Delhi High Court
Jagmohan @ Mohar Singh vs State on 19 May, 2010
Author: Vipin Sanghi
Bench: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 544/2010
Date of Decision: 19th May, 2010
JAGMOHAN @ MOHAR SINGH ..... Appellant
Through: Mr. A.S. Dateer, Advocate
versus
STATE ..... Respondent
Through: Mr. Manoj Ohri, APP
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may :
be allowed to see the judgment? No
2. To be referred to Reporter or not? : No
3. Whether the judgment should be reported :
in the Digest? No
% JUDGMENT (Oral)
VIPIN SANGHI, J
1. The present appeal has been filed by the appellant under
section 12 of the Maharashtra Control of Organized Crime Act, 1999
(MCOCA) as extended to the NCT of Delhi, read with section 227 of the
Code of Criminal Procedure, 1973 to impugn the order on charge dated
26.03.2010 passed by the Additional Sessions Judge/Special Judge,
New Delhi, Sh. J.R. Aryan, ordering framing of charge against the
appellant under section 3(2) and 3(4) of the MCOCA along with section
186/353 IPC and section 25/27/59 of the Arms Act in Sessions Case
No.181/2008 arising out of FIR No.521/2005 registered at police station
Connaught Place, New Delhi.
Crl. A. No.544/2010 Page 1 of 17
2. The case of the prosecution is:
(i) That on the basis of secret information that the appellant, who
is a notorious criminal and a declared offender of police
station Darya Ganj, would come in a Qualis Van in front of
Regal Cinema towards Gol Dak Khana at about 4:00 p.m. and
that he would be carrying illegal fire arm. The secret
information was to the effect that, if raided, the appellant
could be apprehended with an illegal weapon which he had
been using to extort money from the area. It was also
informed that the Toyota Qualis Van in which he would be
travelling, was wanted in a case registered at police station
Connaught Place.
(ii) On the basis of this secret information, a raid was conducted
by the police near Hanuman Mandir at about 4:00 p.m. on
13.09.2005. The appellant was found to be driving a Qualis
vehicle bearing registration No.HR-55-A-3776. As the vehicle
was stopped, the appellant allegedly took out a pistol from his
left dub and pointed towards the police Sub Inspector. A
constable immediately snatched the pistol from his hand
which had four live cartridges of 7.65 bore loaded in the
magazine. The same was seized by the police.
(iii) On being questioned, the appellant could not produce any
paper or proof regarding his ownership of the vehicle. On
examining the vehicle, it was found that the vehicle was
Crl. A. No.544/2010 Page 2 of 17
wanted in case FIR No.168/2003 under section 420/406 IPC of
police station Connaught Place, being stolen property. The
vehicle was taken in possession under section 302 Cr PC. The
FIR was registered on the basis of the Rukka prepared with
information as above. The appellant was remanded to judicial
custody.
(iv) On investigation being taken up in case FIR No.521/2005 by SI
Pankaj Yadav, it was revealed that the appellant along with
his brothers had been indulging in organized crime. The
proceedings for invoking the provisions of MCOCA were taken
up. Approval under section 23(1)(a) of MCOCA was granted
by the Additional Commissioner of Police (ACP) on 15.09.2005
on the basis of materials placed before him and consequently
sections 3(2) and 3(4) of MCOCA were added to the FIR and
further investigation under Sections 3(2) & 3(4) of MCOCA was
undertaken.
(v) The brief history of the appellant accused showed that various
criminal cases were registered against him in the year 1995
and thereafter, continuously till the year 2003. The case
registered in 2003 was under Section 406/420 IPC, registered
at police station Connaught Place bearing FIR No.168/2003.
Thereafter, the FIR in question was registered. The entire
material was placed before the ACP for grant of approval
under section 23(2) of MCOCA. Being satisfied on the basis of
the material placed before him, sanction under section 23(2)
Crl. A. No.544/2010 Page 3 of 17
MCOCA was granted on 10.02.2006. The same has been
made a part of the charge sheet.
