Delhi District Court
State vs . Dharmender & Others. on 7 June, 2012
State vs. Dharmender & others.
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE CENTRAL-01
TIS HAZARI COURTS DELHI
S.C No. 23 of 2011
ID No. 02401R0274872011
FIR No. : 07/2011
PS : Anand Parbat
Under Section: 3 of MCOCA
IN THE MATTER OF:1
STATE1
versus
1. DINESH TIWARI
S/o Sh. Ram Nath Tiwari
R/o Vill. Bhagota Pur
PS Kotwali Bilgram
Distt. Hardoi,
U.P. .........Accused No.1
2. KAUSHAL @ PAPPI
S/o Satyabhan
Vill. Karoli
Sonepat, Haryana .........Accused No.2
3. DHARMENDER @ PAHLWAN
S/o late Sh. Ram Awadh Yadav
188/3, Gali No.5,
Anand Parvat, Delhi .........Accused No.3
Date of institution : 10.06.2011
Order reserved on : 22.05.2012
Order pronounced on : 07.06.2012
Present : Sh. R.K. Tanwar, learned Additional Public Prosecutor
for the State
Sh. S.P. Yadav, learned counsel for all accused persons
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State vs. Dharmender & others.
O R D E R:
1. By this order, I shall dispose of the contentions raised by learned counsel for the accused persons that there is no sufficient evidence to make out a prima-facie case against the accused persons for the offence punishable under Section 3 of Maharastra Control Organised Crimes Act (MCOCA in short).
2. Briefly stated facts of prosecution case as set out in the charge-sheet are that on analysing the activities of accused Dinesh Tiwari, it was revealed that he along with his associates was involved in 12 cases since 1992 and in all the cases, Court of competent jurisdiction had taken the cognizance. It was alleged that accused Dinesh Tiwari with the help of his associates has been committing the crime in an organized manner by use of violence and intimidation/coercion and other unlawful means with the objective of gaining pecuniary benefits. It was alleged that has accumulated huge wealth by continuing illegal activities. He was found involved in following 12 cases:
S.No. FIR No. & Police Station Under section Name ofccused Whether Challan on record or not 1 505/92,Paschim Vihar 394/302/34 IPC Mukesh Kumar No Charge sheet Tyagi 2 248/95, Pahar Ganj 394 IPC Bir Singh, No Charge-sheet Dharmender Pahlwan and Azad Singh SC No. 23/2011 Page no. 2 of 29 State vs. Dharmender & others.
3 153/95, Keshav Puram 392/34 IPC Bir Singh, Azad No Charge-sheet Singh, Dharmender Pahlwan 4 452/95, Trilok Puri 394/397/427 IPC Bir Singh, No Charge-sheet Dharmender 5 580/95, Seelam Pur 394/397/34 IPC Bir Singh Order on the Dharmender and point of sentence Azad Singh 6 383/95, Mandir Marg 25 Arms Act No No Charge-sheet 7 317/96, Hari Nagar 324/34 IPC Amarjeet Singh No Charge-sheet 8 11/02, Hari Nagar 25 Arms Act No No Charge-sheet 9 561/05, Shalimar Bagh 379 IPC Mahesh Sharma, Yes Sugreev Prasad 10 1061/05, Shalimar Bagh 392/34 IPC Vishwas Kumar, Yes Sanjiv Prasad, Mahesh Sharma and Satish 11 20/10, Mandir Marg 394/397/34 IPC Kaushal Kumar, Yes Dharmender 12 267/08, Keshav Puram 25 Arms Act No Yes
3. Accused Dharmender was found involved in the following 8 cases:
S.No. FIR No. and Police Under Section Name of Co- Whether Station accused Challan on record or not 1 166/90, Anand Parbat 307/34 IPC No No Charge-sheet 2 248/95, Pahar Ganj 394 IPC No. No Charge-sheet 3 153/95, Keshav Puram 392/34 IPC No No Charge-sheet 4 452/95, Trilok Puri 394/397/34 IPC No No Charge-sheet SC No. 23/2011 Page no. 3 of 29 State vs. Dharmender & others.
