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Fir No. 92/08; State vs . Mahabir Singh Etc. Page 1 Of 78 on 30 September, 2014

IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS 
                               JUDGE­03:NW:ROHINI:DELHI


SESSIONS CASE NO. 03/08

                                                            FIR No.    92/08
                                                            P.S.       Swaroop Nagar 
                                                            U/S:       3 & 4 MCOC Act
  
STATE 
                                                   Versus

(1) Mahabir Singh 
s/o Sh. Banta Ram 
r/o J­1674, Jahangirpuri
Delhi

(2) Kuldeep Tokas
s/o Sh. Rizak Ram Tokas,
r/o E­142, DCM Colony,
Ibrahim Pur, Delhi

(3) Mansa Ram Sisodiya
s/o late Sh. Chanderbhan
r/o G­10, Ph­2, Gali no. 10, 
Sharadanand Colony, Delhi

(4) Chokhe Lal
s/o Sh. Chiranji Lal
r/o G­307, 

FIR  No.  92/08; State Vs.  Mahabir Singh Etc.                                    Page 1 of 78
 Jahangirpuri, Delhi

(5) Virender
s/o Mansa Ram
r/o G­10, Gali no. 10,
Ph­II, Shradhanand Colony, Delhi
(6) Jagbir Singh
s/o Sh. Shiv Charan,
r/o Vill. Nanpur, 
PS Garh Mukteshwar, UP
Pre. Add: E­771, Gali no. 3,
Nathupura, Delhi

(7) Narender Singh Bhati
s/o Sh. Harlal Singh
r/o H. No. 123, Main Road,
village Gopalpur, Delhi

(8) Jaipal @ Chaudhary
 s/o Banwari Lal
 r/o C­7, Gali no. 27, 
 Mahendra Park, 
 Jahangirpuri, Delhi
   nd
 2    Add
         : 
 B­725, Jahangirpuri, Delhi

Date of Institution:                               27­08­2008
Date of arguments:                                 18­09­2014
Date of judgement:                                 30­09­2014

JUDGMENT

FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 2 of 78

1. The case of the Prosecution, in brief, is that an information was received that notorious criminal of Garh Mukteshwar, UP namely Jagbir Singh had taken shelter in the area of Nathu Pura Burari, Delhi and was operating in the area of PS Swaroop Nagar and S. P. Badli. Jagbir Singh developed a crime syndicate and doing the crime of land grabbing, preparing false documents of plot/ land in the name of his associates and forcibly put them into the plot and compounding the matter between the parties after getting huge amount of money. Inspector Daya Nand Singhal, SHO, PS Swaroop Nagar was directed to develop this information and it was revealed that on 20­10­2007, Jagbir Singh along with Narender Bhati and Arjun Singh were arrested in case FIR no. 33/07, PS Swaroop Nagar u/s 452/323/506/34 IPC in a land grabbing case. This case was registered on the complaint of Avdesh Singh that there was a plot measuring 50 sqr. yards adjacent to his house on which a room and boundary wall was built up by his friend Megh Singh. About 15 days ago Jagbir Singh came to his house and asked him to vacate the said plot to grab the same. Avdesh Singh told him that he would ask Megh Singh to contact him. Jagbir Singh got annoyed and left the place angrily. On 07­10­2007 FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 3 of 78 at about 10 pm, Jagbir Singh, his cousin Narender Bhati and one Arjun Singh came to the plot and entered forcibly in his house and attacked him with iron rod and lathi. They beat Avdesh Singh and his son Gaurav bitterly and Jagbir Singh threatened him that if he did not vacate the plot, he would shoot him and then all the three persons left the place in an Indica car bearing no. HR49C­3672. Thereafter, case FIR no. 33/07 was registered and all three accused were arrested and Indica car was recovered and seized. After completion of investigation, challan was filed in the court and cognizance was taken. After obtaining bail, Jagbir Singh again started his gang of land grabbers and on 30­01­2008 when he along with his associates were trying to demolish the boundary wall of a plot measuring 1312 sq. yards on Khasra Nos. 1052 & 1059, village Kadipur, he prepared false documents of the said plot to grab it and sold it to one Amit Kumar. A case FIR no. 29/08 u/s 420/467/471/120B IPC was registered against Jagbir Singh on the complaint of Praveen Yadav and Amit. On 31­03­2008, on the complaint of Hema Rani, case was registered against Jagbir and his associates vide FIR no. 65/08 u/s 420/468/471/120B IPC, PS Swaroop Nagar. During inquiry, Jagbir Singh and his associates were found involved in other cases also. The prosecution filed list of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 4 of 78 10 cash in Delhi and 14 cases in UP wherein accused Jagbir Singh and associates were involved.

2. It is also the case of prosecution that accused Jagbir Singh and his associates were members of an organized crime syndicate headed by Jagbir Singh and he along with his associates committed a series of serious offences and spread fear psychosis and terror in the minds of residents. The lists filed by the prosecution showed that unlawful activities of the accused Jagbir Singh were continuing with the help of his abettors and associates. Accused Jagbir along with his associates had created havoc in public in the area of Swaroop Nagar and Kadi Vihar. Accused Jagbir Singh was found to be enjoying lavishious lifestyle with the booty received in land grabbing and threatening. There were several cases of arms act, riots, attempt to murder, robbery, house trespass, criminal intimidation, hurt, cheating and forgery registered against him in UP and Delhi. Accused Jagbir was found involved in more than 20 criminal cases besides preventive actions and having wide network of vehicles being used for crime. Accused Jagbir earned a lot of money from criminal activities and a history­sheeter of Garh Mukteshwar (UP). The cases of PS Swaroop Nagar, Outer District amounted to organized crime committed by the members of an FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 5 of 78 organized crime syndicate and request for invoking section 3 & 4 of MCOCA, 1999 was made. During investigation, statement of witnesses were recorded and previous criminal record of associates of organized crime syndicate were collected and accused Kuldeep Tokas and Mansa Ram were arrested on 03­05­2008 and two days P/C remand of both accused were obtained. During police remand, accused made confession u/s 18 of MCOCA, 1999 before Sh. Devesh Chandra Srivastava, DCP/North Distt, Delhi. One another associate of Jagbir Singh namely Mahabir Singh was arrested and disclosure statement was recorded. Accused Mahabir Singh was an active member of this organized crime syndicate for pecuniary gains by grabbing lands and he was found involved in case FIR no. 635/99 u/s 447/34 IPC PS S. P. Badli and case FIR no. 291/02 u/s 420/468/471 IPC PS S. P. Badli. Accused Mansa Ram was an active member of this organized crime syndicate for pecuniary gains by grabbing lands and he was found involved in case FIR no. 99/07 u/s 336/506/427/201/34 IPC, PS S. P. Badli. Accused Kuldeep Tokas was found an active member of this organized crime syndicate and he was arranging the customers for head of the syndicate for purchase of grabbed lands. He was involved in the case of agreement to sale between Ms. Vijay Sharma and Jagbir FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 6 of 78 Singh. Statement of Ms. Vijay Sharma was also recorded wherein she stated that she runs a property dealer business in the name of Sadhbawana Associates in the area of Shalimar Bagh and Kadi Vihar, Delhi. She prepared an agreement to sell on 20­12­2006 in favour of Jagbir Singh situated in the area of village Kadipur, Delhi and she received advance money of Rs. 4 lacs from Jagbir Singh through Kuldeep Tokas, an associate of Jagbir Singh. They both told that balance amount would be paid later but Jagbir Singh and his associate Kuldeep Tokas did not pay balance amount and wanted to grab her land. Kuldeep Tokas was acting as mediator for Jagbir Singh in arranging the customer for Jagbir Singh and also grabbed the lands forcibly. The agreement papers were prepared by Kuldeep Tokas and signed as witness from the second party i.e. Jagbir Singh. During investigation, it was found that all three arrested accused persons were active members of organized crime syndicate and grabbed the land for syndicate. Criminal involvement of Jagbir Singh was also obtained from concerned police stations of his native place Garh Mukteshwar and Delhi and he was found involved in so many cases of land grabbing etc. Efforts were made to arrest Jagbir Singh and his other associates and NBWs were obtained against them. After completion of investigation, FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 7 of 78 chargesheet u/s 3 & 4 MCOCA, 1999 was filed against the accused Mahabir Singh, Mansa Ram Sisodiya and Kuldeep Tokas.

3. During investigation by Sh. Chander Mohan, ACP, DIU, Outer Distt., the role of five accused persons were ascertained i.e. accused Jagbir Singh, Chokhey Lal, Virender, Narender Singh Bhati and Jaipal @ Chaudhary. IO ACP Chander Mohan obtained NBWs against all five accused persons and thereafter proceeding u/s 82/83 Cr.P.C. were issued against them. Accused Chokhey Lal and Virender were arrested by the Crime Branch u/s 41.1 Cr.P.C. on 19­11­2008 and 20­11­2008 and their formal arrests were made in this case on 20­11­2008 and 21­11­2008. Confessional statements u/s 18 MCOCA of both accused were got recorded. The remaining three accused namely Jagbir Singh, Narender Singh Bhati and Jaipal @ Chaudhary were declared PO. During investigation, accused Chokhey Lal was found active member of organized crime syndicate for pecuniary gains by grabbing land/ plot and he was found involved in case FIR no. 291/02 u/s 420/468/471 IPC, PS S. P. Badli. Accused Virender was found an active member crime syndicate along with his father Mansa Ram already chargesheeted for MCOCA for pecuniary gains by assisting grabbing land/ plot. He was involved in case FIR no. 99/07 u/s 336/506/427/201/34 IPC & FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 8 of 78 25 Arms Act, PS S. P. Badli. Accused Jagbir Singh, Jaipal and Narender Singh Bhati were declared PO on 27­01­2009. Supplementary chargesheet was filed against accused Chokhey Lal and Virender u/s 3 & 4 of MCOC Act. Accused Jagbir Singh was arrested by Crime Branch u/s 41.1 Cr.P.C. on 17­05­2009 and his formal arrest in this case was made on 18­05­2009. Accused Jagbir Singh gave his confessional statement u/s 18 MCOC Act. Accused Jagbir Singh was found head of crime syndicate of organized crime for pecuniary gains by grabbing lands/ plots. He was found involved in 10 criminal cases in Delhi and 14 criminal cases in UP. Accused Narender Singh Bhati was arrested by Special Cell/ NDR u/s 41.1 Cr.P.C. on 28­06­2009 and his formal arrest was made in this case on 01­07­2009. His confessional statement u/s 18 MCOC Act was also recorded. Accused Jaipal @ Chaudhary was arrested by Crime Branch u/s 41.1. Cr.P.C. on 04­06­2009 and his formal search was made in this case on 04­06­2009 and his confessional statement u/s 18 MCOCA was recorded. It was established that all the chargesheeted accused persons were active members of organized crime syndicate who grabbed land/ plot for the syndicate. Supplementary chargesheet was filed against the remaining accused persons u/s 3 & 4 MCOCA.

FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 9 of 78

4. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 3 (2) of MCOCA 1999 was framed against the accused Narender Singh Bhati, Jaipal Singh @ Chaudhary; charge u/s 3 (1) of MCOCA, 1999 was framed against accused Jagbir Singh; charge u/s 3 (2) of MCOCA, 1999 was framed against the accused Mahabir Singh, Kuldeep Tokas, Mansa Ram Sisodia @ Mansa, Chokhey Lal and Virender and charge u/s 174A IPC was framed against the accused persons namely Jagbir Singh, Jaipal Singh @ Chaudhary and Narender Singh Bhati to which they pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution examined 45 witnesses. PW1 Sh. Dinesh Kumar Gupta, Add. DCP (East), Delhi in his testimony, exhibited the proposal for invoking provisions of MCOCA against accused Jagbir and his associates vide Ex. PW1/A. PW3 HC Yashpal in his testimony, exhibited the FIR no. 92/08 vide Ex. PW3/A and his endorsement on the rukka vide Ex. PW3/B. PW6 Sh. P. R. Meena, Joint Secretary, Security, Parliament House, in his testimony, exhibited the approval u/s 23 (1) (A) MCOCA vide Ex. PW1/A; his endorsement vide Ex. PW6/A and sanction u/s 23 (2) of MCOCA, 1999 given by him vide Ex. PW6/B. PW7 Ms. Vijay FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 10 of 78 Sharma, in her testimony, exhibited seizure memo regarding copy of agreement to sell and receipt as Ex.PW7/A; the photocopies of agreement to sell and receipt as Ex.PW7/B & Ex.PW7/C respectively and photocopy of cancellation document as Ex.PW7/D. PW8 Sh. Ajay Singh, Assistant Ahlmad, in his testimony, exhibited copy of order of cognizance taken against accused Mahabir Singh, Jagbir Singh and Jaipal Singh along with their other associate Charan Singh as Ex.PW8/A; copy of charge dt. 02.09.04 framed against the above accused as Ex.PW8/B, copy of the chargesheet against the above accused persons as Ex.PW8/C, copy of FIR no.635/99 PS SP Badli as Ex.PW8/D, copy of arrest memo of accused Mahabir Singh as Ex.PW8/F, body inspection memo of accused Jaipal Singh as Ex.PW8/G have been exhibited in the testimony of. Further, in the testimony of PW8, copy of order dt. 11.07.02 of taking cognizance against accused Mahabir Singh, Chokhe Lal, Jagbir Singh and their other associate Satish Chander in case FIR no. 291/02 PS S.P. Badli titled State Vs. Jagbir Singh etc. as Ex.PW8/H, copy of the charge dt. 08.10.2009 against the above accused persons as Ex.PW8/J, copy of chargesheet filed against above accused persons as Ex.PW8/K, copy of FIR no. 291/02 as ExPW8/L, arrest memo of accused Mahabir Singh as Ex.PW8/M, copy of arrest memo of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 11 of 78 accused Jagbir Singh as Ex.PW8/N and copy of arrest memo of accused Chokhey Lal as Ex.PW8/O have been exhibited. Further, in the testimony of PW8, copy of charge­sheet of FIR no. 127/03 PS SP Badli as Ex. PW8/X1 and cognizance order dt. 22.07.2003 as Ex. PW8/X2.

6. PW9 SI Jagir Singh, in his testimony, exhibited arrest memos and personal search memos of accused Kuldeep Tokas and Mansa Ram Ex. PW9/A to PW9/D. PW12 Inspector Ram Avtar, in his testimony, exhibited disclosure statements of accused Kuldeep Tokas and Mansa Ram as Ex. PW12/A and PW12/B; arrest, personal search and disclosure statement of accused Mahavir Singh as Ex. PW12/C to PW12/E. PW13 Retd. ASI Prem Singh in his testimony, exhibited certified copy of chargesheet against accused Mahabir Singh, Jai Pal Singh Singh and Jagbir Singh as Ex. PW13/A. PW15 Devesh Chandra Shrivastava (IPS), Addl. CP in his testimony exhibited the proceedings (preliminary questions) put to accused Kuldeep Tokas as Ex. PW15/A; confessional statement of accused Kuldeep Tokas as Ex. PW15/B; requisite certificate as per section 18 of MCOCA as Ex. PW15/C; proceedings (preliminary questions) put to accused Mansa Ram as Ex. PW15/D; confessional statement of accused Mansa Ram as Ex. PW15/E; requisite FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 12 of 78 certificate as per section 18 of MCOCA as Ex. PW15/F and application addressed to Ld. CMM for production of both accused and proceedings before Ld. CMM as Ex. PW15/G. PW16 SI Ravinder Singh, in his testimony, exhibited the certified copy of chargesheet as Ex. PW16/A and certified copy of cognizance order dated 01­03­2008 as Ex. PW16/B. PW17 SI Ram Niwas in his testimony exhibited certified copy of chargesheet of case FIR no. 99/07, PS Samaipur Badli as Ex. PW17/A and cognizance taken in the said case u/s 336/506/427/34 IPC r/w section 25 Arms Act as Ex. PW17/B. PW18 Sh. Sanjeev Jain, ASJ, Saket Courts, in his testimony, exhibited proceedings qua accused Kuldeep Tokas as Ex. PW18/A and proceedings qua accused Mansa Ram as Ex. PW18/B. PW19 Inspector Vivek Tyagi, in his testimony, exhibited the Kalendra u/s 41.1 Cr.P.C qua accused Jagbir Singh as Ex. PW19/A and Kalendra u/s 41.1 Cr.P.C. qua accused Narender Bhati as Ex. PW19/B. PW20 Sh. N. S. Bundela, Dy. Director, Bureau of Immigration, in his testimony, exhibited the application for recording confessional statement of accused Chokhe Lal as Ex. PW20/A; proceedings qua accused Virender as Ex. PW20/B; proceedings qua accused Chokhe Lal as Ex. PW20/C. PW21 Inspector Sanjeev Kumar Verma executed the process u/s 83 Cr.P.C. Qua the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 13 of 78 accused Narender Singh Bhati, Jaipal and Jagbir Singh and exhibited the arrest memo and disclosure statement of accused Chokhe Lal as Ex. PW21/A and PW21/B; arrest memo and disclosure statement of accused Virender as Ex. PW21/C and PW21/D. PW22 Sh. Jaspal Singh, Dy. Director, IB, in his testimony, exhibited proceedings qua accused Jagbir as Ex. PW22/A; his application addressed to Ld. CMM as Ex. PW22/B. PW23 Jaiveer Singh, Mauza Clerk, Record Room, Rohini, in his testimony, exhibited copy of chargesheet of FIR no. 99/07 as Ex. PW23/A; copy of cognizance order dated 19­05­2009 as Ex. PW23/B; copy of chargesheet of case FIR no. 308/99 as Ex. PW23/C and cognizance order dated 01­09­99 as Ex. PW23/D. PW24 Inspector Rajeev Shah, in his testimony, exhibited arrest memo of accused Narender Bhati as Ex. PW24/A.

7. PW25 ASI Pradeep, in his testimony, exhibited arrest memo and personal search of accused Jagbir Singh as Ex. PW25/PX1; PW25/PX2; arrest memo of accused Narender Singh Bhati u/s 41.1 Cr.P.C. vide Kalendra DD no. 9 as Ex. PW25/A. PW26 Ms. Kaveri Baweja, ASJ, Tis Hazari Courts, in her testimony, exhibited the confessional statement of accused Narender Singh Bhati as Ex. PW26/A. PW27 Ct. Laxmi Narayan, in his testimony, FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 14 of 78 exhibited the arrest memo and personal search memo of accused Jai Pal Singh as Ex. PW27/A and PW27/B. PW32 Retd. ACP Sh. Mahavir Singh Dahiya, in his testimony, exhibited disclosure statement of accused Jai Pal Singh as Ex. PW32/A. PW34 Naresh Kumar, Ahlmad, Rohini Court, in his testimony, exhibited the copy of FIR no. 65/08, PS Swaroop Nagar as Ex. PW34/A; copy of cognizance dated 18­07­2009 as Ex. PW34/B, copy of chargesheet framed against accused Jagbir as Ex. PW34/C. PW37 Inspector Ramesh Lamba, in his testimony, marked the arrest memo of accused Narender Singh Bhati as Mark PW37/Y and personal search as Mark PW37/Y. PW39 HC Inderjeet, in his testimony, exhibited arrest memo and personal search memo of accused Narender Singh Bhati as Ex. PW39/A and PW39/B. PW40 Jagvinder Mann, LDC, Record Room, in his testimony, exhibited the FIR no. 33/07 as Ex. PW40/A; copy of order dated 01­03­08 vide which cognizance was taken as Ex. PW40/B and copy of charge as Ex. PW40/C. PW41 SI Sanjeev Kumar Yadav, in his testimony, exhibited kalendra u/s 41.1 Cr.P.C. as Ex. PW41/A; DD no. 7 as Ex. PW41/B; arrest memo and personal search memos of accused Chokhe Lal as Ex. PW41/C and PW41/D; Kalendra as Ex. PW41/E; DD no. 2 as Ex. PW41/F; arrest and personal search memos of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 15 of 78 accused Virender as Ex. PW41/G and PW41/H. PW42 Ajay Singh, Ahlmad, in his testimony, exhibited order of taking cognizance as Ex. PW42/A; copy of charge as Ex. PW42/B and copy of FIR as Ex. PW42/C. PW43 Jagvinder Maan, LDC, in his testimony, exhibited order of taking cognizance as Ex. PW43/A; copy of charge as Ex. PW43/B and copy of chargesheet as Ex. PW43/C. PW44 Jaivir Singh, Mauja Clerk, in his testimony, exhibited order of taking cognizance in case FIR no. 99/07 as Ex. PW44/A; charge framed against accused as Ex. PW44/B and PW44/C; copy of chargesheet as Ex. PW44/D and copy of FIR as Ex. PW44/E. PW44, in his testimony, also exhibited order of taking cognizance in case FIR no. 635/99 as Ex. PW44/F; copy of charge framed as Ex. PW44/G and copy of chargesheet as Ex. PW44/H and copy of FIR as Ex. PW44/J. PW45 Sh. Gurbachan Singh, Dy. SP, Lakshdweep Police, in his testimony, exhibited application Ex. PW45/A for production of accused Chokhe Lal and Virender and submission of their confessional statement; his application Ex. PW45/B for permission to interrogate accused Jagbir; arrest memo of accused Jagbir Singh vide Ex. PW45/C; two days police custody of accused Jagbir on his application Ex. PW45/D.

8. Statements of all the accused persons were recorded u/s FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 16 of 78 313 Cr.P.C. therein they denied all the allegations made against them. All accused persons except accused Jagbir Singh opted not to lead defence evidence. Accused Jagbir examined DW1 Naresh Kumar, Ahlmad; DW2 Manoj Kumar, Ahlmad and himself as DW3 in his defence.

9. I have heard Ld. counsel and Ld. Amicus Curiae for all the accused persons and the Ld. APP for State and have perused the written synopsis/ arguments filed on behalf of accused Jagbir & Narender Bhati and also accused Jaipal and the entire records.