(vi) The appellant Jagmohan was charge sheeted. The evidence
and material collected by the ACP comprising documentary
material and statement of witnesses referred under section
161 Cr PC were produced. The said material and evidence
has been referred to in the charge sheet along with brief
history of criminal cases in which accused Jagmohan was
found involved. The same was annexed as Annexure A with
the charge sheet.
3. The learned ASJ/Special Judge Sh. J.R. Aryan heard the
counsels for the appellant as well as Sh. Jeet Singh, counsel, the public
prosecutor and the special public prosecutor and proceeded to pass
the impugned order.
4. Mr. Dateer, learned counsel for the appellant has made the
following three submissions in support of the appeal. He firstly submits
that on 13.09.2005 itself, Sections 3(2) and 3(4) of the Act had been
invoked by the police even without seeking the approval from the
competent authority for invoking MCOCA, which was in violation of
section 23(1)(a) of the said Act. In support of his submission, Mr.
Dateer placed reliance on a certified copy of the FIR which had been
obtained in the case. On the said FIR, the provisions of MCOCA,
besides other offences under IPC and Arms Act were mentioned.
5. He further submits that there was no material placed before
Crl. A. No.544/2010 Page 4 of 17
the competent authority at the time when the approval was accorded.
He also submits that the competent authority while granting sanction
under MCOCA did not apply its mind. The evidence and material
collected by the police and placed before the competent authority for
grant of sanction could not be said to have nexus to the alleged
offence under MCOCA. He submits that all the previous cases against
the appellant had ended in acquittal of the appellant, after a full-
fledged trial and therefore, the appellant could not be said to be guilty
of commission of the crime as mentioned in section 2(e) of MCOCA.
6. Mr. Dateer submits that the appellant already stood acquitted
in case FIR No.168/2003 under section 411 IPC vide judgment dated
07.07.2009 passed by Sh. Jitendra Mishra, MM, New Delhi. Therefore,
the respondents could not possibly have relied upon the said case. In
any event, the said case pertained to dishonestly receiving or retaining
stolen property knowing or having reason to believe the same to be
stolen property and the said offence could not be said to be one, which
MCOCA seeks to prevent or control.
7. Mr. Dateer submits that the offences under sections
186/353/411 IPC slapped by the police in the FIR in question cannot be
said to be "any unlawful means" within the meaning of the said
expression used in the definition of the term "organized crime" and
that the said alleged offences do not have a direct nexus to the
commission of crime, which MCOCA seeks to prevent or control. In
support of his submissions, learned counsel for the appellant placed
reliance on the Supreme Court decision in Ranjitsing Brahmjeetsing
Crl. A. No.544/2010 Page 5 of 17
Sharma v. State of Maharashtra, AIR 2005 SC 2277.
8. He refers to the statement of objects and reasons of MCOCA,
which to the extent necessary, read as follows:
"Organised crime has for quite some years now come up
as a very serious threat to our society. It knows no national
boundaries and is fueled by illegal wealth generated by
contract killings, extortion, smuggling in contrabands,
illegal trade in narcotics, kidnappings for ransom, collection
of protection money and money laundering, etc. the illegal
wealth and black money generated by the Organised crime
is very huge and has serious adverse effect on our
economy. It is seen that the Organised criminal syndicates
make a common cause with terrorist gangs and foster
narcotics terrorism which extend beyond the national
boundaries. There is a reason to believe that Organised
criminal gangs are operating in the State and thus, there is
immediate need to curb their activities. It is also noticed
that the Organised criminals make extensive use of wire
and oral communications in their criminal activities. The
interception of such communications to obtain evidence of
the commission of crimes or to prevent their commission is
an indispensable aid to law enforcement and the
administration of justice.
2. The existing legal frame work i.e. the penal and
procedural laws and the adjudicatory system are found to
be rather inadequate to curb or control the menace of
Organised crime. Government has, therefore, decided to
enact a special law with stringent and deterrent provisions
including in certain circumstances power to intercept wire,
electronic or oral communication to control the menace of
the Organised crime".
and submits that the alleged offences falling under Sections
186/353/411 IPC do not qualify as offences that MCOCA seeks to
prevent.
