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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
Crl.A.No.293/2018
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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
Crl.A.No.293/2018
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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 :
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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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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
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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
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“ 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.”
Crl.A.No.293/2018
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/