10. The Ld. Counsel and Ld. Amicus Curiae for the accused persons argued that PW1 was the author of the case for invoking MCOCA but no documents were placed on record for land grabbing against the accused persons and it was also not brought on record as to what was the level of satisfaction for invoking MCOCA against the accused persons. PW6 Sh. P. R. Meena who was Joint CP, Northern Range on 30­04­2008 is the most important witness. There was neither any complaint nor statement and there were no verifications against the accused persons. Even, no associates were defined. Further, no cognizance was taken. PW6 did not prove the measures of organized crime syndicate and he accorded the approval for three accused persons. The entire cross­ FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 17 of 78 examination of PW6 reveals that he was not aware about the case and he was nothing but a stamp and he adopted typical approach in this case. There was simple land dispute when the complainant sold it and there is no evidence of any pecuniary benefits. Moreover, the land which PW7 was claiming was Government land. Further, original agreement between PW7 and accused Jagbir was not brought on record. Therefore, there is no locus standi or identity of PW7 in this case. There was neither any complaint nor FIR to the firing by accused Jagbir and who was Bahadur. No single witness was called regarding the case of Garmukteshwar, UP. There was no property in the name of accused Jagbir and he was residing on rent. PW4 was the independent witness and he himself stated that accused Jagbir was residing on rent for two years. There was only one case against accused Chokhe Lal i.e. FIR no. 299/02, PS S. P. Badli. Further, there was only one case against accused Virender i.e. FIR no. 99/07 and there were two cases against accused Mahabir Singh i.e. FIR no. 635/99 in which he had been acquitted and FIR no. 291/02 which was pending and there was one case against accused Mansa Ram i.e. FIR no. 99/07 in which father and son both had been acquitted. There was only ancestral property of accused Mahabir Singh. The accused persons were in police FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 18 of 78 custody then how their statements could be with free will which was hit by Section 25 of Evidence Act. If Mahabir was the associate of Jagbir, then where was the continuity, therefore, this could not be termed as organized crime. There was no investigation or evidence regarding alleged involvement. The police falsely implicated accused Mansa Ram since he used to file cases against them. There was no evidence against accused Mahabir Singh and Mansa Ram that they did any overt act resulting in pecuniary benefits for themselves or for accused Jabgir. There is requirement of more than one chargesheet in respect of cognizable offence punishable with imprisonment of three years or more during the preceding period of three years before invoking MCOCA on any person. There was not even a single chargesheet filed in the court against the accused Kuldeep Tokas. In this case, the complainant was SHO whereas under the Act, it should have been ACP who had to be the complainant of the case. There was no material on record against the accused Virender and Chokhey Lal and only a single case was registered against accused Virender. No recovery has been made from the accused persons. No prosecution witness has proved any case against the accused persons under the MCOCA. Therefore, the prosecution has not been able to prove evidence to attract the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 19 of 78 provisions under the MCOCA against the accused persons. The Ld. Counsel and Ld. Amicus Curiae for the accused persons, in support of their arguments, relied upon the judgements reported in the cases of Sher Bahadur Akram Khan and others Vs. State of Maharashtra 2007 (1) Bom CR (Cri) 26 at 29; Prafulla Vs. State of Maharashtra 2009 ALL MR (Cri) 870; Madan s/o Ramkishan Gangwani Vs. State of Maharashtra 2009 ALL MR (Cri) 1447; Ranjitsing Brahmjeet Singh Sharma Vs. State of Maharashtra and another (2005) 5 Supreme Court Cases 294; State of Maharashtra Vs. Rahul Ramchandra Taru, 2011 Lawsuit (Bom.) 634 and Mahipal Singh Vs. CBI, 2014 (4) LRC 204 (SC).

11. The Ld. APP for State and Ld. Counsel for the complainant argued that there was agreement to sell Ex. PW7/B with the accused Jagbir which is the admitted document. The accused persons had extended help and support to the organized crime syndicate and knowingly facilitated the commission of organized crime syndicate and acted preparatory to organized crime by co­ accused Jagbir Singh by using violence and threat of violence by land grabbing etc. The accused Jagbir developed a crime syndicate along with his associates and was involved in land grabbing, preparing false documents of land in the names of his associates FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 20 of 78 and used to get huge money after compounding the matter between the parties. Accused Jagbir was a notorious criminal of Garmukteshwar, UP and he was involved in so many criminal cases in UP and Delhi. Accused persons made confessional statements u/s 18 of MCOCA, 1999. Therefore, the prosecution witnesses have proved the case against the accused persons under the MCOCA. The Ld. Counsel for complainant, in support of his arguments relied upon the judgement reported in the case of Mohd. Farooq Abdul Gafur & Anr. Vs. State of Maharashtra IV (2009) CCR 20 (SC).

12. Let us examine the legal position under the MCOC Act. Section 2 (d) of MCOCA defines continuing unlawful activity as under :

"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 charge­sheets have been filed before a competent court within the preceding period of ten years and that Court has taken cognizance of such offence''.

Section 2 (e) defines "organized crime" as under:

"Organized crime means any continuing unlawful FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 21 of 78 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 other person or promoting insurgency".

Section 2 (f) defines "organized crime syndicate" as under :

"Organized crime syndicate means a special group of two or more persons, who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime."

Section 3 (1) provides punishment for commission of organized crime. Section 3 (2) provides punishment to those who conspire or attempt to commit or advocate, abet or knowingly facilitate the commission of an organized crime or any act preparatory to organized crime.

13. In Ranjitsingh Brahmajeetsingh Sharma Vs. State of Maharashtra and another, AIR 2005 Supreme Court 2277, it was held that the inclusive definition of abet although expansive in nature, 'communication' or 'association' must be read to mean such communication or association which is in aid of or render FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 22 of 78 assistance in the commission of organized crime. Any communication or association which has no nexus with the commission of organized crime would not come within the purview thereof. Such communication or association to the person must be with the actual knowledge or having reason to believe that he is engaged in assisting in any manner an organized crime syndicate. It was further held that the words 'unlawful means' cannot be widely construed as including any or other unlawful means. 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. 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 charge­sheet may be filed. 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. In Prafulla Vs. State of Maharashtra, Crl. Appeal no. 664 of 2002 decided on 18­11­2008 by Hon'ble Bombay High Court wherein it was held that mere proof of filing chargesheets in the past is not enough. Accused not shown too have indulged in any crime which can be said to be continuation of past criminal activity, provisions of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 23 of 78 section 3 (i) of the Act were not attracted, therefore, he could not be said to have committed offence of organized crime.

14. Let us further examine the evidence led by the prosecution and the accused persons whether they have been falsely implicated or committed the offence as charged in this case. PW1 Sh. Dinesh Kumar Gupta, Addl. DCP (East), Delhi in his examination­in­chief stated that on 16­04­2008, he was posted as ACP Narela and information was received by him from Inspector Dayanand Singhal, SHO, PS Swaroop Nagar that Jagbir Singh operating in the area of PS Swaroop Nagar and PS S. P. Badli was involved in land grabbing in these police stations along with his associates and he had developed a crime syndicate for doing the crime of land grabbing. PW1 verified this fact from the SHO of PS Swaroop Nagar. On the basis of information given by the SHO, PS Swaroop Nagar regarding involvement of Jagbir in 24 cases, PW1 prepared proposal Ex. PW1/A to invoke provisions of MCOCA against Jagbir and his associates and submitted to DCP, Outer District through Director of Prosecution on the basis of which approval was granted by the then Joint Commission of Police, Northern Range.

15. During cross­examination by Ld. Defence counsel, PW1 FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 24 of 78 could not tell whether he annexed those complaints with the proposal. After refreshing his memory from the record, PW1 stated that no complaint was annexed with the proposal. PW1 did not recollect the names of complainants regarding the complaints shown to him by SHO. PW1 did not remember whether Ms. Vijay Sharma was one of the witnesses in this case. PW1 further stated that the copies of alleged forged documents were not attached with the proposal. PW1 further stated that there is no register in ACP office where they record secret information. PW1 did not recollect whether he examined or interrogated accused Narender Bhati before putting up the proposal but after the registration of FIR, he was not traced and therefore was not questioned or examined. PW1 did not specifically recollect if any complaint dated 13­04­2008 was made by Narender Bhati to the Commissioner of Police. PW1 did not remember if any specific complaint against accused Chokhe Lal, Mansa Ram and Virender was put up before him by the SHO. PW1 did not issue notice to the accused persons to hear them personally before sending the proposal.

16. PW2 Inspector Dayanand Singhal stated in his examination­in­chief that he was posted as SHO, PS Swaroop Nagar from 07­11­2007 till 24­04­2008. He received several FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 25 of 78 complaints from the residents of area of his PS regarding land grabbing by accused Jagbir and his associates by submitting forged documents and by threatening to original owners. Two FIRs bearing no. 33/07 and 29/08 were registered against accused Jagbir and his associates investigated by SI Ravinder Kumar and SI Ram Niwas. PW2 stated that several public persons/ complainants were also produced by him before Sh. D. K. Gupta, ACP and he also showed photocopies of several forged documents used by the accused and his associates and copies of FIRs against them. After registration of present case, ACP Mohan Chand Sharma recorded statement of PW2 u/s 161 Cr.P.C. PW2 identified accused Jagbir in the court as he was arrested by SI Ravinder Kumar in case FIR no. 30/07 in his presence.

17. PW2 in his cross­examination by Ld. Defence counsel, stated that he did not prepare any list of complainants produced by him before ACP D. K. Gupta. PW2 did not record statements of any complainant before producing them before ACP D. K. Gupta. PW2 could not tell the number of complaints, oral or written received by him as to whether they were 8, 10 or 15. PW2 used to personally inquire about those complaints. PW2 stated that he did not maintain any record from which he could say whether he sought the progress FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 26 of 78 of case FIR nos. 33/07 and 29/08 from the IOs on daily basis or weekly basis. PW2 did not record statement of any person to whom Jagbir Singh had extended threats nor he seized their property documents. PW2 stated that some of the complainants had brought property documents stating that threats were extended to them but he could not tell their names. PW2 did not record their names. PW2 did not produce any of those complainants / owners of the properties before the ACP. PW2 stated that Ms. Vijay Sharma was not complainant in any of the cases registered against accused Jagbir at the PS during his tenure but he could not tell whether she was witness in all those cases. PW2 admitted that Ms. Vijay Sharma used to approach him with complaints against Jagbir claiming herself to be the owner on the basis of GPA etc. PW2 did not go through the GPA produced by Vijay Sharma or verify the record from Revenue Office. PW2 further stated that ACP did not show him any file or complaint against Jagbir and his associates but the same were discussed. PW2 further could not tell the names of unauthorised colonies made by accused persons. PW2 did not obtain assistance from any PS of Garmukteshwar for verifying the land grabbing by accused. PW2 did not seize any document from Avdesh Singh or accused for verification. PW2 stated that he did not FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 27 of 78 know whether there was only one PS in Garh Mukteshwar. PW2 stated that he never visited Garmukteshwar. PW2 admitted that in his statement u/s 161 Cr.P.C. he did not give the details of cases against accused at Garmukteshwar and did not divulge the details of other cases except case FIR no. 33/07 & 29/08 against the accused and the names of complainants in those cases. PW2 did not record the minutes of proceedings with ACP/ DCP in his diary. PW2 did not record the directions given to the IO in any diary. PW2 also did not tell whether accused Narender Bhati was involved in case FIR no. 33/07 and 29/08. PW2 could not tell whether any complaint or FIR was pending at PS Swaroop Nagar against accused Kuldeep Tokas as long as he remained posted as SHO. PW2 further did not tell whether Kuldeep Tokas was accused in case FIR no. 33/07 and 29/08.

18. PW3 HC Yashpal working as DO recorded the FIR no. 92/08 on the basis of rukka given by SHO Inspector Daya Nand vide Ex. PW3/A and kayami entry was made vide DD no. 18A and PW3 made his endorsement Ex. PW3/B on the rukka. During cross­ examination by Ld. Defence counsel, PW3 stated that there were no signatures of DCP or other senior officers in the FIR register in token of inspection of the register. PW3 admitted that FIR did not bear the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 28 of 78 signatures of complainant in column no. 14.

