The Supreme Court on Thursday ruled that the element of 'continuing unlawful activity' as seen in chargesheets filed within 10 years of a case were necessary to prosecute a person for the offence of organised crime under the Gujarat Control of Terrorism and Organised Crime Act (GCOCA). [State of Gujarat v. Sandip Omprakash Gupta]
A Bench of Justices S Abdul Nazeer and JB Pardiwala explained that if ‘organised crime’ was synonymous with ‘continuing unlawful activity’, two separate definitions would not have been necessary in the Act.
"There is a vast difference between the act or activity, which is being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. For the purpose of organised crime, there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two chargesheets are found to have been lodged in relation to the offence punishable with three years’ imprisonment during the period of ten years."
The Gujarat government had moved the top court challenging a Gujarat High Court judgment that had held that five criminal complaints registered against an accused in the past for different offences under the Indian Penal Code (IPC) cannot be construed as 'continuing unlawful activity' to prosecute him under the GCOCA.
The High Court had relied on the top court's decision in State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, where it was held that to constitute an offence of organised crime under a similar law in Maharashtra, what is necessary is:
The registration of cases, filing of chargesheets and taking of cognisance of offences in the past by competent courts
Continuation of unlawful activities
The Supreme Court in the instant case noted that the following question of law was raised:
"Whether the requirement of 'continuing unlawful activity', as defined under Section 2(1)(c) of the 2015 Act, necessarily requires a separate FIR to have been registered against any purported member of a gang after the promulgation of the 2015 Act i.e., after 01.12.2019?"
Appearing for the State government, Solicitor General Tushar Mehta submitted before the apex court that the decision in Shivaji Sonawane needed reconsideration, as it frustrates the object of enacting the GCOCA.
The SG argued that the term 'continuing unlawful activity' does not refer to activities that are indulged in only after enactment of the Act, which was promulgated in 2019.
Counsel for the respondent-accused contended that prosecution for organised crime can only be initiated after the GCOCA was enacted, while relying on chargesheets filed ten years earlier.
The top court at the outset stated that the term ‘organised crime’ as per the Act is indicative of,
' ... 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 as singly or jointly as a member of organised crime syndicate or on behalf of such syndicate, in respect of which activity more than one chargesheets have been filed before a competent court within the preceding period of ten years and the Court has taken cognizance of such offence."
The Court reiterated that the for the commission of an offence that would constitute ‘continuing unlawful activity’, the accused must have been found to have indulged in an organised crime after the promulgation of the Act.
Accordingly, it refused to reconsider the decision in Shivaji Sonowane, and observed:
If 'organised crime' was synonymous with 'continuing unlawful activity', two separate definitions were not necessary.
The definitions themselves indicate that the ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of 'continuing unlawful activity', but find place only in the definition of 'organised crime'.
What is made punishable under Section 3 is 'organised crime' and not 'continuing unlawful activity'.
If 'organised crime' were to refer to only more than one chargesheet filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) on the basis of consequence of resulting in death or otherwise would have been phrased differently.
As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah continuing unlawful activity evidenced by more than one chargesheet is one of the ingredients of the offence of organised crime. The purpose of the same is to see the antecedents and not to convict without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment.
There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court.
The Bench clarified that if an accused continues with unlawful activities and is arrested after the promulgation of the 2015 Act, they they can be tried under the Act.
"If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force," the judgment stated.
Advocate Deepanwita Priyanka appeared for the State along with SG Mehta.
Advocates Mohit D Ram, Kishan Dahiya, Monisha Handa, Rajul Shrivastava, and Anubhav Sharma appeared for the respondents.
[Read judgment]