Delhi District Court
State vs . Judge Chawla & Shonika Chawla on 29 May, 2012
State Vs. Judge Chawla & Shonika Chawla
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01, CENTRAL,
TIS HAZARI COURTS, DELHI
SC No. 09 of 2010
ID No. 02401R0128162010
FIR No. : 153/09
Police Station : Rajender Nagar
Under Section : 3(2)/3(4) & 4 MCOCA
R/w 420/468/471 IPC
STATE
versus
1. JUDGE CHAWLA
S/o Late M. L. Chawla
R/o 11-B, Rajendra Park,
Rajender Nagar, Delhi
.........Accused no.1
2. SHONIKA CHOPRA
D/o R.N.Chopra
R/o 11-B, Rajendra Park,
Rajender Nagar, Delhi
.........Accused no.2
Date of Institution : 22.03.2010
Date of Order reserved on : 10.05.2012
Date of pronouncement of Order : 29.05.2012
Present: Sh. Rajiv Mohan, Special Public Prosecutor
Sh. Tanmay Nagar, Advocate, counsel for both the accused
persons
SC No. 09/10 Page no. 1 of 49
State Vs. Judge Chawla & Shonika Chawla
ORDER:
1. By this order, I shall dispose of the contentions raised by learned counsel for the accused persons that prima-facie no case is made out against the accused persons for the offences punishable under Maharastra Control of Organized Crime Act (MCOCA in short).
2. Briefly stated facts of prosecution case as set out in the charge- sheet are that on July 7, 2009, accused Judge Chawla and Ms. Shonika Chopra were arrested in FIR No. 87/2009 under Section 420/406/120B IPC. During the investigation, it was revealed that accused Judge Chawla had accumulated huge wealth by continuing with the unlawful activity in an organised manner and he along with his associates was in the habit of grabbing the disputed properties by way of forged documents and cheating for pecuniary benefits. Accordingly, his criminal activities of last 10 years were examined and he was found involving in as many as 13 cases and also surfaced that he was booked under preventive measures at four occasions. It was revealed that out of 13 cases, in seven cases, charge-sheets have already been filed against the accused Judge Chawla and Court of competent jurisdiction had taken cognizance in these cases. It was also revealed that accused Judge Chawla had accumulated wealth which was more than from his known sources of income. Accordingly, necessary approval under Section 23 (1) (a) of Maharashtra Control of Organized Crime Act 1999( as extended to NCT of Delhi) for registration of FIR was obtained and investigation was handed over to ACP Karol Bagh S. Saravanan.
(i) During the course of investigation, accused Judge Chawla was arrested and interrogated. His house was searched, inventory of household SC No. 09/10 Page no. 2 of 49 State Vs. Judge Chawla & Shonika Chawla and other valuables items was prepared. The bank accounts detail of accused Judge Chawla was obtained. Statement of witnesses were recorded. His associates were examined at length. During investigation, it was revealed that accused was having Benami properties i.e first and second floor of 11-B, Rajender Park, Rajender Nagar and basement of M-53, G.K-Part II, Delhi.
Statement of witnesses in this regard were recorded. Thereafter, the certified copies of the pending criminal cases were obtained.
(ii) It was alleged that Ms. Shonika Chopra was residing with accused Judge Chawla as living-in-relation and associated the accused Judge Chawla in commission of various crimes. Accordingly, she was arrested after taking necessary permission.
(iii) During investigation, name of Parveen Chopra was also surfaced being ultimate gainer in many of the property dealings conducted by the accused persons.
(iv) It was alleged that accused Judge Chawla was married in the year 1996 with one Ms. Sangeeta Chopra and at that time, he was not having any source of regular income and in the year 1997, he started the business of property and indulged himself in unfair practices. Thereafter, he came into the contact of his associate Ms. Shonika Chopra and he employed her in his beauty parlour. It was alleged that due to continuous criminal activity, number of criminal cases were registered against accused Judge Chawla and Ms. Shonika in different parts of Delhi. Accused Judge Chawla was found involving in following cases:
SC No. 09/10 Page no. 3 of 49
State Vs. Judge Chawla & Shonika Chawla
SL. FIR NO. PS & U/S NAME & ADD. OF COMPLAINANT/VICTIM CO-ACCUSED NAME PRESENT POSITION
NO. IN FIR OF CASE
1 FIR No. 233/01 PS Smt. Kamla Rathi w/o Late Sh. R. S. Trilochan Singh FIR quashed by Delhi
Pachim Vihar Rathi R/o Flat no. 14B Block A2 Thukral High Court on
U/s Adersh Apartments, Pachim Vihar, 27/7/07 agaisnt
420/467/468/471/120 New Delhi accused Judge
B IPC Chawla after paying
the cheated amount
with interest and
charge framed
against T.S.Thukral
2 FIR No.938/04 PS Arun Khanna S/o Sh. H. L. Khanna Rajiv Gupta s/o L. R. Cognizance taken
Pachim Vihar R/o 8/1 Punjabi Bagh Ext. New Delhi Gupta R/o D15/19 and pending Trial
U/s 420/468/471/120 Sector-7, Rohini,
B IPC Delhi
3 FIR No. 292/05 PS Trilochan Singh Thakural -------- Cognizance taken
Punjabi Bagh u/s and pending Trial
420/468/467/471 IPC
4 FIR no. 12/06 PS Sh. Vern Kr. Datt s/o Late Sh. R. P. Shonika Chopra @ Cognizance taken
Rajender Nagar, u/s Datt R/o 11 B Rajinder Park N. Delhi Sangeeta Chawla and pending Trial 323/341/506/427/34 IPC 5 FIR no. 246/06 PS Sh. Vern Kr. Datt and Ashwani Kr. Datt ------ Cognizance taken Rajender Nagar u/s r/o 11 B Rajinder Park (front portion of and pending Trial 506/341 IPC G.F & F.F) Pusa Road, New Delhi 6 FIR no. 247/06 PS Sh. R.S.Mangla O/o Deputy ------ Cognizance taken Rajender Nagar u/s Commissioner of Karol Bagh Zone, and pending Trial 345/345 A MCD Act MCD Delhi 7 FIR No. 248/07 PS Atul Datt s/o Sh. V. K. Datt R/o 11 B Shonika Chopra @ Cognizance taken Rajender Nagar u/s Pusa Road, Rajender Park, New Delhi Sangeeta Chawla and pending Trial 341/325/506/34 IPC 8 FIR No. 66/08 PS Naresh Sharda Parveen Chopra FIR quashed after E.O.W. Crime Branch paying the cheated u/S 406/420/120 IPC amount with interest and case cancelled on 25/8/08 9 FIR No. 33/09 PS Pending investigation C.R. Park u/s 420/468/471 IPC 10 FIR No. 20/09 PS 1. Nitin Sarin Cognizance taken Crime Branch u/s 2. Gulfam Ahmed and pending Trial 302/364/120B/420/4/6 7/ 471 IPC 11 FIR No. 87/09 PS G.Gehani R/o 11 B Rajinder Park, Old Sangeeta Chawla Quashed by Hon`ble Rajinder Nagar u/s Rajinder Nagar, New Delhi Delhi High Court on 420/120 B IPC 15/10/09 as the accused Judge Chawla paid the entire cheated amount with interest to the complainant.
SC No. 09/10 Page no. 4 of 49
State Vs. Judge Chawla & Shonika Chawla
KALANDRAS
SL. DD NO & DATED UNDER SECTION POLICE STATION ASSOCIATE PRESENT
NO. POSITION
1 28A dated 15/9/2005 107/151 Cr.P.C Pachim Vihar Bound down for
one year on
16/9/05
2 6B dated 9/12/05 107/150 Cr.P.C Rajender Nagar Shonika Chopra Discharged on
29/06/06
3 22A dated 17/2/2006 107/150 Cr.P.C Rajender Nagar Bound down for
six months on
29/6/2006
4 28A dated 28/11/2007 107/150 Cr.P.C Rajender Nagar Proceedings
dropped on
28/11/08
(v) It was alleged that accused Judge Chawla was externed from
Delhi vide order dated May 1, 2008 which was challenged by accused Judge Chawla before Hon`ble LG, Delhi wherein he was bound down for good behaviour for a period of one year.
(vi) Analysing the activities of accused Judge Chawla, it was revealed that accused Judge Chawla used to keep an eye over the disputed properties, thereafter, he used to try to become a savior of any one of the shareholders of the property, who used to be in distress. Thereafter, he used to help the shareholders by all means including supply of ration items. After obtaining goodwill and reputation, he used to start his handiwork of garbing the targeted property by way of harassing, cheating, misguiding, threatening, coercing, registering false criminal cases and even, if necessary, by preparing forged documents. It was alleged that he had cheated number of persons including proposed buyers and other shareholders of the property. Ultimately, he gained pecuniary benefits either by acquiring the property in his or his Benami name or registering in the name of his associates by way of removing the other claimants/owners of the property. It was alleged that whenever SC No. 09/10 Page no. 5 of 49 State Vs. Judge Chawla & Shonika Chawla accused Judge Chawla and Ms. Shonika thought that they could not escape from the clutches of law enforcements agencies they always used to pacify the complainants by giving entire money with interest to came out from the legal entangles.