19. PW4 Arjun Sharma stated in his examination­in­chief that he is owner of H. No. E­677, Gali no. 3, Nathu Colony, Delhi and accused Jagbir Singh was residing in the said house as tenant. Accused Jagbir used to pay Rs. 500/­ as rent for one room. IO of the case ACP Mohan Chand made inquiry from him regarding the above mentioned facts. PW4 volunteered that no statement of him was recorded by the police. During cross­examination by Ld. Defence counsel, PW4 stated that accused Jagbir was very kind and soft hearted person. PW4 admitted that Ms. Vijay Sharma used to harass the public at large and sent gundas who gave beatings to Jagbir. PW4 further admitted that Ms. Vijay Sharma used to accompany the police officials and threaten Jagbir Singh.

20. PW5 Parveen stated in his examination­in­chief that he was an agriculturist and showed ignorance about this case. PW5 did not know as to why he was summoned in the court. PW5 did not know accused Jagbir and he made no complaint against him or any of his associates.

21. PW5 was cross­examined by Ld. APP for State and during cross­examination, PW5 denied that on 05­02­2008 he made a complaint to ACP Narela or it bear his signature. PW5 further FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 29 of 78 denied that bayana agreement dated 24­01­2008 between him and Pardeep Kumar bear his signatures. Attention of PW5 was drawn on the complaint dated 05­02­2008 and bayana agreement dated 24­01­2008 on the judicial file of case FIR no. 29/08 which was summoned and signature were shown to PW5 who denied the same. PW5 also denied that complaint dated 05­02­2008 to ACP Narela Sub­division was made by him or that it bear his signature. PW5 denied that on the basis of his complaint dated 05­02­2008, the case FIR no. 29/08 was registered. PW5 further denied that on 24­01­2008, he entered into a bayana agreement with Pardeep Kumar or the same bear his signature. PW5 further denied that police had recorded his true version whichever he had told to the police. PW5 stated that he was never inquired by the IO in this case. PW5 further stated that he did not know any persons namely Kailash Chand Gupta, Pradeep Kumar, Kanhaiya Lal or Meghna Mittal. PW5 denied that he and Kailash Chand Gupta had entered into an agreement for a plot measuring 1350 sq. yards of Khasra no. 1052, 1059 & plot no. 88 to 94 at Kadipur Extension, Nathupura, Delhi. PW5 further denied that he had stated so in his statement to the IO u/s 161 Cr.P.C. PW5 was confronted from portion A to A on statement u/s 161 Cr.P.C. Mark PX where it was so recorded. FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 30 of 78 Contents of portion A to A of Mark X was read over to PW5 who denied having made any such statement to the police. PW5 further denied that above­said plot was demarcated by Patwari but despite that accused Jagbir along with Darshan, Amit, Babu, Shyam Lal Yadav, Udaivir Chauhan having his office in the name and style of Shiv Shakti Properties situated in Gali no. 14, Swaroop Nagar, Delhi, tried to take forcible possession on their property on which they had constructed the fencing. Contents of portion B to B of Mark PX was read over to PW5 who denied having made any such statement to the police. PW5 further denied that on 03­10­2007, one PCR call was made and local police arrived at the spot but no action was taken or thereafter accused Jagbir and his associates got encouraged with passage of time and started making forged and fabricated documents of the properties and grab the properties. Contents of portion C to C of Mark PX was read over to PW5 who denied having made any such statement to the police. PW5 further denied that he along with other persons gave an application in writing to ACP Alipur and on 15­02­2008, a case was registered. Contents of portion D to D of Mark PX was read over to PW5 who denied having made any such statement to the police. PW5 also denied that he met with the IO ACP Mohan Chander on 22­08­2008 FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 31 of 78 and gave his statement and stated that he never met any IO of case FIR no. 29/08 titled Sate Vs. Jagbir, FIR No. 29/08 u/s 420/467 etc., PS Swaroop Nagar. PW5 was shown original typed complaint from the case file of FIR no. 29/08 addressed to ACP Alipur dated 05­02­2008 upon which he denied his signatures. PW5 was shown one bayana agreement dated 24­01­2008 from the case file of FIR no. 29/08 upon which witness denied his signatures.

22. PW6 Sh. P. R. Meena, Joint Secretary, Security, Parliament House stated in his examination­in­chief that on 30­04­2008, he was posted as Joint CP, Northern Range and request to grant approval to invoke provisions of MCOCA, 1999 against Jagbir Singh and his associates was moved by ACP Dinesh Kumar Gupta, South Division, Narela. After going through the contents of request and noting and recommendations of DCP, Outer District, PW6 gave approval u/s 23 (1) (A) of the Act Ex. PW1/A and made his endorsement vide Ex. PW6/A and directed that matter be investigated by ACP (DIU), Outer District. On 26­08­2008, ACP (DIU) Sh. Mohan Chander had submitted his report dated 23­08­2008 along with case file of FIR no. 92/08 forwarded to DCP, Outer District for according the sanction to prosecute the accused persons u/s 23 (2) of MCOCA, 1999. As PW6 had accorded prior FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 32 of 78 approval dated 30­04­2008 and also gone through the case file and after satisfying himself that a prima facie case was made out against the accused persons for being tried u/s 3 (2) and 3 (4) of MCOCA and he found that there were sufficient ground to believe that all the accused persons arrested at that time in this case namely Mahabir Singh, Kuldeep Tokas, Mansa Ram Sisodia were members of organized crime syndicate of Jagbir Singh who was absconding at that time. PW6 also stated that he found activities of accused Mahabir Singh were covered u/s 3 (2) and 3 (4) of MCOC Act because more than one chargesheet was filed before the competent court within the last ten years against him and the court had taken cognizance on the chargesheet against him for his continuing unlawful activities. After going through the record, the activities of Kuldeep Tokas were covered u/s 3 (4) MCOC Act being the member of organized crime syndicate of Jagbir Singh, therefore, PW6 accorded sanction u/s 23 (2) of the MCOC Act vide Ex. PW6/B

23. PW6 in his cross­examination by Ld. Defence counsel, stated that statement of witnesses were not annexed with the proposal Ex. PW1/A and no document was annexed with the proposal Ex. PW1/A. PW6 stated that there was no document enclosed with the proposal showing the cognizance taken by the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 33 of 78 court. Since the information given in the proposal was already verified by DCP, Outer District, PW6 did not get the information verified himself. PW6 made no verification of the antecedents and activities of witnesses relied upon in the proposal. PW6 did not make any query nor requisitioned any document before according the approval u/s 23 (1). PW6 admitted that names of 18 persons were mentioned in the proposal as associates of Jagbir Singh. PW6 further admitted that he accorded sanction u/s 23 (2) only with regard to three accused persons who were arrested by then. PW6 did not remember if he made any query regarding status of arrest/ investigation qua the remaining persons named in the proposal as associates of Jagbir. PW6 did not ask for any document i.e. statement of accounts, property documents, details of movable or immovable properties, shares or the details of benami properties before granting sanction. PW6 did not inquire from the IO if any cash was recovered from the three arrested accused. PW6 did not make any query to the IO before according the sanction u/s 23 (2). PW6 did not remember if any document relating to the purchase of property by Jagbir Singh out of the proceeds of his criminal unlawful activity was filed with the draft chargesheet.

24. PW7 Ms. Vijay Sharma stated in her examination­in­ FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 34 of 78 chief that she was running property dealer business at AJ­58A, Ground Floor, Shalimar Bagh, Delhi in the name and style Sadhbavna Associates in the year 2006. PW7 was having her property i.e. land situated in Kadi Vihar, Delhi bearing Khasra nos. 1049, 1050, 1051, 1052, 1059, 1060 and 1061. Accused Kuldeep Tokas (correctly identified) was known to PW7 as he was also dealing in property business and residing near her house, came to her office and made inquiry regarding ownership of above­ mentioned properties. PW7 told Kuldeep Tokas that she had purchased the said land from Praveen Kumar Jain and Surender Kumar Jain in 2006 and had taken the possession of the land immediately. Accused Kuldeep Tokas told PW7 that he wanted to purchase some land at Kadi Vihar in the name of one Jagbir Singh. PW7 told accused Kuldeep Tokas that she wanted to sell that land and accused Kuldeep left her office after seeing the property documents. On 16­09­2006, Kuldeep Tokas came to the office of PW7 and asked her to accompany him to village Libaspur, Delhi where she found 3/4 persons sitting in one office. PW7 further stated that accused Kuldeep Tokas gave her Rs. 50,000/­ in cash towards advance money for the purchase of land in the name of Jagbir Singh. On 16­09­2006, the son of PW7 also accompanied FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 35 of 78 her to the office where Kuldeep Tokas had taken them and she was further given advance of Rs. 3,50,000/­ by one Satpal. Accused Jagbir, one Satpal, Bahadur and accused Kuldeep Tokas were present there. Receipt of Rs. 4 lacs was obtained from PW7 which was signed by PW7, Kuldeep Tokas and Satpal. On 20­12­2006, accused Kuldeep Tokas along with Bahadur came at the house of PW7 and produced an agreement to sell and obtained signatures of PW7 after giving her two cheques of Rs. One lac each and Rs. 2 lacs cash and obtained the original receipt of payment of advance from PW7 and torn the same. On the night of 31­01­2007, police came at the house of PW7 and told that Jagbir had fired bullets at her land. In morning, PW7 went to PS. PW7 made complaint to Kuldeep Tokas and asked him to take her to Libaspur office and he took them to Libaspur office where he inquired from Bahadur and Satpal as to why bullets were fired on her land. PW7 told them that police was visiting her house and therefore she did not want to sell the land to them and offered to return the money. PW7 stated that Bahadur told that there was no hurry for returning the money since Jagbir was already arrested by the police and they would take back the money on the release of Jagbir. PW7 then returned back from Libaspur office. PW7 instructed her advocate to keep a track of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 36 of 78 release of Jagbir so that deal of land might be cancelled. When PW7 came to know about release of Jagbir, she went to Libaspur office where Bahadur met her and told "aap jaano aur Jagbir jaane". After 3­4 days, accused Jagbir came at her office with accused Narender Bhati, Shyam Lal Yadav and another person having big moustaches. Jagbir told PW7 to forget about the land as she had sold the same to him and threatened that in case she dared to go on the said land, he would cut her legs. Shyam Lal having a lathi in his hand, threatened PW7 that he was mental and she should be cautious in going to the land and threatened that she was having two sons. PW7 stated that after threatening, they left her office. PW7 made a complaint to Commissioner of Police through her advocate. Accused Jagbir threatened PW7 next night over phone that "mere paas itna asla hai ki tere sare aadmi khatam ho jayenge par asla khatam nahin hoga, jujhe dobara Hindi mein samjhana na pade". PW7 got the agreement to sell cancelled through her advocate. Jagbir further sold land of PW7 and thereafter got the cases filed through them against her. PW7 stated that original agreement to sell was retained by Bahadur. PW7 handed over copy of agreement to sell and receipt Ex. PW7/B and PW7/C to the police vide seizure memo Ex. PW7/A. PW7 sent the original document of cancellation of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 37 of 78 agreement to sell to accused Jagbir and she was not in possession of original cancellation document.

25. PW7 was cross­examined by Ld. APP for State and she denied that Kuldeep Tokas was also accompanied by accused Jagbir when he came at her office in 2006. PW7 denied that Satpal signed as a witness on the documents from her side. PW7 stated that she did not know that accused Kuldeep Tokas was also with accused Jagbir in attempting to take possession of her land. PW7 further stated that she did not tell to the police that accused Kuldeep Tokas was doing work for Jagbir Singh or that Kuldeep Tokas in collusion with Jagbir used to take forcible possession of the property of the people. PW7 did not know that Kuldeep Tokas used to prepare the documents of properties and search for the buyers for Jagbir Singh. PW7 stated that she could not produce the original document of cancellation of sale as the original was sent to accused Jagbir.

