Delhi District Court
State vs Jag Mohan @ Mohar Singh & Another on 27 March, 2014
State vs Jag Mohan @ Mohar Singh & another
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 59/10
ID No. : 02401R1331602006
Date of Institution : 10.02.2006
FIR No. : 521/2005
Police Station : Connaught Place
Under Section : 186/353/411 IPC &
25/27 Arms Act &
3(2) & 3(4) MCOCO Act
State
Versus
Jag Mohan @ Mohar Singh
S/o Late Sh. Johri Lal
R/o H. No. 3808,
David Street, Darya Ganj,
Delhi.
.........Accused No. 1
AND
SC No. 60/10
ID No. : 02401R0654382009
Date of Institution : 20.12.2007
FIR No. : 521/2005
Police Station : Connaught Place
Under Section : 3 (2) & 3(4) MCOCO Act
SC No. 59/10 & 60/10 Page 1 of 106
State vs Jag Mohan @ Mohar Singh & another
State
Versus
Jai Chand @ Munna
S/o Late Sh. Johri Lal
R/o H. No. 3808/3814/3828/3829
David Street, Darya Ganj,
Delhi.
.........Accused No. 2
Date of judgment reserved on : 07.03.2014
Date of judgment pronounced on : 27.03.2014
Present: Sh. Rajiv Mohan Special Public Prosecutor for the State
Sh. Rajesh Anand, Advocate, counsel for both the accused
JUDGMENT:-
1. Sessions Case No. 59/10 & 60/10 are the subject matter of present judgment as both the cases arise out of FIR No. 521/2005, Police Station Connaught Place.
2. Briefly stated facts of prosecution case are that on September 13, 2005 SI Balbir Singh (PW5) was present in his office i.e. Anti Robbery Cell, Crime Branch, Sector - 8, R.K. Puram, New Delhi. At about 2.30 PM, a secret informer came to him and conveyed an information about Mohar SC No. 59/10 & 60/10 Page 2 of 106 State vs Jag Mohan @ Mohar Singh & another Singh, a notorious criminal and bad character of area of Police Station Darya Ganj that he would come in a Qualis van in front of Regal Cinema and would go towards Gol Dak Khana at about 4 PM and he would be carrying illegal fire arm. If raid be conducted, he would be apprehended along with illegal fire arm. It was also informed that Toyota Qualis Van was wanted in a case of Police Station Connaught Place.
(i). On receipt of this information, SI Balbir Singh shared the information with Mr. Kumar Gyanesh, ACP, Anti Robbery Cell, Insp. R.N. Vashisht (PW22) and Insp. Rajbir Sharma (PW20). Senior officers directed him to conduct a raid immediately. Accordingly, he recorded the said information in the register vide DD No. 18 at about 2.40 PM.
(ii). It was alleged that thereafter a raiding party comprising of 17 police officials was constituted. Only two police constables namely Chanderhas and Vinod were in police uniform while rest of members of the team were in plain clothes. After making departure entry vide DD No. 19, they left from the office at 3 PM in two vehicles. One vehicle was Toyota Qualis bearing registration number DL-1C-J-2329 and the same was being driven by its driver Const. Narender whereas another vehicle was a private car. At about 3.40 PM, they reached Hanuman Mandir, Connaught Place.
The raiding party was constituted under the supervision of Insp. R.N. Vashisht.
(iii). After reaching Hanuman Mandir, Connaught Place, SI Balbir Singh spoke 5-7 passers by and tried to get them to join the raid but all of them refused to join the raid and left the place without revealing their names and addresses and making all kind of excuses. Thereafter, SI Balbir Singh briefed the raiding party and the raiding team took the position about SC No. 59/10 & 60/10 Page 3 of 106 State vs Jag Mohan @ Mohar Singh & another 20 meters away from Hanuman Mandir, Connaught Place. Const. Anangpal (PW1) along with secret informer was deployed right side in front of the Hanuman Mandir, Connaught Place with direction to give signal to the raiding party after arrival of Mohar Singh by raising a right hand over his head and he was directed to permit the secret informer to go thereafter.
(iv). It was alleged that at about 4.15 PM, one silver colour Toyota Qualis was coming from Regal Cinema and after seeing the same, Const. Anangpal signalled to the members of the raiding party. Thereafter, SI Balbir Singh immediately blocked the road along with his staff. The registration number of Toyota Qualis was HR-55A-3776.
(v). It was alleged that as soon as Qualis Van was stopped, SI Balbir Singh opened the driver's door after showing his identity card and disclosing his identity. At that time, the person who was sitting in driver seat i.e. accused Jag Mohan @ Mohar Singh had taken out a pistol from his right dub and pointed out towards SI Balbir Singh. Const. Chanderhas who was in police uniform and standing behind SI Balbir Singh swooped down on the driver and snatched the pistol from right hand of the accused. On checking, it was found that four live cartridges of 7.65 bore were loaded in the magazine.
(vi). After examination, recovered pistol was seized, its sketch was prepared and same was sealed in a parcel with the seal of BS. Form FSL also filed up. On being asked, accused Jag Mohan @ Mohar Singh failed to produce any document regarding ownership of the said vehicle. On verification, it was was revealed that the said vehicle was wanted in case FIR No. 168/2003 under Section 406/420 IPC, Police Station Connaught Place, accordingly same was seized under Section 102 Criminal Code of SC No. 59/10 & 60/10 Page 4 of 106 State vs Jag Mohan @ Mohar Singh & another Procedure being the stolen property. It was alleged that accused Jag Mohan @ Mohar Singh refused to sign the seizure memo of the fire arm, vehicle and sketch of fire arm.
(vii). It was alleged that thereafter a rukka was prepared for the offence punishable under Section 186/353/411 of Indian Penal Code and Section 25/27 of Arms Act. At about 6.30 PM, a rukka was sent to Police Station Connaught Place through ASI Ravi Shankar (PW2). A request was also made in the rukka to hand over further investigation to SI Pankaj Yadav of Anti Auto Theft Squad, Crime Branch. SI Pankaj Yadav was directed to reach the spot.
(viii). It was alleged that when SI Pankaj Yadav reached the spot, SI Balbir Singh briefed him regarding the case and accused, thereafter, SI Balbir Singh handed over the case property and relevant papers to SI Pankaj Yadav. SI Pankaj Yadav prepared the site plan at the pointing out of SI Balbir Singh. In the meantime, ASI Ravi Shankar returned to the spot after registration of FIR and handed over the original rukka and copy of FIR to SI Pankaj Yadav. Thereafter, SI Pankaj Yadav recorded the statement of Insp. Rajbir Singh, Insp. R.N. Vashisht, SI Balbir Singh, Const. Chanderhas and Const. Anangpal.
(ix). It was alleged that thereafter SI Pankaj Yadav recorded the statement of accused Jag Mohan @ Mohar Singh and interrogated the accused and arrested him. SI Pankaj Yadav arrested the accused and took his personal search. In his personal search one Titan wrist watch, gold bracelet, 4 rings, one pearl necklace, cash amounting ` 17280/-, one Nokia phone model 6101 having an Idea SIM card and one key were recovered. All the items were sealed in a parcel with the seal of SS and seized the SC No. 59/10 & 60/10 Page 5 of 106 State vs Jag Mohan @ Mohar Singh & another same.
(x). It was alleged that thereafter accused Jag Mohan @ Mohar Singh was subjected to sustain interrogation and his disclosure was recorded but he refused to sign the same. He only signed arrest memo and personal search memo.
(xi). It was further alleged that during investigation SI Pankaj Yadav collected criminal record of accused Jag Mohan @ Mohar Singh and his brothers, namely, Jai Chand, Sher Singh, Khoob Singh and Brij Mohan @ Pappu from Police Station Darya Ganj. It was revealed that accused Jag Mohan @ Mohar Singh was a bad character of Police Station Darya Ganj and numerous criminal cases were registered against him in various police stations in Delhi. His brothers, namely, Jai Chand, Sher Singh, Khoob Singh and Brij Mohan @ Pappu were also bad characters from Police Station Darya Ganj and they were also found involved together with the accused Jag Mohan @ Mohar Singh in numerous cases. The detail of their involvement is mentioned in Annexure 'A' annexed with the charge-sheet.
(xii). As per annexure 'A', total 12 cases were found registered in different police station of Delhi against the accused Jag Mohan.
(xiii). It was alleged that on September 14, 2005, accused Jag Mohan was produced before the Court of Sh. Digviney Singh, the then learned Metropolitan Magistrate. He was also got arrested in case FIR No. 168/2003 for the offence punishable under Section 406/420 of Indian Penal Code. He was taken on police remand for one day and thereafter he was subjected to sustain interrogation. Thereafter, his disclosure statement was recorded but again he refused to sign the same and denied that he had any SC No. 59/10 & 60/10 Page 6 of 106 State vs Jag Mohan @ Mohar Singh & another knowledge about the whereabouts of Amjad from whom he had allegedly bought the recovered fire arm. It was alleged that a proposal to invoke provisions of MCOCA against accused Jag Mohan @ Mohar Singh was prepared by SI Pankaj Yadav on September 14, 2005.
(xiv). On September 15, 2005 accused was produced before learned Link Metropolitan Magistrate and he was got sent to judicial custody till September 28, 2005. Though, accused moved bail application, but same was dismissed by the Court.
(xv). It was alleged proposal to invoke MCOCA was approved by Additional Commissioner of Police, Crime on September 15, 2005 vide letter No. 1098/P. Sec./(Addl.)/CP/Crime/Delhi dated September 15, 2005. Accordingly, Section 3 (2) and 3 (4) of MCOCA were added and further investigation was assigned to Sh. Joy Tirkey, the then Assistant Commissioner of Police. Sh. Joy Tirkey received a letter for further investigation on September 17, 2005 and accordingly he took up the investigation on the same day.