(vii) It was alleged that Mr. Aditya Datt, owner of one portion of property bearing No. 11-B, Rajender Park, Rajender Nagar, New Delhi (11-B Rajender Nagar in short) had entered into an agreement to sell with Mr. Trilochan Singh Thukral to sell his portion along with common portion and drive way. However, deal was cancelled and brother of Mr. Aditya Datt intervened and objected the selling of common portion. Accordingly, Mr. Trilochan Singh demanded earnest money of ` 10 lac but Mr. Aditya Datt failed to return the amount. During this episode the property was identified as disputed in the market. In the mean time, brothers of Mr. Aditya Datt executed Memorandum of Understanding on October 31, 2001 that no one shall sell common portion. In the mean time, accused Judge Chawla came into the contact of Mr. Aditya Datt. It was alleged that pursuant to his planning of garbing the entire property, accused Judge Chawla acted like a syndicate along with other members including his associates Ms. Shonika Chopra @ Sangeeta Chawla and Parveen Chopra. Taking advantage of financial position of Mr. Aditya Datt, accused Judge Chawla convinced him to make a deal to sell his share along with common area including drive way. By doing this, accused wanted to purchase the rights of common portion. Thereafter, accused Judge Chawla got prepared the documents in the name of Parveen Chopra and his family members and agreement to sell was executed between them on December 9, 2002. It was alleged that though papers were in the name of Parveen Chopra and his family members, yet accused Judge Chawla used to visit the property regularly and used to bring his vehicle from front SC No. 09/10 Page no. 6 of 49 State Vs. Judge Chawla & Shonika Chawla gate opened towards Shankar and Pusa Road despite the fact that the entry of his portion was from backside. It was alleged that accused started to park his vehicle in the common area in an obstructive manner and threatened that he had purchased the right of common portion. Accordingly, the Datt brothers had obtained a stay order from Hon`ble High Court of Delhi on December 20, 2002 on the basis of MOU signed by them. However, accused Judge Chawla did not refrain himself and continued to threat and fighting repeatedly with Datt brothers.
(viii) It was alleged that the motive of accused Judge Chawla to harass Datt was to compel them to sell their property at throw away price. Due to continuous harassment by accused Judge Chawla, in the year 2004, Datt brothers decided to sell their property to accused Judge Chawla at a very low price. But accused persons offered very nominal price to them.
(ix) It was alleged that in the year 2005, Parveen Chopra had transferred the said property in the name of Mr. Rajeev Bahel and Mr. Surojeet Banerjee at the instance of accused Judge Chawla without any consideration. Thereafter, accused Judge Chawla had purchased ground floor and basement from Rajeev Bahel on papers without paying any consideration to him. It was alleged that Rajeev Bahel was developer of the said property. It was alleged that Surojeet Banarjee and Rajeev Bahel were puppets in the hands of accused Judge Chawla. On the complaint of Datt brothers, accused Judge Chawla was arrested for the offence punishable under Section 107/150 Cr.P.C, Datt brothers had also filed a civil litigations against accused persons for raising unauthorised construction in the property which hurt the accused persons. Consequently, they started quarrelling and assaulting the members SC No. 09/10 Page no. 7 of 49 State Vs. Judge Chawla & Shonika Chawla of Datt family. Accordingly, a case bearing FIR No. 12/06 for the offence punishable under Section 323/341/506/427/34 IPC was registered against both the accused persons. It was alleged that in order to pressurize the Datt family, accused Ms. Shonika Chopra @ Sangeeta Chawla had lodged a false FIR No. 13/09 under Section 354 IPC.
(x) It was alleged that Ms. Shonika Chopra had also lodged a false rape case against one Mr. Prem Dhanda at the instance of accused Judge Chawla with intention to grab his property.
(xi) It was alleged that on June 23, 2009, Hon`ble Division Bench of High Court of Delhi passed an order restraining accused Judge Chawla and others to use the common passage. Since then he started using backside gate to enter his premise.
(xii) It was alleged that on the complaint of Datt family, MCD had demolished the property of accused Judge Chawla on January 14, 2006 and sealed the same. However, accused Judge Chawla broke the sealed and conducted the repair in the demolished portion of the property. Accordingly, the criminal case was registered against the accused Judge Chawla for the offence punishable under Section 345/341A/461 of MCD Act. It was further alleged that on November 20, 2007 accused Judge Chawla and Ms. Shonika Chopra had assaulted Datt family members. Accordingly, a case was also registered against them vide FIR No. 241/2007 for the offence punishable under Section 341 & 506 IPC.
(xiii) It was alleged that when accused Judge Chawla was arrested in case FIR no. 87/09 under Section 420/120B IPC at the instance of accused SC No. 09/10 Page no. 8 of 49 State Vs. Judge Chawla & Shonika Chawla Ms. Shonika Chopra, Mr. Surojeet Banerjee, benami holder of the property, had sold the second floor of 11-B, Rajender Nagar and from the sale proceeds, payment was made to the victim of case FIR No. 87/09. Consequently, the proceedings were quashed in the matter.
(xiv) It was alleged that in the year 2004, one Mr. Arun Khanna had lodged a criminal case against accused Judge Chawla vide FIR No. 938/04 under Section 468/471/472/420/120 B IPC at PS Pachim Vihar alleging that accused Judge Chawla had procured his signature on the blank papers on the pretext that he would prepare a SPA to pursue the matter with DDA to get the property freehold for demolition and development of the same. But subsequently, he sold the said property to Rajeev Gupta on the basis of said SPA. Rajiv Gupta subsequently, transferred the property Parveen Chopra and his family members at the instance of accused Judge Chawla.
(xv) It was alleged that property No. 204, Kailash Hill, East of Kailash was belonged to one Mr. Surjeet Singh Marwah but he was murdered by his daughter Ms. Niti Sarin and her paramour Gulfam Ahmed and they were arrested under Section 302/120 B IPC.
(xvi) It was alleged that during investigation, it was revealed that Ms. Niti Sarin and Gulfam Ahmed had procured the service of accused Judge Chawla in transferring of the said property through some forged documents. Accordingly, accused Judge Chawla was also arrested in the said case. It was alleged that on the advise of Judge Chawla, Nitin Sarin had transferred the property in the name of Gulfam Ahmed by sale deed without any consideration. Thereafter, Gulfam Ahmed entered into collaboration SC No. 09/10 Page no. 9 of 49 State Vs. Judge Chawla & Shonika Chawla agreement with one Sifa-ur-Rehman Khan but the deal was not completed as Sifa-ur-Reman Khan came to know about the fake GPA. Thereafter, he entered into collaboration agreement with accused Judge Chawla in the year 2007. Accused Judge Chawla transferred ground floor and basement of the property in the name of Ms. Shonika Chopra and first and second floor in his name. It was alleged that subsequently, accused Judge Chawla had managed to grab the whole property and sold the same to various persons for the pecuniary benefits.
(xvii) It was alleged that on the complaint of Tania Sharma, occupant of one portion of the said property lodged a case against Ms. Shonika Chopra vide FIR No. 107/09 under Section 452/448/506/511/34 IPC at PS Amar Colony.
(xviii) It was alleged that Mr. Prem Danda and Ms. Geeta Dhanda were the directors in M/s La Gitana Pvt. Ltd. Property No. M-53 (basement and ground floor) GK Part-II, New Delhi and S-283, Greater Kailash -II were owned by the said company. However, the said properties were mortgaged with Punjab & Sind Bank in connection with loan obtained by M/s Omkar Hosiery Factory, another firm of Mr. Prem Danda. It was alleged that in the year 1996, Mr. Prem Danda had sold the property M-53 to Mr. Surojeet Banerjee and handed over the possession of property to him. At the time of selling the property to Mr. Surojeet Banerjee, Mr. Prem Danda, concealed the factum of mortgage from Mr. Surojeet Banerjee and this fact was in the knowledge of accused Judge Chawla as the some matter was pending in the DRT. When accused Judge Chawla came to know that Mr. Banerjee had invested his entire money in the said property, he influenced Mr. Surojeet Banerjee that if he did not follow his advice, he would lose his entire money, SC No. 09/10 Page no. 10 of 49 State Vs. Judge Chawla & Shonika Chawla consequently Mr. Banerjee fell in the clutches of accused Judge Chawla. It was alleged that after using Mr. Banerjee and obtaining his signature, accused Judge Chawla became the owner of property bearing no. M-53.
