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Gujarat High Court Rejects Bail For Offences Under Gujarat Terrorism Control Act; Explains 'Organised Crime'
PRIYANKA PREET
15 Feb 2022 10:50 AM IST
The Gujarat High Court recently denied bail to an accused under the Gujarat Control of Terrorism and Organised Act, 2015, stating that accused was prima facie a part of an 'organised crime syndicate' involved in highway thefts.'Organized Crime Syndicate', defined under Section 2(1)(f) of the Act, means a group of two or more persons who, acting either singly or collectively, as a syndicate...
The Gujarat High Court recently denied bail to an accused under the Gujarat Control of Terrorism and Organised Act, 2015, stating that accused was prima facie a part of an 'organised crime syndicate' involved in highway thefts.
'Organized Crime Syndicate', defined under Section 2(1)(f) of the Act, means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulging in activities of organised crime.
The Bench comprising Justice AS Supehia explained 'organized crime' as such continuing unlawful activity, indulged in by use of violence, threat, intimidation, coercion, or other unlawful means, with an objective of gaining pecuniary benefits/ undue economic or other advantage for himself or any other person or for promoting insurgency.
"Therefore, an 'organized crime' by nature of violent action indulged in by an individual singly or jointly either as a member of an 'organized crime syndicate' or on behalf of such syndicate should have been either with an object for making pecuniary gains or undue economic or other advantage or for promoting insurgency," it held.
The Court further explained that mere indulgence in a violent activity etc. either for pecuniary gain or other advantage or for promoting insurgency as an individual, either singly or jointly as a member of 'organized crime syndicate' or on behalf of a such syndicate would be sufficient for bringing the said activity within the four corners of the definition of 'organized crime'.
In the instant case, the Court noted that the accused seeking bail was the member of a gang involved in committing organized crimes like vehicle theft, stealing valuable muddamal on moving vehicles, violation of the Arms Act, violation of the Prohibition Act, causing injury, loot, robbery, extortion, gang rape, abduction, murder, attempt to murder, preventing public servant from discharging his duty, deadly attack on public servant and causing damage to public property.
Further, applicant used to keep all muddamal articles, which were still in possession and used to help the accused to dispose of so that they could not be caught.
In this backdrop, it was held,
"there are at least 20 members involved in various offences. The complicity of the applicant can only be known after other members of the syndicate are apprehended and investigated by the policy authorities. Prima facie, the investigation reveals that the applicant is a member of the syndicate as she used to deal with the stolen articles, which were looted by the other accused from various highways of the State. The material on record reveals that prima facie the applicant along with other coaccused, who are relatives and family members, have formed an organised crime syndicate for committing the offences, and her role as alleged will satisfy the requirement of section 2(1)(a) which defines "abet"."
Background
Five FIRs were registered against the Applicant. It was alleged that she was a member of an "organised crime syndicate" that used to chase and recce vehicles passing on the Ahmedabad-Rajkot and Ahmedabad National Highways, including certain internal roads during night.
The Applicant contended that there five FIRs which were registered against the Applicant which were clubbed together for which separate trial will take place. Hence, she should not suffer under the rigour of the trial under the Act.
Senior Advocate Yatin Oza contended thatPer Article 20(2), she cannot be prosecuted more than once for the same offence. Except one offence registered under Section 207 of IPC in 2016, all other offences pertain to Section 379 and 413 of IPC which was not a serious offence. Further, it could not be said that she was engaged in unlawful activity of an organised crime, or she was part of an organised syndicate under 2(f) of the Act. Except an offence punishable under Section 413 of IPC, the Applicant was not named in the FIR, but she was named in supplementary chargesheets.
Additionally, all offences were registered on the statement of the co-accused which cannot be considered a substantial piece of evidence. Significantly, under Section 2(c) of the Act, filing more than one chargesheet for an offence punishable with more than 3 years imprisonment is not enough, but it must be satisfied that the unlawful activity is grave. She had been granted temporary bail by the High Court wherein she did not violate any condition. She also had a husband and a minor son who have been falsely encountered by the police. Lastly, dealing with stolen articles was a minor offence and did not attract the provisions of the Act.
Per contra, the Respondent contended that there were 20 other accused persons for the offences. The Applicant was part of an organised crime syndicate. She had also assaulted police authorities with a co-accused. There were 9 vehicles which were seized out of which one belonged to her. She was directly connected with the organised crime syndicate. She was involved in 93 offences while her brother was involved in 68.
Judgement
Justice Supehia, rejected the Article 20(2) contention stating that so long the provision remain in the statute (2015 Act), the Court cannot express or critcise its consequences being critical or in conflict with the provisions of Article 20(2) of the Constitution, more particularly while exercising powers under the provision of section 439 of the Cr.P.C.
Prima facie, the Bench concluded, it seemed that the Applicant was part of a syndicate of 20 accused persons who were her relatives and family members. It referred to Prasad Shrikant Purohit vs State Of Maharashtra & Anr [(2015) 7 SCC 440] wherein the Supreme Court had explained the pari materia provisions of Maharashtra Control of Organized Crime Act, 1999 ['MCOCA']. The Apex Court had explained thus:
Justice Supehia opined that before the promulgation of the Act in 2019, the Applicant had been arraigned as an accused for provisions of Section 379 and 309 of IPC and after the promulgation in 3 offences under the same sections. The investigation is ongoing. Hence, the registration of offences on the same day cannot dilute the offence registered under the Act and this cannot be an ipso facto influence on the grant of bail.
Further agreeing with the definition of the Supreme Court of "organised crime", the Bench concluded that prima facie, the contents of the FIRs and chargesheet disclose that the Applicant was working in an organised crime syndicate.
In finality, the Bench explained that under Section 20(4) of the Act, there must be reasonable norms for believing that the accused was not guilty. However, looking at the role of the Applicant, the Bench could not be impressed from a prima facie perspective that the Applicant was not guilty. Accordingly, the Application was rejected.
Case Title: BILKISBANU (BILKISBANO) HANIFKHAN @ KALO MUNNO AMIRKHAN JATMALEK Versus STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 44
Case No.: R/CR.MA/12478/2021
Click Here To Read/Download Judgment