(xvi). On receipt of file, an application was moved for production warrant of the accused on September 21, 2005 and after taking permission from the Designated Court, accused was interrogated in the lock-up for an hour. His disclosure was recorded but again he refused to sign the same. Thereafter, he was produced before the Court and he was taken on police remand for four days.
(xvii). On September 23, 2005 a raid was conducted at the office and residence of accused Jag Mohan @ Mohar Singh, which was located at 3828/29 and 3808 David Street, Darya Ganj, Delhi respectively. Despite SC No. 59/10 & 60/10 Page 7 of 106 State vs Jag Mohan @ Mohar Singh & another efforts, no public persons consented to join the raiding party. Family members were found absconding. Both the premises were found locked. It was felt that premises were swept clean to remove incriminating documents, however some documents like electricity, water bills and and some other papers regarding both the properties were found and same were seized. Detail inventory of both the premises was prepared.
(xviii). It was alleged that on September 24, 2005, accused was produced before DCP Narcotics for the purpose of his confession but accused refused to make any confession. On September 26, 2005 he was taken on police remand for further two days.
(xix). On September 28, 2005, accused was got sent to judicial custody. Despite efforts made by IO, his brothers Jai Chand, Sher Singh, Khoob Singh and Brij Mohan @ Pappu who were members of Crime Syndicate could not be traced out. Hence, warrants were obtained against them. Thereafter, proceedings under Section 82 Criminal Code of Procedure was initiated.
(xx). It was alleged that on January 10, 2006, accused Jag Mohan filed a criminal writ petition of Habeas-Corpus before the Hon'ble High Court of Delhi. Subsequently, his four absconded brothers also filed criminal writ petition of Certiorari before the Hon'ble High Court of Delhi. They were directed to join the investigation but directed not to arrest them till the disposal of the writ petition. Consequently, his brothers joined the investigation but they did not co-operate during investigation.
(xxi). It was alleged that during investigation, it was revealed that accused Jag Mohan @ Mohar Singh and his brothers, namely, Brij Mohan SC No. 59/10 & 60/10 Page 8 of 106 State vs Jag Mohan @ Mohar Singh & another and Khoob Singh are the owner of the various vehicles and it was revealed that accused Jag Mohan owned a Maruti Car 800 bearing registration No. DL-3C-7199, his brother Brij Mohan @ Pappu was found to own Hyundai Santro Car bearing registration No. DL-1C-G-2272 and his brother Khoob Singh was found owning one Maruti Van bearing registration No. DL-2C-B- 2692. Ownership documents were collected from the Transport Authority.
(xxii). During investigation, report was called from Delhi Jal Board qua water bills recovered from the premises of accused Jag Mohan @ Mohar Singh. It was revealed from the report that one resident of the property disclosed that all the properties except property No. 3813 were being used by accused Jag Mohan, however that resident did not disclose his name. But no mutation was found in the name of accused.
(xxiii). It was further alleged that as per report from the office of Food and Civil Supply, it was revealed that the ration card bearing No. 465812 was issued in the name of Jai Chand and Khoob Singh i.e. brothers of accused Jag Mohan @ Mohar Singh at property No. 3808, David Street, Darya Ganj on May 20, 1997 and in the said ration card, name of Brij Mohan is also mentioned.
(xxiv). It was alleged that during investigation it was revealed that some more properties belonged to the accused Jag Mohan @ Mohar Singh and his brothers. It was alleged that accused Jag Mohan @ Mohar Singh owned four shops at 3rd floor premises No. S-513, School Block, Vikas Marg, Shakarpur, Delhi and in this regard acknowledgement slip for registration-cum-demand note No. 724182 registered on July 19, 2000 was recovered during investigation. In this regard, one Shiv Bahadur Singh, who used to look after the said shops was examined. During search of office of SC No. 59/10 & 60/10 Page 9 of 106 State vs Jag Mohan @ Mohar Singh & another Shiv Bahadur Singh, one GPA of shop No. 39 located at 3 rd floor which was executed by one Fatima Begum in favour of accused Jag Mohan @ Mohar Singh was recovered. Accordingly, same was seized.
(xxv). It was revealed from the SHO PS Shakarpur that accused Jag Mohan @ Mohar Singh had purchased a disputed property bearing No. F-230, Mangal Bazar, Laxmi Nagar where one Prabhu Dayal was residing as a tenant. It was alleged that Prabhu Dayal had lodged an FIR No. 650/96 under Section 506 IPC against accused Jag Mohan as he had given a threat to evict him from the premises.
(xxvi). It was further alleged that some dispute was going on between Yama Jadran and Rajiv Suri qua property No. S-82, Greater Kailash, Part-I. The said property was in the possession of Yama Jadran and his sister Jhala Jadran. It was alleged that Jhala Jadran was an associate of accused Jag Mohan and she was arrested along with the accused in case FIR No. 853/96 under Section 302/307/34 IPC, Police Station Kotwali. Rajiv Suri was criminally intimated by co-accused Jai Chand and Khoob Singh when he demanded his due from Yama Jadran.
(xxvii). It was alleged that accused and his brothers had threatened Bobby Kapoor and forcibly occupied property No. 3814. One portion of the said property was let out by mother of Bobby Kapoor to Jag Mohan @ Mohar Singh and his brothers as a tenant but accused and his brothers illegally occupied the property and declared themselves as owners. Several civil litigations were going on between parties and were pending in different Courts.
(xxviii). It was further alleged that Surender Mohan was also one SC No. 59/10 & 60/10 Page 10 of 106 State vs Jag Mohan @ Mohar Singh & another of the tenant in property No. 3814 and accused Jag Mohan @ Mohar Singh and his brothers even declared themselves as owner of his portion and grabbed the same and when Surender Mohan tried to evict the accused, they threatened him and assaulted him.
(xxix). It was further alleged that property No. 3828 belonged to one Sanjay Bhandari but accused persons had grabbed his property by coercing and threatening him.
(xxx). It was further alleged that co-accused Jai Chand had filed a false civil suit qua property No. S-206, School Block, Shakarpur, Delhi (xxxi). It was further alleged that though accused Jag Mohan was the owner of property No. 3, Jangpura Road but nobody was ready to disclose the fact in the locality. It was further alleged that plot No. 601, Nehru Enclave was also grabbed by accused Jag Mohan @ Mohar Singh. It was alleged that investigation qua property No. S-206, School Block, Shakarpur, House No. 3 Jangpura Road, Bhogal and property No. 601, Nehru Enclave, Shakarpur, Delhi was going on.
(xxxii). It was alleged that during investigation it was revealed that accused Jag Mohan @ Mohar Singh has brothers namely Jai Chand, Khoob Singh, Sher Singh and Brij Mohan @ Pappu and they had been conducting themselves in an organized manner for pecuniary gain from time to time and they threatened the genuine property holders with a motive to generate wealth and property by resorting criminal intimidation and extortion. Several persons had either been criminally intimidated or done to death whosoever did not toe their line of usurping properties. Accused Jag Mohan @ Mohar Singh and his brothers had generated illegal wealth by SC No. 59/10 & 60/10 Page 11 of 106 State vs Jag Mohan @ Mohar Singh & another forcibly grabbing the landed properties in various parts of city. They had also filed frivolous civil suits even without the knowledge of real owner with a motive to grab their property and Surender Mohan is one of the such victims.
(xxxiii). Accordingly, a charge-sheet was filed against the accused Jag Mohan @ Mohar Singh for the offence punishable under Section 3 (2) & 3 (4) of Maharashtra Control of Organize Crime Act (MCOCA in short) and Section 186/353/411 of Indian Penal Code and Section 25/27 of the Arms Act. A complaint under Section 195 of Criminal Code of Procedure was also filed against the accused for the offence punishable under Section 186/353 of Indian Penal Code. Sanction under Section 23 (2) of MCOCA was also obtained before filing the charge-sheet. It was further submitted that investigation qua accused Jag Mohan @ Mohar Singh and his syndicate shall continue and further charge-sheet shall be filed in terms of Section 173 (8) of Criminal Code of Procedure.
(xxxiv). A supplementary challan was filed against the accused Sher Singh i.e. brother of accused Jag Mohan @ Mohar Singh on December 20, 2007 for the offence punishable under Section 3 (2) & 3 (4) of MCOCA. It was also recited therein that further investigation qua accused Jag Mohan @ Mohar Singh and his brothers namely Khoob Singh, Jai Chand, Brij Mohan @ Pappu shall continue. Accused Khoob Singh, Jai Chand and Brij Mohan @ Pappu were yet to be arrested.
(xxxv). It is pertinent to state that accused Sher Singh was discharged by the Court of Sh. J. R. Aryan, the then learned Additional Sessions Judge/Special Judge/New Delhi vide detail order dated March 26, 2010.
SC No. 59/10 & 60/10 Page 12 of 106State vs Jag Mohan @ Mohar Singh & another (xxxvi). Thereafter, investigating officer had filed another supplementary challan against co-accused Jai Chand @ Munna. Accused Jai Chand @ Munna was arrested on April 15, 2009 and thereafter he was taken on police remand for two days. During investigation, he was found involved in as many as 25 cases including six daily diaries as mentioned in the charge-sheet.
(xxxvii). It was further alleged that terror of the Crime Syndicate was of a such a high degree that almost all the witnesses were scared to them. Crime Syndicate was in the habit of threatening and then eliminating witnesses and they used to grab property of innocent victims. They had no fear of law of land and they had been committing crimes with impunity without getting punished as they always managed to scare the witnesses. Challan was filed against accused Jai Chand @ Munna for the offence punishable under Section 3 (2) & 3 (4) of MCOCA. Sanction was also obtained under Section 23 (2) of MCOCA. It was further submitted that investigation qua accused Khoob Singh and Brij Mohan @ Pappu was going on and separate challan will be filed against them.
(xxxviii). It is pertinent to state that no challan has been filed against remaining two brothers namely Khoob Singh and Brij Mohan @ Pappu till date. Even no supplementary challan has been filed against accused Jag Mohan @ Mohar Singh despite the fact that it was mentioned in the charge-sheet that investigation qua some of the properties was going on.