(xix) It was alleged that accused Judge Chawla pressurized Mr. Banerjee to sell ground floor to Mr. Deepak Chopra in the sum of ` 30 lac. It is alleged that Mr. Surojeet Banerjee made a statement under Section 164 Cr.P.C. It was alleged that Mr. Surojeet Banerjee had executed the sale deed of ground floor portion in the name of Mr. Sanjay Chopra and Mr. Anuj Chopra, brother of Parveen Chopra. After 5 years, the property was transferred to Mr. Deepak. Record reveals that Parveen Chopra had transferred the property bearing No. 11 B, Rajinder Nagar in favour of Mr. Surojeet Banerjee to legitimise the transfer of M-53 in the name of associate of accused Judge Chawla.
(xx) It was alleged that accused Judge Chawla had forged the sale deed between M/s La Gitana Pvt. Ltd. and M/s Saberwal Construction Company to get electricity connection in the basement of M-53 GK, Part -II.
(xxi) It was alleged that accused Judge Chawla contacted Mr. Prem Danda and both agreed that accused Judge Chawla would get property S-283 GK Part II cleared from DRT and thereafter they would raise construction on the property. A collaboration agreement was signed between them on October 14, 2002. Thereafter, an agreement to sell was executed between them on November 12, 2002 wherein it was mentioned that Mr. Prem Danda would hand over the possession after taking the payment of ` 20 lac.
SC No. 09/10 Page no. 11 of 49
State Vs. Judge Chawla & Shonika Chawla
(xxii) However, with the connivance of Ms. Shonika Chopra, accused
Judge Chawla had got registered a false case of rape vide FIR No. 63/03 under Section 376 IPC against Prem Dhanda but police filed the cancellation report. However, Mr. Prem Danda was arrested due to his non-appearance.
(xxiii) It was alleged that taking the advantage of absence of Mr. Prem Danda, accused influenced Ms. Geeta Danda by assuring her that he would save her property No. S-283 from auction. It was alleged that in the mean time, one Mr. Romi Garg approached Ms. Geeta Danda for taking the said property on rent. However, accused offered the property to him for sale, which was agreed by Romi Garg who paid ` 20 lac through bank draft and ` 20 lac in cash to Ms. Geeta Danda and lease agreement was executed between them on December 31, 2003.
(xxiv) It was alleged that accused had taken ` 20 lac from Geeta Danda. However, later on Romi Garg revealed that he had invested the money in the disputed property and further came to know that Mr. Prem Danda had already sold the property to M/s Jai Bharat Company and the said firm had already filed a suit for Specific performance in the High Court of Delhi.
(xxv) It was alleged that during the pendancy of litigation, matter was compromised between M/s Jai Bharat Company and Ms. Geeta Danda. Pursuant to the compromise, all the parties issued disclaimer deed in favour of M/s Sempitern Investment Private Ltd, who ultimately bought the property.
SC No. 09/10 Page no. 12 of 49
State Vs. Judge Chawla & Shonika Chawla
(xxvi) It was alleged that accused Judge Chawla earned huge money
by the transactions of property M-53 and S-283.
(xxvii) It was alleged that in the year 2000 accused Judge Chawla
had sold the top floor of M-397, Guru Harikishan Nagar, New Delhi to Ms. Kamla Rathee representing himself as owner of the said property and received ` 12 lac from her through cheques but he failed to transfer the property in the name of buyer. It was revealed that accused Judge Chawla was not the owner and he cheated Smt. Kamla Rathee, consequently she lodged an FIR No. 233/01 u/s 420/467/468/471/201/120 B IPC against accused Judge Chawla and his associate Trilochan Singh Thakural.
(xxviii) It was alleged that during pendancy of investigation of case accused returned ` 12 lac to the victim, consequently, FIR was quashed.
(xxix) It was alleged that in June 2000 Mr. Trilochan Singh Thakural had purchased property though accused Judge Chawla. It was alleged that accused Judge Chawla had sold the said property to one Mr. Amar Singh on the basis of forged GPA. Consequently, Mr. Trilochan Singh Thakural lodged an FIR No. 292/05 under Section 420/467/468 IPC against accused Judge Chawla.
(xxx) It was alleged that accused Judge Chawla also cheated one Mr. Naresh Sharda, LIC agent who lodged an FIR against accused Judge Chawla vide FIR No. 66/08 under section 406/420/120B IPC. When SC No. 09/10 Page no. 13 of 49 State Vs. Judge Chawla & Shonika Chawla anticipatory bail application of accused Judge Chawla was rejected, accused Judge Chawla and his associate Parveen Chopra compromised the matter with the complainant and refunded the amount to him. Thereafter, the matter was settled between the parties and FIR was quashed by the Hon`ble High Court of Delhi.
(xxxi) It was alleged that accused Judge Chawla had also cheated Mr. G.Gehani, consequently an FIR No. 87/09 under Section 420/406/120B IPC was registered against them. During hearing of bail application, matter was compromised between the parties. It was alleged that his associates arranged the money to secure the bail of accused Judge Chawla and the FIR was quashed by the Hon`ble High Court of Delhi.
(xxxii) It was alleged that his associate Ms. Shonika Chora was found involving in the following cases:
SL CASE REFERENCE BRIEF FACTS REMARKS NO. 1 Case FIR NO. 12/06 under Section The case was registered on the complaint of She was arrested along with
341/323/506 IPC, PS Rajender Nagar Vern Datt, owner of portion of 11-B, Rajender Judge Chawla. Charge sheeted Park, Rajender Nagar, Delhi and cognizance taken. The case is pending trial.
2 Case FIR No. 248/07 under Section The case was registered on the complaint of Both Judge Chawla and 341/323/506 IPC, PS Rajender Nagar Atul Datt, owner of protion of 11 B, Rajender Shonika Chopra @ Sangeeta Park Chawla were arrested and on bail. Charge sheeted and cognizance taken. The case is pending.
3 Case FIR No. 87/09 u/s 420/120 B IPC PS The case was registered on the complaint of She was named in the FIR.
Rajender Nagar G. Gehani The FIR then quashed on
15.7.2009, after paying back
the entire amount with interest.
4 Case FIR No. 107/09 u/s 34/452/448/506 Complainant Tanya Sharme d/o Niti Sarin Mother of Shonika Chopra i.e.
IPC Police Station Amar Colony reported that the buider Judge Chawal was and one Harish have been
trying to disposes them from the property of arrested. The case is PI. 204, Kailash Hills, Eok by forceful entry of living-in-parnter Shonika Chopra with help of her mother and employees of the accused Judge Chawla and assaulted her.
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State Vs. Judge Chawla & Shonika Chawla
(xxxiii) It was alleged that at the instance of accused Judge Chawla,
Shonika Chopra had lodged a false FIR No. 63/03 under sections 376/506/34 IPC PS Prasant Vihar against Prem Dhanda and FIR No. 13/06 under section 323/354/506/427/34 IPC PS Rajinder Nagar against Atul Datt. During investigation, allegations levelled therein were found false. It was alleged that the false FIRs were lodged with an intention to grab their properties.
(xxxiv) It was alleged that accused Judge Chawla had obtained ex- parte divorce decree against his previous wife named Sangeeta Chawla by playing fraud upon the Court as accused Judge Chawla had furnished the address of his previous wife as the address of father of Shonika Chopra.
(xxxv) It was alleged that whenever accused Judge Chawla fell in the clutches of law, Shonika Chopra came forward for his help by pacifying the victims or impleading the victims in false criminal cases or made arrangement for the payment to the victims. It was alleged that Shonika Chopra facilitating the accused Judge Chawla in commission of organized crime.
3 After completing investigation, challan was filed against the accused Judge Chawla for the offence punishable under Section 3(2), 3(4) of MCOCA and under Section 420/468/471 IPC and against accused Shonika Chopra for the offence punishable under Section 3(2), 3(4) and 4 of MCOCA.
4. I have heard Sh. Tanmey Nagar Advocate, learned counsel for the accused persons and Sh. Rajiv Mohan learned Special Public Prosecutor for the State, perused their written submissions along with the material available on record. It is pertinent to state that when counsel for the parties failed to SC No. 09/10 Page no. 15 of 49 State Vs. Judge Chawla & Shonika Chawla conclude the arguments despite repeated opportunities granted to them, they were directed to file their written submissions.
5. Learned Special Public Prosecutor has raised the following contentions:
(i) That under the provisions of MCOCA, the basic emphasis is not on the act of an individual rather it is important to see as to whether he is working on behalf of any syndicate or as a member of that syndicate.
