Criminal Appeal @SLP(Crl.) No.5497 of 2015

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1750 of 2017

( Arising out of Special Leave Petition ( Criminal) No.5497 of 2015)

STATE (NCT OF DELHI) ....Appellant(s)

Versus

BRIJESH SINGH @ ARUN KUMAR

AND ANR. ...Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

1.The Respondents were discharged by the Special Judge

MCOCA, New Delhi District, Patiala House, New Delhi in S.C.

No.139 of 2013 dated 5

th

February, 2014 pertaining to

offences under Sections 3 and 4 of the Maharashtra Control

of Organised Crime Act, 1999 (hereinafter referred to as

‘MCOCA’). The Appellant- State of NCT of Delhi filed an

appeal under Section 12 of MCOCA before the High Court of

1

Criminal Appeal @SLP(Crl.) No.5497 of 2015

Delhi which was dismissed on 16

th

April, 2015. Aggrieved,

the Appellant-State has approached this Court by filing the

above Appeal.

2.FIR No. 10

of 2013 was registered in the Special Cell (SB) PS

Special Cell (SB) on 5

th

March, 2013 on the basis of

information received from Shri S.K. Giri, Assistant

Commissioner of Police (the ACP for short). The ACP

prepared a proposal for registration and investigation of a

case under Sections 3/4 of MCOCA. According to the

proposal, the first Respondent who was arrested in

connection with the FIR No.69 dated 8

th

October, 2007 under

Sections 384, 387, 417, 419, 471, 506 and 34 of the Indian

Penal Code (the ‘IPC’ for short), registered in P.S., Special

Cell, New Delhi, was also involved in 20 cases of attempt to

murder, murder, extortion, rioting, cheating, forgery and for

offences under the Uttar Pradesh Gangsters and Anti-Social

Activities (Prevention) Act, 1986 (hereinafter referred to as

‘the UP Gangsters Act’). Respondent No.1 was involved in

committing unlawful activities along with other members of a

crime syndicate since 1985 in an organized manner. The

2

Criminal Appeal @SLP(Crl.) No.5497 of 2015

particulars of eight crimes, the cognizance of which was

taken by the competent criminal Courts in and outside Delhi

were referred to. It was also mentioned that Respondents

manipulated a fake identity for themselves and have floated

several companies from the ill-gotten wealth. Several

properties were acquired by these companies, the details of

which have been specified in the proposal. Considering the

magnitude of the criminal activities of the Respondents and

their organised crime syndicate, the informant felt that it was

necessary to invoke the stringent provisions of MCOCA. The

particulars of 14 members of the syndicate was given in the

proposal and approval was sought for conducting a thorough

investigation into the role of each of them for offences under

Section 3 and 4 of MCOCA.

3.A final report under Section 173(2) Cr.P.C. was filed on 26

th

September, 2013. Briefly, the contents of the charge sheet

are as follows:

I.The first Respondent was involved in 39 crimes of

different nature including murder, attempt to murder,

waging war against the State, extortion, rioting, etc.

3

Criminal Appeal @SLP(Crl.) No.5497 of 2015

between 1985 and 2008. On several occasions, he was

booked under the UP Gangsters Act but had managed

to evade arrest. He was finally arrested on 23

rd

January, 2008 from Bhubaneswar in connection with

FIR No.69 of 2007, PS Special Cell, Delhi.

II.FIR No.69 of 2007 was registered on a complaint made

by Sudhir Singh who alleged that at 7.15 p.m. on 28

th

July, 2007, he received a call from the Respondents

who demanded payment of Rs.50 Lakhs as protection

money. The Respondents threatened him of dire

consequences in case the demand was not met.

III.Another FIR bearing No.122 of 2010 was registered on

17

th

May, 2010 under Sections 341,506 r/w 34 of the

IPC at Subzi Mandi Police Station, Delhi on the

complaint filed by Sudhir Singh alleging that Narender

alias Mamu and Sushil Singh, MLA, who was the

nephew of Respondent No.1, along with others

threatened him to withdraw the cases filed against the

Respondents. This incident, according to Sudhir Singh,

4

Criminal Appeal @SLP(Crl.) No.5497 of 2015

happened when he was attending proceedings in the

Tis Hazari Court Complex, Delhi.

IV.There is a reference in the final report of six other

cases against the Respondents, cognizance of which

was taken up by the competent Courts in Uttar

Pradesh. The details of the said six cases are as under:

Sr.

No

.

ST No.FIR No.,U/s, & PS Name of Court &

Date of cognizance

& Charge

Name of Gang

Member

1 303/0

9

26/91 & 98/91 dt.02/05/1991

U/s 147/148/149/302/307 IPC

PS Bhavarcool, Distt. Gazipur

ASJ Anupati Ram

Yadav, Distt. Gazipur

(UP) 09/11/2012

Brijesh Singh

Tribhuvan Singh

Uma Kant

Salander @ Papu

2 165/9

8

120/95 U/s 3(1) Gangster Act,

PS Chobey Pur Varanasi

(Original FIR & Rukka Missing

from Court.)