(xxxix). When accused Jag Mohan @ Mohar Singh was arrested under the stringent provisions of MCOCA, he had filed a writ petition of Habeas-Corpus before Hon'ble High Court of Delhi but same was SC No. 59/10 & 60/10 Page 13 of 106 State vs Jag Mohan @ Mohar Singh & another converted into a petition under Section 482 Criminal Code of Procedure and brothers of accused had also filed a writ of Certiorari for quashing of proceedings initiated against them under Section 82 of Criminal Code of Procedure. However, all the petitions were dismissed.
3. Vide order dated March 26, 2010, Court of Sh. J. R. Aryan, the then learned Additional Sessions Judge/Special Judge/New Delhi held that prima-facie a case is made out against accused Jag Mohan @ Mohar Singh and Jai Chand @ Munna for the offence punishable under Section 3 (2) & 3 (4) of MCOCA and further held that prima-facie a case is also made out for the offences punishable under Section 353/186 of Indian Penal Code and under Section 25/27 of Arms Act against accused Jag Mohan @ Mohar Singh. However, accused Sher Singh was discharged from all the charges.
4. Though, the said order was challenged by accused Jag Mohan @ Mohar Singh by filing a criminal revision before the Hon'ble High Court of Delhi but the said criminal revision was dismissed vide order dated May 19, 2010.
5. Pursuant to order dated March 26, 2010 a charge was framed against accused Jag Mohan @ Mohar Singh and Jai Chand @ Munna for the offence punishable under Section 3 (2) & 3 (4) of MCOCA and a separate charge was framed against accused Jag Mohan @ Mohar Singh for the offence punishable under Section 186/353 of Indian Penal Code read with Section 25/27 of Arms Act to which they pleaded not guilty and claimed trial.
6. In order to bring home the guilt of accused persons, SC No. 59/10 & 60/10 Page 14 of 106 State vs Jag Mohan @ Mohar Singh & another prosecution has examined as many as 36 witnesses. For the purpose of our discussion, witnesses have been classified in the following categories: -
Witnesses relating to the incident of September 13, 2005:
PW1 Const. Anangpal, member of the raiding party. PW2 ASI Ravi Shankar, member of the raiding party. PW3 ASI Devender Prasad, duty officer, proved the FIR No. 521/2005.
PW4 HC Malik Raj, MHC(M) of PS Connaught
Place.
PW5 SI Balbir Singh, first investigating officer
PW20 Insp. Rajbir Sharma, member of raiding party
PW22 R.N. Vashisht, retired ACP, member of raiding
party
PW34 Punit Puri, Senior Scientific Officer, proved the
FSL report.
Witnesses relating to approval and sanctions:
PW6 Pankaj Yadav, second investigating officer and
moved the proposal to invoke provisions of
MCOCA
PW7 Mr. Muktesh Chander, the then Additional
Commissioner of Police, proved the approval
and sanction qua accused Jag Mohan @
Mohar Singh.
PW31 Amulya Patnaik, the then Joint CP, proved the
sanction qua accused Jai Chand.
SC No. 59/10 & 60/10 Page 15 of 106
State vs Jag Mohan @ Mohar Singh & another
Public witnesses:
PW8 Mr. Bobby Kapoor, relating to property no.
3814, David Street, Darya Ganj, Delhi
PW9 Mr. Satish Makkar, relating to shop at S-513
PW10 Mr. Raj Kumar, turned hostile
PW16 Mr. Haji Kamrudin relating to shop at S-513
PW17 Ms. Fatima Begum, wife of PW16
PW19 Mr. Sanjay Bhandari relating to property no.
3828, David Street, Darya Ganj, Delhi
PW21 Mr. Rajiv Suri relating to property no. S-82
PW24 Mr. Surender Mohan relating to property no.
3814, David Street, Darya Ganj, Delhi
PW32 Mr. Surender Mohan relating to property no. S-
206, School Block, Shakarpur, Delhi
Officials of different departments:-
PW15 Mr. U.B. Tripathi, Director, Jal Board
PW18 Mr. Samar Singh, Divisional Engineer, MTNL
PW35 Mr. Budh Prakash, LDC, Sub-Registrar office
Police officials but formal witnesses:
PW11 Mr. A.S. Cheema, the then DCP/N C P accused
was produced before him to make confessional
statement but accused refused to give any
such statement
PW12 inspector Kushal Singh, proved DD No.15
SC No. 59/10 & 60/10 Page 16 of 106
State vs Jag Mohan @ Mohar Singh & another
PW13 SI Nand Kishore, proved DD No. 87B
PW14 inspector Rajesh Malhotra, proved DD No. 31A
PW23 ASI Janak Raj Singh, DO, proved FIR No.
168/2003
PW26 Constable Vijender, deposited exhibit at FSL
Rohini
PW27 Mr. Sohan Vir, the then ACP, proved complaint
under 195 Cr.P.C
PW33 inspector Ashok Kumar, I.O. of FIR No. 102/09
PW36 HC Ajay Panwar, MHC(M)
Members of investigating team:
PW25 inspector Jitender Singh
PW28 inspector Ram Avtar Tyagi
PW29 Mr. Joy Tirki, Addl. DCP, investigating officer
PW30 ASI Har Charan
7. On culmination of prosecution evidence, accused persons were examined under Section 313 Code of Criminal Procedure wherein they denied each and every incriminating evidence led by prosecution against them. Accused Jag Mohan @ Mohar Singh took the plea that he was taken by the police officials from his office on September 13, 2005 on the pretext that they had to talk on the issue of Gohana Fire Tragedy, Rohtak as they were vigorously protesting, holding dharnas, rally etc. where lakhs of people participated. They did so after taking permission from Delhi Police and other concerned departments. Police used to be present in the protest, rally, dharna etc. Parliament Election of Rohtak seat was to be held and they called for a boycott of the election. It was submitted that on SC No. 59/10 & 60/10 Page 17 of 106 State vs Jag Mohan @ Mohar Singh & another September 13, 2005, he was in his office when he was taken by the Police.
It was submitted that thereafter he was detained and later on got implicated falsely in FIR No. 521/2005, recoveries were planted, false documents were prepared. Thereafter, he was falsely implicated in MCOCA so that there could be no protest relating to Gohana issue. It was submitted that earlier he was implicated in some false cases wherein he was either discharged or acquitted and further submitted that he was not member of any organized crime syndicate and he was not involved in any such case. It was further submitted that he was not involved in case FIR No. 168/2003. However, he refused to lead any evidence in his defence.
(i). Accused Jai Chand also took similar defence and stated that he had no concern with any syndicate and he is not indulged in any organized crime activities. Though earlier in certain false cases he was implicated but he had already been discharged or acquitted. It was submitted that he had also been falsely implicated in this case due to Gohana Fire Tragedy. However, he also refused to lead any evidence in his defence.
8. I have heard rival submissions advanced by counsel for both the parties and perused the record carefully.
9. Sh. Rajiv Mohan, learned Special Public Prosecutor vigorously and energetically contended that accused persons had challenged their prosecution twice before the High Court of Delhi; firstly at the time of arrest by filing a habeas-corpus writ petition, which was converted into a petition under Section 482 Code of Criminal Procedure and secondly by filing a revision petition against the order of charge. It was submitted that at both the occasions, pleas that were taken by accused persons regarding their SC No. 59/10 & 60/10 Page 18 of 106 State vs Jag Mohan @ Mohar Singh & another prosecution under the stringent provisions of MCOCA were dismissed by the High Court of Delhi. It was contended that both the orders passed by the High Court of Delhi are binding upon this Court and this Court is not supposed to give any finding on the aspect of validity of approval or sanction and their prosecution under stringent provisions of MCOCA as all these aspects have already been examined by the High Court in the petitions filed by the accused persons.
10. Per contra, learned counsel appearing for both the accused persons sagaciously contended that the contention raised by prosecution is contrary to the well established cannon of criminal jurisprudence. It was submitted that as per the contention of learned Special Public Prosecutor, if trial court is not supposed to give any independent finding on the basis of evidence led by the parties, there was no point to wait for long eight years as accused persons could have been held guilty as soon as High Court dismissed their earlier petitions. It was contended that at the time of deciding the earlier petitions filed by the accused persons, High Court was not having any sufficient material to appreciate the evidence led by the parties as by that time no evidence was led by the prosecution. It was submitted that trial court is bound to give its findings purely on the basis of evidence led by parties without influencing by the observations made by higher courts during the miscellaneous petitions moved by the parties during the pendency of trial. It was further submitted that even this fact will be clear by just cursory reading of the orders passed by the High Court of Delhi in the petitions filed by the accused persons.
11. Before coming to the orders passed by the High Court of Delhi on the petitions moved by the accused persons, I prefer to highlight the observations of Apex Court made in ADM Jabalpur v. Shivakant SC No. 59/10 & 60/10 Page 19 of 106 State vs Jag Mohan @ Mohar Singh & another Shukla (1976) 2 SCC 521. For the purpose of our discussion, observations of Apex Court made in para 394, 399 and 474 of judgment are apposite, hence same are reproduced as under:-
"This judgment, long as it is, will be incomplete without at least a brief discussion of some of the important decisions of this Court which were referred to during the course of arguments time and again. Before doing so, a prefatory observation seems called for. The Earl of Halsbury, L.C. said in Quinn v. Leathem [1901 AC 495, 506] that the generality of the expressions which may be found in a judgment are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the case in which such expressions are to be found. This Court in State of Orissa v. Sudhansu Sekhar Misra [AIR 1968 SC 647 : (1968) 2 SCR 154, 163 : (1970) 1 LLJ 662] , uttered the caution that it is not a profitable task to extract a sentence here and there from a judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein.