5 580/95, Seelam Pur 394/397/34 IPC Dinesh Tiwari, Sentence order Bir Singh and Azad Singh 6 266/08, Keshav Puram 25 Arms Act No Yes 7 20/10, Mandir Marg 394/397/34 IPC Kaushal & Yes Dinesh Tiwari 8 88/10, Crime Branch 25 Arms Act No Yes
4. Accused Kaushal Kumar was found involved in the following three cases:
S.No. FIR No. & Police Under Section Co-accused Whether Station Challan on record or not 1 20/10, Crime Branch 25 Arms Act No Yes 2 20/10, Mandir Marg 394/397/411/482 Dinesh Tiwari Yes /120B/34 IPC and Dharmender 3 248/10, DBG Road 392/397/411/120 Bhawar Lal Yes B IPC
5. It was alleged that accused Dinesh Tiwari had purchased a piece of land in the area of Village Mukundpur in the year 2005 and also purchased building material worth of ` 80,000/- to raise construction over the said plot. It was alleged that he had also acquired plot measuring 150 sq yards in Janta Vihar, Mukund Pur worth of ` 11.50 lac.
6. It was alleged that accused Kaushal Kumar had purchased a Santro car bearing registration No. DL-2AE-1259 in the name of his mother Saroj Bala in the sum of ` 2.80 lac and he had also spent about ` 5.00 lac in the reconstruction of his house.
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7. It was alleged that accused Dharmender had spent about ` 4.00 lac to ` 5.00 lac in the construction of his house located at gali no. 9 Nehru Nagar, Anand Parbat, Delhi. It was further alleged that he had constructed a new house in the village and spent about ` 5 lac to ` 6 lac.
8. It was alleged that all the accused had accumulated the wealth from their criminal activities as they had no source of income.
9. With these allegations, challan is filed against the accused persons for the offence punishable under Section 3 of MCOCA.
10. I have heard arguments advanced by Sh. S.P. Yadav Advocate learned counsel appearing for the accused persons and Sh. R.K. Tanwar learned Additional Public Prosecutor for the State. Neither any question of law is raised nor any case law is cited by counsel for either parties.
11. Learned counsel appearing for the accused persons strenuously contended that the cases prior to the enactment of MCOCA can not be considered to invoke the provisions of MCOCA. It was further contended that prosecution failed to establish prima-facie that accused persons were forming any gang or organized crime syndicate. It was contended that investigating officer has filed the charge-sheet under section 3 of MCOCA without specifying the offence whether the prosecution wants to prosecute for the offence punishable under section 3(1) or 3(2) or 3(3) or 3(4) of MCOCA. It was contended that there is not sufficient evidence to make out a prima-facie case against any of the accused persons.
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12. Per contra learned Additional Public Prosecutor contended that accused Dinesh was involved in twelve cases and in some cases other two accused were his co-accused, thus, it was contended that accused persons had formed a gang or organized crime syndicate. It was contended that since accused persons were found involved in various cases of similar nature previously, they are liable for the offence punishable under section 3 of MCOCA. It was further contended that all the accused had accumulated huge wealth by doing the unlawful activities of organized crime. It was further contended that since against all the accused persons Court of competent jurisdiction had taken cognizance in more than one case, all the accused are liable for the offence punishable under section 3 of MCOCA. It was further contended that MCOCA can be invoked on the basis of previous involvement of accused persons and there is no requirement that accused should have committed any fresh offence.
13. At the outset, I may note that the manner in which charge- sheet has been filed by the investigating agency is not appreciable in any manner. Investigating officer has filed the charge-sheet against accused persons for the offence punishable under Section 3 of MCOCA, which reads as under:
3. Punishment for organized crime-
(1) Whoever commits an offence of organized crime shall,
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organized SC No. 23/2011 Page no. 6 of 29 State vs. Dharmender & others.
crime or any act preparatory to organized crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, subject to a minimum of rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organized crime syndicate; shall be punishable, with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organized crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(5) Whoever holds any property derived or obtained from commission of an organized crime or which has been acquired through the organized crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs.
14. Now I will deal with the said section step by step. Clause (i) of Sub-section (1) to section 3 attracts when a person commits an organized crime and the said offence resulted in the death of a person. There is no whisper of a word in the entire charge-sheet in this regard. Similarly clause
(ii) of sub-section to section 3 attracts in other cases where death has not resulted in commission of organized crime. But in the entire charge-sheet there is no reference what offence accused persons have committed. Accused persons are already faced or facing the trial qua the offences, which they had committed previously but in the present case there is no reference that accused persons have committed any organized crime. Similarly, sub-section (2) attracts if the accused conspires, abets, advocates or facilitates in commission of organized crime. Sub-section (3) attracts SC No. 23/2011 Page no. 7 of 29 State vs. Dharmender & others.
when the accused harbours or conceals any member of organized crime. But there is no such allegations against any of the accused persons in the entire charge-sheet. Sub-section (4) attracts when a person is a member of organized crime syndicate whereas sub-section (5) attracts when a person holds any property derived or obtained from the commission of organized crime or the property has been acquired through organized crime syndicate fund.