26. During cross­examination by Ld. defence counsel, PW7 stated that she made no police complaint against accused Kuldeep Tokas till that day. PW7 admitted that accused Kuldeep Tokas was a witness from her side to the document of agreement to sell. PW7 stated to the police in her statement that she had told him that she FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 38 of 78 had purchased the land from Parveen Kumar Jain and Surender Kumar Jain in the year 2006 and had taken the possession of the land immediately. PW7 stated to the police that accused Kuldeep Tokas had given her Rs. 50,000/­ towards advance for the purchase of land in the name of Jagbir Singh. PW7 was confronted with statement Mark PW7/X where it was not so recorded. PW7 further stated that her statement in the present case was recorded at the DIU Cell but she did not remember the date of her statement. PW7 could not tell the name and designation of the police official who recorded her statement. PW7 was not aware if her husband was still alive as she was a divorcee. PW7 stated that her sons were also assisting her in her property dealing business in the name and style Sadhbhavna Associates. PW7 stated that she had been dealing in property business since 1995­96. PW7 had agreed to sell the land to Jagbir at the rate of Rs. 800/­ per sq. yard. PW7 stated that she had changed the figure from 500 to 800 with a pen in the agreement to sell Ex. PW7/D3 at the asking of Kuldeep Tokas, Babu Khan and Bahadur. PW7 stated that besides the documents Ex. PW7/D1 to D3, Praveen Kumar Jain and Surender Kumar Jain had executed one more document i.e. GPA. PW7 did not bring the said GPA. PW7 handed over the said GPA to one Dushyant at the time of sale FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 39 of 78 of 2,000 sq. yards land @ Rs. 1200/­ per sq. yards in July 2007. PW7 further stated that Dushyant did not make the full payment to her as his cheque of Rs. 7,10,000/­ was dishonoured. PW7 stated that she filed no civil case against Dushyant and also made no complaint against him to the police. PW7 could not give the description of land purchased by her which belonged to Gram Sabha. PW7 admitted that documents Ex. PW7/D1 to D3 were unregistered Notarized documents. PW7 stated that she did not obtain the receipt of payment made to Parveen Kumar Jain and Surender Kumar Jain. PW7 did not know whether the description of land belonging to Gram Sabha was given in the Agreement to Sell executed between her and Jagbir Singh. PW7 denied that she was only a caretaker of the property by virtue of GPA and Agreement to Sell and had no right to alienate or transfer the property to any person. PW7 stated that she did not get the property physically demarcated from any government agency. PW7 denied that property bearing khasra no. 1067(4­6), 1068(4­16), 1061(4­16), 1066(5­12), 1070(2­8), 1044(5­03), 1059(4­16), 1065(2­15), 1064(4­16), 1056(2­12), 1054(4­16), 1055(3­17), 1062(4­16), 1060(4­12), 1050(1­12) and 1063(4­16) belonged to Gram Sabha. PW7 denied that above­said khasra nos. vested with Gram Sabha FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 40 of 78 vide file no. 3/30 (C)/2000/3994 dated 03­10­2000 u/s 81. PW7 stated that attorney Ex. PW7/D1 was for a period of six months and attorney Ex. PW7/D2 was not for any specific period. PW7 stated that she had not executed any document in favour of Dushyant Kumar. PW7 admitted that document Mark PW7/D4 was executed by her in favour of Dushyant Kumar. PW7 did not remember whether she sold any other piece of land to other persons from the land in question. PW7 was not in knowledge of the documents Mark PW7/D6 to Mark PW7/D10. PW7 could not tell as to how many persons she had sold the land mentioned in Ex. PW7/D1 to PW7/D3 except the Jagbir. PW7 stated that she was having the title and possession of lands bearing khasra no. 1050, 1060, 1059, 1062, 1052, 1067, 1068. PW7 did not remember the exact no. of lands/ khasra nos. under her possession in view of the ownership rights given to her by Surender Jain and Parveen Kumar Jain. PW7 stated that no registry/ sale deed was executed by Surender Jain and Parveen Jain in her favour in respect of Khasra No. mentioned in Ex. PW7/D1 to PW7/D3.

27. PW7 in her cross­examination by Ld. Defence counsel further stated that she could produce the receipts executed by Surender Jain and Parveen Jain in her favour as the consideration FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 41 of 78 amount of above said khasra nos. PW7 could not tell the details of amount paid to both of them by way of cheques and cash. PW7 admitted that she did not have terms with her husband but she was on talking terms with her in­laws. PW7 was not having knowledge of complaint made by Hema Rani i.e. Mark PW7/DX2. PW7 was not aware whether Hema Rani made any statement Mark PW7/DX3 against her before the Ld. MM. PW7 was not aware whether Hema Rani made any statement Mark PW7/DX4 against her before Ld. MM on 31­05­2010. PW7 could not tell the names of persons to whom she sold the land mentioned in Ex. PW7/D1 and D2 except accused Jagbir. Even, PW7 could not tell the period when she sold the land to the other persons. PW7 admitted that land mentioned in Ex. PW7/D1 and D2 vested by the SDM Naya Baans, Narela. PW7 further admitted that Ex. PW7/D18 bear her signature at points A to D. PW7 was not aware about the orders dated 28­08­2010 passed by Ms. Tyagita Singh, Ld. Civil Judge, Tis Hazari in suit no. 148/09 titled as Gulshan Vs. Rajesh Nathani & Ors. wherein the application of plaintiff u/o 39 (1) (2) CPC was allowed against her. PW7 admitted that Ex. PW7/D19 bear her signatures at points A & B. PW7 showed her ignorance about the order dated 28­08­2010 passed by Ms. Tyagita Singh, Ld. Civil Judge in suit no. 149/09 FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 42 of 78 wherein the application of plaintiff was allowed against her. PW7 admitted that accused Jagbir filed the civil suit with respect to properties/ Khasra no. mentioned in Ex. PW7/D1 and D2 against her. It was not in the knowledge of PW7 whether in that civil suit, she had filed an application u/o 7 rule 11 CPC which was dismissed by the court by imposing cost of Rs. 500/­ upon her. PW7 admitted that Hema Rani made a complaint Mark PW7/DX8 against her to DCP, Outer District and she was called by DCP and interrogated and her statement was recorded. PW7 showed her ignorance whether Rambir Singh, Ex. Army Officer filed any complaint Mark PW7/DX9 dated 11­04­2009 against her. PW7 did not know about the complaint Mark PW7/DX10 made by Krishna against her, her son and police officials of PS Swaroop Nagar on 18­12­2009. PW7 knew Gulab Mandal as he filed a civil suit against her. PW7 neither admitted nor denied her signatures on the photocopies Mark PW7/DX11 of GPA, Agreement to Sale and purchase, affidavit, Will, receipt and possession letter all dated 09­08­2007 in favour of Surender Kaushik in the absence of original. PW7 stated that she sold the land to Dushyant Kumar but he did not pay the amount of the same to her. PW7 stated that FIR bearing no. 99/07 in PS S. P. Badli was lodged against accused Jagbir pertaining to said incident. FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 43 of 78 PW7 was not aware whether accused Jagbir was acquitted in that case or not vide Ex. PW7/D23. PW7 admitted that there was no money transaction between her and accused Jagbir in respect of lands mentioned in Ex. PW7/D1 and D2. PW7 further admitted that dispute between her and accused Jagbir was only in respect of properties in Ex. PW7/D1 and D2. PW7 stated that there was pending civil suit filed by accused Jagbir against her with respect to lands mentioned in Ex. PW7/D1 and D2. PW7 could not say whether she lodged the complaint against accused Jagbir after receiving the summons issued by Civil court in the case titled as Jagbir Singh Vs. Vijay Sharma. PW7 further admitted that she was not having any dispute with accused Kuldeep Tokas since he was the commission agent for sale of properties mentioned in Ex. PW7/B.

28. PW8 Ajay Singh, Asstt. Ahlmad in the court of Sh. Sudhanshu Kaushik, MM Rohini brought the summoned record i.e. judicial file of case FIR no. 635/99 u/s 447/34 IPC titled State Vs. Charan Singh etc. As per record, cognizance was taken against accused Mahabir Singh, Jagbir Singh and Jaipal Singh along with their other associate Charan Singh in the present case by Ld. MM on 02­09­2004. Charge against the accused persons was framed by the Ld. MM on 02­09­2004. PW8 also brought the judicial file of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 44 of 78 case FIR no. 291/2002, PS S. P. Badli titled as State Vs. Jagbir Singh etc. u/s 420/468/471/34 IPC. As per record, cognizance was taken against accused Mahabir Singh, Chokhe Lal, Jagbir Singh and their other associate Satish Chander by Ld. MM on 11­07­2002. Charge against the accused was framed by the Ld. MM on 08­10­2009. PW8 brought the original case file pertaining to FIR no. 127/03, PS S. P. Badli. As per record, accused Jaipal was forwarded for trial along with co­accused Smt. Satto, Udaibir Singh Chauhan, Ms. Leelawati by filing chargesheet u/s 323/427/341/34 IPC.

29. PW10 Avdesh Singh stated in his examination­in­chief that he was dealing in marketing of mobile accessories. During cross­examination, PW10 stated that he knew accused Jagbir since last 14­15 years. PW10 admitted that Jagbir had filed a case of cheque of Rs. 4.5 lacs against Vidur Singh Solanki. PW10 stated that Megh Singh was known to him since last 8­9 years. PW10 did not know Vijay Sharma and he only saw her in court. PW10 stated that he and Vijay Sharma only exchange pleasantries whenever they meet. PW10 did not know if any complaint was filed against him and Vijay Sharma together in Room. no. 103. PW10 stated that police did not record statement of Megh Singh in his presence in the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 45 of 78 present case. Police did not ask PW10 to produce the documents of the plot in the present case. PW10 stated that in his presence, police had not asked Megh Singh to produce the documents of the plot. PW10 did not remember when he made first complaint to the police against Jagbir. PW10 made no complaint against Jagbir since 20­05­2010 till date. PW10 did not make any complaint against Jagbir and his associates from 07­10­2007 till 20­05­2010. PW10 made no complaint of the threat given to him since 06­10­2007 till date. PW10 had not complained about the threat to the court at the time of recording of his statement. PW10 did not state before the court in case FIR no. 33/07 that there was negotiations for settlement with accused Jagbir nor he sought any time for compromise. PW10 was confronted with certified copy of the ordersheet dated 26­03­2010 Ex. PW10/D2 where it was so recorded.

30. PW13 Retd. ASI Prem Singh stated in his cross­ examination that as per his investigation in FIR no. 635/99, all the accused persons including Jagbir Singh had not generated illegal wealth by contract killing, extortion, smuggling in contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering etc. PW13 further stated that Ashish FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 46 of 78 Khanna and his brother gave the agricultural land as mentioned in the FIR to accused Jagbir Singh for cultivation. PW13 stated that no cognizance of offences against the accused persons for generating illegal wealth by contract killing, extortion, smuggling in contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering etc. in FIR no. 635/99 was taken by the Ld. MM upon his chargesheet. PW13 stated that his statement u/s 161 Cr.P.C. was not recorded by the IO in the present case i.e. FIR no. 92/08.

