CASE TITLE:
The State of Gujarat Vs. Sandip Omprakash Gupta.
DATE OF ORDER:
15th December 2022.
JUDGE(S):
Justice Mr. J.B. Pardiwala.
PARTIES:
Petitioner: The State of Gujarat.
Respondent: Sandip Omprakash Gupta.
SUBJECT
The present case is the first case registered under the Gujarat Control of Terrorism and Organised Crime Act, 2015 after its promulgation. The Court deals with several crucial areas of the Act i.e “organised crime”, “continuing unlawful activity”. The Court also distinguishes between the commission of a crime and the promulgation of the Act and thereby, draws the line between both of them to clarify the statements given in this case.
IMPORTANT PROVISIONS
The Gujarat Control of Terrorism and Organised Crime Act, 2015
- Section 2(1)(e)- The definition of “organised crime”.
- Section 20(4)- Powers regarding Bail.
BRIEF FACTS
- The respondent accused herein along with thirteen other co-accused were arrested on 27 November 2020 based on an FIR which was registered on the same day. They committed offence which was punishable under Section 3(1)(i) and (ii), 3(2) and 3(4) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 (hereinafter to be referred as “The Act, 2015”).
- The respondent accused applied for bail in the Sessions Court at Surat which was rejected by an order dated 21 January 2021.
- Thereafter, the respondent submitted an application for the grant of bail in High Court which was allowed and correspondently ordered the release of the respondent accused subjecting to terms and conditions.
- The High Court granted the bail by relying on the dictum which is laid down by this Court in the case of State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane [(2015) 14 SCC 272]. The Court stated the following 2 facts while granting the bail-
- The Act, 2015 came into force on 1 December 2019 and no FIR has been registered against the respondent accused for any substantive offence after the stated date.
- The five FIRs which were registered in the past for different offences under the Indian Penal Code (IPC) cannot be construed as a “continuing law activity” of the respondent accused in order to prosecute him under the provisions of the Act, 2015.
QUESTIONS RAISED
- Whether an FIR under The Act, 2015 (Special enactment) is maintainable in law or can be registered if there is no FIR registered against the accused after the promulgation of the 2015 Act for any offence under the IPC or any other statute?
- Whether the decision rendered by a coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) requires a relook and the issue be referred to a larger Bench?
ARGUMENTS ADVANCED BY THE APPELLANT (STATE)
- The Solicitor General submitted that the term ‘organised crime’ has been defined under Section 2(1)(e) of the Act, 2015 and it uses the term ‘continuing unlawful activity”.
- It is nowhere mentioned if that ‘continuing unlawful activity’ needs to be committed only after the promulgation of The Act, 2015.
- He also focused on the term “within the preceding period of ten years” and validated that such “continuing unlawful activity” could be said to have committed prior to the enactment of The Act, 2015.
- Hence, the State vehemently submitted to relook the dictum laid down by this Court in Shiva alias Shivaji Ramaji Sonawane case as it frustrates the very object of enacting The Act, 2015.
ARGUMENTS ADVANCED BY THE RESPONDENT (ACCUSED)
- The respondent counsel submitted that there is “no error not to speak of any error of law could be said to have been committed by the High Court while passing the impugned order”.
- The learned counsel submitted that if the interpretation of the dictum put forward by the learned Solicitor General is accepted then it would be a breach of Article 20(1) of the Constitution.
- The respondent further submitted that The Act, 2015 clearly specifies that if an accused commits an organized crime after the promulgation of The Act, 2015 then he will be prosecuted under the provisions of the said Act with the aid of the charge sheets that might have been filed in the last ten preceding years”.
- The learned counsel thereby concluded that mere past charge sheets would not constitute the offence of an organized crime in the absence of a substantive offence.
- Thereby, the learned respondent argued that there was no merit in the contentions put forward by the appellant (State) and if it is accepted then it would give a free hand to the police to send anybody to a long term of imprisonment, merely by filing chargesheets in respect of more than one offence.
ANALYSIS BY THE COURT
- The Court submitted that the power to grant bail by the High Court or Court of Sessions is not only imposed by Section 439 of the Code of Criminal Procedure but also by the limitations placed by Section 20(4) of the Act, 2015. The recording of the findings under the said provision is thus, a sine qua non for granting bail under the Act, 2015.
- The Court considered the principles laid down in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another [(2005) 5 SCC 294].
- The High Court in Bharat Shantilal Shah v. State of Maharashtra [(2003) All MR (Cri) 1061] said that the limited purpose of “continuing unlawful activity” was to see the antecedents of the person and not to convict them.
- Hence, the Court considered two essential ingredients while viewing Shiva alias Shivaji Ramaji Sonawane’s case. Firstly, if the accused have committed the organized crime after the promulgation of The Act, 2015 then only cognizance can be taken by the competent Court based on the previous chargesheets. Secondly, the accused would constitute “continuing unlawful activity” only if the accused was found to have indulged in an organized crime after the promulgation of the MCOCA.
- The Court therefore submitted that the dictum laid down in Shivaji alias Shivaji Ramaji Sonawane does not require relook and it is the correct disposition of law.
CONCLUSION
The present case reflected the necessity of strict interpretation of the provisions of a certain Act. It also directed that the authorities concerned are obliged in law to strictly observe those provisions. Sometimes, the facts of the case can be misleading but any competent authority should not deviate its path from the rules which are already specified. The present case is an example of protection of substantive rights of a criminal. According to Sutherland, ‘strict construction refuses to extend the import of words used in a statute so as to embrace cases or acts which the words do not clearly describe’.
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