399. No judgment can be read as if it is a statute. Though the judgment of the majority contains the conclusions set out in (a) to (d) above, I see no doubt that these conclusions owe their justification to the peculiar wording of the Presidential Order which was issued in that case. The order dated November 3, 1962 which was the subject-matter of Makhan Singh case has been set out at the beginning of this judgment. That order suspends the right of a person to enforce the rights conferred by Articles 14, 21 and 22 "if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder". The Presidential Order dated June 27, 1975 with which we are concerned in the instant case does not contain any clause similar to the one extracted above from the order dated November 3, 1962. The inclusion of that clause in the earlier order has a significant impact on the question under consideration because, under the earlier Presidential Order the right to move the court was taken away only if a person was deprived of his rights under the Defence of India Ordinance or under any rule or order made under the ordinance. A petition for habeas corpus filed SC No. 59/10 & 60/10 Page 20 of 106 State vs Jag Mohan @ Mohar Singh & another during the operation of the Presidential Order dated November 3, 1962 was not barred at the threshold because the detenu was entitled to satisfy the court that though his detention purported to be under the Defence of India Ordinance or the Rules it was in fact not so. The detenu could establish this by satisfying the court that the detaining authority had no power to detain him, which could be shown by pointing out that the preconditions of the power to detain were not fulfilled. It was also open to the petitioner to establish that the order was vitiated by mala fides because a mala fide order has no existence in the eye of law and mala fides would take the order out of the Statute.
474. Now, at first blush, these observations do seem to support the contention of the detenues. But there are two very good reasons why I do not think these observations can be of much help in the determination of the question before us. In the first place, the question as to what were the other pleas available to a detenu in challenging the legality or propriety of his detention, despite the Presidential Order dated November 3, 1962 was not in issue before the court and did not fall to be decided and the aforesaid observations made by the court on this question were, therefore, clearly obiter. These observations would undoubtedly be entitled to great weight, but, as pointed out by this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India [(1971) 1 SCC 85 : (1971) 3 SCR 9] "an obiter cannot take the place of the ratio. Judges are not oracles". These observations do not, therefore, have any binding effect and they cannot be regarded as conclusive on the point, Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand. It may be noted that, in this case the Presidential Order dated November SC No. 59/10 & 60/10 Page 21 of 106 State vs Jag Mohan @ Mohar Singh & another 3, 1962 which came up for consideration before the Court, was a conditional order, inasmuch as it operated to suspend the right of any person to move any court for enforcement of the rights conferred by Articles 21 and 22, only if he was deprived of any such rights under the Defence of India Act, 1962 or any rule or order made under it. It was in the context of this Presidential Order that the aforesaid observations were made by this Court. It is obvious that, on the terms of this Presidential Order, if a person was deprived of his personal liberty otherwise than in accordance with the provisions of the Defence of India Act, 1962 or any rule or order made under it, his right to move the Court for enforcement of his right of personal liberty under Article 21 would not be barred by the Presidential Order. That is why it was said in this case, that, if the detention is illegal for the reason that the mandatory provisions of the Defence of India Act, 1962 or any rule or order made thereunder have been contravened or that the detention has been ordered mala fide, such a plea would not fall within the terms of the Presidential Order and hence it would be outside the purview of Article 359 clause (1). That is the only way in which these observations can and must be understood. It was pointed out by the House of Lords as far back as 1901 in Quinn v. Leatham [1901 AC 495] :
"Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be exposition of the whole law, but are governed and qualified by the particular facts in which such expressions are to be found."
This Court had also occasion to point out in State of Orissa v. Sudhansu Sekhar Misra [AIR 1968 SC 647 :
(1968) 2 SCR 154 : (1970) 1 LLJ 662] that the observations in a judgment must be "only in the context of the question that arose for decision". It would not be right, as observed by this Court in Madhav Rao v. Union of India, "to regard a word, a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question" particularly "when the question did not even fall to be answered in that judgment". Here, in the present case, unlike the Presidential Order dated November 3, 1962 which was a conditional order, the Presidential Order dated June 27, 1975 is, on the face SC No. 59/10 & 60/10 Page 22 of 106 State vs Jag Mohan @ Mohar Singh & another of it, an unconditional one and as such there is a vital difference in effect between the Presidential Order dated November 3, 1962 and the present Presidential Order.
In fact. it appears that because of the interpretation and effect of the Presidential Order dated November 3, 1962 given in this case and the subsequent cases following it, the President deliberately and advisedly departed from the earlier precedent and made the present Presidential Order an unconditional one. These observations made in the context of a conditional Presidential Order cannot, therefore, be read as laying down that a plea that an order of detention is not in accordance with the provisions of law or is mala fide, is outside the purview of Article 359, clause (1) and would not be barred even by an unconditional Presidential Order such as the one we have in the present case.
(emphasis supplied)
(i) Hon'ble Mr. Justice Krishna Iyer in Rajendra Prasad v. State of U.P. (1979) 3 SCC 646 held that judgments are not Bible for every line to be venerated.
12. In the background of the above settled proposition of law, now coming to the habeas corpus writ petition filed by the accused. Perusal of the judgment dated December 1, 2006 passed by the High Court of Delhi in Jai Chand @ Munna & Another versus Commissioner of Police, Writ Petition (Criminal) Nos. 161-62/2006 reveals that three writ petitions challenging FIR No.521/05 dated 13.9.2005 P.S. Connaught Place, New Delhi were filed. The first writ petition, W.P.(Crl.) No.45/06, was filed by Jag Mohan @ Mohar Singh seeking a writ of habeas corpus challenging his detention under Maharashtra Control of Organized Crime Act, 1999 (`MCOCA' for short) as extended to Delhi on several grounds. The other writ petitions sought writ of certiorari for quashing of the proceedings initiated against them under MCOCA and for quashing of the order dated 6.12.2005 issuing NBWs against the petitioners and order dated SC No. 59/10 & 60/10 Page 23 of 106 State vs Jag Mohan @ Mohar Singh & another 24.12.2005 initiating proceedings under section 82 Cr. P. C. passed by the learned Special Judge, MCOCA, New Delhi.
(i) Grounds of writ petitions were summarized in para 13 of the judgment as under:-
13.The grounds for challenge as available in the writ petition of Jag Mohan @ Mohar Singh can be briefly listed as under:
(i) The provisions of MCOCA are not applicable to the case of the petitioners for the following reasons:
(a) Out of eight cases listed against the petitioner Mohar Singh, six have resulted in acquittal after full-fledged trial while the other two, one under Wild Life Protection Act and the other under Arms Act, are pending trial in which the petitioners would again be found innocent.
The acquittals have become final. These cases cannot be taken into consideration for invoking MCOCA.
(b) The offences in none of these cases had any objective of gaining any pecuniary benefit or undue economic or other advantages for himself or for any other person.
(c) For long years between 1996 to 1999 and August, 2000 to August 2001, the petitioner was detained under the National Security Act and since 2001 to September, 2005 no case of any substantive offence was registered against the petitioner Mohar Singh and, therefore, there is no question of continuity of any criminal activity of any organized crime or of organized crime syndicate.
(ii) The brothers of the petitioner Jag Mohan, i.e., the petitioners in W.P.(Crl.) Nos.159-160/06 and W.P.(Crl.) Nos.161-62/06, also remained in custody for long periods and they were also acquitted after full-fledged trial in various cases and from 1991 till date no case of any substantive offence has been registered against them and accordingly they have also not been involved in any continuing unlawful activity. Hence there could be no organized crime or any organized crime syndicate involving the petitioners.
SC No. 59/10 & 60/10 Page 24 of 106State vs Jag Mohan @ Mohar Singh & another
(iii) The arrest of the petitioner Mohar Singh is mala fide and motivated to demoralise the petitioner and to destroy his increasing popularity amongst he Valmiki Samaj and to destroy the popularity of the petitioner Mohar Singh and is brothers.
(ii) Besides the above grounds, in para 20 of the judgment counsel appearing for the accused also raised a plea that offences registered after the promulgation of MCOCA in Delhi can be taken into consideration for booking a person under MCOCA. However, this contention was dismissed.
(iii) Question of mala fide was discussed in para 30 & 31 of the judgment and same are reproduced as under:-
30. On the point of mala fides, it is submitted by the petitioners that the police is intending to damage the increasing popularity of the petitioners, particularly Jag Mohan amongst the Valmiki community. Photographs showing the petitioners, particularly Jag Mohan @ Mohar Singh organizing rallies and receiving important political figures of the country have been placed on the record to show that the petitioners do have some political clout and are well known amongst the people whom they profess to lead. It is further alleged that while the petitioners are politically active and are available in various public functions, non-bailable warrants against them have been obtained with the sole motive to malign them. The petitioners cite this as indicating mala fides.
31. What, however, we have to see is whether the investigation/ prosecution is right in registering the offence of MCOCA against the petitioners. At this stage malice or personal vendetta is not at all a factor which is required to be gone into......
32. If the prosecution is able to produce sufficient evidence to prove that the petitioners in the last ten years have been involved in more than one case of the type which is covered by the definition of continuing SC No. 59/10 & 60/10 Page 25 of 106 State vs Jag Mohan @ Mohar Singh & another unlawful activity, their action in having taken action against the petitioners for the offence under sections 3 and 4 of MCOCA cannot be faulted with.
(iv) From the above, it becomes explicit that the question of mala fide was not decided by the High Court. But it was left opened to be decided by the trial court.
(v) In addition to the above, another plea was raised by the counsel for accused that police should have registered a separate FIR while invoking MCOCA against the accused and police should not have invoked the provisions of MCOCA in FIR No. 521/2005 but the said plea was also dismissed. Admittedly, all the pleas raised on behalf of accused were dismissed by the High Court of Delhi.
(vi) For the purpose of our discussion, observations made in para 35, 37,38 and 39 are apposite. Relevant portions are reproduced as under:-
35. Whether the facts revealed after the arrest and presented for obtaining the sanction were enough for conviction is not the subject matter of scrutiny at present. Registration of a case precedes investigation.
It cannot be said that before the sanction is granted or before the FIR under MCOCA is registered the police should have had all the facts constituting the offence of MCOCA. Even on suspicion a FIR can be registered.