15. From the above, it becomes crystal clear that Section 3 has six parts i.e. 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(4) and 3(5) and each part is different from other. Thus, it is paramount duty of the investigating and prosecution agency to explicitly enumerate all the essential ingredients of the offence for which accused is being charge-sheeted. But in the instant case, investigating agency has filed the charge-sheet in a casual manner without specifying for which part of section 3 accused persons are being charge-sheeted. Needless to say that the provisions of MCOCA are quite stringent as the same deprive the accused to get bail at the initial stage. Thus, a duty is cast upon the investigating agency to take extra caution while invoking the stringent provisions of MCOCA as any laxity on their part may violate the fundamental right of a person and human rights too.
16. Before dealing with the submissions of learned counsel for parties, I deem it appropriate to have a look over the object of MCOCA and other relevant provisions of the Act.
(1) The statement of object and reasons of enacting MCOCA is:
"Organized crime has been 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, killing, extortion, smuggling in contrabands, illegal SC No. 23/2011 Page no. 8 of 29 State vs. Dharmender & others.
trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organized crime being very huge, it has had serious adverse effect on our economy. It was seen that the organized criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organized criminal gangs have been operating in the State and thus, there was immediate need to curb their activities.
It was also noticed that the organized criminals have been making 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 would be an indispensable aid to law enforcement and the administration of justice.
2. The existing legal framework i. e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organized crime. Government, 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 organized crime. It is the purpose of this act to achieve these objects."
PREFACE As explained in the statement of object and reasons, the menace of organized crime, was on the increase and there was no effective law in the Maharashtra State to effectively control the organized crimes. Mumbai being the economic capital of India, it is a targeted centre of criminals who hoard money through illegal means. In recent years criminal activities like murders of tycoons related to film industry as well by builders, extortion of money from businessmen, abduction etc. show that criminal gangs are active in the state. To cope with them- legislation in the lines of the present law was essential. Effective measures against the misuse of law have been provided in the Act itself. It is hoped that with the passing of this law, unlawful elements spreading terrorism in the society can SC No. 23/2011 Page no. 9 of 29 State vs. Dharmender & others.
be controlled to great extent and it will go a long way in minimizing the feeling of fear spread in the society. Preamble reads as under:
To make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto.
(2) Section 2(e) defines "organized crime" and same reads as under:
(e) "organized crime" means any 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 objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency;
Section 2(f) defines "organized crime syndicate" and same runs as under:
(f) "organized crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate of gang indulge in activities of organized crime;
Section 2(d) defines "continuing unlawful activities" as under:
(d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;
17. In case Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & others MANU/SC/0289/2010 it was held that :-
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"The interpretation must depend on the text and the context. These are the bases of interpretation. The interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. No part of the statute and no word of a statement can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
18. In the light of the above observation of Apex Court, it becomes crystal clear that at the time of interpreting the stringent provisions of law, one has to keep in mind the objects and reasons of its enactment.
19. As already stated that organized crime is defined under Section 2(e) of the Act whereas punishment is provided under Section 3 of the Act. To investigate the organized crime, statute has empowered the investigating agency to intercept the communication and for that detail procedure has been prescribed under Section 14 of the Act. This establishes that investigating agency needs some extra tools to crack the organized crime. Similarly, section 18 of the Act empowers the investigating agency to record the confessional statement of a person involved in organized crime and such confessional statement is admissible in evidence. This again establishes that legislature has deemed it appropriate to provide more teeth to the investigating agency to prevent and control the menace of organized crime.
20. Section 11 of the Act empowers the Special Court to transfer the cases to regular court for further trial, if it opines that no case is made out against the accused persons under MCOCA. Section 11 reads as under:
11. Power to transfer cases to regular Courts.
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"Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."
From Section 11 it becomes abundantly clear that legislature was aware that substantive offence is required to invoke the provisions of MCOCA and situation may arise when charge-sheet was filed against the accused persons under MCOCA along with other provisions of law and Special Court may opine that no case is made out against such accused under MCOCA. To deal with such situation, Special Court is empowered to transfer such cases to regular courts for further trial of the matter.
21. Reading of Section 2(e) with Sections 14, 11 and 18 leaves no scintilla of doubt in the mind that organized crime is totally different from continuing unlawful activities as defined under Section 2(d) of the Act. It is pertinent to state here that "continuing unlawful activities" as defined under Section 2(1)(d) is not punishable under MCOCA. This view is upheld by the High Court of Bombay while upholding the constitutional validity of Section 2(1)(d) of the Act in Bharat Shanti Lal Shah v. State of Maharastra, 2002 BLR-1-527 wherein in para 25 it was held:
"Then we would consider the submission of Shri Manohar that the definition of continuing unlawful activity violates the mandate of Article 14 and is therefore liable to be struck down. According to the learned counsel unequal are being treated as equals. Persons charge only once are not brought within the purview of the act but a person with several charges framed and cognizance taken by competent court who later on are acquitted are covered by the definition. According to him therefore a person is acquitted of ten charges cannot be treated as equal to a person who is charged and convicted of only one offence. In our opinion, there is no violation of Article SC No. 23/2011 Page no. 12 of 29 State vs. Dharmender & others.
