 and Farman Shah @ Karu (supra). This Court has consistently held that before the question of validity of approval or sanction is conclusively decided, the prosecution must be afforded opportunity to lead evidence. The validity of the sanction can be sustained from the sanction order itself where it discloses consideration of the relevant material. In the absence thereof, the prosecution may lead evidence aliunde to demonstrate that the relevant material was placed before the competent authority and the sanction came to be granted upon due application of mind. It is a different matter where the objection relates to inherent lack of jurisdiction of the authority which has professed to grant the sanction or the facts are so glaring that the unsustainability of the approval or sanction is manifest and can be decided on the strength of the undisputed facts.
11. On the aforesaid touchstone, reverting to the facts of the case, upon perusal of the impugned order it becomes explicitly clear that the competent authority had considered the relevant material and even ascribed the specifc role of the petitioner being one of the kingpins and mentors of the organized crime syndicate, which indulges in the continuing unlawful activity in the nature of the land grabbing by resorting to violence, intimidation and coercion. It was further noted that the petitioner is a conduit for unleashing fnancial prowess.
12. Mr. Pasbola, the learned Counsel for the petitioner canvassed a submission that even if the case of the frst informant is taken at its face value, at the highest, the petitioner can at best be said to have played the role of a mediator. There is no material to support the allegations of force having been exerted upon the deceased to settle the dispute and withdraw the cases, urged Mr. Pasbola.
13. It is true that the dispute which the deceased had with the petitioner in respect of Survey no.32/2 was resolved on the basis of the Consent Terms as evidenced by the order passed in Special Civil Suit No.190 of 2008, on 18 th April, 2011. However, the further submission that there was no subsisting dispute seems to be belied by the copies of the pleadings in Special Civil Suit No.467 of 2019. From the perusal of the plaint therein, especially prayer clause (b), it becomes evident that the deceased had sought a declaration that the Sale Deed executed by the petitioner herein in favour of Madhur Realtors, defendant no.5 therein, on 24th July, 2018, was invalid, sham and not binding on the rights of the deceased and the co-plaintiff Bhima Mandlik.
14. Mr. Pasbola would further urge that the existence of the civil dispute, even if taken at par, would not establish the nexus of the petitioner with the alleged organized crime syndicate. The material sought to be relied upon by the prosecution in the nature of the fnancial transactions which the petitioner had with the co-accused and the telephonic communication which the petitioner had with absconding accused Rammi Rajput were sought to be explained on the premise that fnancial transactions were since the year 2008 and the telephonic conversation with the co-accused Rammi Rajput was after the occurrence and, therefore, no element of conspiracy can be pressed into service.
15. We are not persuaded to agree with these submissions. The copies of the statements of account annexed to the affdavit- in-reply reveal that the petitioner had high value fnancial transactions with the co-accused as late as in the month of May-2019. The telephonic conversation with the alleged kingpin Rammi Rajput on the very day of occurrence, even if after the occurrence, cannot be brushed aside as a mere coincidence.
16. At this juncture, the aforesaid material is required to be considered in the backdrop of the role attributed to the petitioner. It is alleged that the petitioner acted as a conduit for fnancial transactions in the pursuit of the continuing unlawful activity. It is pertinent to note that under Section 2(a) of the MCOC Act, the term “abet” includes;
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organized crime syndicate;
(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organized crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organized crime syndicate;
(iii) the rendering of any assistance, whether financial or otherwise, to the organized crime syndicate.
17. The aforesaid definition, expands the meaning of the term ‘abetment’ as defined under Section 107 of the Penal Code. Rendering of any assistance whether financial or otherwise squarely falls within the dragnet of the abetment envisaged by Section 2(a).
18. In our view, the material arrayed against the petitioner, at this stage, prima facie appears adequate to establish the nexus of the petitioner with the organized crime syndicate. In the light of the situation which thus obtains, in the facts of the case at hand, we are impelled to hold that no case for testing the legality and validity of the order of approval, within the limited scope of inquiry permissible at this stage, is made out.
19. A useful reference, in this context, can be made to the judgment of the Supreme Court in the case of Lt. Col. Prasad Shirkant Purohit vs. State of Maharashtra, (2018) 11 SCC 458 wherein it was, inter alia, enunciated that even if one may not have any direct role in the commission of an organized crime, but when the nexus of such person with the accused, who is the member of the organized crime syndicate or such nexus is related to the offence in the nature of organized crime, is established by showing his involvement with the accused or the offence in the nature of such organized crime, that by itself would attract the provisions of MCOCA. This position was enunciated after adverting to a Three Judge Bench decision of the Supreme Court in the case of Ranjitsingh Brahmajeet Singh Shrama vs. State of Maharashtra, (2005) 5 SCC 294. The observations in paragraph 37 in the case of Prasad Purohit (supra) are material and hence extracted below:
“37. A reading of paragraph 31 in Ranjitsingh Brahmaajee Sharma case (2005)5 SCC 294 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 organized crime, if a nexus either with an accused who is a member of an “organized crime syndicate” or with the offence in the nature of an “organized 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 “organized crime”, but when the nexus of such person with an accused who is a member of the “organized crime syndicate” or such nexus is related to the offence in the nature of ‘organized crime’ is established by showing his involvement with the accused or the offence in the nature of such “organized 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 organized crime in the manner set out in the said paragraph. In paragraphs 36 and 37, it was made further clear that such an analysis to be made to ascertain the invocation of MCOCA against a person need not necessarily go to the extent for holding a person guilty of such offence and that even a fnding to that extent need not be recorded. But such fndings have to be necessarily recorded for the purpose of arriving at an objective fnding on the basis of materials on record only for the limited purpose of grant of bail and not for any other purpose. Such a requirement is, therefore, imminent under Section 21(4)(b) of MCOCA.”
20. If the facts of the case at hand are considered in the light of the aforesaid enunciation of the legal position, an inference becomes inescapable that, at this stage, no fault can be found with the invocation and application of the provisions of MCOC Act qua the petitioner. Resultantly, no inference is warranted in exercise of extraordinary writ jurisdiction. The petition thus deserves to be dismissed.