(ii) That if it is established that a group of more than one person is indulged in continuing unlawful activity in past and a person either as member or on behalf of such syndicate commits any organized crime where violence or other unlawful means were used to gain pecuniary benefits, then the activity of that individual will be treated as the activity of organized crime syndicate. (Relied upon Govind Sakharam Ubhe v. State of Maharastra 2009 ALL MR (Cri) 1903)
(iii) That the condition of Section 2(1)(d) is not required for the offenders of offence punishable under Section 3(2), 3(3) and 3(5) of the MCOCA. Thus, it was argued that the abettor of organized crime is not required to fulfill the requirement of Section 2(1)(d), 2(1)(e) and 2(1)(f) of the MCOCA.
(iv) That for the offence of organized crime the continuing unlawful activity is a pre-requisite condition. It was contended that the person(s) who has already faced the trial or facing trial for the wrongs that he had committed SC No. 09/10 Page no. 16 of 49 State Vs. Judge Chawla & Shonika Chawla in past, he can be again prosecuted on the basis of his previous involvments.
To support his contention reliance has been placed on Jai Singh Asharfi Lal Yadav v. State of Maharastra 2003 (0) ALL MR (Cri) 1506, Om Prakash Srivastav v. State of Delhi 2009 (164) DLT 218 and Jag Mohan@ Mohar Singh v. Commissioner of Police 2007 (1) JCC 292.
(v) That accused Judge Chawla, Shonika Chopra had formed an organized crime syndicate with one Parveen Chopra as he was involved in all the transactions entered into by the accused Judge Chawla.
(vi) That all the said three persons had accumulated huge illegal wealth without having any legal source of income. It was contended that accused Judge Chawla on behalf of said syndicate committed the offence by using violence or other unlawful means with the sole objective of gaining pecuniary benefits for himself or for other associates.
(vii) That accused Shonika Chopra helped the accused Judge Chawla either by associating herself with him at the time of commission of offence or by abetting his activities or by eliminating the victims by implicating them in false cases of rape or molestation.
(viii) That whenever immovable property was acquired by the accused Judge Chawla illegally, the name of Parveen Chopra always appeared in the chain of transaction of such properties.
(ix) That accused Judge Chawla was found involved in 11 cases and four preventive proceedings. From the said cases, it is very much clear that SC No. 09/10 Page no. 17 of 49 State Vs. Judge Chawla & Shonika Chawla accused Judge Chawla is acting as a syndicate along with other persons namely Parveen Chopra and Shonika Chopra with the sole objective of gaining undue economic advantages.
(x) That the modus operandi of the gang or syndicate was that firstly they identified the disputed property, thereafter, accused Judge Chawla introduced himself as a well-wisher of the shareholder or owner, who was in distress or in the need of money and extended all kinds of assistance to the concerned persons. After getting foothold in the property, he (Judge Chawla) with the help of his associates Shonika Chopra and Parveen Chopra started creating trouble either by using violence or other unlawful means including lodging false FIR, multiple civil cases and ultimately succeeded in getting the property either in his name or earn huge pecuniary benefit.
(xi) That accused persons had acquired the property bearing No. 11B Rajinder Park, Rajinder Nagar, New Delhi comprising of ground floor, basement and first floor (in short 11B Rajinder Park), property No. M-53 Greater Kailash Part II New Delhi comprising of basement (in short M-53) and property bearing No. 204 Kailash Hills comprising of first basement and ground floor (in short 204 Kailash Hills) from the activities of organized crime.
(xii) That accused Judge Chawla with the help of his associates had dealt with properties located at A/289, Sunder Vihar, Paschim Vihar, S-283, G.K. Part II, M-397, Top floor, Guru Harkishan Nagar, I/51, West Punjabi Bagh and J-419 New Rajinder Nagar by using intimidation and other unlawful means and gained huge pecuniary benefits.
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State Vs. Judge Chawla & Shonika Chawla
(xiii) That during the period of 2002-2009 accused Judge Chawla
and Shonika Chopra had transacted to more than ` 6.00 crore from their three bank accounts and accused Judge Chawla has fleet of four luxuary vehicles without having any legal source of income.
(xiv) That accused Judge Chawla was found involved in more than one case where cognizance had been taken by the Court and he was found committing these activites either singly or jointly as a member or on behalf of such gang with the object of gaining pecuniary benefit.
(xiv) That accused Shonika Chopra is not the legal wedded wife of accused Judge Chawla but he has living in relation with her. It was contended that the real wife of accused Judge Chawla was Sangeeta Chawla against whom accused Judge Chawla had filed a divorce petition wherein accused Judge Chawla had mentioned the address of his wife as M-116 Top Floor, Guru Harkishan Nagar New Delhi, which belonged to the father of accused Shonika Chopra. It was alleged that by furnishing false address of his wife, accused Judge Chawla had succeeded in obtaining ex-parate divorce decree from the Court and when this fact came into the knowledge of his real wife, she had filed a protest petition. It was alleged that Shonika Chopra was using two names i.e. Shonika Chopra and Sangeeta Chawla as per her convenience and circumstances.
(xv) That she had filed two false cases at the instance of accused Judge Chawla in order to grab the propety of victims.
(xvi) That accused Shonika Chopra was involved in two cases along with Judge Chawla in order to grab the property no. 11B Rajinder Park. She SC No. 09/10 Page no. 19 of 49 State Vs. Judge Chawla & Shonika Chawla was also involved in two other cases i.e. FIR No. 87/09 under Section 420/34 IPC PS Rajinder Nagar and FIR No. 107/09 under Section 452/448/506/34 IPC PS Amar Colony.
(xvii) That Shonika Chopra helped the accused Judge Chawla when he was cornered by the law enforcing agency by arranging money to pay the victim of the crime. It was contended that such help amounts facilitation and reliance has been placed on Manoj Ramesh Mehta v. State of Maharastra Criminal Appeal No. 1868/2008 (Supreme Court).
(xviii) That a person can be charged under Section 3(2) of MCOCA despite the fact that he had not actually participated in the offence. Reliance is placed on Mohd. Farrukh Abdul Gaffur and other v. State of Maharastra JT 2009 (11) 47 and Zora Sheikh's case while deciding the bail application No. 164/2007 on October 23, 2007.
6. On the other hand, learned counsel appearing for the accused persons raised the following contentions:
(i) That accused Judge Chawla had not committed any fraud in case FIR No. 938/04 as in the civil dispute the Court of learned Additional District Judge held that the amount of ` 5.00 lac was not refundable, thus dismissed the suit of complainant Arun Khanna which was upheld till the Supreme Court.
It was contended that the chargesheet in the said case does not pertain to the organized crime.
(ii) That in the case FIR No. 292/05 accused Judge Chawla had not
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State Vs. Judge Chawla & Shonika Chawla
gained any pecuniary benefit in the said case. It was submitted that Sharma Brothers had not filed any complaint against Judge Chawla. The alleged offence was committed in the year 2001 whereas FIR was lodged in 2005, this itself casts a doubt over the authencity of the complaint.
(iii) That qua case FIR No. 20/09 it was contended that Hon'ble High Court of Delhi had passed a judgment on July 28, 2010 and restrained Judge Chawla permanently not to claim any right, possession and to disturb the peaceful possession of the plaintiff i.e.Tanya Sharma of property No. 204 Kailash Hills, New Delhi. It was contended that as per the judgment Judge Chawla was not the owner of the property, thus he had not committed any offence punishable under MCOCA.
(iv) That the case FIR No. 12/06 under Section 323/341/506/427/34 IPC, FIR No. 246/06 under Section 342/506 IPC, FIR No. 247/07 under Section 345/345A/441 DMC Act, FIR No. 248/07 under Section 341/325/506/34 IPC and FIR No. 21/10 under Section 419/182/34 IPC, all registered at PS Rajinder Nagar do not attract the provisions of MCOCA.
(v) That Hon'ble Lt. Governor of Delhi in his order dated July 29, 2007 had held that 9 cases out of 15 cases have been registered between December 2005 to November 2007 at PS Rajinder Nagar and it appears that the said cases had been registered on the basis of complaints arising out of disputes between the appellant (Judge Chawla) and the impleading parties (Datt family) with regard to use of common area. Civil disputes are pending between both the parties in District Courts, Tis Hazari as well as in High Court of Delhi.
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(vi) That the conduct of Surojeet Banerjee shows that he is the
owner of first and second floor of 11B Rajinder Park and on the basis of decision of Courts, Judge Chawla cannot be held that he made benami transaction with regard to the said property. It was contended that Yukti Banerjee in her statement to the police stated that she would transfer the property No. M-53 in the name of Parveen Chopra in lieu of first and second floor of 11B Rajinder Park, thus it can not be said that Surojeet Banerjee was holding the property No. 11B Rajinder Park as benami property.