Spl. Judge Gangster

Act, Varanasi

21/11/08

Brijesh Singh Hari

Singh @ Harday

Narayar Singh

3 304/0

9

113/01 & 251/01/ U/s

147/148/149/307/302/427/120

-B IPC, 7 Criminal Law Act, PS

Mohamedabad

ASJ-3 Distt. Ghazipur

11/01/13

Brijesh Singh

Tribhuvan Singh

4 125/0

7

8/04 & 09/04 U/s

147/148/149/307/427 IPC, 2/3

UP Gunda Act, PS Cantt. Sadar

Lucknow

Spl. Judge Gangster

Act, Lucknow

14/08/07

Brijesh Singh

Tribhuvan Singh

Ajay @ Guddu

Sunil Rai Anand

Rai

5 523/1

0

62/09 & 81/09 U/s

147/148/149/307/120-B IPC 7

Criminal Law Act. PS Lanka

Varanasi

ASJ – 3 Varanasi Sh.

Sanga M Lal

20/12/10

Tribhuvan Singh

Brijesh Singh

Sushil Singh

Narender @

Mama Ajay Singh

@ Khain Ayak.

6 9/13 112/90 & 232/90 U/s

147/148/149/323/379/427 IPC,

PS Saidpur, Varanasi

CJM Saidpur, Gazipur

Sh. Parksh Chand

Shukla 25/08/12

Brijesh Singh

Tribhuvan Singh

Vijay Shankar

Singh

4.The involvement of the Respondents and the other members

of the crime syndicate in several criminal cases was

5

Criminal Appeal @SLP(Crl.) No.5497 of 2015

comprehensively dealt with in the charge sheet dated

26.09.2013, the details of which are not relevant for the

purpose of adjudication of this case. Though investigation

was still in progress regarding involvement of the other

accused persons, the charge sheet was filed against the

Respondents. After 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 3/4 of MCOCA.

5.After hearing both sides, the Special Court held that it had no

jurisdiction to frame charges under Sections 3 and 4 of

MCOCA and discharged the Respondents. The Special Court

recorded a finding that except FIR No.69 of 2010, there was

no other case which has been taken cognizance by a

competent Court in Delhi for application of MCOCA. FIR

No.122 of 2010 registered at PS Sabzi Mandi was not

relevant as it was not a case where there is any allegation

against the members of the crime syndicate acquiring any

pecuniary benefits or other advantages.

6

Criminal Appeal @SLP(Crl.) No.5497 of 2015

6.The Special Court held that the criminal cases of which

cognizance was taken by Courts situated outside Delhi

cannot be taken into account for the purpose of satisfying

the ingredients of ‘continuing unlawful activity’ under Section

2(1)(d) of MCOCA. Ignoring that six cases in which

cognizance was taken by competent Courts outside the

National Capital Territory of Delhi as well as FIR No.122 of

2010 registered at police station Sabzi Mandi, the Special

Court held that it had no jurisdiction to frame charges under

MCOCA against the Respondents only on the basis of one FIR

i.e. No.69 of 2007. The Special Court further held that three

out of eight cases referred to in the charge sheet were at the

instance of Sudhir Singh and that the offences complained of

are in the nature of a gang war between the rival groups in

the State of Uttar Pradesh.

7.The Appellant-State preferred an appeal against the

judgment of the Special Court discharging the Respondents

before the High Court of Delhi. The High Court rejected the

submissions made on behalf of the Appellant and held that

the charge sheets filed and taken cognizance of by the

7

Criminal Appeal @SLP(Crl.) No.5497 of 2015

Courts outside the National Capital Territory of Delhi are not

relevant for the purpose of registering a case under MCOCA.

The High Court approved the findings of the Special Court

that FIR No.122 of 2010 was not in pursuance of activities of

organized crime syndicate falling within the purview of

MCOCA. As the requirement of a minimum of two charge

sheets being taken cognizance of by a competent Court in

Delhi was not satisfied, the High Court felt that there was

nothing wrong with the decision of the Special Court.

8.Mr. Sidharth Luthra, learned Senior Counsel appearing for the

Appellant submitted that organized crime is a serious threat

to the society and that statement of objects and reasons

have to be taken into account for interpretation of the

provisions of the Act. He submitted that the restriction

placed by the Courts below on the expression “Competent

Court” in the definition of continuing unlawful activity is not

correct. According to him, criminal cases in which

cognizance was taken by Courts outside Delhi are relevant

for the purpose of proceeding against the respondents under

MCOCA. He further submitted that organized crime is not

8

Criminal Appeal @SLP(Crl.) No.5497 of 2015

restricted to territory within a State and a restrictive reading

of the word ‘Competent Court’ would defeat the purpose for

which the statute was enacted.