31. PW14 Inspector Om Prakash stated in his cross­ examination that it was true that his statement recorded u/s 161 Cr.P.C. Ex. PW14/DA was neither shown to him nor its contents were read over to him. PW14 further stated that due to slip of pen instead of PS S. P. Badli, word PS. Swaroop Nagar was written on Ex. PW14/DA. PW14 stated that chargesheet Ex. PW8/K in FIR no. 291/02 was totally silent whether the accused Jagbir had generated illegal wealth by contract killing, extortion, smuggling in contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering because he had not investigated the case on these points. PW14 did not remember the amount accumulated by accused Jagbir by selling the land illegally. FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 47 of 78 After seeing the chargesheet Ex. PW8/K, PW14 stated that it did not specify the exact amount accumulated by accused Jagbir by illegal sale of land. Attention of PW14 was drawn towards chargesheet in FIR no. 291/02 Ex. PW8/K and Ld. defence counsel stated that in the said chargesheet no details of documents of properties movable or immovable and investments was filed along with the chargesheet which was acquired by the accused Mahavir Singh and Chokhe Lal.

32. PW15 Sh. Devesh Chandra Shrivastava, ACP stated in his examination­in­chief that on 06­05­2008, he was working as DCP, North Distt. and accused Kuldeep Tokas and Mansa Ram were produced by IO ACP DIU/Outer Sh. Mohan Chander, Inspector Ram Avtar and other staff of DIU for recording their confessional statements as per the provisions of Section 18 of MCOCA pursuant to the orders of the then Joint Commission of Police, Northern Range, Sh. P. R. Meena (IPS). On 07­05­2008, PW15 recorded their confessional statements Ex. PW15/B and Ex. PW15/E. PW15 stated that strict compliance of section 18 MCOCA was made. PW15 stated that confessional statement of accused Kuldeep Tokas and Mansa Ram were recorded in verbatim. PW15 read over the contents after the same being recorded and in token he also signed. He exhibited the requisite certificate as per section 18 of MCOCA FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 48 of 78 vide Ex. PW15/C and Ex. PW15/F and application addressed to Ld. CMM for production of accused and proceedings as Ex. PW15/G. After completion of recording of proceedings, PW15 forwarded the proceedings to be placed before Ld. CMM in sealed cover through SI Bhoop Singh. PW15 stated that accused Mansa Ram and Kuldeep Tokas were directed to be produced before Ld. CMM after taking due precautions and as per the procedures enumerated in MCOCA. During cross­examination by Ld. Amicus Curiae, PW15 could not remember if it was mentioned in the proposal initiated at the instance of ACP that accused Mansa Ram was involved only in one case along with co­accused Jagbir Singh.

33. PW16 SI Ravinder Singh in his examination in chief stated that he was assigned the investigation of the case FIR no. 33/07 u/s 458/506/323/34 IPC. He further stated that accused Jagbir Singh and Narender Singh Bhati were chargesheeted along with one another co­accused Arjun under the aforesaid sections.

34. PW17 SI Ram Niwas in his examination in chief stated that on 31­07­2007, the investigation of the case FIR no. 99/07 u/s 336/506/427/34 IPC and 25/27/30 of Arms Act was assigned to him by the order of SHO. He further stated that during the course of investigation, accused Mansa Ram Sisodia, Jagbir, Virender, FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 49 of 78 Narender Singh Bhati were arrested besides one Balbir Singh. During cross­examination by Ld. defence counsel, PW17 stated that he was not examined as witness in that case though he was IO. PW17 stated that he was not aware if the accused were acquitted in case FIR no. 99/07, PS Samaipur Badli. PW17 did not check the financial condition of accused Jagbir by searching his bank accounts. During cross­examination by Ld. Amicus Curiae, PW17 after going through the judicial record of FIR no. 99/07 of PS Samaipur Badli stated that all the accused persons in that case were acquitted vide order dated 15­09­2011.

35. PW20 Sh. N. S. Bundela, Dy. Director, Bureau of Immigration stated that on 21­11­2008 he was working as DCP, N/W Distt. and an application Ex. PW20/A was moved by IO Gurbachan Singh, ACP, DIU/N/W for recording confessional statement of accused Chokhe Lal and Virender as per provisions u/s 18 of MCOCA. PW20 recorded confessional statements of both accused vide Ex. PW20/B and PW20/C. During cross­examination, PW20 admitted that in Ex. PW20/A and Ex.PW20/B, it was not mentioned that no police official connected with the investigation of the present case was present in his office. PW20 also admitted that in the proceedings Ex.PW20/A and Ex.PW20/B, it was not mentioned that FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 50 of 78 the contents of the proceedings were read over to the accused persons and they signed the same. PW20 volunteered that the word 'ROAC' was mentioned on the same which means read over and admitted correct. However, PW20 admitted that on both Ex.PW20/A and Ex.PW20/B, below ROAC at point X, there were his signatures. PW20 did not tell whether he was briefed about the case by the IO or not before initiating the proceedings. PW20 even did not tell if he had inquired from both the accused persons during preliminary questions whether they were provided/ offered legal assistance or not.

36. PW22 Sh. Jaspal Singh, Dy. Director, IB stated that on 20­05­2009, he recorded confessional statement of accused Jagbir vide Ex. PW22/A and forwarded the same before Ld. CMM, Delhi along with accused. During cross­examination, PW22 admitted that no document including police file, FIR, cognizance order of court against accused Jagbir, benami transaction and sanction u/s 23 (1)

(a) MCOC Act were made before him at the time of recording confessional statement of accused Jagbir Singh.

37. PW24 Inspector Rajeev Shah stated that he had participated in the investigation of this case only on 01­07­2009 and he was not aware about the other fact and progress of the case FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 51 of 78 except the arrest of accused Narender Bhati. PW24 also stated that he had signed only the arrest memo and no other documents were prepared in his presence or signed by him.

38. PW28 Sh. Krishan Kumar, DSP could not tell about the details/ contents of documents prepared by previous IOs pertaining to other accused persons including Kuldeep Tokas. PW28 stated that he was not having knowledge about FIR no. 166/08 Ex.PW7/DA25 nor the same was part of charge­sheet in this case. PW28 stated that he had gone thoroughly the case file when the investigation was entrusted to him in this case. PW28 also stated that he was aware of the procedure to be adopted under the provisions of MCOCA but he could not tell the total number of accused persons as mentioned in the FIR. PW28 stated that he recorded the statements of some witnesses u/s 161 Cr.P.C but he could not tell their names. However, PW28 again said that he had not recorded the statement u/s 161 Cr.P.C of any witness. PW28 neither said that accused Jagbir was residing on rent in Kadi Vihar, Delhi nor he said if he found any document showing the ownership of property in the name of accused persons. After going through the record of supplementary charge­sheet, PW28 admitted that there was no such document regarding ownership of property in the name FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 52 of 78 of accused persons placed on record by him. PW28 did not verify any of the document, photocopy of those were attached with the supplementary charge­sheet of three accused persons by him. PW28 admitted that during the course of investigation, he came to know that accused Narender Bhati was Ex­serviceman of Army. PW28 did not tell the fact that during the period of PC remand of accused Narender Singh Bhati, he was unable to read and write without spectacles. PW28 stated that Smt. Vijaya Sharma was witness in this case but she did not meet him during the course of investigation. PW28 admitted that except the arrest, personal search, confessional memos, no other original document was available with him at the time of filing the supplementary charge­ sheet of three accused persons(Narender Singh Bhati, Jagbir Singh and Jaipal).

39. PW29 ACP Mohan Chander, in his cross­examination, stated that no complaint of Ms. Vijaya Sharma was pending at the time when she was called by him to give her statement. PW29 was not aware whether Ms. Vijaya Sharma made any complaint in this regard to any PS against accused Kuldeep Tokas, however, PW29 admitted that no complaint of Ms. Vijaya Sharma was received at DIU. PW29 also admitted that he did not annex any complaint of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 53 of 78 Vijaya Sharma along with the chargesheet. PW29 stated that on 01.05.2008 when after registration of FIR, investigation was marked to him, no document except the copy of FIR and original tehrir was given to him. PW29 admitted that the only document which was annexed by him along with the charge­sheet was an agreement between Ms. Vijaya Sharma and accused Jagbir regarding sale of a land on which accused Kuldeep was a witness from the side of accused Jagbir Singh. PW29 also admitted that there was no other case or complaint pending against accused Kuldeep Tokas till the filing of charge­sheet of the present case. PW29 was also not aware if Ms. Vijaya Sharma had given any complaint at PS Swaroop Nagar on 01­10­2007 against some persons out of which some were accused in this case. PW29 was also not aware regarding any complaint filed by Ms. Vijaya Sharma in the court when no action was taken on her complaint dt. 01.10.2007 at PS Swaroop Nagar. PW29 could not tell whether there was any whisper of allegations qua accused Mansa Ram, Virender, Chokhe Lal and Mahabir Singh in the complaint of Smt. Vijaya Sharma dated 02­05­2008 recorded by him. PW29 admitted that he did not verify the antecedents of Ms. Vijaya Sharma prior to recording her statement. PW29 further admitted that he did not call any dossier of accused persons Mansa FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 54 of 78 Ram, Virender, Chokhe Lal and Mahabir Singh from the SHO of PS Swaroop Nagar at the time or after the recording of statement of Ms. Vijaya Sharma. PW29 also admitted that he did not verify whether the property in which Mansa Ram and Mahabir Singh were residing were acquired by them through illegal means i.e. by indulging in organized crime activities or the said properties were their ancestral properties. PW29 further admitted that he did not collect any proof during the course of investigation regarding any monetary benefits accruing to accused Mansa Ram and Mahabir Singh from their association with accused Jagbir.

40. PW34 Naresh Kumar, Ahlmad posted in the court of Sh. Sunil Kumar, Ld. MM­03 (N), Rohini Courts, Delhi brought the summoned record i.e. case file of FIR No. 65/08 PS Swaroop Nagar u/s 420/468/471 IPC and stated in his cross­examination that as per the ordersheet dt. 20.01.2010 available on judicial file of case FIR no. 65/08, the accused Narender Bhati was released from judicial custody in the said case by the orders of Ld. MM, Ms. Vandana on the request of IO.

41. PW35 Sh. Atul Katiyar, ACP in his cross­examination stated that he did not go through the case file before recording the confessional statement Ex. PW26/A. PW35 stated that certain facts FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 55 of 78 were mentioned in the letter which authorized him to record the confessional statement of accused Narender Singh like registration of FIR at PS Swaroop Nagar against accused Narender Singh and accused was involved in MCOCA case, land grabbing cases etc. PW35 admitted that he had not conducted independent inquiry or investigation and he had not verified the facts from the IO prior to recording statement of accused Narender Singh Bhati. PW35 further admitted that he had not gone through any incriminating material against the accused Narender Singh Bhati.

42. PW40 Jagvinder Mann, LDC, Record Room (Criminal) Rohini Courts, Delhi brought the summoned record i.e. the case file of FIR no. 33/07, PS Swaroop Nagar u/s 452/323/506/34 IPC in which charges were framed against accused Jagbir Singh, Narender Singh Bhati and Arjun u/s 458/323/506 IPC. However, PW40 stated that as per record, all the said three accused persons were acquitted vide judgment dt. 18.11.2010 from the court of Sh. V.K. Jha, Ld. MM, Rohini Courts, Delhi.