9. Mr. Ohri, learned APP, on the other hand, has opposed the
admission of this appeal by placing strong reliance on the decision of
the Division Bench of this Court in Jag Mohan @ Mohar Singh v.
Crl. A. No.544/2010 Page 6 of 17
Commissioner of Police & Ors., 2007 (1) JCC 292 decided on
01.12.2006. He submits that, inter alia, the petitioner had filed Writ
Petition (Crl.) No.45/2006 to challenge the FIR No.521/2005 dated
13.09.2005 registered at police station Connaught Place, New Delhi,
(which is the FIR in question) and to seek a writ of habeus corpus to
challenge his detention under MCOCA as extended to Delhi, on various
grounds.
10. Mr. Ohri points out that the Division Bench had considered the
issue whether the FIR under MCOCA had been validly recorded and
whether, on the basis of the allegations against the petitioners, which
included the present appellant, offence under section 3 of MCOCA was
made out. He submits that all the submissions made by the appellant
before the Special Judge, and which are now sought to be urged before
this Court, have already been considered by the Division Bench and
rejected. He extensively read out the aforesaid decision of the Division
Bench.
11. Having heard learned counsels and considered the impugned
order directing framing of charge against the appellant and the
submissions and case laws relied upon by the parties, I am of the view
that there is no merit in this appeal and the appellant has not made
out a case for admission of the appeal. In my view, the same deserves
to be dismissed at this preliminary stage itself.
12. So far as the submission of Mr. Dateer that in the certified
copy of the FIR obtained by him, which was registered on 13.09.2005,
Crl. A. No.544/2010 Page 7 of 17
the provisions of MCOCA had been invoked even without the approval
of the competent authority (which approval came only on 15.09.2005)
is concerned, I find no merit in the same as the said issue cannot be
determined at the stage of framing of the charge. The trial court in the
impugned order, while rejecting the aforesaid submission has referred
to the carbon copy of the FIR filed along with the charge sheet, which
only refers to the offences under the IPC and the Arms Act. The basis
for registration of the FIR was the Rukka prepared in that case and this
Rukka was also a part of the charge sheet. From the impugned order it
appears that the Rukka mentions only the offences under the IPC and
the Arms Act and, accordingly, the FIR was registered only in respect of
offences under the IPC and the Arms Act. This factual finding is not
assailed in this appeal.
13. A perusal of the judgment of the Division Bench shows that
while dealing with the submission of the petitioner that a new FIR
should have been registered under MCOCA, and that the provision of
MCOCA could not have been added later in case FIR No.521/2005, the
Division Bench had observed as follows:
"So far as the point that a new FIR should be
registered is concerned, we fail to see how the
petitioners are prejudiced by mentioning
MCOCA in the FIR No. 521/05 itself because
whether there was one FIR or two,
investigation has to be done in respect of the
initial offence, i.e., under Sections 186/353/411
IPC as well as for offence of MCOCA. When the
FIR is initially registered only the information
provided by the informer or the complainant is
available with the police and initially only those
offences are registered which are indicated by
the report of the informer. This cannot, at all,
Crl. A. No.544/2010 Page 8 of 17
mean that if during investigation the police
discovers evidence disclosing commission or
existence of other offences, the said offences
cannot be added to the same FIR and,
therefore, new FIRs are required to be
registered on disclosure of every new offence".
14. From the judgment of the Division Bench it is also seen that
after the registration of the FIR on 13.09.2005, the proposal for
invoking of MCOCA was placed before the ACP, Crime, Delhi. He
approved the invocation of MCOCA on 15.09.2005 and accordingly
further investigation into offences under section 3(2) and 3(4) of
MCOCA were undertaken. On 21.09.2005, ACP Special Team, Crime
Branch moved a petition in the Court of Sh. A.K. Garg, ASJ, Special
Court, Patiala House, New Delhi seeking production warrant against
the appellant Mor Singh for taking him in police custody and remand
for recoveries under MCOCA. In this application, along with sections of
IPC and Arms Act as mentioned in the FIR No.521/2005, section 3(2)
and 3(4) MCOCA had also been mentioned.