9.Mr. U.R. Lalit, learned Senior Counsel appearing for

Respondent No.1 urged that MCOCA is a special legislation

which deals with organized crime and unless the essential

ingredients of the offences under Sections 3 and 4 are made

out, a case under the said statute cannot be registered. He

submitted that MCOCA operates only within the territorial

limits of National Capital Territory of Delhi. He submitted

that there is no offence of organized crime which was

committed within the territory of Delhi. He also argued that

it is clear from the material on record that there is no

property belonging to the Respondents within the territory of

Delhi and hence, Section 4 of MCOCA is not attracted. He

also argued that crime is local and anything that is done

outside the State cannot be subject matter of consideration

for registration of an offence under MCOCA. Reliance was

placed on Articles 245 and 246 of the Constitution of India to

submit that MCOCA which extended to the National Capital

9

Criminal Appeal @SLP(Crl.) No.5497 of 2015

Territory of Delhi cannot have extra territorial operation. He

relied upon the judgment of the Bombay High Court in The

State of Bombay v. Narayandas Mangilal Dayame

1

in

support of the said submissions. Mr. Lalit argued that the

complainant in FIR No.69 of 2007, Sudhir Singh, is a resident

of Varanasi and according to him, he came to Delhi on a

business trip and was threatened over phone by the

Respondents. After investigating into the said offence, it was

found that a call was made from a public telephone booth at

Varanasi, U.P. All the antecedent events that were

mentioned in the said FIR pertain to activities in the State of

Uttar Pradesh. He submitted that no organised crime was

committed in Delhi and FIR No.69 of 2007 cannot be taken

into consideration for proceeding against the Respondents

under MCOCA. Referring to FIR No.122 of 2010, Mr. Lalit

submitted that Section 506 IPC was a non-cognizable offence

at the relevant time. As there was no cognizable offence, FIR

No.122 of 2010 is of no use for proceeding against the

Respondents under MCOCA.

1 AIR 1958 Bom 68 (FB)

10

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10.The menace of organized crime posed a serious threat to

civil society and a need for making special provisions for

prevention and control of criminal activities of the organized

crime syndicates and gangs was recognised by the

Maharashtra Legislature which passed “the Maharashtra

Control of Organized Crime Act, 1999 (hereinafter referred to

as “MCOCA”). It was brought into force w.e.f. 24

th

April,

1999. It is clear from the statement of objects and reasons

that rapid increase in organised crime was causing serious

threat to public order apart from adversely affecting the

economy. The Government was of the opinion that the

existing legal regime was inadequate to deal with the

problem and hence, the necessity for a special law to curb

the menace of organised crime. By a Notification dated 2

nd

January, 2002 the Ministry of Home Affairs, Govt. of India

extended the provisions of MCOCA to the National Capital

Territory of Delhi.

11.At this stage, it is necessary to refer to the provisions of

the Act which are relevant for adjudication of the dispute in

11

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this case. Section 5 of the Act

2

provides for constitution of

‘Special Courts’ for trying offences under MCOCA. These

Special Courts are competent to try all offences punishable

under MCOCA which are committed within its local

jurisdiction as provided in Section 6 of the Act

3

. An offence

of organized crime is punishable under Section 3 of the Act

4

.

2 5. Special Courts

(1) The State Government may, by notification in the Official Gazette, constitute one or

more Special Courts for such area or areas, or for such case or class or group of cases, as

may be specified in the notification.

(2) Where any question arises as to the jurisdiction of any Special Court, it shall be

referred to the State Government whose decision shall be final.

(3) A Special Court shall be presided over by a judge to be appointed by the State

Government, with the concurrence of the Chief Justice of the Bombay High Court. The

State Government may also appoint, with the concurrence of the Chief Justice of the

Bombay High Court, additional judges to exercise jurisdiction in a Special Court-

(4)A person shall not be qualified for appointment as a judge or an additional judge of a

Special Court, unless he immediately before such a appointment, is a sessions judge or

an additional sessions judge.

(5) Where any additional judge is or additional judges are appointed in a Special Court,

the judge of the Special Court may, from time to time, by general or special order in

writing, provide for the distribution of the business of the Special Court among himself

and the additional judge or additional judges and also for the disposal of urgent business

in the event of his absence or the absence of any additional judges.

3 6. Jurisdiction of Special Court

Notwithstanding anything contained in the Code, every offence. punishable under this

Act shall, be triable only by the Special Court within whose local jurisdiction it was

committed or at the case may be, by the Special Court constituted for trying such

offence under subsection (1) of section 5.

4 3. Punishment for organised crime-

(1) Whoever commits an offence of organised crime shall,

(i) if such offence has resulted in the death of any person, be punishable with death or

imprisonment for life and shall also be liable to a fine, subject to a minimum fine of

rupees one lac;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less

than five years but which may extend to imprisonment for life and shall also be liable to a

fine, subject to a minimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates

the commission of an organised crime or any act preparatory to organised crime, shall be

punishable with imprisonment for a term which shall be not less than five years but

which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a

minimum of rupees five lacs.

