Even if crime is committed in one State, the accused can be tried in another State if the detrimental effect is in that state

AASHRAY CHAUDHARY | Symbiosis Law School, Hyderabad | 6th January 2020

State (NCT of Delhi) v. Brijesh Singh @Arun Kumar and anr.

Facts

• The case falls under Maharashtra Control of Organised Crimes Act, 1999 (here in after referred to as ‘MCOCA’)^[1].Respondent No.1 was involved in committing unlawful activities along with other members of a crime syndicate since 1985 in an organised manner. 
• Considering the Magnitude of criminal activities of the respondents and their organised crime syndicate, the special cell (SB) PS felt that it was necessary to invoke the stringent provisions of MCOCA. 
• After obtaining the sanction under Section 23(2) of MCOCA from the competent authority, the Special Court was requested to take cognizance of the offence under Sections 3/4 of MCOCA. The Special held that 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. 
• The Appellate-State preferred an appeal before the High Court of Delhi. The High Court rejected the appeal and hence the appeal before the Apex Court.

Issue 

• 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
• Whether there can be prosecution under MCOCA without any offence of organised crime being committed within Delhi.

What was held

• The Court discussed various Judgements on Doctrine of Territorial Nexus. In the case of Chua Han Mow v. United States^[2] the United States Courts of Appeal held that where the prosecution is justified under the objective territorial and protective principles as the Petitioner intended to create detrimental effect in the United States and commit acts which resulted in such effected when heroin was unlawfully brought into the United States.
• In the case of State of Bombay v. RMD ChamarBaugwala^[3] the court recognised the existence of two elements to establish territorial nexus which are:
• The connection much be real and not illusory, and 
• The liabilities sought to be imposed must be pertinent to that connection.
• The Court held that the charge sheet filed in State of Uttar Pradesh shows clear nexus between them and the National Capital Territory of Delhi where prosecution was launched under MCOCA.
• It was of the opinion that there is no distinction between the applicability of the aforesaid principle to civil or criminal statutes. It was further held that it is sufficient to examine whether there is a territorial nexus between the charge sheets filed in competent Court within the State of Uttar Pradesh and the State of NCT. 
• The Court came to the conclusion that such prosecution cannot be said to be invalid on the ground of extra-territoriality in case the nexus is sufficiently established and also held that ‘Competent Courts’ in the definition of ‘continuing unlawful activity’ is not restricted to Courts in Delhi alone. 

^[1] By a Notification dated 2nd January, 2002 the Ministry of Home Affairs, Govt. of India extended the provisions of MCOCA to the National Capital Territory of Delhi.

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

^[3] [1957] SCR 874