15. From the aforesaid sequence of events, it cannot be said at
this stage, without a trial, that the prosecution had invoked the
provisions of MCOCA even without the approval from the ACP, which
was obtained on 15.09.2005.
16. The submission of learned counsel for the appellant that he
had been acquitted in all previous cases after full-fledged trial, and
that the evidence and material collected by the police and placed
before the competent authority for grant of sanction did not have any
nexus to the offence under MCOCA, also does not survive in view of the
Crl. A. No.544/2010 Page 9 of 17
detailed judgment of the Division Bench.
17. Reference in this regard may be made to paragraphs 14 to 19
and 23 to 29 of the decision of the Division Bench, which read as
follows:
"14. The main thrust of the argument on
behalf of Mohar Singh has been that MCOCA
has been wrongly applied. In most of the cases
registered against Jag Mohan a verdict of
acquittal was returned. If these cases are
excluded from consideration it will be difficult
to bring the case under MCOCA. Now as the
definition of continuing unlawful activity goes
under Section 2(d) of MCOCA, the requirement
is that the activity is undertaken as a member
of an organized crime syndicate in respect of
which more than one charge-sheet has been
filed within the preceding period of ten years.
The definition does not carve out any
distinction between charge-sheets which end in
acquittal and those which end in conviction. It
is contended that since the petitioner was
acquitted in all the cases punishable with
imprisonment for three years or more if those
cases are taken into consideration the
petitioner would be put to double jeopardy
which is not permissible under Article 20 of the
Constitution of India. At the same time it is
submitted that Section 2(d) having used the
words charge-sheets have been filed and court
has taken cognizance which would mean that
those charge-sheets are still pending. In other
words, the contention is that if the decided
cases were to be taken into consideration the
language used would have been "charge-
sheets had been filed" and "court had taken
cognizance of such offences".
15. Learned Counsel for the petitioner is categorical that
he is not challenging the virus of the Act. If Section 2(d) is
not ultra virus it has to be given the effect to in the same
sense in which it has been framed. In our opinion, the
language of the section cannot be interpreted in this
manner. It cannot be said that simply because the
language used is "charge-sheets have been filed" and
"court has taken cognizance" the section has to be
Crl. A. No.544/2010 Page 10 of 17
interpreted as only referring to charge-sheets pending. The
language of the section clearly indicates that all such
offences in respect of which charge-sheets have been filed
and courts have taken cognizance have to be considered.
When a case is decided there is either acquittal or
conviction. There is no dispute that if the cases end in
conviction they would indicate that an accused had been
involved in the past 10 years in unlawful activity. However,
if the interpretation of the petitioner's counsel is accepted,
even those cases in which a conviction have been secured,
would have to be excluded from consideration. This is not
at all the intent of the legislature. The purpose of the Act is
to control organized crime and hence if a person is
convicted and hence proved to be a criminal, his further
criminal activity is what comes under scrutiny by virtue of
this Act.
16. So far as the objection to taking into account the
cases in which an acquittal has taken place in view of bar
of Article 20 of the Constitution of India is concerned one
has to keep in mind that the accused/petitioner is not
being asked to stand trial for those cases. Those cases are
cited only to say that he has been accused in the past.
17. In fact the very definition shows that before a case
under MCOCA is registered there should be previous
charge-sheets and cognizance taken thereon. In case,
petitioners interpretation of Article 20 being applicable is
accepted, entire definition of the offence would be hit by
Article 20 and, therefore, should be struck down. Although,
the petitioner's counsel is categorical that he is not
challenging the constitutionality of the Act but he wants to
protect his client under Article 20. The Bombay High Court
dealt with the question of virus of the Act in the light of the
fundamental rights of the citizens and in that connection
also came to examine whether the result of the previous
prosecutions had any effect on the current FIR or
prosecution. The Bombay High Court came to the same
conclusion that the result of the previous charge-sheet is
not material for our present purpose. While holding the
definition of Section 2(1)(d) to be constitutionally valid
High Court of Bombay in the case of Bharat Shantilal Shah
and Ors. v. The State of Maharashtra Criminal Writ Petition
No. 27/2003, observed as under:
27. We also do not find substance in the
challenge that the equality clause in the
Constitution is violated because the definition
ropes in anyone charged more than once,
irrespective of whether the charge resulted in
an acquittal or conviction. The circumstances
Crl. A. No.544/2010 Page 11 of 17
that followed the charge are not material. The
provision only defines what is continued
unlawful activities and refers to whether a
person has been charged over a period of ten
years for the purpose of seeing whether the
person is charged for the first time or has been
charged often. The circumstance of conviction
or acquittal that followed the charge are not
material. The limited purpose is to see
antecedents of the person. Not to convict.