After registration of the case, if investigation fails to procure sufficient evidence an accused may have to be discharged by the police or may have to be released from custody. Conviction is not to be pre-supposed at the time of registration of an FIR or at the time of presentation of the charge-sheet. This court, therefore, need not go into the question as to whether the facts placed before the Additional Commissioner of Police for obtaining his sanction for adding MCOCA for the purpose of embarking upon investigation in that offence was sufficient to prove the offence. All that is required to be seen is whether there was scope to investigate SC No. 59/10 & 60/10 Page 26 of 106 State vs Jag Mohan @ Mohar Singh & another into an offence of MCOCA. When the sanction for invoking MCOCA was prayed for the investigating officer put up the facts.
37.A charge-sheet has now been filed. This court is not required to go into the question as to whether the offence disclosed in the charge-sheet is sufficient to frame a charge and whether the trial court is justified in refusing bail to the petitioner Mohar Singh. Neither of the two sides have addressed the court on the question of legality or illegality of the petitioner's detention following the filing of the charge-sheet. The scope of the present judgment, therefore, has to be limited to the legality or otherwise of the detention of the petitioner Mohar Singh following inclusion of MCOCA in FIR No.521/05 and till the charge-sheet is filed. After the charge-sheet is filed the detention is under the general law applicable to all other offences as governed by the provisions of Cr.P.C.
(emphasis supplied)
13. Despite the above lucid and unambiguous findings, learned Special Public Prosecutor vigorously contended that this Court is not supposed to give any finding, even after analysing the evidence led by parties during trial, which may be contrary to the findings given by Hon'ble High Court. At the cost of repetition it is pertinent to remind the prosecution that the scope before Hon'ble High Court was very limited and even Hon'ble Court had not analysed the collected material to decide whether the same was sufficient to frame charge or not.
14. Accused persons also challenged the order on the point of charge dated March 26, 2010 by filing a criminal revision and same was decided by the High Court of Delhi vide order dated May 19, 2010. The said order was challenged on the following four grounds, which are summarized in para 4 to 7 and same are reproduced as under:-
4. Mr. Dateer, learned counsel for the appellant has SC No. 59/10 & 60/10 Page 27 of 106 State vs Jag Mohan @ Mohar Singh & another made the following three submissions in support of the appeal. He firstly submits that on 13.09.2005 itself, Sections 3(2) and 3(4) of the Act had been invoked by the police even without seeking the approval from the competent authority for invoking MCOCA, which was in violation of section 23(1)(a) of the said Act. In support of his submission, Mr. Dateer placed reliance on a certified copy of the FIR which had been obtained in the case.
On the said FIR, the provisions of MCOCA, besides other offences under IPC and Arms Act were mentioned.
5. He further submits that there was no material placed before the competent authority at the time when the approval was accorded. He also submits that the competent authority while granting sanction under MCOCA did not apply its mind. The evidence and material collected by the police and placed before the competent authority for grant of sanction could not be said to have nexus to the alleged offence under MCOCA. He submits that all the previous cases against the appellant had ended in acquittal of the appellant, after a full-fledged trial and therefore, the appellant could not be said to be guilty of commission of the crime as mentioned in section 2(e) of MCOCA.
6. Mr. Dateer submits that the appellant already stood acquitted in case FIR No.168/2003 under section 411 IPC vide judgment dated 07.07.2009 passed by Sh.
Jitendra Mishra, MM, New Delhi. Therefore, the respondents could not possibly have relied upon the said case. In any event, the said case pertained to dishonestly receiving or retaining stolen property knowing or having reason to believe the same to be stolen property and the said offence could not be said to be one, which MCOCA seeks to prevent or control.
7. Mr. Dateer submits that the offences under sections 186/353/411 IPC slapped by the police in the FIR in question cannot be said to be "any unlawful means"
within the meaning of the said expression used in the definition of the term "organized crime" and that the said alleged offences do not have a direct nexus to the commission of crime, which MCOCA seeks to prevent or control.
15. All the pleas that were raised by defence counsel were SC No. 59/10 & 60/10 Page 28 of 106 State vs Jag Mohan @ Mohar Singh & another dismissed at the preliminary stage itself and this fact is clear from the observations made in para 11,12,15 and 18 which are reproduced as under:-
11. Having heard learned counsels and considered the impugned order directing framing of charge against the appellant and the submissions and case laws relied upon by the parties, I am of the view that there is no merit in this appeal and the appellant has not made out a case for admission of the appeal. In my view, the same deserves to be dismissed at this preliminary stage itself.
12. So far as the submission of Mr. Dateer that in the certified copy of the FIR obtained by him, which was registered on 13.09.2005, the provisions of MCOCA had been invoked even without the approval of the competent authority (which approval came only on 15.09.2005) is concerned, I find no merit in the same as the said issue cannot be determined at the stage of framing of the charge. The trial court in the impugned order, while rejecting the aforesaid submission has referred to the carbon copy of the FIR filed along with the charge sheet, which only refers to the offences under the IPC and the Arms Act. The basis for registration of the FIR was the Rukka prepared in that case and this Rukka was also a part of the charge sheet. From the impugned order it appears that the Rukka mentions only the offences under the IPC and the Arms Act and, accordingly, the FIR was registered only in respect of offences under the IPC and the Arms Act. This factual finding is not assailed in this appeal.
15. From the aforesaid sequence of events, it cannot be said at this stage, without a trial, that the prosecution had invoked the provisions of MCOCA even without the approval from the ACP, which was obtained on 15.09.2005.
18. Therefore, it is seen that the continuing unlawful activity, in respect of which more than one charge sheets have been filed before the competent court within the preceding ten years, of which the concerned courts have taken cognizance include the offences under the Arms Act. Therefore, it is not correct for the petitioner to contend that the offences under which FIR SC No. 59/10 & 60/10 Page 29 of 106 State vs Jag Mohan @ Mohar Singh & another No.521/2005 have no nexus with the offences under MCOCA. It cannot be said at this stage that the invocation of the provisions of MCOCA in the petitioners was not justified. Reliance placed on Ranjitsingh (supra) appears to be misplaced in view of the facts of this case, as discussed herein above.
(emphasis supplied)
16. Bare perusal of aforesaid decisions of the Hon'ble High Court, it becomes pellucid that the said decisions do not debar this Court in any manner to give independent finding after analysing the evidence led by the parties in accordance with law. The scope of writ petitions and revision petition filed by the accused persons was quite limited and this fact was also made explicit by the Hon'ble Court while deciding the above petitions. No doubt, the said judgements are helpful to the prosecution to the extent that prima-facie there was not only sufficient material with the investigating agency to invoke MCOCA against the accused persons but there was also sufficient material with the prosecution to prosecute them. But beyond that, same are not helpful to the prosecution in any manner. To prove the guilt of accused, prosecution has to prove each and every allegation in accordance with law.
17. Learned Special Public Prosecutor also vehemently relied upon the order dated July 9, 2001 passed in Jag Mohan @ Mohar Singh v. Union of India 93 (2001) DLT 522 wherein the petition challenging his detention under National Security Act was dismissed. I have perused the said order. In the said matter, detenu Jag Mohan @ Mohar Singh had challenged his detention on the grounds, which are summarized in para 3 of the order and same is reproduced as under:-
"3. The detention order has been assailed primarily on the SC No. 59/10 & 60/10 Page 30 of 106 State vs Jag Mohan @ Mohar Singh & another following counts namely (i) Delay in disposal of his representation. (ii) All relevant documents not placed before the Advisory Board. His brother Jai Chand was also detained. His release order was not placed before the Advisory Board nor the Bail application and the order was placed before the appropriate Authority. This vitiates the detention. (iii) Petitioner has been acquitted in regular trial by courts. This aspect was not looked into by the detaining Authority. (iv) Documents, in Hindi, the language known to petitioner, were not supplied. (v) Reliance on criminal case was misplaced because those were stale and reliance on DD entries could not be done because those were vague, imprecise. He was thus denied making effective representation. (vi) Suppression of material and vital facts effecting the detention order. (vii) Case against him being false and the grounds non-existent. (viii) finally grounds do not relate to public order. The allegations made against him only relate to law and order and the order passed is punitive in nature."
18. Thus, Hon'ble Court had to decide the matter in the light of above issues, which were raised by the detenu and this fact is explicit from the observations of the Hon'ble Court made in para 18 and 19. Relevant portion of the same is reproduced as under:-
"18 Now turning to the other ground raised by the petitioner that he has been acquitted in all the cases registered against him, to our mind, this plea has no substance. Firstly acquittal by itself does not prove that he is innocent particularly when there was sufficient material on record before the detaining authority to come to the conclusion that he got acquittal by terrorising the witnesses and even the victim's close relations either kept mum or went hostile because of the fear created by him. The mere fact that he got acquittal is not sufficient to hold that there was non application of mind by the detaining authority. Secondly, out of the cases mentioned in the ground of detention, one case bearing FIR No. 366/98 under section 302/120B IPC, PS Darya Ganj was still pending for trial. The subsequent acquittal of the petitioner in that case during the period of detention would not materially effected the detention order because at the relevant time the case was still SC No. 59/10 & 60/10 Page 31 of 106 State vs Jag Mohan @ Mohar Singh & another pending. The second case at that time was at the stage of investigation. Therefore, acquittal in a criminal case is no ground to conclude that the preventive action could not have been taken. The preventive action has to be taken recourse to if the detaining authority is satisfied that the activities of a person are such which have travelled beyond the capacity of being dealt with by ordinary law. Supreme Court in the case of Ashok Kumar v. State observed as under:-
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence. Thus, any preventive measure even if they involve some restrain or hardship upon individual, do not partake in any way of the nature of punishment but are taken by way of prosecution to prevent mischief to the State.
19. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. Therefore, there is no reason why the State cannot take recourse of its power of preventive detention in cases where the courts is genuinely satisfied that no prosecution could possibly succeed against such detenu because he is a dangerous person. He has overawed witnesses or against him no one is prepared to depose. In the case in hand, the case cases in which the petitioner was acquitted he was able to terrorise the prime prosecution witnesses. In the murder cases, no witness came forward specially after they found that the prime witness was killed in the broad day light. Shri Satish Kholi was murdered in full view of the public by the hired killer of the petitioner. Because of the fear of the petitioner wife of Shri Satish Kohli who was an eye witness of the murder of her husband turned hostile as a result of which he got acquitted in the murder of Satish Kohli. While in custody he could create fear in the witnesses as a result of which the first cousin of the victim kept complete silence when came to depose in the court in FIR No. 30/98, PS Subzi Mandi.
(emphasis supplied)
19. As already discussed that judgment is to be read in the context of issue before the Court and judgements are not Bible for every SC No. 59/10 & 60/10 Page 32 of 106 State vs Jag Mohan @ Mohar Singh & another line to be venerated. Thus, the aforesaid order is to be read in the context of issue before the Hon'ble Court. There was no issue before the Hon'ble Court as to whether detenu in actual had overawed any witness or not? Rather the issue was whether detention order can be quashed on the basis of plea taken by the detenu or not? After examining the material placed before the detaining authority, Hon'ble Court held that the detention order did not require any interference and further held that the subjective satisfaction of the detaining authority can not be questioned by this Court. In the light of above discussion, I am of the considered opinion that the observations made in the said order will not render any help to the prosecution to prove the culpability of charges in the present case except to the extent that the accused Jag Mohan @ Mohar Singh was also detained in National Security Act because of his nefarious activities.
20. Learned Special Public Prosecutor also vigorously and energetically relied upon the order dated October 6, 2006 passed in the matter Maharishi Valmiki Janotsav v. Commissioner of Police & others by the Hon'ble High Court of Delhi. Perusal of the order reveals that a writ petition was filed seeking direction to the respondents that they should consider and decide immediately their request for permission to take out a Grand Shobha Yatra on the occasion of birth anniversary of Lord Maharishi Valmiki. While dismissing the petition, Hon'ble Court held in para 6 as under:
"6. In view of the above, no doubt is left in my mind in holding that the respondents' action in declining permission to the petitioner to take out Shobha Yatra was fully justified and the said administrative action of the respondents hardly calls for any judicial review in exercise of writ jurisdiction on criminal side by this Court. In case the parties have any dispute regarding their respective rights to administer the affairs of Maharishi Valmiki Janmotsav Committee (Regd) Delhi Pradesh, they can get is settled in appropriate SC No. 59/10 & 60/10 Page 33 of 106 State vs Jag Mohan @ Mohar Singh & another proceedings before the competent Court."
(emphasis supplied)
21. In view of the above finding, I am unable to understand how the said order will help the prosecution to prove the guilt of accused persons.
Applicability of Section 465 Code of Criminal Procedure during trial:-
22. Mr. Rajiv Mohan learned Special Public Prosecutor astutely contended that if there is any irregularity in the approval or sanction order, same should not come in way to hold the accused persons guilty as the said irregularity can be ignored in view of the provisions of Section 465 Cr.P.C. On the other hand, learned defence counsel sagaciously contended that provisions of Section 465 Cr.P.C is applicable to the appellate court and has no applicability during trial.
23. To my mind, no detail discussion is required as Section 465 is unambiguous and clear and same is reproduced as under:-
465. Finding or sentence when reversible by reason of error, omission or irregularity.-- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or SC No. 59/10 & 60/10 Page 34 of 106 State vs Jag Mohan @ Mohar Singh & another irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
(emphasis supplied)
24. It is limpid from the bare reading of provisions that the same is applicable to the appellate or revisional courts and not to the trial court. The finding, sentence or order can be revered or altered by the higher courts if in their opinion that the particular omission or error or irregularity in certain points including sanction during trial has occasioned a failure of justice. To determine as to whether a failure of justice has been occasioned or not, the court shall consider whether the objection could or should have been taken at an earlier stage of proceedings. Thus, if there is any lapse in the approval or sanction, to my mind, prosecution will not be able to take shelter under Section 465 Cr.P.C.
Contention relating to Section 9 of the MCOCA:-
25. Learned Special Public Prosecutor vigorously contended that since under Section 9 of MCOCA, Special Court can even take cognizance on the complaint filed by any person, this indicates that in MCOCA matters approval and sanction are not indispensable. It was thus contended that even if there is any illegality or irregularity in the approval or sanction qua accused persons, same is not fatal to the prosecution case in any manner.
26. This issue was dealt by the Apex Court in Jamiruddin Ansari v. CBI (2009) 6 SCC 316 wherein it was held:-
SC No. 59/10 & 60/10 Page 35 of 106State vs Jag Mohan @ Mohar Singh & another "63. We have carefully considered the submissions made on behalf of the respective parties and we are convinced that Section 9 of MCOCA cannot be read or invoked independent of Section 23. In our view, Section 9(1) contemplates filing of complaints both by the investigating authorities and also by private parties and the learned Special Judge is, therefore, entitled to take cognizance of offences under MCOCA even on a private complaint, but after due compliance with Section 23(2) thereof. In view of the stringent provisions of MCOCA the legislature included certain safeguards for invoking the provisions thereof. The same is manifest from the provisions of Section 23 as a whole.
The expression used in Section 9(1) indicates that the Special Court may take cognizance of any offence without the accused being committed to it for trial, either on receiving a complaint of facts or upon a police report of such facts, which clearly indicates that the Special Court is also empowered to take cognizance of an offence under MCOCA even on a private complaint. The said power vested in the learned Special Judge is, however, controlled by the provisions of Section 23(2) of the Act, which provides that no Special Court shall take cognizance of any offence under the Act without the previous sanction of a police officer not below the rank of Additional Director General of Police.
The wording of sub-section (2) of Section 23 leaves no room for doubt that the learned Special Judge cannot take cognizance of any offence under MCOCA unless sanction has been previously given by the police officer mentioned herein above. In such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the police officer not below the rank of Additional Director General of Police, before the Special Judge can take cognizance of such complaint.
66. Accordingly, the provisions of Section 9(1) will have to be read in harmony with the provisions of Section 23(2) as far as private complaints are concerned, and we have no hesitation in negating the majority view of the Full Bench holding otherwise.
67. We are also inclined to hold that in view of the provisions of Section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the SC No. 59/10 & 60/10 Page 36 of 106 State vs Jag Mohan @ Mohar Singh & another learned Special Judge would not, therefore, be entitled to invoke the provisions of Section 156(3) Cr PC for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in Section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with sub-section (1) of Section 23, which starts with a non obstante clause.
68. As indicated herein-above, the provisions of Section 23 are the safeguards provided against the invocation of the provisions of the Act which are extremely stringent and far removed from the provisions of the general criminal law. If, as submitted on behalf of some of the respondents, it is accepted that a private complaint under Section 9(1) is not subject to the rigours of Section 23, then the very purpose of introducing such safeguards lose their very raison d'être. At the same time, since the filing of a private complaint is also contemplated under Section 9(1) of MCOCA, for it to be entertained it has also to be subject to the rigours of Section 23. Accordingly, in view of the bar imposed under sub-section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) CrPC. The bar of Section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report.
69. In order to give a harmonious construction to the provisions of Section 9(1) and Section 23 of MCOCA, upon receipt of such private complaint the learned Special Judge has to forward the same to the officer indicated in clause (a) of sub-section (1) of Section 23 to have an inquiry conducted into the complaint by a police officer indicated in clause (b) of sub-section (1) and only thereafter take cognizance of the offence complained of, if sanction is accorded to the Special Court to take cognizance of such offence under sub-section (2) of Section 23."
(emphasis supplied)
27. In the light of above settled proposition of law, I do not find any merit in the contention of learned Special Public Prosecutor.
SC No. 59/10 & 60/10 Page 37 of 106State vs Jag Mohan @ Mohar Singh & another Contentions relating to special rule of evidence:-
28. Learned Special Public Prosecutor energetically contended that at the time of appreciating evidence, Court is required to follow special rule of evidence as provided under Section 17 of the Act. It was contended that to prove the case for the offence punishable under Section 4 of the MCOCA, prosecution has to establish only that any movable or immovable property was recovered from the possession of the accused and once prosecution succeeds to prove the possession of the accused over the said property, onus will shift upon the accused to justify his possession over the property failing which he shall be liable for the offence punishable under Section 4 of the MCOCA. It was further contended that similarly if prosecution is succeeded to show that any fire arm was recovered from the possession of the accused, presumption shall be drawn in favour of prosecution that he had used the weapon in commission of the organized crime.
29. Per contra, learned defence counsel refuted the said contentions by arguing sagaciously that to draw presumption in favour of prosecution under Section 17 of the MCOCA, prosecution has to satisfy the preconditions of Section 17. Before raising any presumption under Section 17 of the MCOCA, prosecution has to establish beyond all reasonable doubt that accused is involved in any organized crime; second that either accused himself or he on behalf of any person who is involved in organized crime found possessing any property and that person failed to account for movable or immovable property satisfactorily, only in that eventuality Special Court shall draw a presumption that the property has been acquired by illegal activities. It was further submitted that the presumption is rebuttable and accused can rebut the presumption by preponderance of SC No. 59/10 & 60/10 Page 38 of 106 State vs Jag Mohan @ Mohar Singh & another probability and he is not required to prove the fact beyond reasonable doubt. It was further contended that accused can rebut the presumption even by referring to the prosecution evidence and accused is not required to adduce any independent evidence to rebut the presumption. It was further contended that similarly before raising any presumption under Section 22 of the MCOCA, prosecution has to satisfy all the preconditions. It was further contended that Section 22 is relevant where a organized crime has been committed by using a weapon but in the instant case there is no such allegation as this fact is clear from the sanction order itself as sanction has been accorded for the offence punishable under Section 3(2) and 3(4) of the MCOCA and not for the offence punishable under Section 3(1) (i) or 3(1)(ii) of the Act.