43. PW43 Jagvinder Mann, LDC, Record Room (Criminal), Rohini Courts, Delhi brought the summoned record i.e. the case file of FIR no. 308/99, PS Samaypur Badli against accused Jagbir Singh and Jaipal and stated that on 14.10.2011, the Ld. MM, Rohini FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 56 of 78 convicted the accused Jagbir and Jaipal and sentenced for a period of one month u/s 323/341 IPC. However, the said imprisonment of one month was set aside by the Ld. Special Judge (NDPS), Outer District on 22.11.2011.

44. PW45 Sh. Gurbachan Singh, Dy. S. P. Lakshyadweep Police stated in his examination­in­chief that on 08­10­2008, being ACP at DIU (N/W), case file was marked to him for further investigation. On 20­11­2008, PW45 interrogated and arrested accused Chokhe Lal and he gave disclosure statement. On 21­11­2008, he arrested accused Virender and recorded his disclosure statement. PW45 produced both the accused before DCP (N/W) Sh. N. S. Bundela and got recorded their confessional statements. On 18­05­2009, accused Jagbir was produced by the officials of Special Cell before Ld. CMM. Thereafter, accused Jagbir was arrested and his confessional statement was also got recorded through DCP (N/W). However, PW45 in his cross­examination admitted that he had not collected any evidence regarding acquiring of any movable or immovable properties by accused Chokhe Lal and Virender being a member of organized crime activities. PW45 also stated that he was not aware if the residential accommodation of Chokhe Lal was acquired by him prior to 2001.PW45 was also not FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 57 of 78 aware if accused Virender was not having any movable or immovable property in his name. PW45 further stated in his cross­ examination that he did not know whether Chokhe Lal and Virender were BC of any PS or not. PW45 stated that as per the FIR, there were more than 20 persons who were named but it was decided to proceed against 8 accused persons only under MCOCA and said 12 persons were not chargesheeted as they were not coming in the purview of MCOCA. PW45 stated that he did not mention that involvement, if any, in previous case of any of the said 12 persons in supplementary chargesheet filed by him. PW45 did not file the CDR of cell phone used by accused Jagbir in the supplementary chargesheet filed by him. PW45 admitted that during his investigation, he did not check whether there was any movable or immovable property in the name of accused Jagbir in the vicinity of Swaroop Ngar or rest of Delhi.

45. DW1 Naresh Kumar, Ahlmad from the Court of Sh. Sunil Kumar, Ld. MM, Rohini Courts brought the summoned record i.e. judicial file of case FIR no. 66/03, PS Jahangirpuri titled State Vs. Raj Kumar Sharma and others. He exhibited the cognizance order Ex. DW1/A against accused Raj Kumar Sharma and Jagbir; copy of charge as Ex. DW1/B, copy of charge­sheet as Ex. DW1/C. FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 58 of 78 Accused Jagbir was acquitted in the said FIR vide order dated 17­09­2011 Ex. DW1/D. DW1 also brought judicial file of case FIR no. 29/08, PS Swaroop Nagar titled State Vs. Jagbir & Ors. He exhibited the cognizance order against accused Jagbir as Ex. DW1/E, copy of charge as Ex. DW1/F; copy of charges against accused Amit Kumar, Darshan Lal, Babu Ram, Udaivir Singh Chauhan and Shyam Lal vide Ex. DW1/G and copy of charge­sheet as Ex. DW1/H. DW2 Manoj Kumar brought the summoned record i.e. judicial file of case FIR no. 548/05, PS S. P. Badli titled State Vs. Arjun Singh Etc. DW2 marked the copy of complaint DW2/A and copy of arrest memo as Mark DW2/B. DW3 Jagbir Singh stated that all the criminal cases against him were falsely lodged by the police. He was falsely implicated in case FIR no. 349/05 of PS S. P. Badli in which cancellation report was filed by the police later on. Subsequently, on his complaint dated 16­06­2005, FIR no. 548/05 was registered at PS S. P. Badli and he exhibited the complaint Ex. DW3/A; photocopy of chargesheet as Ex. DW3/B; photocopy of arrest memo of Shyam Lal Yadav as Ex. DW3/C and photocopy of chargesheet of case FIR no. 349/04 as Ex. DW3/D.

46. It is evident from the testimonies of PWs and DWs discussed above that PW1 admitted that neither the complaint nor FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 59 of 78 copies of the alleged forged documents were annexed with the proposal. Even, PW1 could not tell if he examined or interrogated accused Narender Bhati before putting up the proposal. PW1 also did not issue any notice to the accused persons to hear them personally before sending the proposal. PW2 neither recorded the statements of the complainant nor prepared any list of complainants who were produced by him before ACP D. K. Gupta. Even, PW2 could not be in a position to tell number of complaints oral or written received by him. PW2 also did not record statement of any person to whom Jagbir Singh had extended threats and even PW2 did not seize their property documents. PW2 also did not produce any of the complainants/ owners of the properties before ACP. PW2 neither gone through nor verified GPA of Ms. Vijay Sharma from Revenue Office regarding the claim of Ms. Vijay Sharma. PW2 admitted that he did not obtain assistance from any PS from Garmukteshwar for verifying or ascertaining the land grabbing by the accused. Even, PW2 did not give the details of cases against accused at Garmukteshwar. PW4 who is the independent witness, admitted that Jagbir was residing in his house as tenant with his servant and he used to pay Rs. 500 as rent for one room. PW4 also admitted that his statement was not recorded by the police. PW4 FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 60 of 78 also admitted that accused Jagbir was very kind and soft hearted person and Ms. Vijay Sharma/ PW7 used to harass the public at large and she sent gundas who gave beatings to Jagbir and even she used to accompany the police officials and threatened Jagbir Singh. PW5 is also the independent witness being an agriculturist and stated that he did not know about this case and why he had been summoned in the court and even he did not know the accused Jagbir and he further admitted that he made no complaint against him or any of this associates. PW10 also admitted that he does not know Ms. Vijay Sharma/ PW7. He also admitted that police did not ask him to produce the documents of the plot in the present case and even in his presence, police neither recorded statement of Megh Singh nor asked him to produce the documents of the plot. Meaning thereby, PW4, PW5 and PW10 being the public witnesses have not supported the case of prosecution. PW6 admitted that neither statement of witnesses nor any documents were annexed with the proposal Ex. PW1/A and even there was no document enclosed with the proposal showing the proposal taken by the court. PW6 also admitted that he made no verification of the antecedents and activities of the witnesses relied upon in the proposal. PW6 further admitted that he did not make any query nor requisitioned FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 61 of 78 any document before according the approval u/s 23 (1) of MCOCA. PW6 also admitted that names of 18 persons were mentioned in the proposal as associates of Jagbir Singh but he only accorded sanction u/s 23 (2) MCOCA only with regard to three accused persons who were arrested by them. PW6 further admitted that he did not ask for any document viz. The statement of accounts, property documents or details of movable or immovable properties, shares or the details of benami properties before granting sanction. Even, PW6 did not inquire from the IO if any cash was recovered from the three arrested accused.

47. PW7 stated that she has been dealing in property business since 1995­1996 and her sons were also assisting her in her property dealing business in the name and style Sadbhavna Associates. PW7 also admitted that she did not know that accused Kuldeep Tokas was also with accused Jagbir in attempting to take possession of her land. PW7 also admitted that she did not tell to the police that accused Kuldeep Tokas was doing work for Jagbir Singh or that Kuldeep Tokas in collusion with Jagbir used to take forcible possession of the property of the people. PW7 further admitted that accused Kuldeep Tokas was a witness from her side to the document of agreement to sell. PW7 also admitted that the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 62 of 78 documents Ex. PW7/D1 to PW7/D3 were unregistered notarized documents and she did not obtain the receipts of payments made to Parveen Kumar Jain and Surender Kumar Jain. Even, she did not bring the said GPA. PW7 further admitted that she did not get the property physically demarcated from any Govt. agency. PW7 also could not tell to how many persons she had sold the land mentioned in Ex. PW7/D1 to Ex. PW7/D3 except accused Jagbir. PW7 could not tell the details of amount paid to Surender Jain and Parveen Jain by way of cheques and cash. PW7 also did not tell the names of persons to whom she sold the land mentioned in Ex. PW7/D1 and PW7/D2 except accused Jagbir. Even, PW7 could not tell the period when she sold the land to the other persons. PW7 admitted that land mentioned in Ex. PW7/D1 and D2 vested by the SDM, Naya Bans, Narela. PW7 also admitted that accused Jagbir filed the civil suit with respect to the properties/ khasra nos. mentioned in exhibits PW7/D1 and PW7/D2 against her. PW7 admitted that there was no money transaction between her and accused Jagbir in respect to lands mentioned in Ex. PW7/D1 and PW7/D2. PW7 further admitted that the dispute between her and accused Jagbir was only in respect to the properties in Ex. PW7/D1 and PW7/D2.

48. PW12 could not tell whether any document from FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 63 of 78 Revenue Department was collected by the IO to ascertain the title. PW13 admitted that as per his investigation in FIR no. 635/99, all the accused persons including Jagbir Singh had not generated illegal wealth by contract killing, extortion, smuggling in contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering etc. Even, no cognizance of the said offences against the accused persons was taken upon his chargesheet. PW13 further admitted that his statement u/s 161 Cr.P.C. was not recorded by the IO in the present case. PW14 admitted that his statement recorded u/s 161 Cr.P.C. Ex. PW14/DA was neither shown to him nor its contents were read over to him. PW14 also admitted that due to slip of pen instead of PS S. P. Badli word P. S. Swaroop Nagar was written on Ex. PW14/DA. PW14 further admitted that his chargesheet Ex. PW8/K in FIR no. 291/02 was totally silent whether the accused Jagbir had generated illegal wealth by contract killing, extortion, smuggling in contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering. PW17 admitted that he was not examined as a witness in the case FIR no. 99/07 though he was IO. PW17 was also not aware if the accused have been acquitted in case FIR no. 99/07, PS Samaipur Badli. PW17 also admitted that FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 64 of 78 he had not checked the financial condition of accused Jagbir by searching his bank accounts. PW22 admitted that no document including police file was annexed along with the application through which request was made for recording confessional statement of accused Jagbir Singh. PW22 did not put any document to the accused Jagbir while recording his statement. PW24 participated in the investigation of this case only on 01­07­2009 and he was not aware about the other facts and progress of the case except arrest of accused Narender Bhati. PW28 admitted that he had no knowledge about the FIR no. 166/08 registered at PS Swaroop Nagar. PW28 did not record statement u/s 161 Cr.P.C. of any witness. PW28 came to know that accused Narender Bhati was Ex­ serviceman of Army. PW29 admitted that no complaint of Ms. Vijay Sharma was pending at the time when she was called by him to give her statement. PW29 did not annex any complaint of Ms. Vijay Sharma along with the chargesheet and the only document which was annexed by him along with the chargesheet was an agreement between Ms. Vijay Sharma and accused Jagbir regarding sale of a land. PW29 admitted that there was no other case or complaint pending against accused Kuldeep Tokas till the filing of chargesheet of the present case. PW29 could not collect any proof during the FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 65 of 78 course of investigation regarding any monetary benefits accruing to accused Mansa Ram and Mahabir Singh from their association with accused Jagbir. PW29 admitted that he recorded disclosure statements of accused Mansa Ram and Mahabir during the course of their PC remand. PW32 admitted that during his period of investigation, no public witness came forward to depose against any of the accused persons in order to show their connivance. PW35 admitted that he had not conducted independent inquiry or investigation prior to recording statement of accused Narender Singh Bhati. Even, he did not verify the facts from the IO prior to recording of statement of Narender Singh Bhati. PW35 further admitted that he had not gone through any incriminating material against accused Narender Singh Bhati. PW45 IO of the case admitted that he did not collect any evidence regarding acquiring any movable or immovable properties by accused Chokhe Lal and Virender being a member of organized crime activities. PW45 also admitted that nothing at the instance of accused Jagbir was recovered during his PC remand. PW45 further admitted that during his period of investigation, no public witness came forward to depose against accused Jagbir Singh. Even, PW45 during his investigation, did not check whether there was any movable or immovable property in the name of Jagbir FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 66 of 78 in the vicinity of Swaroop Nagar or rest of Delhi.