18. The definition of the offence, i.e., continuing unlawful
activity and organized crime under Section 2(d) & (e) of
MCOCA, pre-supposes an earlier trial with filing of the
charge-sheet and cognizance being taken by the Court.
The acquittal or conviction is not determinative of
commission of the offence. Rather, the filing of the charge-
sheets and cognizance by the Court are regarded as
demonstrative of indulging in and having propensity in
unlawful activity or organized crime, which is actionable
under the Act.
19. Learned Counsel for the petitioners had laid
considerable emphasis in urging that the facts of the cases
in which petitioners have been acquitted cannot be taken
into account for the purposes of invocation of MCOCA. As
noted earlier, the conviction is not a sine qua non for
invocation of the offence under Section 2(d) & (e) of
MCOCA. The ingredients of the offence to be satisfied are
filing of more than one charge-sheet before the Competent
Court against a member of the organized crime syndicate
and taking of cognizance. The requirement of conviction
has understandably not been made one of the ingredients
of the offence considering the object sought to be
achieved. Respondents have sought to demonstrate the
chain and sequence of events, where acquittals have
followed witnesses turning hostile or the non-availability of
witnesses. Understandably, petitioners cannot be
permitted to take advantage of these acquittals, especially
which have followed witnesses turning hostile or evidence
being obliterated.
20. ..................................
21. ..................................
22. ..................................
23. The respondent/State has given the details of
unlawful activity of the petitioner Mohar Singh in the reply
affidavit. On 4.11.1995, an FIR was registered being No.
Crl. A. No.544/2010 Page 12 of 17
435/95 at P.S. Darya Ganj in which Jag Mohan and Madan
as well as Brij Mohan @ Pappu were accused of stabbing
and injuring one Raju. Raju had been working at a Dhaba of
Gulshan Gulati at Darya Ganj. The injured had asked the
accused to pay their outstanding bill of Rs. 70,000/- for
food they had consumed at the Dhaba over a long period
of time. The second case is of murdering one person doing
`pairivi' in the first case. The allegation in this case is that
Pawan Gulati, Omkar Gulati, Charanjeet Gulati and
Rajkumar Gulati were doing pairvi in the case and in order
to prevent them from doing pairvi the accused sprayed
bullets at them killing Pawan Gulati and injuring Charanjeet
Gulati and Omkar Gulati. The FIR registered over the
incident is No. 853/96 dated 19.8.1996 under Section
302/307/34 IPC at P.S. Kotwali. The third case is
intimidating a witness. Witness in the case Omkar Gulati
was beaten up at the Tis Hazari Courts, Central Hall and
over this incident an FIR against the petitioners, Jag Mohan
and his brothers was registered being FIR No. 30/98 dated
23.1.1998 under Sections 323/506/34 IPC at P.S. Subzi
Mandi. Omkar Gulati was a witness to the two previous
cases against Mohar Singh and his brothers. The witness
Omkar Gulati was eventually killed. It is not known whether
any FIR over his killing is registered. Mohar Singh was
acquitted in the case of murder of Raju. The State alleges
that the acquittal could be secured because the witness
above named Rajkumar Gulati and Charanjeet Gulati
turned hostile on account the threats of Mohar Singh.
