Dismissed

Lata Dadarao Pawar @ Smt. Ayesha Amir Shaikh v. the State of Maharashtra and Ors.

Bombay HC13 Aug 2021WP/2632/2021

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging an approval order invoking the Maharashtra Control of Organised Crime Act against the petitioner. The court upheld the order, holding that the approval was not vitiated by non-application of mind and adequate material existed regarding the petitioner's provisional link to the syndicate.

What did the court decide?

The petition was dismissed; the interim order not to execute the non-bailable warrant was vacated; prayer for stay was rejected.

Lata Dadarao Pawar @ Smt. Ayesha Amir Shaikh Vs the… — Criminal Trial and Appeal | Bombay HC (2021)

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CRIWP2632-2021.DOC

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Santosh

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO. 2632 OF 2021

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Smt. Lata Dadarao Pawar @ Smt. Ayesha Amir Shaikh, Aged about 48 years, Occu. Flower Vendor and garment business, Resident of Room No.27, Harbour Line, Zopadpatii, Azad nagar, Mahim, Mumbai ...Petitioner

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Versus

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State of Maharashtra Through the Principal Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai – 400 032.

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Commissioner of Police, Railways, Area Manager Building, 4^th Floor, P Dmello Road, Wadi Bunder, Mumbai – 400 010

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Assistant Commissioner of Police – Dadar Division, Through Dadar Railway Police Station, Mumbai.

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... Respondents

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Ms. Anjali Awasthi, for the Petitioner. Mrs. M. H. Mhatre, APP for the State/Respondent.

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CORAM: S. S. SHINDE & N. J. JAMADAR, JJ. RESERVED ON: 5^th AUGUST, 2021. PRONOUNCED ON: 13^th AUGUST, 2021.

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JUDGMENT:- PER : N. J. JAMADAR, J.

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Rule. Rule made returnable forthwith and, with the

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consent of the Counsels for the parties, heard fnally.

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CRIWP2632-2021.DOC

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This petition under Article 226 of the Constitution of India assails the legality and validity of the approval order dated 14^th June, 2021, passed by the Commissioner of Police – respondent no.2, under Section 23(1)(a) of the Maharashtra Control of Organised Crime Act, 1999 (“the MCOC Act”) for application of provisions of Section 3(3), 3(4), 3(5) and 4 of the MCOC Act, to the crime registered vide CR No.286 of 2021, at Dadar Railway Police Station, Mumbai, for the offence punishable under Section 387, 392, 195(a), 506(2), 507, 120-B, 384, 385, 212 and 224 of the Indian Penal Code, 1860 (“the Penal Code”).

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Shorn of unnecessary details, the background facts leading to this petition can be stated as under:

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( a ) Mr. Munir Ansari, a street vendor, lodged a report on 7^th April, 2021 that Mr. Santoshkumar Rampratap Sing @ Bablu Thakur (“Bablu Thakur”) kicked him from behind, while he was selling face masks at 3^rd railway bridge, at Dadar railway station. Upon being asked, Bablu Thakur questioned him as to why he had not paid the amount of Rs.500/- per day of business as hafta (protection money). Bablu Thakur took away 1150 face masks while giving threat that if the amount was not paid, the frst informant would be eliminated. It was further reported that Bablu Thakur was collecting protection money

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(hafta) from the hawkers at Dadar railway station and assaulted the hawkers who refused to pay, by employing the henchmen.

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( b ) Investigation commenced. It transpired that the said Bablu Thakur was running an organized crime syndicate. He and the members of the gang, including the petitioner, were indulging in continuing unlawful activity by extorting money from the unsuspecting persons. They used deadly weapons and committed violence.

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( c ) Initially, the petitioner was arrested in the said crime. The petitioner came to be released on bail by order dated 8^th June, 2021, by the learned Sessions Judge. On the very day, the proposal to invoke the provisions contained in MCOC Act was moved. By the impugned order dated 14^th June, 2021, respondent no.2 accorded approval under Section 23(1)(a) of the MCOC Act. Consequently, the learned Special Judge by an order dated 9^th July, 2021 cancelled the bail granted to the petitioner in Bail Application No.1331 of 2021 and directed the petitioner to surrender before the Court on or before 13^th July, 2021 and, in the event of default, issue a non-bailable warrant against the petitioner.

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Being aggrieved, the petitioner has invoked the writ jurisdiction of this Court assailing the legality and validity of the impugned approval order.

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By an order dated 29^th July, 2021, as the learned APP sought time to take instructions, we directed that the nonbailable warrant ordered to be issued against the petitioner, may not be executed till the next date, if not already executed.