14 by this definition. If we read the definition again, what has been defined as continuing unlawful activity is a member of organized crime syndicate in respect of which any activity prohibited by law and done repeatedly i.e. more than one for which charge sheet has been filed in the court of competent jurisdiction in the part ten years. The purpose of definition is to define what continuing unlawful activity is and it is for the purposes of defining what is continued unlawful activity that those charges are to be taken into consideration. Mere taking into consideration of such charges cannot result in discrimination of the kind alleged by Shri Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge sheeted in such cognizable offences in the past makes the unlawful activity, continuing unlawful activity. This section only defines what the activity is. It does not itself provide for any punishment for that activity. Had punishment been provided the submission that it treats while punishing unequal as equals may carry weightage."
(emphasis supplied)
22. Same view was taken by the High Court of Delhi in Jagmohan @ Mohar Singh v. Commissioner of Police 2007 (1) JCC 292 wherein it was held:
"15. Learned Counsel for the petitioner is categorical that he is not challenging the vires of the Act. If Section 2(d) is not ultra vires 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 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 SC No. 23/2011 Page no. 13 of 29 State vs. Dharmender & others.
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."
20. The petitioner's counsel claim that only the offences registered after the promulgation of MCOCA in Delhi can be taken into consideration for booking a person under MCOCA. He has cited authorities to show that the penal law applicable to an offence is the one that was in force at the time of commission of the offence. According to him since the earlier alleged offences were committed before coming into force of MCOCA in Delhi, those cannot be taken into account for invoking MCOCA. Again as stated earlier, the petitioner is not being prosecuted for whatever he did in the past. He is being prosecuted for continuing with the unlawful activity. Certainly if a person commits no unlawful activity and is not arrested in any case after the invocation of MCOCA, he cannot be arrested under this Act on account of the offence committed by him before coming into operation of MCOCA even if he had been found guilty in them. In case, however, he continues with his unlawful activity and is arrested after the promulgation of the Act, the Act will come into play and he can be arrested and challaned for the act.
21. One of the important points raised by the petitioners is that the FIRs and the charge-sheets recorded against the petitioners prior to the coming into operation of this Act of MCOCA in Delhi cannot be considered as the law has only SC No. 23/2011 Page no. 14 of 29 State vs. Dharmender & others.
prospective effect. It is submitted by the counsel for the petitioners that the offences committed prior to 2nd January, 2002 could not be termed as organized crime and the petitioners could not have been termed as organized crime syndicate because at that time the Act was not in force and the offence of the petitioners, if any, could not be either "organized crime" or "continuing unlawful activity". In case the argument of the learned Counsel for the petitioners has to be accepted the first case under this Act can be registered only after two cases of the nature described in the Act had been registered against a person or against an organized crime syndicate after 2nd January, 2002. As the definition shows for making a crime punishable under Sections 3 & 4 of MCOCA, there has to be more than one case registered or in other words it is the third case which can be registered for an offence under Sections 3 & 4 of MCOCA. Such an interpretation will come directly in conflict with the very purpose of the Act. The object of the Act as stated in the extended title of the Act is, "The Act to make special provisions for prevention and control of and for coping with criminal activity by organized crime syndicate or gang and for matters connected with and incidental thereto." If such an interpretation is accepted then the state will have to wait and helplessly watch organized crime taking place till it is the third time a person or a syndicate is found involved in the offence after the Act came into operation in Delhi. It is further to be noticed that "continuing unlawful activity" could have taken place ten years prior to the registration of the new case. Obviously the intention of the legislature could not have been other than giving immediate effect to the Act by taking note of all the offences or charge-sheets registered within ten years prior to the commencement of the Act.
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.......
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 SC No. 23/2011 Page no. 15 of 29 State vs. Dharmender & others.
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.
(emphasis supplied)
23. In view of the above, the contention of learned defence counsel that the cases where cognizance had been taken prior to the enactment of MCOCA cannot be considered to qualify the requirement of section 2(1)(d) of the Act is without any substance. Simultaneously, from the above it also becomes clear that the previous involvements is only one of the requirements to invoke the stringent provisions of MCOCA and is not the sole criteria to invoke the stringent provisions of MCOCA, thus I do not find any merit in the contention of learned Additional Public Prosecutor that provisions of MCOCA can be invoked on the basis of previous involvements only.