24. The fourth case, viz., the FIR No. 350/96 dated
19.8.1996 under Section 506 IPC was registered against
the petitioner Mohar Singh and his brothers for having
threatened Prabhu Dayal, a tenant in House No. F-230,
Mangal Bazar, Laxmi Nagar, New Delhi, purchased by
Mohar Singh. The case, however, ended in acquittal as the
witness turned hostile. The fifth case, FIR No. 853/96 (over
murder of Pawan Gulati) also ended in acquittal on
28.4.1998 on account of witnesses turning hostile.
25. The sixth case, FIR No. 427/96 dated 29.8.1996
under Sections 392/397 was registered against Jag Mohan
for having robbed Shri Ramesh Kumar of his Maruti car at
gun point. This offence incidentally was committed on the
same day on which Pawan Gulati was murdered. This case
also ended in acquittal as witnesses including the
complainant turned hostile. The FIR No. 30/98 (assaulting
witnesses) mentioned above also ended in acquittal for
similar reasons.
26. The seventh case in which petitioner Jag Mohan was
an accused in case FIR No. 366/98 dated 20.5.1998 under
Crl. A. No.544/2010 Page 13 of 17
Section 302 for murder of one Satish Kohli, who had dared
to depose against him in an earlier FIR being FIR No. 64/94
dated 3.3.1994 under Sections 452/506/323/34 IPC at P.S.
Darya Ganj. This case also similarly ended in acquittal on
account of witnesses turning hostile. Incidentally Satish
Kohli had already got the FIR No. 198/98 dated 25.5.1998
under Sections 506/34 IPC registered alleging threats from
Mohar Singh. This case met the same fate as the others
mentioned above.
27. Case FIR No. 428/00 dated 5.8.2000 was registered
at P.S. Darya Ganj under the Wild Life Protection Act
against Mohar Singh. He was arrested again on 29.12.2001
from Gulab Vatika for being in possession of a loaded .35
bore country made pistol with one live round. He was
arrested in the case in hand, i.e., FIR No. 521/05 P.S.
Connaught Place and was thereafter also arrested in case
FIR No. 168/03 under Sections 406/420 IPC for being in
possession of Toyota Qualis which was the case property
which he was driving when the present offence was
committed. Two cases more than 10 years old have also
been listed by the respondent/state.
28. The case of the state is that the economic advantage
which the petitioner sought to gain by his crime is also
clear from this narration of the sequence of crime. The first
crime in the sequence mentioned above is the murder of
Raju which was caused to prevent him from demanding the
sum of Rs. 70,000/- which was due to the Dhaba of Pawan
Gulati. The arrest of the petitioner in this case led him to
commit subsequent offence of intimidating and killing of
witnesses. Therefore, these offences also were committed
to gain pecuniary advantage. The threatening of a tenant
Prabhu Dayal was done with an intention of removing him
from the house in which he was lawfully living as a tenant.
therefore, the pecuniary advantage sought from the
alleged offence is clear. The offence of robbery committed
in 1996 do not call for any analysis in this regard. The aim
of the fraud in which the Toyota Qualis was obtained was
also to gain pecuniary advantage.
29. The petitioners allege that there is no continuity in
the unlawful activity. There is a long gap between the
present case and the previous cases registered against
them. This argument cannot be accepted in view of the
definition of the term "continuing unlawful activity". What
is required is more than one case in the preceding period
of ten years. Thus if there are two cases in 1996, MCOCA
can be invoked in the year 2006. This definition does not
require the prosecution to prove that the unlawful activity
has continued from day to day. In fact what the
Crl. A. No.544/2010 Page 14 of 17
prosecution is required to show is not his unlawful acts or
offences but that more than one charge-sheets have been
filed against the petitioners in the last ten years. The
continuing unlawful activity is made out from the above
sequence of cases. Apart from the FIR registered in 1995,
1996, 1998 for heinous offences like murder he was also
arrested for offence under Section 25 of Arms Act in 2001
and was found involved in a case of fraud in the year 2003.
The present case was registered in 2005".