(vii) That Prem Dhanda had lodged a false FIR No. 33/09 under Section 420/468/471 IPC PS C.R. Park and in that case police had filed the closure report stating that Prem Dhanda had lodged a false case against Judge Chawla.
(viii) That Judge Chawla had lodged an FIR No. 421 under Section 420 IPC PS C.R. Park, in which Prem Dhanda is facing the trial.
(ix) That Prem Dhanda is also facing trial under Section 376 IPC in case FIR No. 63/04 PS Prashant Vihar.
(x) That as per the sanction order, total seven cases were pending against Judge Chawla. However, in four cases no challan has been filed, thus, these four cases do not qualify the condition of Section 2(1)(d) of MCOCA. It was submitted that in remaining three cases there is no allegation of organized crime.
(xi) That though prosecution alleged that Rajiv Behl, Rajiv Gupta and
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State Vs. Judge Chawla & Shonika Chawla
Parveen Chopra were the accomplices of Judge Chawla, yet no action has been taken against them till date. On the contrary, Rajiv Behl and Rajiv Gupta have been cited as witnesses.
(xii) That there is no evidence that Parveen Chopra was the henchman or associate of Judge Chawla.
(xiii) That reliance has been placed on judgments namely Ranjit Singh Brahamjeet Singh Sharma v. State of Maharastra, 2005 (5) SCC 294, State of Maharastra and others v. Lalit Som Datta and others, Shebahadur Akram Khan and others v. State of Maharastra, Madan Gangwani v. State of Maharastra and State of Maharastra v. Bharat Baburao Gavhane and others.
7. Learned counsel appearing for accused Shonika Chopra has raised the following contentions:
(i) That the three cases bearing FIR No. 12/06 under section 323/341/506/427/34 IPC, FIR No. 248/07 under section 341/325/506/34 IPC and FIR No. 107/09 under section 341/452/448/506 IPC do not attract the provisions of MCOCA.
(ii) That the case of Shonika Chopra does not qualify the pre-
requisite condition of section 2(1)(d) of MCOCA.
(iii) That Shonika Chopra has been impleaded in this case with dishonest intention as no sufficient time was given to the accused to explain SC No. 09/10 Page no. 23 of 49 State Vs. Judge Chawla & Shonika Chawla her version.
(iv) That the investigating officer had not acted fairly as he had calculated the debit and credit entries to exaggerate the transactions made in the bank account.
(v) That Shonika Chopra was accused with Judge Chawla in case FIR No. 87/09 but in the said case, matter was settled with the complainant before filing the chargesheet. In other matters, Shonika Chopra was not accused with Judge Chawla.
(vi) That there is no evidence to establish that accused Shonika Chopra was involved in the commission of organized crime in any manner.
8. Before proceeding 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.
(i) The statement of object and reasons of enacting MCOCA is:-
"Organised 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 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 being very huge, it has had serious adverse effect on our economy. It was seen that the organised 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 organised criminal gangs have been operating in the State and SC No. 09/10 Page no. 24 of 49 State Vs. Judge Chawla & Shonika Chawla 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.
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 organised 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 organised 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 organised crime, was on the increase and there was no effective law in the Maharashtra State to effectively control the organised crimes. Mumbai being the economic capital of India, it is a targetted 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 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.
(ii) Section 2(1)(e) defines "organized crime" and same reads as SC No. 09/10 Page no. 25 of 49 State Vs. Judge Chawla & Shonika Chawla under:
(e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised 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(1)(f) defines "organized crime syndicate" and same runs as under:
(f) "organised 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 organised crime;
Section 2(1)(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;
9. In case Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & others MANU/SC/0289/2010 it was held that :-
"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."
SC No. 09/10 Page no. 26 of 49 State Vs. Judge Chawla & Shonika Chawla
10. In the light of the above observation of the 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.
11. Learned Special Public Prosecutor has vehemently relied upon the Judgement Jaisingh v. State of Maharashtra (supra) in support of his contention that the person(s) who has already faced the trial or facing trial for the wrongs that he had committed in past, he can be again prosecuted on the basis of his previous involvements. I have carefully gone through the said Judgement.
12. In the aforesaid case, the constitutional validity of MCOCA was challenged on the ground that declaring the acts committed prior to its enforcement to be the offences under the said Act amounts violation of Article 20(1) of the Constitution of India. The contention raised by learned counsel was that only those offences which can be said to have been committed after February 24, 1999 can be taken into consideration for the purpose of the proceedings under the said Act as the said Act came into force from the said date and any act prior to the said date cannot be held to be an offence under the said Act in view of the clear provision in that regard in Article 20(1) of the Constitution. Para 8,9,18,19 and 20 are relevant and same are reproduced as under:
"8. The above definitions reveal that in order to accuse a person or the persons to have committed an offence of organised crime, he or they must be shown to have been involved firstly in any continuing unlawful activity; secondly, being a member of or acting on behalf of organised crime syndicate; thirdly, by way of unlawful means, including use of violence or threat of violence or intimidation or coercion and, fourthly, with the object of gaining SC No. 09/10 Page no. 27 of 49 State Vs. Judge Chawla & Shonika Chawla benefit either pecuniary or undue economic or other advantage for himself or other person, and fifthly, promoting insurgency. As far as "continuing unlawful activity" is concerned, it has to be an activity prohibited and punishable by law in force with imprisonment of three years or more and of cognizable nature as well as it should be as a member of or on behalf of the organised crime syndicate and further that at least two charge-sheets must have been filed in respect of such offences within the period of preceding ten years and the Court should have taken cognizance of such offences. A group of two or more persons indulging in the activities of organised crime either singly or collectively is called as an organised crime syndicate in terms of Section 2(f) as seen above.
9. The analysis of the definition of the organised crime, therefore, would reveal that continuing unlawful activity is one of its ingredients whereas in order to make an activity to be continuing unlawful one, it should disclose filing of minimum two charge-sheets in relation to the activity prohibited by law in force and of the nature specified in Section 2(d) during the period of preceding ten years. In other words, lodging of two charge- sheets in relation to the acts which are already declared under the law then in force as offences of the nature specified under Section 2(d) during the preceding period of ten years is one of the requisites for the offence of organised crime under the said Act.
18. Referring to the statute under consideration in the case in hand, neither the definition of the term "organised crime" nor of the term "continuing unlawful activity" nor any other provision therein declares any activity performed prior to 24-2-1999 to be an offence under the said Act nor the punishment provision relates to any offence prior to the date of enforcement of the said Act. Yet by referring to the expression 'preceding period of ten years' in Section 2(d) which is a definition clause of the term "continuing unlawful activity" inference is sought to be drawn that in fact it takes into its ambit the acts done prior to the enforcement of the said Act as being offences under the said Act.
SC No. 09/10 Page no. 28 of 49 State Vs. Judge Chawla & Shonika Chawla
19. There is lot of difference between the act or activity itself being termed or called as an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. The former situation has to satisfy the mandate of Article 20(1) of the Constitution; however, in case of latter situation, it stands on totally different footing. Undoubtedly, for the purpose of organised crime there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two charge-sheets are to be found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years. Undisputedly, the period of ten years may relate to the period prior to 24-2-1999 or thereafter. In other words, it provides that the activities which were offences under the law in force at the relevant time and in respect of which two charge-sheets have been filed and the Court has taken cognizance thereof, during the period of preceding ten years, then it will be considered as continuing unlawful activity on 24-2-1999 or thereafter. It nowhere by itself declares any activity to be an offence under the said Act prior to 24-2-1999. It also does not convert any activity done prior to 24-2-1999 to be an offence under the said Act. It merely considers two charge- sheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said Act. This by itself cannot be said to be in any manner violative of the mandate of Article 20(1) considering the law laid down by the Apex Court in Rao Shiv Bahadur Singh's case as well as in Sajjan Singh's case.
20. As regards the second submission pertaining to the reading down of Section 2(d) in relation to the expression 'preceding period of ten years' to be effective or to commence from 24-2-1999, if accepted virtually amounts to reading something in the said provision of law which is not intended by the Legislature, and thereby it would virtually amount to defeat the very purpose of the said Act itself, apart from the fact that it is settled law that once the contention about unconstitutionality of the provision of law is rejected, question of reading down the same provision does not arise......"
(emphasis supplied) SC No. 09/10 Page no. 29 of 49 State Vs. Judge Chawla & Shonika Chawla
13. From the above, it becomes abundantly clear that question raised by learned Special Public Prosecutor was not dealt with in any manner. The issue discussed in the said judgment was totally diffferent. However, it becomes crystal clear that the conditions enumerated in Section 2(1)(d) of MCOCA is only one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said Act. The previous charge-sheets cannot be the sole criteria to invoke the stringent provisions of MCOCA.
