The Supreme Court noted that, in addition to "continuous unlawful action," the Gujarat Control of Terrorism and Organised Crime Act, 2015 defines "organised crime" as an offence that involves at least one incident of continuance.

The issues raised before the Supreme Court were:

(1) Whether the definition of "continuous unlawful activity," as stated in Section 2(1)(c) of the 2015 Act, necessitates the registration of a fresh FIR against any alleged member of a gang after the promulgation of the 2015 Act, or after 01.12.2019?

(2) Whether an FIR under the 2015 Act (Special enactment) can be launched if no FIR has been filed against the accused for any offence under the IPC or any other statute since the 2015 Act was enacted?

When handling the appeals, the bench of Justices S. Abdul Nazeer and J. B. Pardiwala declined to send the matter to a bigger bench and noted the following:

(a) If 'organised crime' was synonymous with 'continuing unlawful activity', two separate definitions were not necessary.

(b) 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'.

(c) What is made punishable under Section 3 is 'organised crime' and not 'continuing unlawful activity'.

(d) If 'organised crime' were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) resply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that 'if any one of such offence has resulted in the death', since continuing unlawful activity requires more than one offence. Reference to 'such offence' in Section 3(1) implies a specific act or omission.

(e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof 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.

(f) 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 (i.e. has not been or is not being tried elsewhere).

(g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation, where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said 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 same principle would apply, even in the case of the 2015 Act, with which we are concerned.

In this case, the State of Gujarat had petitioned the Supreme Court to overturn the Gujarat High Court's ruling that the accused's five prior FIRs for various IPC offences could not be interpreted as constituting "continuing unlawful activity" for the purpose of prosecuting him in accordance with the 2015 Act. The Supreme Court's ruling in State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane, reported in (2015) 14 SCC 272, set the legal precedent that the High Court had to follow.

In Shiva alias Shivaji Ramaji Sonawane, the court determined that an offence under the MCOCA requires the presence of two specific elements. (1) the filing of charges and the taking of cognizance by the appropriate court of the offences allegedly committed by the accused in the past (2) the continuance of illegal operations. According to the prior chargesheets and the cognizance granted by the competent court, the accused cannot be considered to have committed an offence under Section 3 of the MCOCA unless an organised crime is committed by him after the MCOCA's publication.

Case Title: State of Gujarat vs Sandip Omprakash Gupta 
Citation: CrA 2291 OF 2022