(i) No doubt the offences committed prior to the enactment of MCOCA can be considered to satisfy the requirement of Section 2 (1)(d) of the Act provided the Court had taken the cognizance within preceding period of 10 years. But the period of ten years is to be counted from the date of registration of the FIR under MCOCA and not from the enactment of the Act. In the instant case, the FIR under MCOCA was registered on May 31, 2011. It means that the previous unlawful activity of accused persons preceding ten years to the said date is to be examined for the purpose of Section 2(1)
(d) of the Act. In other words the prosecution can only rely upon the cases wherein the Court had taken the cognizance upto May 2001. Cases where the Court had taken cognizance prior to May 2001, cannot be used to invoke the stringent provisions of MCOCA. Thus, the cases qua the accused persons prior to May 2001 wherein Court had taken the cognizance cannot be considered to satisfy the requirement of Section 2(1)(d) of the Act.
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(ii) Thus there are only five relevant cases qua accused Dinesh
Tiwari which are mentioned at serial number 8 to 12 in the above table whereas only three cases qua accused Dharmender is relevant, detail of which is mentioned at serial number 6 to 8. Since the involvement of accused Kaushal is only in the year 2010, his all cases are relevant. In all these cases, the accused persons were involved together only in one case i.e. FIR No. 20/10, Mandir Marg under Section 394/397/34 IPC. Thus, on the basis of said single case, it cannot be said that the accused persons had formed a gang or organized crime syndicate.
24. If investigating agency is permitted to use a single case to satisfy the requirement of Section 2(1)(d) as well as to use it as a main case as learned Additional Public Prosecutor contended qua FIR No. 20/10 PS Mandir Marg, then havoc will prevail. For instance, suppose A & B were involved in some crime connected to organized crime prior to the enactment of MCOCA. After enactment of MCOCA, they again arrested in similar offence but since they were not satisfying the conditions of two cases, investigating agency was not in a position to invoke MCOCA against them at the time of filing charge-sheet. Thus, initially investigating officer files a charge-sheet against them under the ordinary provisions of law and when court takes the cognizance of the said charge-sheet, investigating officer decides to register another FIR attracting the provisions of MCOCA despite the fact that the said persons had not committed any fresh offence. To my mind, this was neither nor could be the intention of legislature at the time of enacting the MCOCA.
(i) Similarly, for instance if the accused persons though involved
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in multiple cases but have already been acquitted in all cases and not involved in any fresh case, can they be slapped with the stringent provisions of MCOCA mere fact they were involved in more than two cases despite the fact that they have not committed any fresh offence. If it is permitted, all the accused who have already been acquitted and not committed any other offence would be totally on the mercy of law enforcing agency. To my mind, this was not the intent of legislature at the time of invoking provisions of MCOCA.
(ii) In view of the above, I am of the opinion that a single case cannot be used to satisfy the requirement of Section 2(1)(d) as well as Section 2(e) of the MCOCA. Thus, I do not find any force in the contention of learned Additional Public Prosecutor that the charge-sheet of case FIR No. 20/10 PS Mandir Marg should be considered for the purpose of section 2(1)
(d) as well as section 2(1)(e) of the MCOCA.
25. If the provisions of the Act are read in entirety, they will show that offence of "organized crime" is constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one charge-sheets in preceding ten years. This is so because:-
(a) If "organized crime" was synonymous with "continuing unlawful activity", two separate definitions were not necessary.
(b) The definitions themselves show that 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 "organized crime".
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(c) What is made punishable under section 3 is "organized crime"
and not "continuing unlawful activity."
(d) If "organized crime" were to refer to only more than one
charge-sheet filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) on the basis of consequences 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) If the offence of organized crime itself is comprised of previous offences in respect of which charge-sheets have been filed, or in other words such charge-sheets are a component of the offence of organized crime, all such offences referred to in such charge-sheets could be tried at one trial, and the rider in Section 7 about triability of the accused under the Code at the same trial would be redundant.
(f) Entire Section 18 of the Act would become redundant if "continuing unlawful activity" evidenced by proof of filing of two charge-
sheets is equal to organized crime. Since question of recording confessions would not arise. Certified copies of charge-sheets, with certified copy of order thereon by the Court taking cognizance, would be admissible without formal proof and if this itself was enough to constitute offence, no other evidence would be required to be tendered.
(g) For the same reason, there may be no need to examine any witnesses and consequently Section 19 would be redundant.