14. Learned Special Public Prosecutor also vehemently relied upon the Judgment Om Prakash Srivastav v. State of Delhi, 2009 (164) DLT 218. I have perused the said judgment carefully and found the issue involved in the said Judgment was "Whether the act/offence committed prior to the coming into force of MCOCA can be taken into account for prosecution under Section 3(1) of the said Act?" The view taken in Jaising's case (supra) was affirmed, thus, the abovesaid case is also not helpful to the prosecution to establish that a person can be tried under MCOCA on the basis of his previous involvements.
15. Learned Special Public Prosecutor vigorously relied upon the judgment Jagmohan @ Mohar Singh v. Commissioner of Police 2007 (1) JCC 292. I have perused the said judgment carefully, the issue before the Court was "What is material for this Court to see whether the FIR under MCOCA has been validly recorded and whether on the basis of the allegations against the petitioners the offence under Section 3 of MCOCA is made out." In the said case, it was contended that only those cases should be SC No. 09/10 Page no. 30 of 49 State Vs. Judge Chawla & Shonika Chawla considered under section 2(1)(d) of the MCOCA where Court has taken conginizance and are pending before the competent court for trial. It was argued that the cases, which had already decided should not be considered to invoke the provisions of MCOCA. The paragraphs 15,16,20,21,31 and 32 of the Judgment are relevant and reproduced as under:
"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 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.
SC No. 09/10 Page no. 31 of 49 State Vs. Judge Chawla & Shonika Chawla 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 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 SC No. 09/10 Page no. 32 of 49 State Vs. Judge Chawla & Shonika Chawla 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 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)
16. Thus, the aforesaid judgment is also not helpful to the prosecution to establish prima-facie that the stringent provisions of MCOCA can be used against the persons on the basis of his previous involvements. Rather the abovesaid judgments illuminate that the previous criminal activities is the one of the requisities to invoke MCOCA and not the sole criteria as contended by learned Special Public Prosecutor.
17. On the basis of law laid down in Govind Sakharam Ubhe v. State of Maharashtra 2009 ALL MR (Cri) 1903, learned Special Public Prosecutor strenuously conteded that when two or more persons form a gang or syndicate in order to commit organized crime and the task of the gang or syndicate is being undertaken by an individual singly on behalf of the gang or SC No. 09/10 Page no. 33 of 49 State Vs. Judge Chawla & Shonika Chawla syndicate, then the activity of that individual will be treated as the activity of the syndicate. Accordingly, it was conteded that accused Judge Chawla had formed a gang or syndicate with his co-accused Shonika Chopra and Parveen Chopra. It was urged that accused Judge Chawla on behalf of this syndicate or gang continued with the commission of offences by using violence or other unlawful means with the sole objective of gaining pecuniary benefits for himself or for other associates. It was further contended that accused Shonika Chopra either helped the accused Judge Chawla in the commission of crime or facilitating him by eliminating the victims of crime by impleading them in false criminal cases. It was argued that name of Parveen Chopra appeared in all the transactions.
18. Before proceeding with the submissions of learned Special Public Prosecutor, I deem it appropriate to recaptulate the observations made in Govind Sakharam Ubhe's case (supra).
19. Relevant facts of the said case are enumerated in para 27, same is reproduced as under:
"27. Gist of statement of Mr. `X'.:
The appellant who is cable distributor/operator is known to him personally. Every month a meeting is convened of cable operators. In such meetings business activities and other consequential matters are discussed for redressal of grievances of the cable operators. From 28/4/2005 he was receiving threatening calls from one Ravi Pujari. An amount of Rs.50 lakhs was demanded from him as extortion amount., The said extortion amount was to be paid to Guru Satam. He was given threats of dire consequences if the amount was not paid. In the meeting held in May 2005 he disclosed the above facts to all business colleagues. At that time the appellant whom he personally knows was present. The appellant told him that he SC No. 09/10 Page no. 34 of 49 State Vs. Judge Chawla & Shonika Chawla knew a relative of Guru Satam personally. Two to three days after the said meeting the appellant told him to come to a particular place. Around 7 p.m. in the evening he along with his another business friend reached that place. The appellant was present there. The appellant dialed someone and 15 to 20 minutes thereafter two unknown persons came on the motorcycle. The appellant introduced them to him as Bhushan Satam s/o Guru Satam and Sachin Shetye a relative of Guru Satam. He apprised Bhushan Satam about the phone calls which he had received from Guru Satam. He told Bhushan Satam that the extortion amount was quite large and out of his reach. Thereafter Bhushan Satam and Sachin Shetye talked to Guru Satam and Guru Satam insisted for payment of certain amount. He expressed inability to pay even that amount. He told them the amount which he could pay. Bhushan Satam then said that he should keep that amount ready with him within two days. Two days after that meeting at around 5 p.m. the appellant phoned him and asked him to reach near a particular place and hand over the agreed amount to Bhushan Satam for onward payment to Guru Satam. Accordingly he packed the amount in bundles and along with his friend reached that place at about 8 p.m. The appellant was present there. He gave the said amount to the appellant for handing it over to Bhushan Satam and Sachin Shetye. He did not receive any threatening calls thereafter. "
"29. The irresistible, prima facie, conclusion from the above statements is that the appellant intimately knows the son and a relative of Guru Satam. This is evident from the fact that he was confident that he would settle the extortion amount. He, therefore, took lead in settlement talks. His intimacy with Guru Satam gang is evident from the fact that within 15 minutes of his dialing the son and relative of Guru Satam, they came to the agreed place. The appellant was present when the extortion amount was settled. The appellant was present when the extortion amount was to be handed over. In fact he took that amount from Mr. `X' and through Guru Satam's son and relative he handed it over to Guru Satam. That the money reached Guru Satam is prima facie evident from the fact that Mr. `X' stopped receiving threats thereafter.
30. Prima facie, it is difficult to accept the story of the appellant that he merely wanted to help Mr. `X'. The appellant's intimacy SC No. 09/10 Page no. 35 of 49 State Vs. Judge Chawla & Shonika Chawla with Guru Satam's son, his being present at the time of settlement of extortion amount and at the time of handing over the said amount cannot be lightly brushed aside. It is difficult to digest prima facie the appellant's case that he merely wanted to help Mr. `X'. If that was so, he could have merely introduced Mr. `X' to right persons. There was no need for him to play such active role. The fact that after the money was paid Mr. `X' stopped receiving threats is important. Thus, prima facie, it appears that the appellant is a member of the organized crime syndicate of Guru Satam and is connected with its activities of collecting extortion amount by giving threats. We prima facie also feel that charge of abetment is rightly framed . It is true that in Ranjitsingh Sharma's case the Supreme Court has reiterated that it is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment. Prima facie, we feel that by taking part in the negotiations of extortion amount and by taking charge of the extortion amount and handing it over to Guru Satam's son so that it reaches Guru Satam, the appellant has intentionally aided the commission of the crime. He has actively participated in the crime. The argument of Mr. Desai that offence of abetment is not made out must, therefore, fail."
(emphasis supplied)
20. In para 35, Court discussed Section 2(1)(d) of the Act and same is reproduced as under:
35. It is now necessary to go to the definition of `continuing unlawful activity'. Section 2(1)(d) defines `continuing unlawful activity' to mean 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 organized crime syndicate or on behalf of such syndicate in respect of which more than one charge-
sheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a `continuing unlawful activity' - a) the activity must be prohibited by law; b) it must be a cognizable offence punishable with imprisonment of three years or more; c) it must be undertaken singly or jointly; d) it must be undertaken as a member of an organized crime syndicate or on SC No. 09/10 Page no. 36 of 49 State Vs. Judge Chawla & Shonika Chawla behalf of such syndicate; e) in respect of which more than one charge-sheet have been filed before a competent court.
36. The words `in respect of which more than one charge-sheet have been filed' cannot go with the words `a member of a crime syndicate' because in that case, these words would have read as `in respect of whom more than one charge-sheet have been filed'.
37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines `continuing unlawful activity' sets down a period of 10 years within which more than one charge- sheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished 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 fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the `organized crime syndicate' is the crux of the term `continuing SC No. 09/10 Page no. 37 of 49 State Vs. Judge Chawla & Shonika Chawla unlawful activity'. If this link is not established, that person cannot be roped in."
21. It is limpid from the above judgment that if a person is a member of organized crime syndicate and in preceding ten years one charge-sheet has been filed in respect of organized crime against any member of such syndicate, then said charge-sheet can be used against the another member also who commits an offence on behalf of such syndicate, thus will be liable for stringent provisions of MCOCA though only one case is registered against him.