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In the wake of the aforesaid facts, we have heard Ms. Awasthi, the learned Counsel for the petitioner and Mrs. Mhatre, the learned APP for the State, at length. With the assistance of the learned Counsels for the parties, we have also perused the material on record including the original record comprising the proposal placed before the competent authority and the investigation papers.

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Ms. Awasthi raised a multi-fold challenge to the impugned approval order. First and foremost, according to Ms. Awasthi, the impugned order suffers from a clear and manifest nonapplication of mind. It simply records the fact that the authority has considered the material submitted along with the proposal including the certifed copies of the charge-sheets fled against Bablu Thakur, the alleged leader of the organized crime syndicate in the preceding ten years and the cognizance thereof

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having been taken by the competent Court and proceeds to accord the approval. According to Ms. Awasthi, there is no application of mind as to whether the material placed before the competent authority justifes the invocation of the provisions of MCOC Act, at least, qua the petitioner. Secondly, the fact that the approval came to be granted after the petitioner was ordered to be released on bail, cannot be said to be inconsequential and immaterial, submitted Ms. Awasthi. Thirdly, the material relied upon by the investigating agency, even if taken at par, does not make out a prima facie case that the petitioner is a member of the alleged organized crime syndicate. The allegation that the petitioner has amassed huge wealth, which is a proceed of organized crime, is wholly unsustainable as the petitioner is able to account for the assets on the strength of reliable documents.

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In contrast to this, Mrs. Mhatre, the learned APP submitted that the material on record establishes the complicity of the petitioner as a member of the organized crime syndicate headed by Bablu Thakur, beyond the pale of controversy. The material not only shows that the petitioner has amassed huge ill-gotten wealth but also establishes the close proximity between the petitioner and Bablu Thakur as well as the co-

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accused Vikram Bhutekar (A8). Even on the date of the occurrence, the petitioner had multiple telephonic conversations with the co-accused, urged Mrs. Mhatre. It was further submitted that the legality and validity of the approval cannot be considered when the investigation is still underway.

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To start with, it may be apposite to consider the nature and scope of the enquiry in the exercise of judicial review where the legality and validity of approval under sub-section (1) or sanction under sub-section (2) of Section 23 of the Act is assailed at the stage of investigation. Section 23 of the MCOC Act reads as under:

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“ 23 . Cognizance of, and investigation into, an offence:

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( 1 ) Notwithstanding anything contained in the Code,-

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( a ) no information about the commission of an offence of organized crime under this Act, shall be recorded by a police offcer without the prior approval of the police offcer not below the rank of the Deputy Inspector General of Police;

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( b ) no investigation of an offence under the provisions of this Act shall be carried out by a police offcer below the rank of the Deputy Superintendent of Police.

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( 2 ) No Special Court shall take conizance of any offence under this Act without the previous sanction of the police offcer not below the rank of Additional director General of Police.”

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In view of the stringent provisions of the Act, especially the quantum of punishment provided for the offences therein and the restrictions on the grant of bail, where a person is accused

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of the offences punishable thereunder, the legislature has

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introduced safeguards. As the right of the accused to seek bail is severly restricted, the moment a person is accused of the offences punishable under the said Act, by precluding the Court from granting bail unless the Court satisfes itself that there are reasonable grounds for believing that the accused is not guilty of such offences and he is not likely to commit any offence while on bail, clause (a) of sub-section (1) of Section 23 mandates that no information about the commission of an offence of organized crime shall be recorded by a police offcer without the prior permission of the police offcer not below the rank of Deputy Inspector General of Police. Sub-section (2) of Section 23 provides a further interdict that no Special Court shall take cognizance of any offence under the said Act without the previous sanction of the police offcer not below the rank of Additional Director General of Police. These safeguards are premised on the assumption that the superior police offcers would apply themselves to the facts of the given case and consider the justifability of the grant of approval for registration of the offences and that a case is made out for taking cognizance of the offences, as the case may be, in view of the serious repercussions on the personal liberty. Undoubtedly, these provisions are required to be construed strictly. However, the stage at which the legality and validity of the approval or 7/17

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sanction can be tested and the material which the investigating agency can press into service in justifcation of such approval or sanction are the matters which warrant consideration.

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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, Mrs. Mhatre placed a strong reliance on the judgments of this Court in the cases of Anil Sadashiv Nanduskar vs. State of Maharashtra¹ and Farman Imran Shah @ Karu vs. State of Mahrashtra² .

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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. Sharma³ 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:

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“ 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

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1 2008(3) Mh.L.J.(Cri.) 650.

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2 2014 All MR (Cri.) 1571.

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3 1992 (Suppl) SCC 222.

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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.