30. Before coming to the provisions of MCOCA, I deem it appropriate to refer to the judgment Vijayee Singh v. State of U.P. AIR 1990 SUPREME COURT 1459 wherein the Apex Court had dealt with the issue of burden of proof in detail. No doubt the said judgment pertains to the provisions of Section 105 of Evidence Act, but certainly will guide us to understand the provision of Section 17 of MCOCA. Relevant portions of relevant paras are as under:
15. The phrase "burden of proof" is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in the following terms:
"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General SC No. 59/10 & 60/10 Page 39 of 106 State vs Jag Mohan @ Mohar Singh & another Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
16. We have noticed that Section 105 requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or special exception or proviso contained in any part of the Penal Code is on him and the Court shall presume the absence of such circumstances. This presumption is rebuttable. In Parbhoo v. Emperor, AIR 1941 Allahabad 402, a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act. The majority agreed with the view taken by the Full Bench in Dampala's case. In Parbhoo's case, Bajpai, J. in his concurring judgment observed that Section 105 is stated in two forms, that of a rule as to the burden of proof and that of a presumption and- that the burden of proving the guilt of the accused always rests on the prosecution and never shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt. "The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow there from that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case." In Dampala's case (AIR 1937 Rangoon 83) Dunkley, J. while concurring with the majority view after discussing the law on the subject observed:
"The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evidence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circumstances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evidence is left in reasonable doubt whether such SC No. 59/10 & 60/10 Page 40 of 106 State vs Jag Mohan @ Mohar Singh & another circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence.
In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 it is observed (at pp. 1566-67)
17.........."It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code. The general burden never shifts and it always rests on the prosecution. But, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the SC No. 59/10 & 60/10 Page 41 of 106 State vs Jag Mohan @ Mohar Singh & another Penal Code."
18. Learned counsel for the State, however, submitted that if the view taken by the Allahabad High Court is to be accepted then it would amount to throwing the burden on the prosecution not only to establish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otiose and there would be inconsistency between Sections 102 and 105. This very question has been answered by the Supreme Court in Nanavati's case (AIR 1962 SC 60 ) and it has been held that the general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting the exception lies on the accused. But the failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence and the evidence relied upon by the accused in support of his claim for the benefit of the exception though in sufficient to establish the exception may be sufficient to negative one or other of the ingredients of the offence and thus throw a reasonable doubt on the essential ingredients of the offence of murder. The accused for the purpose of discharging this burden under Section 105 can rely also on the probabilities. As observed in Dahyabhai's case (AIR 1964 : SC 1563) "the accused will have to rebut the presumption that such circumstances did not exist"
by placing material before the court which satisfies the standard of a prudent man and the material may consist of oral and documentary evidence, presumptions, admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. Therefore there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act.
22. At his stage it becomes necessary to consider the meaning of the words "the court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act. Section 4 of the Act explains SC No. 59/10 & 60/10 Page 42 of 106 State vs Jag Mohan @ Mohar Singh & another the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section. 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given. As per this provision, a fact is said to be "proved"
when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be "not proved" when it is neither "proved" nor "disproved".
23. The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.
24.......It is held in Nanavati's case (AIR 1962 SC 605) that under Section 105 of the Act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the Court shall SC No. 59/10 & 60/10 Page 43 of 106 State vs Jag Mohan @ Mohar Singh & another regard the non-existence of such circumstances as proved till they are disproved, but this presumption can be rebutted by the accused by introducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed (at p.
617) :
"An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of S. 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under S. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in S. 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of S. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of S. 300 Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to bring his case within the terms of S. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but SC No. 59/10 & 60/10 Page 44 of 106 State vs Jag Mohan @ Mohar Singh & another the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.
In Daliyabhai's case, (AIR 1964 SC 1563 at p. 1567) as already noted, the relevant portion reads thus :
"The evidence so placed may not be sufficient to discharge the burden under S. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Penal Code."
25. The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places 'burden of proof' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the 'burden of proof' and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the SC No. 59/10 & 60/10 Page 45 of 106 State vs Jag Mohan @ Mohar Singh & another ingredients of the offence. In case of such reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.
26.From what has been discussed above it emerges that the presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above. If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same. Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
27. It can be argued that the concept of 'reasonable doubt' is vague in nature and the standard of 'burden of proof' contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels SC No. 59/10 & 60/10 Page 46 of 106 State vs Jag Mohan @ Mohar Singh & another absolutely certain, of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
28. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity to "separate the chaff from the grain". It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.
29. Lord Denning, J. in Miller v. Minister of Pensions, (1947) 2 All ER 372 (373), while examining the degree of proof required in Criminal cases stated :
"That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against SC No. 59/10 & 60/10 Page 47 of 106 State vs Jag Mohan @ Mohar Singh & another a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable", the case is proved beyond reasonable doubt."
30. Now, let us examine the types of cases to which these principles underlined under Section 105 can be applied and to what extent? The Section deals with the burden of proof in respect of the general exceptions, special exceptions and proviso contained in the Penal Code or in any part of the same code, or in any law defining the offence. It is already noted that the doctrine of burden of proof has to be the general law and the same remains always upon the prosecution. However, in respect of the cases where the statute wholly places the burden of proof on the accused himself, then the burden is more onerous on him...........
31. An examination of these cases would reveal that the statutory exception which modifies the operation of the general principle that the prosecution must prove all ingredients of the offence with which the accused is charged, to some extent stands on a different footing. However, Beg, J. in his separate judgment, in Rishi Kesh Singh's case (AIR 1970 All 51, para 130) observed thus :
"It covers every tilt or preponderance of the balance of probability whether slight or overwhelming. In fact, the dividing line between a case of mere "preponderance of probability" by a slight tilt only of the balance of probability and a case of reasonable doubt is very thin indeed although it is there. A case of reasonable doubt which must necessarily be one of which, on a balancing of probabilities, two views are possible. What may appear to one reasonable individual to be a case not fully proved may appear to another to be so proved on a balancing of probabilities. Such a case and only such a case would, in my opinion, be one of reasonable doubt. A mere preponderance of probability in favour of the exception pleaded by an accused would, however, constitute a "complete" proof of the exception for the accused but a state of reasonable doubt would not."
Somewhat to the same effect are the observations made by the Supreme Court in Harbhajan Singh v. State SC No. 59/10 & 60/10 Page 48 of 106 State vs Jag Mohan @ Mohar Singh & another of Punjab, AIR 1966 SC 97. After citing Woolmington's case (1935 AC 462) it is therein held that "The principle of common law is part of the criminal law of the country. That is not to say that if an exception is pleaded by an accused person he is not required to justify his plea; but the degree and character of proof which the accused is expected to support his plea, cannot be equated with the degree, and character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold the plea made by the accused proved, if a preponderance of probability is established by the evidence led by him." It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a consideration of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence. Therefore, in a case where the prosecution has discharged its burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed, further and establish his plea by a preponderance of probabilities or he may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. Consequently in respect of the general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by one of these processes would be discharging the burden contemplated under Section 105 but in cases of the exceptions covered by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by merely creating a doubt.
32. At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi. There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions. Circumstances leading to alibi are within his knowledge and as provided under SC No. 59/10 & 60/10 Page 49 of 106 State vs Jag Mohan @ Mohar Singh & another Section 106 of the Act he has to establish the same satisfactorily. Likewise in the cases where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence, he has to discharge the burden, for example, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge. However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act. We also make it clear that the principles laid down by us are only in respect of the said provision only.
(emphasis supplied)
31. Now coming to the judgements relating to special statute where onus is shifted to the accused. In case Mallavarapu Kasivisweswara Rao versus Thadikonda Ramulu Firm and Others, (2008) 7 SCC 655 it was held by the Apex Court that :-
"Upon consideration of various judgements as noted herein- above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non existence of the consideration, the plaintiff would invariably be held entitled SC No. 59/10 & 60/10 Page 50 of 106 State vs Jag Mohan @ Mohar Singh & another to the benefit of presumption arising under Section 118 (a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence it neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
(emphasis supplied)
32. In case Babu versus State of Kerala, Criminal Appeal No. 104 of 2009 decided by Apex Court on August 11, 2010 it was observed by the Apex Court in Para 24:
"24. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The Courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like Negotiable Instrument Act, 1881; Prevention of Corruption Act, 1988; and Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstance provided in those Statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in providing a negative fact. However, in case where the statue does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional SC No. 59/10 & 60/10 Page 51 of 106 State vs Jag Mohan @ Mohar Singh & another circumstance, such as those of statutes as referred to herein-above that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution.
(emphasis supplied)
33. At this stage, I also deem it apposite to refer to Section 3 & 4 of Evidence Act, where 'proved', 'disproved' and 'shall presumed' are defined.
"Shall presume" - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."
"Proved" - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist.
"Disproved" - A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
(emphasis supplied)
34. Now coming to Section 17 and 22 of MCOCA. Sub-section 2 of 17 reads as under:
(2) Where it is proved that any person involved in an organised crime or any person on his behalf is or has been at any time in possession of movable or immovable property which he cannot satisfactorily SC No. 59/10 & 60/10 Page 52 of 106 State vs Jag Mohan @ Mohar Singh & another account for, the Special Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his illegal activities.
(emphasis supplied)
35. Bare perusal of Section 17(2) of MCOCA reveals that before raising a presumption in favour of prosecution, prosecution has to prove following facts:-
(i) either accused is involved in organized crime or
(ii) accused acted on behalf of any such person;
(iii) accused either himself or on behalf of any such person who was involved in organized crime is found retaining any property (movable or immovable) or retained any such property in past;
(iv) accused failed to account for his possession satisfactory;
Only then Special Court shall presume
(i) that the such property has been acquired or derived by illegal activities.
(ii) however, said presumption is rebuttable.