22. Prosecution case is that accused Judge Chawla had formed a gang or syndicate with Shonika Chopra and Parveen Chopra and accused Judge Chawla had committed the offence on behalf of such gang or syndicate. Thus, as per the submission of learned Special Public Prosecutor the charge-sheets filed against the accused Judge Chawla can be used against the other two members; similarly the charge-sheets filed against the other members can also be read against accused Judge Chawla.
23. But I am feeling difficulty in digesting the contention that Parveen Chopra was one of the members of the said syndicate or gang because in the charge-sheet it is mentioned at page no. 47 that the involvement of Parveen Chopra etc as associates is being investigated and after collecting appropriate evidence and approval under Section 23(1) MCOCA from the competent authority, supplementary charge sheet under Section 173(8) Cr.P.C. will be filed against the accused persons. In other words, till the filing of charge-sheet, there was no evidence with the investigating agency to show even prima-facie that Parveen Chopra was one of the members of the alleged SC No. 09/10 Page no. 38 of 49 State Vs. Judge Chawla & Shonika Chawla gang or syndicate. The present FIR was registered in the year 2009, now we are in 2012. In other words during the last three years, investigatging agency failed to file supplementary charge-sheet showing that Parveen Chopra was one of the members of alleged syndicate or gang. As per submissions raised by learned Special Public Prosecutor the charge-sheets filed against one member of the gang can be used against another member provided it is established they another person was member of the gang. It means that the charge-sheets filed against the accused Judge Chawla and Shonika Chopra can be used by the prosecution against Parveen Chopra to invoke the stringent provisions of MCOCA. Despite that investigating agency has not filed any charge-sheet against him. In these circumstances, only one inference can be drawn that investigating agency has no evidence to establish prima-facie that Parveen Chopra was one of the members of alleged gang or syndicate. Needless to say that prosecution can not be allowed to sail in two boats i.e. by taking the plea that Parveen Chopra was member of gang or syndicate and simultaneously that they have not filed the supplementary charge-sheet against him for want of evidence. In the absence of any cogent evidece, I do not find any substance in the submission of learned Special Public Prosecutor that Parveen Chopra was one of the members of alleged gang or syndicate.
24. As per the charge-sheet filed by the prosecution, in case FIR No. 66/08 under Section 406/420/120B IPC, Parveen Chopra was co-accused with Judge Chawla, but in the said case no charge-sheet was filed because the matter was compromised between the parties and said FIR was quashed by the High Court of Delhi on August 25, 2008. Since, no competent Court had taken the cognizance in the matter, said case cannot be used to invoke the stringent provisions of MCOCA.
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25. Now coming to the question as to whether accused Judge Chawla and Shonika Chopra had formed a gang or syndicate as contended by learned Special Public Prosecutor?
26. To make out a prima-facie case that they formed a gang or syndicate, prosecution has relied upon 11 charge-sheets filed against the accused Judge Chawla during the period 2001 to 2009 and four kalandras filed during the period 2005 to 2007. Needless to say that the kalandras cannot be a ground to invoke the stringent provisions of MCOCA, thus no significance can be given to the kalandras filed against the accused Judge Chawla. Out of the 11 charge-sheets filed against the accused Judge Chawla, Shonika Chopra was co-accused only in three cases i.e FIR No. 12/06 under Section 323/341/506/427/34 IPC, FIR No. 248/07 under Section 341/325/506/34 IPC and FIR No. 87/09 under Section 420/120B IPC, all registered at PS Rajinder Nagar. In first two cases Datt family was the complainant whereas in the third case Mr. G. Gehani was the complainant.
27. Now, I proceed to analysis these three cases to find out whether these cases are sufficient to make out a prima-facie case that accused Judge Chawla and Shonika Chopra formed a gang or syndicate.
28. The allegations against accused Judge Chawla and Shonika Chopra in case FIR No. 12/06 as enumerated in charge-sheet are that when complainant had come back to his house after attending the civil matter pending in the High Court of Delhi, accused Shonika Chopra and Judge Chawla assaulted the complainant and had beaten him, consequently, complainant fell down and sustained injury on his hand and back. When the SC No. 09/10 Page no. 40 of 49 State Vs. Judge Chawla & Shonika Chawla mother and wife of the complainant tried to rescue the complainant, both the accused assaulted them also. When Varun Datt tried to intervene, accused Judge Chawla assaulted him, consequently, he sustained injury in his middle finger. It was alleged that accused Judge Chawla started abusing them and also threatened them to kill and their family members, if anything happened to his building. After conducting the investigation, police filed the charge- sheet against both the accused persons for the offence punishable under Section 323/341/427/506/34 IPC.
29. From the cursory reading of the charge-sheet reveals that the cause of said incident was that accused persons had apprehension in their mind that their property was in endanger from compalinant as complainant had filed some litigation against their property in High Court of Delhi. Thus, the alleged incident had taken place in order to protect their property and not to grab the property of complainant's party. Moreover, all the offences mentioned in the charge-sheet except Section 506 IPC are summons triable where the maximum punishment is up to two years imprisonment. On perusal of the allegations levelled in the charge-sheet, I am of the considered opinion that the said incident does not fall within the four corners of Section 2(1)(d) of the MCOCA, thus the said incident is not suffice to make out a prima-facie case that accused Judge Chawla and Shonika Chopra formed a gang or syndicate as argued by learned Special Public Prosecutor.
30. In case FIR No. 248/07, police had filed the charge-sheet against accused Judge Chawla for the offence punishable under Section 341/325/506 IPC and filed a kalandra against accused Shonika Chopra for the offence punishable under Section 506 IPC as at that time the said offence was non-cognizable vide notification No. F8/22/2004/HP/II/1617-1623 dated SC No. 09/10 Page no. 41 of 49 State Vs. Judge Chawla & Shonika Chawla March 31, 2004. Since, a kalandra was filed against accused Shonika Chawla in a non-cognizable offence, thus the said Kalandra can not qualify the conditions as enumerated in Section 2(1)(d) of the MCOCA, hence said Kalandra is not sufficient to show prima-facie that accused Judge Chawla had formed a gang or syndicate with Shonika Chopra.
31. Now coming to the allegations levelled in the said charge-sheet against accused Judge Chawla. As per allegations enumerated in the charge- sheet that the previous wife of Judge Chawla named Sangeeta Chawla visited the house of accused Judge Chawla and quarreled with him. Accused Judge Chawla believed that Datt family was behind the said quarrel and due to that reason accused Judge Chawla had assaulted the complainant when he was coming back from morning walk and in the said incident, complainant had sustained fracture in his arm. I am unable to understand how this incident qualifies the conditions mentioned in Section 2(1)(d) of MCOCA. To my mind, said incident is neither qualifies the conditions of Section 2(1)(d) of MCOCA nor is sufficient to form a prima-facie case that accused Judge Chawla and Shonika formed a gang or syndicate to commit organized crime.
32. Now coming to the case FIR No. 87/09 under Section 420/120B IPC. Investigating officer has only filed the copy of FIR and not the charge- sheet because the said FIR was quashed by the High of Delhi on October 15, 2009. Since, the competent Court had not taken cognizance in the said matter, thus the same cannot be used to invoke the stringent provisions of MCOCA. Needless to say that under Section 2(1)(d) of the MCOCA, only those cases fall wherein the Court had taken the cognizance.
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33. From the above, it is elucidated that the said three cases neither fall withing the four corners of Section 2(1)(d) of MCOCA nor suffice to make out a prima-facie case that accused Judge Chawla had formed a gang or syndicate with Shonika Chopra to commit organized crime.
34. To make out a prima-facie case of gang or oranized crime syndicate of accused Judge Chawla and Shonika, learned Special Public Prosecutor astutely contended that accused Shonika Chopra had lodged a false criminal case against the Datt family for the offence punishable under Section 323/354/506 IPC PS Rajinder Nagar. It was submitted that accused Shonika had also lodged a false case of rape against Prem Dhanda vide FIR No. 63/03 PS Prashant Vihar.
35. It is admitted case of prosecution that the cancellation report in case FIR No. 63/03 under Section 376/34 IPC was not accepted by the Court as Court had taken the cognizance in the matter. Once, the competent Court declined to accept the cancellation report, this Court cannot take any adverse view against the accused Shonika Chopra on the basis of alleged cancellation report. Moreover, from the proceeding recorded in the said case reveals that after the case was committed to the Court of Sessions, accused had moved an application for bail, which was vehemently opposed by the learned Public Prosecutor for the State and also contended that since the learned Metropolitan Magistrate had not accepted the cancellation bail, accused cannot be released on bail. Accordingly, the bail application was rejected. Prosecution can not change its stand as per their convenience, if they believed that accused had been falsely implicated in the rape charges, why prosecution had opposed the bail application. Since, in the present case, cancellation report may help the prosecution to show nexus between the SC No. 09/10 Page no. 43 of 49 State Vs. Judge Chawla & Shonika Chawla accused Judge Chawla and Shonika, prosecution intends to place reliance on the cancellation report but when accused Prem Dhanda sought bail on the basis of said cancellation, prosecution opposed the same arguing that since Court rejected the cancellation report, accused cannot take the benefit of the same. Such paradoxical stand does not help the prosecution, rather it creates a question mark on the credibility of the prosecution. As already stated that since Court rejected the cancellation report, this Court cannot take any adverse view against the accused Shonika Chopra on the basis of alleged cancellation report.