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(h) If proof of filing of two charge-sheets is enough to establish
offence of organized crime, there may be no occasion to carry out any investigation, other than collecting copies of charge-sheets. Consequently, it would be unnecessary for high ranking police officers to wield the power to allow recording information or to sanction prosecution after such charge- sheets are collected.
26. Perusal of the charge-sheet reveals that the provisions of MCOCA has been invoked on the basis of previous involvements of the accused persons, which is not permissible.
27. As already discussed that there is no scintilla of evidence in the charge-sheet to make out a prima-facie case for the offence punishable under Section 3(1), 3(2), 3(3) and 3(4) of MCOCA. Now question arises as to whether there is any evidence to make out a prima-facie case for the offence punishable under section 3(5) of the Act or not.
28. Since, it is not explicit in the charge-sheet for which offence accused have been charge-sheeted, I have gone through the entire charge- sheet carefully. Perusal of the charge-sheet reveals that the investigating officer has recorded the statement of 11 public persons regarding the property occupied by the accused persons and the name of witnesses are mentioned at serial no. 1 to 11 in the list of witnesses annexed with the main charge-sheet. Perusal of their statements reveals that PWs Nathu Lal, Sudama Yadav and Ambika Prasad made statement against accused Dharmender. Similarly, PWs Gurdeep, Manoj, Ravinder Singh, Radhey Shyam and Satish Gulati made statement against accused Kaushal whereas PWs Tilak Raj, Prahlad Kumar Garg and Mukesh Prajapati made statement against accused Dinesh Tiwari. Rest of the witnesses are either SC No. 23/2011 Page no. 20 of 29 State vs. Dharmender & others.
Ahlmad of the concerned courts or investigating officers of the previous cases to prove the previous charge-sheets or other formal witnesses. Now, I proceed to analyze the statement of public witnesses to examine as to whether their statements are sufficient to make out a prima-facie case for the offence punishable under section 3(5) of the MCOCA.
29. Before dealing with their statements, I prefer to examine section 3(5) of MCOCA, which reads as under:
"(5) Whoever holds any property derived or obtained from commission of an organized crime or which has been acquired through the organized crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs."
30. To make out a prima-facie case for the offence punishable under section 3(5), prosecution has to establish prima-facie:
(i) that the occupied property is either derived or obtained from commission of an organized crime; or
(ii) the same has been acquired from the organized crime syndicate funds.
For instance, if a person receives a property either as a ransom amount or extortion amount, such property may be termed as property derived or obtained from the commission of an organized crime. Similarly, if a gang receives the handsome amount as ransom or extortion amount and any property is purchased from the said amount, such property will be termed as property was acquired from the organized crime syndicate fund. Thus, the moot question is that the property should be acquired from the fund of organized crime syndicate and not from any ordinary illegal SC No. 23/2011 Page no. 21 of 29 State vs. Dharmender & others.
activities or through other crimes. Admittedly, in the instant case there is no allegation that accused persons had acquired any property from the commission of any organized crime. Now question is as to whether there is any evidence to show that accused persons had acquired the alleged property from the organized crime syndicate fund or not?
31. PWs Sudama Yadav and Ambika Prasad stated in their statement that they knew the accused Dharmender as PW Sudama was Pardhan of the Panchyat whereas Ambika Prasad is the uncle of the accused. They stated that accused Dharmender had no source of income except having ½ acre of agriculture land and about 2 ½ years ago he had reconstructed his house upto two storey in the village. They further stated that the flooring, windows, door and iron work are yet to be done. They further stated that accused had reconstructed the house from the money generated from crimes. Similarly, PW Nathu Lal stated that accused had constructed a house upto four storeys over a plot of 50 sq yards. He further deposed that in the year 2010 accused had bought a plot of 30 sq yards and constructed upto 4 storeys. He further stated that the market value of the said house is about ` 40 lac and further stated that accused had acquired the said houses from the money generated from crimes.
32. It is admitted case of the prosecution that accused Dharmender was involved in the criminal activities since 1990 and prior to FIR No. 20/10, he was found involved in the robbery case in the year 1995. In other words, accused Dharmender was not found involved during the period 1996 to 2009. It means accused Dharmender was not involved in any criminal activities during the long 13 years. Since, the alleged property was acquired in the year 2010, it means that the same could not be acquired SC No. 23/2011 Page no. 22 of 29 State vs. Dharmender & others.
from the fund of said offences as the same were committed about 14 years prior to acquiring the said properties. No doubt that accused Dharmender and other accused were involved in the robbery of case FIR No. 20/10 PS Mandir Marg wherein the diamond jewellery worth of ` 10 lac was looted. However, perusal of the said charge-sheet reveals that some jewellery was recovered from the possession of accused persons. There is no allegation in the said charge-sheet that they had sold the looted jewellery to any one. Nor in the instant case, it has been surfaced that accused persons had sold any portion of the looted jewellery. According to the charge-sheet of FIR No. 20/10, the remaining un-recovered jewellery is in the possession of their absconded co-accused. It means it is not the prosecution case that the booty of said robbery was utilized in acquiring the said property. Moreover, none of the witnesses examined by the investigating officer stated that the said properties were acquired from the fund of organized crime syndicate. Thus, the statement of said witnesses is not otherwise sufficient to hold prima-facie that accused had acquired the said properties from the organized crime syndicate fund.