12

Criminal Appeal @SLP(Crl.) No.5497 of 2015

Section 4

5

of the Act provides for punishment for possessing

unaccountable wealth on behalf of a member of organized

crime syndicate. ‘Organized crime’, as defined in Section 2

(1)(e)

6

of the Act simply means a continuing unlawful activity

committed by use of violence for economic gain. ‘Continuing

unlawful activity’ is defined in Section 2(1)(d)

7

of the Act as

any activity prohibited by law for the time being in force if it

(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an

organised crime syndicate; shall be punishable, With imprisonment for a term which shall

not be less than five years but which may extend to imprisonment for life and shall also

be liable to a, fine, subject to a minimum fine of rupees five lacs.

(4) Any person who is a member of an organised crime syndicate shall be punishable

with imprisonment for a term which shall not be less, than five years but which may

extend to imprisonment for life and shall also be liable to a fine, subject to a minimum

fine of rupees five lacs.

(5) Whoever holds any property derived of obtained from commission of an organised

crime or which has been acquired through the organised crime syndicate funds shall be

punishable with a term which, shall not be less than three years but which may extend to

imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees

two lacs

5 4. Punishment for possessing unaccountable wealth on behalf of member of

organised crime syndicate.

If any person on behalf of a member of an organised crime syndicate is, or, at any time

bus been, in possession of movable or immovable property which he cannot satisfactorily

account for, he shall be punishable with imprisonment for a term which shall not be less

than three years but which may extend to ten years and shall also be liable to fine,

subject to a minimum fine of rupees one lac and such property shall also liable for

attachment and forfeiture, as provided by section 20.

Organised criminals are undoubtedly hard core criminals. They have no derth of most

modern weapons. Extorting money by spreading terrorism in society is their aim. They

target elite class of society. Naturally, the money they recover is of unusual proportion.

The money is not spent on just causes but to derail state economy. It is therefore,

essential to provide for strictest punishment. Punishment envisaged in the Act is 3 to 10

years of imprisonment which can be extended to life imprisonment. Death penalty can

also be imposed on the criminals kill anyone. So also a fine of 3 to 10 lacs can also be

imposed.

It will be interesting to compare the criminals under this Act with criminals under recently

repealed Tada Act. Criminals under both Acts differ in attitude and approach. Criminals

under Tada aim at disruptive activities. They are threat to the sovereignty of Nation. On

the contrary criminals under present law are extortionist.

This law also proposes punishment to those who possess any type of property

accumulated through illegal means.

13

Criminal Appeal @SLP(Crl.) No.5497 of 2015

is a cognizable offence punishable with imprisonment of

three years or more and if it is committed by a member of an

‘organized crime syndicate’

8

either singly or jointly within the

preceding period of 10 years. Another requirement is the

existence of at least two charge sheets which have been

taken cognizance of by competent Courts.

12.The points that arise for consideration in this case are:

i)Whether charge sheets filed in

competent Courts outside the National

Capital Territory of Delhi can be taken into

account for the purpose of constituting a

“continuing unlawful activity”, and

ii) Whether there can be prosecution under

MCOCA without any offence of organised

crime being committed within Delhi.

6 (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 person or promoting insurgency;

7 (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-sheets have

been field before a competent Court within the preceding period of ten years and that

Court has taken cognizance of such offence;

8 (f) "organised crime syndicate" means a group of two or more persons who, acting

either singly or collectively, as a syndicate of gang indulge in activities of organised

crime;

14

Criminal Appeal @SLP(Crl.) No.5497 of 2015

13.The principles of strict construction have to be adopted for

interpretation of the provisions of MCOCA, which is a penal

statute

9

. However, it is no more res integra that even a

penal provision should be interpreted to advance the object

which the legislature had in view

10

. The interpretation of

Section 2(1)(d) of the Protection of Children from Sexual

Offences Act, 2012 came up for consideration before this

Court and Justice R.F. Nariman held as follows:

“24. It is thus clear on a reading of English, U.S.,

Australian and our own Supreme Court judgments

that the ‘Lakshman Rekha’ has in fact been

extended to move away from the strictly literal rule

of interpretation back to the rule of the old English

case of Heydon, where the Court must have

recourse to the purpose, object, text, and context of

a particular provision before arriving at a judicial

result. In fact, the wheel has turned full circle. It

started out by the rule as stated in 1584 in Heydon’s

case, which was then waylaid by the literal

interpretation rule laid down by the Privy Council

and the House of Lords in the mid 1800s, and has

come back to restate the rule somewhat in terms of

what was most felicitously put over 400 years ago in

Heydon’s case.”