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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

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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." (emphasis supplied)

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In the case at hand, the thrust of the submission on behalf of the petitioner was that the impugned order ex facie, does not indicate that the competent authority had adverted to the justifability of the invocation of MCOC Act, qua the petitioner. Evidently, the petitioner is not an accused in the offences in respect of which charge-sheets have been lodged against accused no.1 Bablu Thakur, referred to and relied upon by the competent authority. In this backdrop, in the absence of consideration of any material qua the petitioner, order of approval is completely vitiated at least qua the petitioner.

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The submission appears attractive at the frst blush. However, when subjected to scrutiny, in the backdrop of the object of the provisions of MCOC Act and the aforesaid enunciation of the legal position that the order of approval need not disclose consideration of material qua each of the accused, the submission does not merit countenance. It is well neigh settled that the expression more than one charge-sheet contained in Section 2(1)(d) which defnes continuing unlawful

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activity refers to unlawful activities of the organized crime syndicate. Requirement of more than one charge-sheet is qua the unlawful activities of the organized crime syndicate and not against each individual member of the crime syndicate. This proposition of law dismantles the edifce of the submission based on the absence of criminal antecedents of the petitioner. A proftable reference, in this context, can be made to a judgment of the Supreme Court in the case of Vinod G. Asrani vs. State of Maharashtra,⁴ wherein it was observed that:

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“ 9. …. There is no hard-and-fast rule that the frst information report must always contain the names of all persons who were involved in a commission of an offence. Very often the names of the culprits are not even mentioned in the FIR and they surface only at the stage of the investigation. The scheme under Section 23 of MCOCA is similar and Section 23(1)(a) provides a safeguard that no investigation into an offence under MCOCA should be commenced without the approval of the authorities concerned. Once such approval is obtained, an investigation is commenced. Those who are subsequently found to be involved in the commission of the organised crime can very well be proceeded against once sanction is obtained against them under Section 23(2) of MCOCA.”

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The aforesaid pronouncement enunciates in clear and explicit terms that neither the non-inclusion of name of an accused in the frst information report nor in the approval order under Section 23(1)(a) is fatal to the continuation of investigation for the offences punishable under MCOC Act. What is to be seen is, whether the competent authority had

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4 (2007) 3 SCC 633.

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posed unto itself the question as to whether the offence of organized crime, as defned under Section 2(e) of the MCOC Act warrants investigation. At that stage, the inclusion or noninclusion of a name of the particular accused or for that matter the existence or non-existence of incriminating material against a particular accused is not of determinative signifcance.

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Reverting to the facts of the case, from the perusal of the impugned approval order, it becomes evident that the competent authority had considered the relevant material and, on the strength thereof, recorded a subjective satisfaction that the case warranting investigation into an offence of organized crime was made out. We are thus not persuaded to accede to the submission on behalf of the petitioner that the order suffers from the vice of non application of mind.

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Ms. Awasthi then urged that there is no material to establish the nexus of the petitioner with the alleged organized crime syndicate. The life and personal liberty of the petitioner cannot be sacrifced on the altar of unjustifable inferences drawn by the investigating agency on the basis of the assets of the petitioner. In the absence of nexus with the organized crime syndicate, the petitioner cannot be made to face the rigours of the stringent provisions under the MCOC Act. To bolster up

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this submission, Mr. Awasthi placed a strong reliance on the judgment of the Supreme Court in the case of State of Maharashtra vs. Lalit Somdatta Nagpal,⁵ and the judgments of this Court in the cases of Prafulla s/o Uddhav Shende vs. State of Maharashtra⁶ and Majhar Nashir Shaikh vs. State of Maharashtra.⁷ In the latter two decisions, this Court had came to the conclusion that, at the trial, prosecution failed to substantiate the charge for the offences punishable under MCOC Act. Evidently, those cases tuned on the facts and evidence adduced therein.

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In the case of Lalit Nagpal (supra) the Supreme Court expounded the necessity of strict construction of the provisions of the MCOC Act having regard to their stringent nature and prejudicial consequence on the personal liberty and enunciated that it needs to be examined whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the Act. Paragraphs 62 and 63 of the judgment in the case of Lalit Nagpal (supra) are instructive and read as under:

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“ 62. However, we are in agreement with the submission that having regard to the stringent provisions of MCOCA, its provisions will have to be very strictly interpreted and the

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5 (2007) 4 SCC 171.

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6 2009 ALL MR (Cri.) 870.

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7 2016 SCC Online Bom 2607.

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authorities concerned would have to be bound down to the strict observance of the said provisions. There can be no doubt that the provisions of the MCOCA have been enacted to deal with organized criminal activity in relation to offences which are likely to create terror and to endanger and unsettle the economy of the country for which stringent measures have been adopted. The provisions of the MCOCA seek to deprive a citizen of his right to freedom at the very initial stage of the investigation, making it extremely diffcult for him to obtain bail. Other provisions relating to the admission of evidence relating to the electronic media have also been provided for. In such a situation it is to be seen whether the investigation from its very inception has been conducted strictly in accordance with the provisions of the Act.