33. Moreover, no sincere efforts were made to find out the exact sale consideration amount of Anand Parbat property despite the fact that same could be easily ascertained from the seller of the property. Similarly, no efforts were made to find out the approximate amount spent on the reconstruction of the house in the village despite the fact that same could be easily ascertained from a qualified architect or structural engineer or valuer. But to mislead the court, investigating officer preferred to take the rough idea of the market value of the property from the witnesses who are not the expert. Moreover, I am unable to understand why the investigating officer has relied upon the market value of the property and why he had not made the efforts to know the sale consideration of the said property because at SC No. 23/2011 Page no. 23 of 29 State vs. Dharmender & others.
last court has to see the quantum of sale consideration and not what is the present market value of the property.
34. Now coming to the property of accused Kaushal Kumar @ Pappi. In the year 2010, accused Kaushal Kumar was involved in two cases of robbery i.e. FIR No. 248/10 PS DBG Road and FIR No. 20/10 PS Mandir Marg. In case FIR No. 248/10 a sum of ` 97,000/- was recovered from his possession whereas in case FIR No. 20/10 no amount/jewellery was recovered from his possession. In both the charge-sheet, it is not mentioned that accused had spent any amount on the reconstruction of his house. Nor it is mentioned that some other amount or jewellery was required to be recovered from his possession. Certainly after the arrest of the accused Kaushal, police must have visited his house in connection with the investigation of the said case, but surprisingly there is no reference of any construction over the said property. Prior to 2010, accused Kaushal was not found involved in any other criminal matter.
35. From the statement of Mr. Manoj it appears that accused Kaushal had four shops at the ground floor of his house and he had taken one shop on pugree of ` 5.00 lac. Though Manoj and Gurdeep stated that accused had reconstructed his house from the money generated from crime but they did not depose that accused was involved in any organized crime syndicate or member of any organized crime syndicate. Nor he stated that accused had reconstructed the house from the fund of organized crime syndicate fund. Though Gurdeep stated that the market value of the house is ` 40 lac yet no efforts were made to find out the actual buying amount of the said house. Mere fact that the market value of the house was ` 40 lac in the year 2011 is not sufficient to draw an inference that accused had acquired the said property in the sum of ` 40 lac. Moreover, when it is SC No. 23/2011 Page no. 24 of 29 State vs. Dharmender & others.
admitted case of the prosecution that accused had not acquired the said property in the year 2011 and the same was in his possession from long time. Though PW Radhey Shyam stated that accused Kaushal might have spent about ` 4-5 lac in the construction of said house. It is pertinent to state that criminal courts can not act on the assumption or presumption of a person. Courts need some cogent evidence before proceeding against a person. By bringing said evidence, prosecution wants to show that accused had used the booty of above two robberies in the reconstruction of the said house. But it is pertinent to state here that in both the charge-sheets it is no where mentioned that the booty which had fallen in the share of accused Kaushal was not recovered or that he had utilized any portion of the booty in the construction of the house. To connect the amount spent in the reconstruction of the house and the booty of the said cases, investigating agency was supposed to collect some evidence, it could be in the form of confessional statement or some other connecting evidence but there is no such evidence.
36. PW Ravinder Singh in his statement stated that accused had purchased a second hand Santro car in the sum of ` 2.80 lac in the year July 2010 and accused had paid ` 1.80 lac in cash and balance amount paid in instalments of ` 6800/- per month. However, on April 3, 2011 accused had paid the balance amount of ` 74,800/- in one go and took the no objection certificate from him.
37. Admittedly, the robbery in case FIR No. 248/10 was committed on December 8, 2010 and he was arrested on December 16, 2010 and remained in custody till February 2011 when the charge-sheet was filed. It is not clear when accused had got bail in the said case. If the robbery was committed in December 2010, it means the amount of ` 1.00 SC No. 23/2011 Page no. 25 of 29 State vs. Dharmender & others.
paid in cash to PW Ravinder Singh could not be from the booty of said case. Whereas in case FIR No. 20/10, the robbery was committed on February 5, 2010 and accused was arrested on February 23, 2010 and admitted on bail on March 15, 2010 as nothing was recovered from his possession. In the charge-sheet of said case it is no where mentioned that accused had either made the payment of instalments or spent any amount on the reconstruction of the house. Had it been so, police would have seized the said car. But it is not so.