11

9 Ranjitsing Brahamajeetsing Sharma v. Maharashtra (2005) 5 SCC 294 (Para

42); State of Maharashtra and ors. v. Lalit Somdutta Nagpal and anr. (2007) 4

SCC 171 (para 62)

10 Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684 ¶6

11 Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi)

and Anr. in SLP (Crl.) Nos. 2640-42 OF 2016 at para 24 (concurring judgment of R.F.

Nariman J.)

15

Criminal Appeal @SLP(Crl.) No.5497 of 2015

14.The commission of crimes like contract killings, extortion,

smuggling in contrabands, illegal trade in narcotics,

kidnappings for ransom, collection of protection money and

money laundering, etc. by organised crime syndicates was

on the rise. To prevent such organised crime, an immediate

need was felt to promulgate a stringent legislation. The

Government realized that organised crime syndicates have

connections with terrorist gangs and were fostering narcotic

terrorism beyond the national boundaries. MCOCA was

promulgated with the object of arresting organised crime

which was posing a serious threat to the society. The

interpretation of the provisions of MCOCA should be made in

a manner which would advance the object of MCOCA.

Extra Territoriality and Territorial nexus:

15.It was submitted on behalf of the Respondents that

MCOCA is applicable only within the territories of Delhi as per

Section 1(2) of the Act. Therefore, according to the learned

senior counsel for the Respondents, the charge sheets filed

in a competent Court outside the NCT of Delhi cannot be

16

Criminal Appeal @SLP(Crl.) No.5497 of 2015

taken into account for satisfying the requisites of continuing

unlawful activity. Support was sought from a judgment of

the Privy Council in Macleod v. Attorney General for New

South Wales

12

. The Appellant in that case married Mary

Manson in the Colony of New South Wales. During her

lifetime, the Appellant married another lady at St. Louis in

the State of Missouri, United States of America. He was

indicted, tried and convicted in the Colony of New South

Wales for the offence of bigamy under the Section 54 of the

Criminal Law Amendment Act of 1883. Section 54 provided

for servitude for seven years for bigamy ‘wheresoever’ it

takes place. Lord Halsbury, Lord Chancellor, held that the

Appellant was not liable for prosecution as the offence of

bigamy was not committed by him within the Colony of New

South Wales. The laws made by the Colony of New South

Wales would operate only within its territory.

16.Macleod’s case (supra) was considered by the High Court

of Australia in Trustees Executors and Agency Co. Ltd. v.

Federal Commissioner of Taxation

13

wherein it was held

12 (1891) A.C. 455

13 (1933) 49 C.L.R. 220

17

Criminal Appeal @SLP(Crl.) No.5497 of 2015

that there is no legal restriction of legislative power on the

so-called extra territorial ground. It was further held that the

mere existence of non-territorial elements in any challenged

legislation does not invalidate the law and that the

legislation cannot be said to be invalid if the dominion has

some real concern or interest in the matter, thing or

circumstances dealt with by the legislation.

17.Macleod’s case (supra) was again considered in a later

judgment of the High Court of Australia in Union

Steamship Co. of Australia PTY. Ltd. v. King

14

wherein it

was held that a power to make laws for the peace, order and

good governance for the territory was, initially, understood

to be limited to the area of the territory. The objection taken

by the employer to an award passed by a compensation

Court to the jurisdiction of the Courts under Section 46 of the

Workers’ Compensation Act, 1926 (State Act of New South

Wales) was rejected by following an earlier judgment in

Broken Hill South Limited (Public Officer) v. The

14 (1988) 166 CLR 1

18

Criminal Appeal @SLP(Crl.) No.5497 of 2015

Commissioner of Taxation (New South Wales)

15

in which

it was held as follows:

“… … . But it is within the competence of the

State Legislature to make any fact,

circumstance, occurrence or thing in or

connected with the territory the occasion of

the imposition upon any person concerned

therein of a liability to taxation or of any

other liability. It is also within the

competence of the legislature to base the

imposition of liability on no more than the

relation of the person to the territory. The

relation may consist in presence within the

territory, residence, domicile, carrying on

business there, or even remoter connections.

If a connection exists, it is for the legislature

to decide how far it should go in the exercise

of its powers. As in other matters of

jurisdiction or authority courts must be exact

in distinguishing between ascertaining that

the circumstances over which the power

extends exist and examining the mode in

which the power has been exercised. No

doubt there must be some relevance to the

circumstances in exercise of the power. But it

is of no importance upon the question of

validity that the liability imposed is, or may

be, altogether disproportionate to the

territorial connection or that it includes many

cases that cannot have been foreseen.”

(emphasis supplied)

18.In Christopher Strassheim v. Milton Daily

16

(supra), a

question arose whether the Respondent was liable to be tried

15 50 C.L.R. 337

16 221 U.S. 280 (1911)

19

Criminal Appeal @SLP(Crl.) No.5497 of 2015

in the State of Michigan for an offence committed outside the

State. Justice O.W. Holmes held that the State of Michigan is

justified in punishing the Respondent for acts done outside

its jurisdiction which were intended to produce a detrimental

effect within the State. It was held that:

“Acts done outside a jurisdiction, but intended

to produce and producing detrimental effects

within it, justify a State in punishing the

cause of the harm as if he had been present

at the effect, if the State should succeed in

getting him within its power”.

