GANESH NIVRUTTI MARNE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant is accused 7 in MCOCA Special Case No.2 of 2007 pending in the court of Special Judge (under MCOCA), Pune. In this appeal filed under Section 12 of the Maharashtra Control of Organized Crimes Act, 1999 (for short, "the MCOCA"), the appellant has challenged order dated 19/8/2009 whereby his application for discharge was rejected.

(2.) The prosecution case needs to be shortly stated. It is as under:

(3.) We have heard, at some length, Mr. Chitnis, senior counsel appearing for the appellant. Mr. Chitnis has taken us through the Statement of Objects and Reasons and the Preamble of the MCOCA. He has also taken us through the relevant provisions of the MCOCA more particularly Sections 2(1)(d), 2(1)(e) and 2(1)(f). Mr. Chitnis submitted that Section 2(1)(e) of the MCOCA describes "organized crime" as continuing unlawful activity by an individual, singly or jointly, either as a member of an organized 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 object of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency. Mr. Chitnis submitted that if we read the Statement of Objects and Reasons of the MCOCA and the Preamble thereof and definition of the term "organized crime", it is clear that the continuing unlawful activity must be indulged in 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. Mr. Chitnis submitted that pecuniary benefits is the main ingredient of this section and unless there is material to show that the continuing unlawful activity was carried out for pecuniary benefit, the provisions of the MCOCA cannot be attracted. In this connection, Mr. Chitnis relied on the judgment of the Division Bench of this court in Sherbahadur Akram Khan & Ors. v. State of Maharashtra, 2007 ALLMR(Cri) 1. Mr. Chitnis relied upon the observations made by the Division Bench that the provisions of the MCOCA would be attracted only if it is established that unlawful activity is undertaken by a person with the objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or any other person or for promoting insurgency. Mr. Chitnis submitted that in this case this court has made it clear that the words in Section 2(1)(e) - "with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage" will have to be given some effective meaning and applying the principle of ejusdem generis, the words "other advantage" would have to be interpreted in the same manner as the previous terms "pecuniary benefits" or "undue economic advantage". On the doctrine of 'ejusdem generis', Mr. Chitnis relied on R. & B. Falcon (A) PTY Ltd. v. Commissioner of Income-tax, 2008 12 SCC 466 and the Commissioner of Income-tax v. McDowell & Co. Ltd., 2009 10 SCC 755. Mr. Chitnis submitted that in Sherbahadur Khan, this court has agreed with the view taken by learned Single Judge of this court in State of Maharashtra v. Bharat Baburao Gavhane & Ors., 2006 ALLMR(Cri) 2895 that merely stating that a gang leader and his associates run a crime syndicate with a view to gaining pecuniary benefits and advantages and supremacy over rival gangs by violence, intimidation and other coercive means, is not sufficient to maintain a prosecution under the MCOCA. There must be some material even at prima facie stage in that behalf. Counsel submitted that there is absolutely no material in this case to indicate that the offence in question was committed to gain pecuniary benefit or advantage. Counsel submitted that the view taken by learned Special Judge that whenever there is a gang war and a murder, it is necessarily prompted by a desire to have pecuniary gain or pecuniary advantage is a wrong view of law.