36. No doubt in case FIR No. 13/06 under Section 323/354/506 IPC PS Rajinder Nagar, police had filed the cancellation report and same was accepted by the Court of learned Metropolitan Magistrate. But the manner in which the said cancellation is accepted is not appreciable. It is admitted case of the prosecution that Shonika Chopra has been living in relation with the accused Judge Chawla and she also used the name of Sangeeta Chawla i.e.first wife of Judge Chawla. Thus, it was in the knowledge of investigating agency that Shonika Chopra @ Sangeeta Chawla is the same person and the said FIR was got lodged by Shonika Chopra and not by the first wife of Judge Chawla i.e. Sangeeta Chawla. Despite that police had produced Sangeeta Chawla before the Court of learned Metropolitan Magistrate instead of Shonika Chopra. Since, Sangeeta Chawla stated before the Court of learned Metropolitan Magistrate that she had not lodged the said FIR, Court of learned Metropolitan Magistrate accepted the cancellation report. The question why the police had not produced Shonika Chopra before the Court of Metropolitan Magistrate when they knew that the said FIR was got lodged by Shonika Chopra @ Sangeeta Chawla and not by Sangeeta Chawla, first wife of Judge Chawla. Moreever, to my mind that the said cancellation report is not SC No. 09/10 Page no. 44 of 49 State Vs. Judge Chawla & Shonika Chawla helpful to the prosecution to show prima-facie that accused Judge Chawla and Shonika Chopra had formed a gang or organized crime syndicate as contended by learned Special Public Prosecutor.
37. Learned Special Public Prosecutor further vigorously contended that whenever accused Judge Chawla fell within the clutches of law enforcing agency, Shonika Chopra came forward to rescue him by arranging the settlement amount. It was submitted that Shonika Chopra had arragned huge amount at least at three occasions for quashing of the FIRs against Judge Chawla.
38. As revealed from the charge-sheet that the FIR in three cases i.e. FIR No. 233/01 under section 420/467/468/471/120B IPC, FIR No. 68/08 under section 406/420/120 IPC PS EOW and FIR No. 87/09 under section 420/120B PS Rajinder Nagar were quashed qua accused Judge Chawla as he had paid the money involved therein along with interest to the victims. Prosecution case is that in the said cases the amount was arranged by Shonika Chopra. It is admitted case of the prosecution that when the FIRs were quashed, accused Judge Chawla was in custody and accused Shonika Chopra has interest in Judge Chawla. Though prosecution claimed that she is not the legally wedded wife of Judge Chawla, yet it is admitted case of prosecution that she has living relation with Judge Chawla and she has a son from Judge Chawla. In other words, accused Shonika Chopra had interest in the liberty or well fare of accused Judge Chawla. Thus, if she arranged money to secure the release of Judge Chawla, it will be unfair on the part of investigating agency to consider her said act as an act of facilitator in the commission of organized crime. Thus, to my mind said act is not sufficient enough either to form a gang or organized crime syndicate.
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39. Condering the aforegoing discussion, I am of the conidered opinion that prosecution has failed to establish prima-facie that accused Judge Chawla had formed a gang or organized crime syndicate with Shonika Chopra.
40. To invoke section 2(1)(e) of MCOCA, prosecution has to show prima-facie that accused Judge Chawla had committed the continuing unlawful activity either as a member of an organized crime synidcate or on behalf of such syndicate.
41. Oranized Crime Syndicate has been defined under section 2(1)
(f) of MCOCA, it means a group of two or more persons who acting either singly or collectively as a syndicate or gang indulging in the activities of organized crime. Thus, at least two persons are required to form a gang or syndicate.
42. But in the instant case, prosecution has failed to establish prima- facie that accused Judge Chawla had formed a gang or organized crime syndicate either with Parveen Chopra or Shonika Chopra. Unless prosecution qualifies this condition, prosecution cannot invoke Section 2(1)(e) of MCOCA against the accused persons.
43. Since, the prosecution has failed to establish prima-facie a gang or organized crime syndicate, this Court can rest its pen. However, I proceed with the matter. Admittedly, prosecution has invoked the stringent provisions of law against the accused Judge Chawla on the basis of his previous involvements as mentioned in page no. 14 & 15 of the charge-sheet. As per SC No. 09/10 Page no. 46 of 49 State Vs. Judge Chawla & Shonika Chawla charge-sheet, accused Judge Chawla is involved in 11 matters. Out these 11 matters, 7 matters pertain to cheating and forgery. Out these 7 matters, three matters had already been quashed as matter was compromised with the complainants. But the real question is as to whether MCOCA can be invoked on the basis that accused is involved in various cheating matters. This question was answered by the Apex Court in Ranjitsing Brahamjeetsingh v. State of Maharashtra 2005 Cr.LJ 2533 relevant portion is reproduced as under:
"........An 'organised crime syndicate' refers to an 'organised crime' which in turn refers to 'continuing unlawful activity'. As at present advised, it may not be necessary for us to consider as to whether the words "or other lawful means" contained in Section 2(e) should be read "ejusdem generis"/ "noscitur-a-sociis" with the words (i) violence, (ii) threat of violence, (iii) intimidation or
(iv) coercion. We may, however, notice that the word 'violence' has been used only in Section 146 and 153A of the Indian Penal Code. The word 'intimidation' alone has not been used therein but only Section 506 occurring in Chapter XXII thereof refers to 'criminal intimidation'. The word 'coercion' finds place only in the Contract Act. If the words 'unlawful means' is to be widely construed as including any or other unlawful means, having regard to the provisions contained in Sections 400, 401 and 413 of the IPC relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by the Parliament.
The Statement of Objects and Reasons clearly state as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression 'any unlawful means' must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Indian Penal Code and other penal statutes providing for punishment of three years or more and in relation to such offences more than one SC No. 09/10 Page no. 47 of 49 State Vs. Judge Chawla & Shonika Chawla chargesheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA.
(emphasis supplied)
44. In view of the law laid down in Ranjitsing's case (supra), I am of the view that the stringent provisions of MCOCA cannot be invoked against the accused persons merely on the ground that accused Judge Chawla had previously involved in multiple cheating and forgery cases as the same is against the object of enactment of the Act.
45. Learned Special Public Prosecutor has relied upon certain judgments such as Shiv Murat Dwivedi v. State decided by the High Court of Delhi on March 26, 2012 in CRL. M.C. No. 4341/2011, John D'Souza v. Assistant Commissioner of Police decided by High Court of Mumbai on April 30, 2007 in Crl. W.P. No. 147/2007, Chenna Boyanna Krishna Yadav v. State of Maharashtra 2007 Cri LJ 782, State of Maharashtra v. Vashistha Rambhau Andhale 2007 Cri LJ 4303. I have perused the said judgments carefully, but to my mind said judgments are not relevant in the facts and circumstances of the case in hand. At the cost of reptition, I deem it appropriate to remind the prosecution that it has failed to establish prima-facie that accused persons had formed any gang or organized crime syndicate as claimed in the charge-sheet. Moreover, the above judgments do not overrule the ratio of Ranjitsing's case (supra) wherein it was held that the mere a person commits cheating or criminal breach of trust more than once is not suffice to invoke the stringent provisions of MCOCA.
46. Since prosecution has failed to establish prima-facie that accused persons were either member of a gang or organized crime syndicate SC No. 09/10 Page no. 48 of 49 State Vs. Judge Chawla & Shonika Chawla or were acting on behalf of such gang or syndicate, provisions of section 4 of MCOCA can not be invoked against them as there is nothing on record to show that accused were holding the alleged wealth either being the member of a gang/organized crime syndicate or on behalf of any member of such gang or syndicate.
47. Pondering over the ongoing discussion, I am of the opinion that prosecution has failed to make out a prima-facie case against the accused persons for the offences punishable under Sections 3(2), 3(4) and 4 of MCOCA, thus I hereby discharge both the accused persons thereunder. Since, the remaining offences qua accused Judge Chawla are exclusively triable by the Court of Metropolitan Magistrate, case qua accused Judge Chawla is remanded back to the Court of learned Chief Metropolitan Magistrate for further trial in accordance with the law.
Announced in the open Court
On this 29th day of May 2012 (PAWAN KUMAR JAIN)
Additional Sessions Judge-01,
Central, THC, Delhi
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