19.The Judgment of Justice Holmes was followed by the

United States Courts of Appeal in Chua Han Mow v. United

States

17

where the Petitioner’s contention that the United

States of America lacked subject-matter jurisdiction to

prosecute him for unlawful acts committed in Malaysia was

rejected. Prosecution of the Petitioner was held justified

under the objective territorial and protective principles as the

Petitioner intended to create detrimental effects in the

United States and commit acts which resulted in such effect

when heroin was unlawfully brought into the United States.

17 730 F.2D. 1308 (1984) (p. 1312) cert. denied, 470 U.S.1031(1985)

20

Criminal Appeal @SLP(Crl.) No.5497 of 2015

20.The Indian Federal Court considered the extra territorial

powers of the Union Legislature in The Governor General

in Council v. The Raleigh Investment Co. Ltd.

18

and held

that the provisions of the impugned legislation cannot be

vitiated on the ground of extra territoriality in view of the

concern or interest the dominion had with the subject matter.

The Federal Court took note of the judgments subsequent to

Macleod (supra) in which the limitation imposed by a

doctrine forbidding extra territorial legislation was held to be

a ‘doctrine of somewhat obscure extent’.

21.In State of Bombay v. RMD Chamarbaugwala

19

, this

Court considered the point whether the legislature

overstepped the limits of its legislative field when the

impugned act purported to affect men residing and carrying

on business outside the State. It was held that on the basis

of the doctrine of territorial nexus between the State and

activities of the Petitioners which are not in the State, the

impugned legislation cannot be held to be beyond the

competence of the legislature. This Court recognized the

18 (1944) FCR 229

19 [1957] SCR 874 (p.901)

21

Criminal Appeal @SLP(Crl.) No.5497 of 2015

existence of two elements to establish territorial nexus which

are:

a.The connection must be real and not illusory, and

b.The liabilities sought to be imposed must be pertinent

to that connection.

22.The doctrine of territorial nexus applied in the

Chamarbaugwala case (supra) which was concerned with

tax on crossword competitions, was extended to sales tax

legislation in The Tata Iron & Steel Co., Ltd. v. The

State Of Bihar

20

. This Court found that the doctrine of

territorial nexus which was applied in Income Tax legislation

can be extended to Sales Tax legislation as well. However,

this Court did not consider the broad proposition as to

whether the theory of nexus, as a principle of legislation, is

applicable to all kinds of legislation. The doctrine of

territorial nexus was also applied by this Court in State of

Bihar v. Charusila Dasi

21

which dealt with trust properties.

20 [1958] SCR 1355 (p.1375)

21 (1959) Supp. 2 SCR 619

22

Criminal Appeal @SLP(Crl.) No.5497 of 2015

23.As stated above, the doctrine forbidding extra territorial

legislation as held in Macloed’s case (supra) was

subsequently held to be of somewhat obscure extent.

Statutes made by a Sovereign States cannot be said to be

invalid on the ground of extra territoriality subject to certain

conditions as is clear from the judgments referred to supra.

The same principle was applied to State legislations in the

United States of America. There is no distinction between

the applicability of the aforesaid principle to civil or criminal

statutes.

24.In the present case, it is sufficient to examine whether

there is a territorial nexus between the charge sheets filed in

competent Courts within the State of Uttar Pradesh and the

State of NCT of Delhi where the Respondents are being

prosecuted. The prosecution of the Respondents under

MCOCA cannot be said to be invalid on the ground of extra

territoriality in case the nexus is sufficiently established.

25.Organised crime which is an offence punishable under

Section 3 of MCOCA means a continuing unlawful activity

23

Criminal Appeal @SLP(Crl.) No.5497 of 2015

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 should be at least 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.

26.Organised crime is not an activity restricted to a particular

State which is apparent from a perusal of the Statement of

Objects and Reasons. A restrictive reading of the words

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Criminal Appeal @SLP(Crl.) No.5497 of 2015

“competent Court” appearing in Section 2 (1)(d) of MCOCA

will stultify the object of the Act. We disagree with the

learned senior counsel for the Respondents that it is

impermissible for the Special Courts to take into account

charge sheets filed outside the National Capital Territory of

Delhi as that would result in giving extra territorial operation

to MCOCA. A perusal of the charge sheets filed against the

Respondents in the State of Uttar Pradesh which are relied

upon by the prosecution to prove that organised crime was

being committed by them shows clear nexus between those

charge sheets and the National Capital Territory of Delhi

where prosecution was launched under MCOCA. The twin

conditions to establish territorial nexus in RMD

Chamarbaugwala’s case (supra) are fulfilled. If members

of an organised crime syndicate indulge in continuing

unlawful activity across the country, it cannot by any stretch

of imagination said, that there is no nexus between the

charge sheets filed in Courts in States other than Delhi and

the offence under MCOCA registered in Delhi. In such view,

we are unable to accept the submission of the Respondents

that charge sheets filed in competent Courts in the State of

25

Criminal Appeal @SLP(Crl.) No.5497 of 2015

Uttar Pradesh should be excluded from consideration. We

hold that ‘competent Courts’ in the definition of ‘continuing

unlawful activity’ is not restricted to Courts in Delhi alone.