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As has been repeatedly emphasized on behalf of all the parties, the offence under MCOCA must comprise continuing unlawful activity relating to organized crime undertaken by an individual singly or jointly, either as a member of the organized crime syndicate or on behalf of such syndicate by use of coercive or other unlawful means with the objective of gaining pecuniary benefts or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. 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.25/03 of Rasayani Police Station, Raigad, under Sections 468, 420 and 34, Indian Penal Code and Sections 3, 7, 9 & 10 of the Essential Commodities Act. In our view, the facts as disclosed justifed the application of the provisions of the 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 in 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, C.I.D., 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.25/2003 of Rasayani Police Station, Raigad, that Kapil Nagpal was roped in with Lalit Nagpal and Somdatta Nagpal and permission was granted to apply the provisions of the MCOCA to him as well by Order dated 22-8-2005.”

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(emphasis supplied)

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A Division Bench of this Court in the case of Sachin Bansilal Ghaiwal vs. State of Maharashtra⁸ considered the aforesaid pronouncement in the case of Lalit Nagpal (supra) and observed that the applicability of the aforesaid observations of the Supreme Court, would be a factor to be considered in each case. The Division Bench observed as under:

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“ 40 . ….. There cannot be any dispute about the observations made by the Supreme Court in paragraphs 62 and 63 of the said judgment. However, its applicability would be a factor which is different in each case. In other words, the facts and circumstances of each case and each prior approval order or sanction will have to be considered before applying the principle, that invocation of the MCOC Act was not justifed if prerequisites are not attracted and satisfed. It is to be noted here that in the case before the Supreme Court i.e. in the case of Lalit Nagpal (supra), the offences alleged / charged by the police were punishable PNP 49/50 APEAL25.doc under Sections 468, 420 and Sections 3, 7, 9, and 10 of the Essential Commodities Act 1955. The Supreme Court therefore arrived at a conclusion that the offences alleged could not be said to be covered by the provisions based on which the MCOC Act can be applied to the accused persons mentioned therein. The said provisions, therefore, have been held to be wrongly applied to the said accused therein.”

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(emphasis supplied)

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Revering to the facts of the case, it is imperative to note that during the course of investigation the statements of witnesses have been recorded which shed light on the role of the petitioner as a member of the organized crime syndicate headed by Bablu Thakur. Few of the witnesses, whose statements have also been recorded under Section 164 of the Code, have deposed

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8 2014 Cri L.J. 4217.

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to the role which the petitioner allegedly played in the continuing unlawful activity carried on by the syndicate. Extortion of money under different nomenclature like protection money or hafta, is the most common and crude form of organized crime in a metropolis. Often unsuspecting and disempowered persons who run small time shops or work as hawkers to eke out a living, become the victims of such organized crime. At this stage, there is prima facie material to establish that the petitioner had been in constant contact with accused no.1 Bablu Thakur and accused no.8 Vikram Bhutekar. On the day of occurrence itself, the petitioner had allegedly made multiple calls to those accused with a view to screen them. In the face of this material, which has been unearthed during the course of investigation, we fnd it rather diffcult to accede to the submission on behalf of the petitioner that there is no material to establish the link between the petitioner and the organized crime syndicate.

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The conspectus of the aforesaid consideration is that the challenge to the legality and validity of the impugned approval order does not merit acceptance, at this stage. Hence, the petition deserves to be dismissed.

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Thus, the following order;

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: O R D E R :

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(i) The petition stands dismissed.

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(ii) The interim order passed by this Court on 29^th July, 2021, stands vacated.

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( iii ) It is hereby made clear that the observations hereinabove are made for the limited purpose of deciding the issues raised in this petition and they shall not be construed as an expression of opinion on the merits of the matter and the issues which may arise for consideration before the learned Special Judge, shall be decided on their own merits in accordance with law uninfuenced by any of the observations hereinabove.

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Rule stands discharged.

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[N. J. JAMADAR, J.] [S. S. SHINDE, J.]

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At this stage, Mr. Shukla, holding for Ms. Awasthi, the learned counsel for the petitioner seeks stay to the execution and operation of this order and continuation of the stay granted by this Court to the execution of the non-bailable warrant issued by the learned Special Judge against the petitioner.

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For the reasons recorded in this judgment and order, we do not fnd any substance in the prayer for continuation of the interim order dated 29^th July, 2021.

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The oral application for stay thus stands rejected.

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Lata Dadarao Pawar @ Smt. Ayesha Amir Shaikh v. the State of Maharashtra and Ors.

Case brief

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Lata Dadarao Pawar @ Smt. Ayesha Amir Shaikh v. the State of Maharashtra and Ors.

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