Mere charge of an offence without any substantive crime is insufficient to constitute unorganized crime: Bombay High Court
Merely being involved in several crimes without being involved in any other crime to elevate the continuing unlawful activity to the case of organized crime as defined under Section 2(1)(e) would not be sufficient; held, a single-judge bench of Justice Mangesh S Patil, while adjudicating the matter in Darasing v. The State of Maharashtra; [CRIMINAL APPEAL NO.901 OF 2018].
In the night intervening 16.01.2001 and 17.01.2001 the appellants committed dacoity in village Kothewadi Tq. Pathardi, District Ahmednagar and even committed rape on few women for which Crime No.08/2001 was registered for the offences punishable under Section 395, 342, 376(2)(g), 354, 506(2) of the Indian Penal Code. During the investigation of that crime it transpired that the appellants were involved in organized crime wherein charge sheets were filed and the courts had taken cognizance. Accordingly, the approval was sought under Section 23 and the present crime was registered. The prosecution examined in all 11 witnesses mostly on the point and concerning the earlier crimes. By the impugned judgment the appellants have been convicted and sentenced as mentioned herein above.
The learned advocate Mr. Ghanekar vehemently submitted that bearing in mind the fact that Section 3 of the MCOC Act prescribes for punishment for ‘organized crime’ as defined under Section 2(1)(e) and not for being involved in ‘continuing unlawful activity’ as defined under Section 2(1)(d), the appellants could not have been convicted under that provision without being charged for any substantive offence. He would submit that though continuing unlawful activity is an ingredient for constituting an organized crime, in order to constitute an organized crime, the offender must be involved in some crime of the kind described in the definition of organized crime. He would therefore submit that mere proof regarding involvement of the appellants in continuing unlawful activity was not sufficient to convict them. He would submit that admittedly, the appellants have not been charged for any substantive offence in the present crime and have been convicted merely for engaging in continuing unlawful activity during previous years.
The Court upon considering the aforesaid facts stated that; “The appellants could not have been convicted and sentence only for the offence punishable under Section 3(1)(ii) and 3(4) in the absence of any substantive crime so as to constitute an organized crime. The learned Judge of the Special Court has not considered all these aspects and has convicted and sentenced the appellants merely for being involved in continuing unlawful activity which in itself is not an offence which is made punishable under the MCOC Act. In view of the above, the Appeal deserves to be allowed and is accordingly allowed. The impugned judgment and order convicting the appellants is quashed and set aside. They are acquitted of the offences punishable under Sections 3(1)(ii) and 3(4) of the MCOC, Act. They may be set at liberty if not required in any other crime. Fine amount if paid be refunded.”