CRIME IS LOCAL

27.The learned senior counsel for the Respondents relied

upon the judgment of a full Bench of the High Court of

Bombay in Narayandas Mangilal Dayame

case (supra)

wherein the constitutional validity of Section 4 of Bombay

Prevention of Hindu Bigamous Marriage Act was considered.

A second marriage contracted outside the State was a

bigamous marriage and void as per Section 4 of the said Act

and was also made punishable under Section 5 with an

imprisonment which may extend to seven years. The

Petitioner was tried for contracting a second marriage at

Bikaner and was found guilty for committing an offence of

bigamy. Chief Justice Chagla following Macleod’s case

(supra) held that crime is local and that Section 4 was ultra

vires the Bombay legislature as it suffered from the vice of

26

Criminal Appeal @SLP(Crl.) No.5497 of 2015

extraterritoriality. It was further held that the principle of

territorial nexus is not applicable to cases of marriage or

crime.

28.According to us, the said principle is not applicable to the

facts of this case. The offences alleged to have been

committed by the Respondents beyond the territories of

Delhi are not being tried within the National Capital Territory

of Delhi. The existence of filing of the charge sheets, as a

matter of fact, is taken into consideration merely for the

purpose of determining the antecedents of the

Respondents.

22

The Respondents would still be liable to face

trial in competent Courts where the charge sheets are filed.

29.Even if a crime is committed in one State, the accused can

be tried in another State if the detrimental effect is in that

State - Christopher Strassheim v. Milton Daily(supra)

followed by the Federal Court of Appeals in Rocha

23

and Chua

22 Bharat Shanti Lal Shah v. State of Maharashtra (2003) Bom. L.R. (Cri.)947 (para

25-27) (to which Justice Bobde was a party) subsequently approved in State of

Maharashtra v. Bharat Shanti Lal Shah & Ors . (2008) 13 SCC 5 (Para 29-33); Om

Prakash Shrivastava v. State of NCT of Delhi 164 (2009) DLT 218 (Para 33-36);

Jaisingh v. Maharashtra (2003)BomCR(Cri) 1606 (para 19)

23 Rocha v. United States 288 F.2d. 545 (1961) (p. 548), cert. denied 366 U.S.

948(1961)

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Criminal Appeal @SLP(Crl.) No.5497 of 2015

Han Mow

24

. It is also relevant to refer to the judgment of the

House of Lords in Director of Public Prosecutions v.

Stonehouse

25

. A well known politician who was in financial

difficulties simulated his death by drowning to start life

afresh with a new identity in Australia. He made

arrangement with five British insurance companies to issue a

policy in his wife’s name which would be payable to her on

his death. After creating the circumstance of his drowning in

Miami, he fled to Australia on a false passport. He was

extradited to England where he was prosecuted in respect of

several offences including attempt to obtain property by

deception. It was held by the House of Lords that the English

Courts had jurisdiction to try the offences against the

Appellant on the ground that the instant consequences of the

physical acts of the accused in United States of America was

in England.

30.In Lawson v. Fox & ors.

26

the House of Lords decided the

following points of law of general importance:

24 Chua Han Mow v. United States 730 F.2D. 1308 (1984) (p. 1312) cert. denied, 470

U.S.1031(1985)

25 [1977] 2 All ER 909)

26 [1974] 1 All ER 783

28

Criminal Appeal @SLP(Crl.) No.5497 of 2015

'Whether in deciding if an offence has been committed

under section 96 (1) and 96 (3) (a) of the Transport Act

1968 it is right to take into account hours of work and

hours of driving done and hours of rest taken outside

Great Britain which if done or taken inside Great Britain

would fall to be taken into account for the purpose of

computing a driver's working day and hours of driving.

The Respondent/ driver was convicted for the offence of

driving a vehicle for more than 10 hours in a working day,

contrary to Section 96(1) of the 1968 Act and for working as

a driver of a goods vehicle for a working day which exceeded

11 hours, contrary to Section 96(3)(a) of the 1968 Act. The

Respondent was driving a goods vehicle on round trips by

channel ferry between his employer’s depot in England and a

destination in France. The Respondent contended that the

period during which he drove outside England i.e. in France,

cannot be taken into account. It was held that this

presumption based on international comity that Parliament,

while enacting a penal statute, unless it uses plain words to

the contrary, did not intend to make it an offence in English

Law to do acts in places outside the territorial jurisdiction of

the English Courts- unless the act is one which has harmful

consequences in England. The Respondent was not charged

29

Criminal Appeal @SLP(Crl.) No.5497 of 2015

with anything that he did in France but the fact that he was

on duty in the course of his employment was taken into

consideration for trying him in England.