38. Now coming to the properties of accused Dinesh Tiwari. As per prosecution version, accused had acquired a plot measuring 150 sq yards in Janta Vihar area with one Mukesh Prajapati in the sum of ` 11.50 lac in the year 2008. It was also alleged that in the year 2008 he had sold a plot measuring 50 sq yards to Mr. Prahlad Garg. It means that both the said properties were acquired by the accused Dinesh Tiwari from the organized crime committed by him prior to 2008. As per the charge-sheet filed by the prosecution, accused Dinesh Tiwari was involved in 5 robbery cases during the period 1992 to 1995. However, prosecution has not filed the copy of charge-sheet of all the said cases except in case FIR No. 580/95 wherein prosecution has filed the copy of sentence order. The booty of said crimes cannot be used after long 13 to 16 years i.e. in the year 2008 to acquire the said properties. After 1995, accused Dinesh Tiwari was found involved in robbery case in the year 2005 in case FIR No. 1061/05 PS Shalimar wherein a robbery of ` 3.00 with some jewellery had taken place. But in the said case nothing was recovered from accused Dinesh. During his disclosure statement, accused disclosed that he had spent his booty amount on food and making the payment to his advocates. In other words, it is admitted case of the prosecution that no property was acquired from the booty of said case. After 2005, accused Dinesh Tiwari was found involved in SC No. 23/2011 Page no. 26 of 29 State vs. Dharmender & others.
the robbery case in the year 2010. Thus, the booty of said case cannot be used to acquire the said properties. Thus, there is no infinitesimal evidence to show prima-facie that accused Dinesh Tiwari had acquired the said properties from the organized crime syndicate fund.
39. PW Tilak Raj in his statement stated that he had sold his plot measuring 150 sq yards to Mr. Mukesh and Dinesh Tiwari in the sum of ` 11.50 lac and his statement is corroborated by Mukesh who stated that he and Dinesh Tiwari had contributed equal amount in acquiring the said plot. Neither Tilak Raj nor Mukesh stated that accused Dinesh Tiwari had acquired the said plot from the fund of organized crime syndicate. Similarly, PW Prahlad stated that he had purchased the plot measuring 50 sq yards located in Janta Colony from accused Dinesh Tiwari in the year 2008. He did not state that accused Dinesh Tiwari had acquired the said plot from the fund of organized crime syndicate. Thus, there is no scintilla of evidence to show prima-facie that accused Dinesh Tiwari had acquired said properties from the fund of organized crime syndicate.
40. Learned Additional Public Prosecutor vigorously relied upon the disclosure statement of accused persons to establish that accused persons had confessed that they had acquired the said properties from the fund of criminal activities.
41. It is admitted case of the prosecution that the alleged confessional statement was recorded by ACP Raja Ram Yadav and same does not signed by the accused persons. Section 18 of MCOCA permits the police of a particular rank to record the confessional statement of the accused with certain precautions and same runs as under:
SC No. 23/2011 Page no. 27 of 29 State vs. Dharmender & others.
18.Certain confessions made to police officer to be taken into consideration.
(1) Notwithstanding anything in the Code or in the Indian Evidence Act 1872, but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.
(3) The Police Officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the dace and time of the same.
(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so receive to the Special Court which may take cognizance of the offence.
(5) The person from whom a confession has been recorded under sub-section (I) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) along SC No. 23/2011 Page no. 28 of 29 State vs. Dharmender & others.
with the original statement of confession, written or recorded on mechanical device without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.
(emphasis supplied)
42. Record reveals that none of the conditions enumerated in Section 18 has been fulfilled at the time of recording the alleged confessional statement. In fact, the alleged statements are not confessional but disclosure statement which police is generally record in other criminal matters. Thus, to my mind no cognizance can be taken to the alleged confessional statements as the same are not confessional statements as referred to section 18 of MCOCA.
43. Mulling over the ongoing discussion, I am of the considered opinion that prosecution has failed to make out a prima-facie case against the accused persons for the offence punishable any part of Section 3 of MCOCA, thus, I hereby discharge all the accused persons from all the charges levelled in the charge-sheet.
Announced in the open Court
On 7th day of June, 2012 (PAWAN KUMAR JAIN)
Additional Sessions Judge
Central-01/THC/DELHI
SC No. 23/2011 Page no. 29 of 29