18. Therefore, it is seen that the continuing unlawful activity, in
respect of which more than one charge sheets have been filed before
the competent court within the preceding ten years, of which the
concerned courts have taken cognizance include the offences under
the Arms Act. Therefore, it is not correct for the petitioner to contend
that the offences under which FIR No.521/2005 have no nexus with the
offences under MCOCA. It cannot be said at this stage that the
invocation of the provisions of MCOCA in the petitioners was not
justified. Reliance placed on Ranjitsingh (supra) appears to be
misplaced in view of the facts of this case, as discussed herein above.
19. Even the argument that the registration of the FIR and
invocation of MCOCA is malafide and politically motivated was
considered and rejected by the Division Bench in paragraphs 30 to 32
of the judgment, which read as follows:
"30. On the point of mala fides, it is submitted by the
petitioners that the police is intending to damage the
increasing popularity of the petitioners, particularly Jag
Mohan amongst the Valmiki community. Photographs
showing the petitioners, particularly Jag Mohan @ Mohar
Singh organizing rallies and receiving important political
figures of the country have been placed on the record to
show that the petitioners do have some political clout and
are well known amongst the people whom they profess to
lead. It is further alleged that while the petitioners are
Crl. A. No.544/2010 Page 15 of 17
politically active and are available in various public
functions, non-bailable warrants against them have been
obtained with the sole motive to malign them. The
petitioners cite this as indicating malafides.
31. What, however, we have to see is whether the
investigation/ prosecution is right in registering the offence
of MCOCA against the petitioners. At this stage malice or
personal vendetta is not at all a factor which is required to
be gone into. The Apex Court in M.Narayandas v. State of
Karnataka MANU/SC/0734/2003 : 2004CriLJ822 , relied
upon the following observation from the case of State of
Haryana v. Bhajan Lal MANU/SC/0115/1992 : 1992CriLJ527:
108. No doubt, there was no love lost between Shri
Bhajan Lal and Dharam Pal. Based on this
strained relationship, it has been then
emphatically urged by Mr. K.Parasaran that the
entire allegations made in the complaint due to
political vendetta are not only scurrilous and
scandalous but also tainted with mala fides,
vitiating the entire proceedings. As it has been
repeatedly pointed out earlier the entire matter
is only at a premature stage and the
investigation is not yet proceeded with except
some preliminary effort taken on the date of the
registration of the case, that is on 21-11-1987.
The evidence has to be gathered after a
thorough investigation and placed before the
court on the basis of which alone the court can
come to a conclusion one way or the other on
the plea of mala fides. If the allegations are
bereft of truth and made maliciously, we are
sure, the investigation will say so. At this stage,
when there are only allegations and
recriminations but on evidence, this Court
cannot anticipate the result of the investigation
and render a finding on the question of mala
fides on the materials at present available.
Therefore, we are unable to see any force in the
contention that the complaint should be thrown
overboard on the mere unsubstantiated plea of
mala fides. Even assuming that Dharam Pal has
laid the complaint only on account of his person
animosity, that, by itself, will not be a ground to
discard the complaint containing serious
allegations which have to be tested and weighed
after the evidence is collected. In this
connection, the following view expressed by
Bhagwati, C.J. in Sheonandan Paswan v. State of
Bihar MANU/SC/0206/1986
Crl. A. No.544/2010 Page 16 of 17
It is a well established proposition of law that a
criminal prosecution, if otherwise justifiable and
based upon adequate evidence does not become
vitiated on account of mala fides and political
vendetta of the first informant or the
complainant.
32. If the prosecution is able to produce sufficient
evidence to prove that the petitioners in the last ten years
have been involved in more than one case of the type
which is covered by the definition of continuing unlawful
activity, their action in having taken action against the
petitioners for the offence under Sections 3 & 4 of MCOCA
cannot be faulted with".
20. In view of the aforesaid discussion, I find no illegality or other
infirmity in the impugned order passed by the learned ASJ/Special
Judge Sh. J.R. Aryan dated 26.03.2010 ordering framing of charge
against the appellant, inter alia, under section 3(2) and 3(4) of MCOCA.
Accordingly, I dismiss this appeal.
VIPIN SANGHI, J.
MAY 19, 2010 sr/rsk Crl. A. No.544/2010 Page 17 of 17