31.The judgments of the House of Lords pertain to offences

committed outside the country being tried when the

consequences of such offences are within the country. We

have referred to these judgments only to explain that the

principle of ‘Crime is local’ is not applicable where the

detrimental effect is in another State which can try the

offender. In any event, the Respondents are not being tried

for the offences which are subject matter of charge sheets

filed in the State of Uttar Pradesh. The cases in which

charge sheets are filed in competent Courts outside Delhi

shall be tried in those Courts and are taken into account only

for determining the antecedents of the Respondents.

Therefore, the submission on behalf of the Respondents that

the crimes committed outside the State cannot be

considered for any purpose whatsoever is rejected. The

upshot of the above discussion is that there should be a

minimum of two charge sheets of organized crime registered

30

Criminal Appeal @SLP(Crl.) No.5497 of 2015

against the members of the syndicate either separately or

jointly for the purpose of constituting a continuing unlawful

activity. Charge sheets filed outside Delhi can also be taken

into account.

32.However, we are in agreement with the submission of the

learned Senior Counsel for the Respondents that an activity

of organized crime in Delhi is a sine qua non for registration

of a crime under MCOCA. In the absence of an organized

crime being committed in Delhi, the accused cannot be

prosecuted on the basis of charge sheets filed outside Delhi.

33.FIR No.122 of 2010 is registered under Sections 341, 506

read with Section 34 of the IPC. Section 341 IPC is

punishable with a maximum sentence of one month, though

it is cognizable offence. Section 506 IPC is a non-cognizable

which was made a cognizable offence by a notification issued

by the Delhi Government. This notification was quashed by

the High Court of Delhi on 13.01.2003. A second

notification for the same purpose was issued by the Delhi

Government on 31.03.2004 which was challenged in W.P. (C)

31

Criminal Appeal @SLP(Crl.) No.5497 of 2015

No.2596 of 2007. The High Court of Delhi initially stayed and

ultimately struck down the second notification on

18.01.2016. As such, Section 506 IPC was a non-cognizable

offence at the date of registration of the FIR and filing of the

charge sheet. Only an unlawful activity which is a cognizable

offence punishable with minimum sentence of three years or

more would be a continuous unlawful activity under section

2(1)(d) of the Act. Hence, the FIR No.122 of 2010 cannot be

taken into account.

34.FIR No.69 of 2007 was registered on the basis of

information given by one Sudhir Singh, who is admittedly a

resident of Plot No.103, Saket Nagar, Varanasi, Uttar

Pradesh. He is a politician and a businessman and when he

was on a trip to Delhi, he was threatened by the

Respondents due to their business rivalry. Several facts

pertaining to the illegal activities of the Respondents in Uttar

Pradesh have been mentioned in the FIR. Sudhir Singh

complained of extortion by the Respondents for payment of

Rs.50 Lakhs as protection money. During the course of

investigation, it was found that the call that was made on the

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Criminal Appeal @SLP(Crl.) No.5497 of 2015

mobile phone of Sudhir Singh was from a PCO at Varanasi. It

appears from a close reading of the FIR and the charge sheet

in FIR No.69 of 2007, that there was no criminal activity

pertaining to organised crime within the territory of Delhi and

the complaint was filed by the informant at Delhi only for the

purpose of invoking MCOCA. We have thoroughly examined

the material placed on record by the prosecution including

the charge sheet and found that there is no mention of any

property belonging to the Respondents in Delhi. We gave

sufficient time to Shri Sidharth Luthra to show us anything

from the record pertaining to possession of property by the

Respondents in Delhi. After making enquiries with the

authorities concerned, Mr. Luthra fairly submitted that the

Respondents are not in possession of any property in Delhi.

As there is no organised crime committed by the

Respondents within the territory of Delhi, there is no cause of

action for initiation of proceedings under MCOCA.

35.The Appeal is disposed of as follows:-

33

Criminal Appeal @SLP(Crl.) No.5497 of 2015

(a)The words ‘competent Court’ in Section 2 (d) of

MCOCA is not restricted to Courts in Delhi and charge

sheets filed in Courts in other States can be taken into

account for the purpose of constituting continuing

unlawful activity;

(b)There cannot be a prosecution under MCOCA without

an organised crime being committed within Delhi; and

(c)The judgment of the High Court is upheld though for

different reasons.

.................................J.

[S.A. BOBDE]

..................................J.

[L. NAGESWARA RAO]

NEW DELHI;

OCTOBER 09, 2017

34