Use of violence not always an essential condition to invoke MCOCA: Supreme Court

Actual use of violence is not always a sine qua non (essential condition) for invoking provisions of the Maharashtra Control of Organised Crime Act (MCOCA), the Supreme Court held last week [Abhishek vs State of Maharashtra]. .A division bench of Justices Dinesh Maheshwari and Aniruddha Bose ruled that threat of violence or even intimidation or even coercion would fall within the ambit of ‘organised crime' under MCOCA. "Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate. Threat of violence or even intimidation or even coercion would fall within the mischief," the judgment held.This apart, use of other unlawful means would also fall within the same mischief, the Court added.The Court was hearing a criminal appeal challenging a decision of the Bombay High Court's Nagpur bench, dismissing the appellant Abhishek's plea challenging invocation of MCOCA against him.Abhishek along with others, were booked in a criminal case lodged on May 8, 2020 under charges of kidnapping a restaurant owner in Nagpur for ransom of ₹20 lakh. The police authorities subsequently granted sanction to prosecute the accused under the MCOCA, considering the fact that they have indulged in "continuous criminal activities" since Abhishek has been named in multiple such cases of violence.In his defense, Abhishek argued that the authorities wrongly invoked MCOCA against him and erred in interpreting the provisions of the special enactment.The Court said that strict adherence to provisions of the MCOCA by the authorities cannot be stretched beyond common sense and practical requirements."Strict adherence by the authorities concerned to the requirements of MCOCA also cannot be stretched beyond common sense and practical requirements in terms of the letter and spirit of the statute," the bench said.To apply MCOCA in a case, the authorities must consider whether the basic and threshold requirements, as per Section 2(1) (d), (e) and (f) are fulfilled."It is not in doubt that the provisions of MCOCA need to be strictly construed and for their application, an unlawful activity has to fall within the periphery of organised crime....So far as the applicability of the rule of strict construction qua MCOCA is concerned, it being a special penal statute, this much is clear that no one is to be made subject to this law by implication or by presumption; and all doubts concerning its application would, ordinarily, be resolved in favour of the accused," the bench noted.However, the rule of strict construction cannot be applied in an impracticable manner so as to render the statute itself nugatory, the Court underlined. "In other words, the rule of strict construction of a penal statute or a special penal statute is not intended to put all the provisions in such a tight iron cast that they become practically unworkable, and thereby, the entire purpose of the law is defeated," the judges added..But the bench rejected the argument of the appellant that to attract Section 2(1) (e) which deals with organised crime, use of violence is essential."A bare look at clause (e) of Section 2(1) of MCOCA makes it clear that ‘organised crime’ means any unlawful activity by an individual singly or jointly, either as a member of 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. The suggestions on behalf of the appellant to limit the activity only to the use of violence is obviously incorrect when it omits to mention the wide-ranging activities contemplated by clause (e) of Section 2(1) of MCOCA, i.e., threat or violence or intimidation or coercion or other unlawful means," the Court said. Regarding the contention that only "pecuniary benefit" gained must be considered by the authorities while invoking this law, the bench said it could also be 'gaining undue economic or other advantage’. "The frame of the proposition that the object ought to be gaining pecuniary benefit or other ‘similar’ benefit is not correct as it misses out the specific phraseology of the enactment which refers to undue economic or other advantage apart from pecuniary benefit," the bench said.It also relied upon a full bench judgment of the Bombay High Court in Jagan Gagansingh Nepali @ Jagya in which it was held that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself..The bench further took into account the fact that all the cases, which are either pending or disposed of against the appellant, involved offences against human body and property, rioting and use of deadly weapons, which breached peace.Abhishek had further argued that of the previous cases against him, he was acquitted in one while in other, the Bombay High Court had quashed the proceedings.To this, the bench noted that in the acquittal case, the witnesses had turned hostile and the main complainant didn't even turn up to depose. The other case was quashed as there were cross complaints and subsequently a settlement was arrived at. Lastly, the judges said, "The submissions on behalf of the appellant for consideration of his case because of application of stringent provisions impinging his fundamental rights does not take away the impact of the blameworthy conduct of the appellant. Any claim towards fundamental rights also cannot be justifiably made without the person concerned himself adhering to and submitting to the process of law."Therefore, the bench dismissed the appeal..[Read Judgment]