49. In Madan s/o Ramkishan Gangwani Vs. State of Maharashtra, 2009 ALL MR (Cri.) 1447, Crl. Appeal no. 308/02 with Crl. Appeal nos. 317/318/323 to 325 and 374/02 decided on 26­03­2009, it was held by Bombay High Court that unless the crime was aimed at pecuniary or other like advantage, it would be of no avail for proving offence of organized crime. In the State of Maharashtra Vs. Jagan Gagansingh Nepali @ Jagya and another and Smt. Sandhya Prafulla Patil, Criminal Appeal no. 20 of 2011 with Criminal application no. 798 of 2011 and The State of Maharashtra Vs. Devendra Baburao Jagtap alias J. D. and others, Criminal appeal no. 407 of 2011 it was held as under:

"2. The question, therefore, that we are called upon to answer is "as to whether the term "other advantage" has to be read as ejusdem generis with the words "gaining pecuniary benefits, or gaining undue economic advantage" or whether the said term "other advantage" is required to be given a wider meaning." "For the reasons aforesaid, we answer the issue that the term "other advantage" cannot be read as ejusdem genris with the words "pecuniary benefits" and "undue economic".

It was further held as under:

"It can, thus, clearly be seen that the purpose FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 67 of 78 behind enacting the MCOCA was to curb the activities of the organized crime syndicates or gangs. The perusal of the Preamble and the Statement of Objects and Reasons and Preface, in our considered view, does not lead to any narrower meaning that MCOCA has been enacted only for the purpose of curbing activities which involve pecuniary gains or undue economic advantages. The mischief which is sought to be cured by enactment of MCOCA is to curb and control menace or organized crime."

It was further held as under:

"As held by the Apex Court in the case of Ranjitsing Brahmjeetsingh Sharma (supra), merely because the person who 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. By the same analogy, if a person commits murder more than once, would not by itself be sufficient to attract the provisions of MCOCA."

50. Let us also examine whether arrest, personal search and disclosure statements have been proved by the prosecution qua the accused persons in this case. During cross­examination, PW9 stated that IO had not prepared any site plan of the place of arrest of accused Kuldeep Tokas in his presence. PW9 stated that IO had not given any information to local police about the arrest of accused Kuldeep in his presence. PW12 stated that ACP had not reduced FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 68 of 78 into writing the contents of interrogation made from accused Mansa Ram after his apprehension. PW12 did not remember as to who others had signed the memo besides him as witness. During cross­ examination, PW12 stated they had made departure entry before leaving DIU office but he could not tell whether the said entry was placed on record or not. PW19 Inspector Vivek Tyagi stated that on 16.05.2009, they received a specific input and on the basis of the same, they left for Balia, U.P. On 17­05­2009 at about 4 pm, they arrested accused Jagbir Singh from PS Sikanderpur, Distt. Balia, UP. On 28­06­2009 at about 2:40 pm, accused Narender Singh Bhati was arrested from Indian Oil Corporation (GAIL), village Banthala, Distt. Ghaziabad by a team led by him, Inspector Ramesh, HC Ashok, HC Pradeep and HC Inderjeet. During cross­ examination, PW19 stated that they left Delhi on 16­05­2009 and made departure entry at their office but he did not tell its number. PW19 also stated that they returned to Delhi on 18­05­2009 by train but he did not tell which mode they had adopted to reach Balia. Even PW19 did not tell the name or number of the train by which they had returned to Delhi from Balia. PW19 also could not tell if all the DD concerning arrival/ departure were made part of Kalendra or not. PW19 further could not tell if any case diary was maintained during FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 69 of 78 the process of Kalendra by the IO or not. PW19 did not tell if the documents qua arrest prepared at Balia were signed by local police or not. PW19 did not tell if any paper qua interrogation of accused Jagbir was annexed with Kalendra or not. PW28 stated in his cross­ examination that he did not visit Garmukteshwar, Ghaziabad, UP during the course of investigation and even he did not tell if any of his subordinate officials visited the same or not. PW29 admitted in his cross­examination that he had recorded the disclosure statements of both the accused Mansa Ram and Mahabir Singh during the course of their police custody remand. PW36 Inspector Rajesh Vijay admitted in his cross­examination that no information regarding the arrest of accused Narender Singh Bhati was given either to his family members or near relatives. PW37 Inspector Ramesh Lamba admitted in his cross­examination that accused Jagbir and Narender Singh Bhati did not try to escape from the place of their arrest and accused Jagbir was sitting at the river bank with some persons. PW37 could not tell whether HC Pardeep had obtained signature of any independent witness on the arrest and personal search memos of accused Jagbir and Narender Singh Bhati. PW39 admitted that accused Narender Singh Bhati did not try to escape. PW41 in his cross­examination could not tell whether FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 70 of 78 accused Chokhe Lal was a BC of the area or he was having any criminal antecedents prior to this case. PW41 further could not tell whether accused Virender was BC or in how many cases he was involved previously.

51. Perusal of the record reveals that there is no public witness to the arrest, personal search memos and disclosure statements of the accused persons. In Ajay @ Chotu Vs. The State, 2012 [2] JCC 1261, it was held by the Hon'ble High Court of Delhi that three conflicting versions undermine the prosecution's versions about arrest of the accused. Principle laid down by the Hon'ble Apex Court has been followed that the circumstances surrounding arrest of the accused and doubts emerging from the prosecution's case can be a ground for acquittal. In Staila Sayyed Vs. State, 2008 [4] JCC 2840, the Hon'ble High Court held that there was non­joining of public witness at the time of arrest of accused and recoveries. All the witnesses to recoveries were police officials. Such recoveries do not inspire confidence. In Dinesh Kumar Vs. State, 1998 [1] JCC [Delhi] 173, it was held by Hon'ble High Court that disclosure statement and recovery of knife not made in presence of independent witnesses. Only police constables are the witnesses. No explanation coming forth for not joining FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 71 of 78 independent witnesses. It has been held in Rattan Lal Vs. State 1987 (2) Crimes 29 that "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."

52. In the present case, PW9 SI Jagir Singh stated in his examination in chief that accused Kuldeep Tokas was apprehended by them on the pointing out of secret informer. PW9 further stated that ACP Mohan Chander asked some passersby to join the investigation at Bhalaswa Lake but none agreed to join the investigation due to their own problems and left the place without disclosing their names and addresses. PW10 stated that at the time of recording his statement, no other public person was present except him and police officials who recorded his statement. PW12 admitted that road on which the secret information regarding arrival of accused Mansa Ram was received was a very crowded road. FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 72 of 78 PW12 stated that ACP had tried to join 5­6 public persons in the investigation but they refused. PW12 did not remember whether any notice in writing was given to those 5­6 public persons who were asked to join the proceedings. PW12 was not aware whether any legal action was taken against those 5­6 public persons or not. PW12 did not know whether the contents of secret information were passed on to the local PS or to DIU office. PW12 admitted that place of information was situated in residential colony and there were houses nearby as well as some vacant plots. PW12 stated that ACP had requested public persons available there to join the proceedings but none came forward. PW25 admitted in his cross­ examination that no independent witness was cited in the Kalendra regarding the arrest of Jagbir Singh and Narender Bhati. PW28 admitted in his cross­examination that no public person came forward to depose against the three accused persons namely Jagbir, Jaipal and Narender Singh Bhati before him till filing of chargesheet. PW29, in his cross­examination, could not tell whether the character and demeanour of accused Mansa Ram and Mahabir Singh were such that public persons of the area were afraid of them. PW32 in his cross­examination admitted that during his period of investigation, no public witness came forward to depose against any FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 73 of 78 of the accused persons in order to show their connivance. During cross­examination, PW33 HC Jitender Singh admitted that no independent witness agreed to join the raiding party despite request made by SI Sanjeev Kumar as such no independent witness could be examined qua the arrest of accused Chokhey Lal and Virender in their respective kalandras u/s 41.1 CrPC. PW38 HC Ashok Kumar was a member of raiding party who arrested accused Narender Bhati at the godown of IOC at village Banthala, Distt. Ghaziabad (UP) but PW38 could not tell whether any independent witness was joined by HC Pradeep at the time of arrest of accused Narender Singh Bhati. PW39 HC Inderjeet admitted in his cross­examination that no public witness was asked to join the investigation. PW41 SI Sanjeev Kumar Yadav in his cross­examination admitted that Rana Pratap Bagh remains inhabited with many public persons during the course of day. PW45 admitted that during his period of investigation, no public witness came forward to depose against accused Jagbir.

53. In State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 74 of 78 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful.

54. Let us further examine whether any document or recovery was made from the accused persons which could attract the provisions under the MCOCA. PW11 HC Manoj Kumar admitted that nothing was recovered in personal search of accused Mahabir Singh. PW12 admitted that nothing was recovered and discovered in his presence in pursuant to the disclosure statement of accused persons. PW12 also did not tell whether any document from Revenue Department was collected by the IO to ascertain the title. PW25 ASI Pradeep Kumar, in his cross­examination, admitted that neither from accused Jagbir Singh nor from accused Narender Bhati, any document pertaining to this case was recovered. PW28 admitted in his cross­examination that no incriminating document was got recovered by accused Narender Singh Bhati either against him or any other accused persons during his PC remand. During cross­ examination, PW32 ACP Mahavir Singh Dahiya in his cross­ FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 75 of 78 examination stated that he did not know if there was any document on the file during the period the said file remained with him showing the connectivity of the accused persons amongst them. PW32 admitted that no document whatsoever in nature was recovered at the instance of any of the accused persons during his period of investigation. PW45 admitted that nothing was recovered during the PC remand of accused Jagbir.

55. Thus, the prosecution has not proved on record that the accused persons conspired, abetted and knowingly facilitated the commission of organized crime or acted preparatory to organize crime by using violence and threat or violence or intimidation or coercion by other unlawful means i.e. by land grabbing etc. with the objective of gaining pecuniary benefits and other advantages for themselves which may attract the provisions u/s 3 (1) (2) of MCOCA, 1999. Further, the prosecution has also not proved the evidence against the accused Jagbir Singh, Jaipal Singh and Narender Singh Bhati u/s 174A IPC. It is well settled and one of the cardinal principles in criminal jurisprudence that the accused is presumed to be innocent until proved guilty by the prosecution. In, Tika Vs. State of UP, AIR 1974 SC 155, it was held that "one of the cardinal principles which has always to be kept in view, in our system of FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 76 of 78 administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged". In Balraj Singh Vs. The State of Punjab, 1976 Cr.L.J. 1471 (DB) (Punjab), it was held that "The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted". In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused.

56. In view of the my above discussions and the judgements, FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 77 of 78 I am of the considered opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, all accused persons are acquitted. They be released forthwith, if not wanted in any other criminal case. File be consigned to Record Room.

(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW­03:ROHINI:DELHI.

ANNOUNCED IN THE OPEN COURT on 30­09­2014 FIR No. 92/08; State Vs. Mahabir Singh Etc. Page 78 of 78