(iii) As already discussed presumption can be rebutted even by referring to the evidence led by prosecution and there is no requirement under law that accused has to lead evidence independently or in absence thereof it amounts failure to discharge the onus.
36. Section 22 reads as under:
SC No. 59/10 & 60/10 Page 53 of 106State vs Jag Mohan @ Mohar Singh & another
22. Presumption as to offences under section 3.
(1) In a prosecution for an offence of organised crime punishable under section 3, if it is proved--
(a) that unlawful arms and other material including documents or papers were recovered from the possession of the accused and there is reason to believe that such unlawful arms and other material including documents or papers were in the commission of such offence; or
(b) that by the evidence of an expert, the finger prints of the accused were found at the site of the offence or on anything including unlawful arms and other material including documents or papers and vehicle used in connection with the commission of such offence, the Special Court shall presume, unless the contrary is proved, that the accused had committed such offence.
(2) In a prosecution for an offence of organised crime punishable under sub-section (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is-
proved, that such person has committed the offence under the said sub-section (2).
(emphasis supplied)
37. For the purpose of our discussion, Section 22(1) (a) is relevant. Bare perusal of the above provisions make it explicit that before raising a presumption in favour of prosecution, prosecution has to establish that any unlawful arm was recovered from the possession of accused and there is reason to believe that said recovered unlawful arms was used in organized crime. On proven of these facts, Special Court shall draw a presumption in favour of prosecution that accused has committed such organized crime but the said presumption is rebuttable. As already discussed said presumption can be rebutted by the standard of a prudent man and for that accused is not required to lead evidence independently, SC No. 59/10 & 60/10 Page 54 of 106 State vs Jag Mohan @ Mohar Singh & another he can rebut the presumption even by referring to the evidence and documents relied or filed by the prosecution.
38. In the light of aforesaid discussion, I am of the opinion that prosecution can not escape from its burden to prove the case beyond reasonable doubt by taking the shelter of Section 17(2) and Section 22(1)
(a) of MCOCA. To claim presumption, prosecution has to establish its preconditions otherwise prosecution will not be able to claim presumption. Moreover the presumptions are rebuttable and accused can rebut the presumption even by relying upon the evidence led by the prosecution and documents filed by the prosecution. Accused is not required to lead any independent evidence to rebut the presumptions.
39. Constitutional validity of Section 3(3), 3(5) and 4 of the MCOCA was challenged before the Apex Court in State of Maharashtra v. Bharat Shanti Lal, (2008) 13 SCC 5. In this regard, para 31 and 32 are relevant and same are reproduced as under:-
31. With respect to Section 3 of MCOCA, even before the High Court the attack was in particular in respect of the provisions of Sections 3(3) and 3 (5) on the ground that the requirement of mens rea is done away with, thus automatically rendering a person without any intention or knowledge liable for punishment. It is a well-settled position of law insofar as criminal law is concerned that in such provisions mens rea is always presumed as integral part of penal offence or section unless it is specifically and expressly or by necessary intendment excluded by the legislature. No such exclusion is found in sub-sections (3) and (5) of Section 3. As held by the High Court, if the provisions are read in the following manner no injury, as alleged, would be caused:
"3. (3) Whoever (intentionally) harbours or conceals or attempts to harbour or conceal any member of an SC No. 59/10 & 60/10 Page 55 of 106 State vs Jag Mohan @ Mohar Singh & another organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lakhs.
*** (5) Whoever (knowingly) holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lakhs."
32. As far as Section 4 of MCOCA is concerned the challenge was made before the High Court on the ground that the words "at any time" in Section 4 makes an act which was not a crime prior to coming into force of MCOCA, a crime, thus, making the provision retrospective, being violative of Article 20 of the Constitution. A perusal of the enactment along with the object and purpose reveals that it is only prospective and not retrospective and as held by the High Court the words "at any time" should be read to mean at any time after coming into force of MCOCA, the section should be read as under:
"4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate.--If any person on behalf of a member of an organised crime syndicate is, or, at any time [after coming into force of this Act] has been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years which may extend to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lakh and such property shall also be liable for attachment and forfeiture, as provided by Section 20."
(emphasis supplied)
40. Since, mens rea is always presumed as integral part of penal offence unless it is specifically and expressly or by necessary SC No. 59/10 & 60/10 Page 56 of 106 State vs Jag Mohan @ Mohar Singh & another intendment excluded by the legislature. No such exclusion is found even in Section 4, thus, to prove the guilt of accused under Section 4, prosecution is also required to establish that he possessed the property knowingly or deliberately or having reason to believe.
41. A combined reading of Section 4 and Section 17 (2) of MCOCA, makes it clear that before raising a presumption against the accused under Section 17(2) of the Act, prosecution has to establish following facts:-
(i) that accused knowingly on behalf of a member of an organized crime syndicate is found
(a) possessing movable or immovable property; or
(b) possessed any such property at any point of time after the enactment of MCOCA; and
(ii) accused failed to account for possession satisfactorily;
Only in that eventuality Special Court shall presume
(a) that such property was acquired or derived by illegal activities;
But, presumption is rebuttable
(i) accused can rebut the presumption by the rule of preponderance of probabilities and he can discharge his onus even by referring to the evidence led by prosecution or documents filed by prosecution, and there is no requirement to lead evidence independently to rebut the presumption.
Contentions relating to plea of alibi:-
42. Learned Special Public Prosecutor perspicaciously contended that though accused Jag Mohan @ Mohar Singh had taken the SC No. 59/10 & 60/10 Page 57 of 106 State vs Jag Mohan @ Mohar Singh & another plea that he was lifted by the police from his office located at Darya Ganj to have a discussion over 'Gohana' issue but subsequently, he was falsely implicated in this case. It was contended that since accused had taken the plea of alibi, onus was upon him to prove the same beyond reasonable doubt, but during trial he failed to adduce any evidence in this regard. It was contended that since accused failed to prove the plea of alibi, prosecution succeeds to prove that accused Jag Mohan @ Mohar Singh was arrested in the manner projected by investigating agency in the charge-sheet. In support of his contention, he strongly relied upon the judgment Shaikh Sattar v. State of Maharashtra, Criminal Appeal No. 928 of 2007 decided on August 27, 2010.
43. Per contra, learned counsel appearing for the accused contended that though the accused was lifted from his office on the pretext that senior police officers intended to discuss 'Gohana' issue with him as the same was a burning issue at that time and accused had raised the same, yet assuming for the sake of arguments that accused failed to prove his plea of alibi. But it does not prove the prosecution case ipso-facto. It was argued that prosecution has to prove its case beyond reasonable doubt irrespective of the fact whether accused failed to lead any evidence in support of his plea of alibi.
44. Learned Special Public Prosecutor strongly relied upon the para 20 of the judgment Shaikh Sattar (supra) which is reproduced as under:-
"Undoubtedly, the burden of establishing the plea of abili lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the SC No. 59/10 & 60/10 Page 58 of 106 State vs Jag Mohan @ Mohar Singh & another possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused, it is for the accused to establish the said plea by positive evidence which has not been led in the present case......."
45. Admittedly, in the instant case accused Jag Mohan @ Mohar Singh did not lead any positive evidence to establish that he was lifted from his office, thus, in view of the aforesaid judgment and Vijayee Singh's case (supra) it can safely be culled out that accused Jag Mohan @ Mohar Singh has failed to establish his plea of alibi. But in the instant case moot question is as to whether failure of accused to prove his plea of alibi amounts proof of prosecution case as contended by learned Special Public Prosecutor? This question was answered by the Apex Court in para 21 of Shaikh Sattar's case (supra) itself, which is reproduced as under:-
"But it is also correct that, even though, the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case, which has to be independently prove by the prosecution beyond reasonable doubt......"
46. In view of the above well-settled proposition of law, there is no scintilla of substance in the contention of prosecution that since accused failed to establish his plea of alibi, it amounts proof of prosecution version that he was arrested in the manner projected by the investigating agency. On the contrary, it becomes clear that prosecution has to establish its case beyond reasonable doubt. It is also pertinent to state that the duty of the prosecution is not to secure conviction by highlighting the observations of higher courts, which go against the accused; rather its duty is to assist the SC No. 59/10 & 60/10 Page 59 of 106 State vs Jag Mohan @ Mohar Singh & another Court to arrive at a right conclusion. But in the instant case, learned Special Public Prosecutor did not deem it appropriate to refer to para 21 of the judgment.
Contentions relating to the judgment in case FIR No. 168/2003:-
47. Learned Special Public Prosecutor astutely contended that accused is not entitled to take the benefit of acquittal in case FIR No. 168/2003 as the said judgment is contrary to the provisions of Section 10 of MCOCA. It was contended that since accused persons were facing trial for the charges of MCOCA in the present case, trial of FIR No. 168/2003 should have been in abeyance till the conclusion of the trial in the present case. Said contention is controverted by learned defence counsel by arguing sagaciously that if the contention of prosecution is admitted, it means accused should be forced to face the trial for the offence under Section 411 IPC for 9 years whereas the maximum punishment is only three years. It was submitted that the intent of Section 10 MCOCA is to ensure that the trial of MCOCA case is not delayed due to other petty matters and since there is nothing on record that may suggest that the trial of case FIR No. 168/2003 had delayed the present case in any manner, contention raised by prosecution is without any substance. It was further contented that none had stopped the prosecution to move the application before the concerned court to adjourn the trial of FIR No. 168/2003 till the conclusion of trial in MCOCA. It was argued that since accused had been acquitted from the charges of offence punishable under Section 411 IPC, prosecution is bound by the said finding as till date prosecution even did not deem it appropriate to challenge the said finding.
48. Section 10 of the MCOCA reads as under:-
SC No. 59/10 & 60/10 Page 60 of 106State vs Jag Mohan @ Mohar Singh & another
10. Trial by Special Courts to have precedence.
The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference of the trial of such other case and accordingly the trial of such other cases shall remain in abeyance.
(emphasis supplied)
49. Object of Section 10 of MCOCA is to ensure that trial in MCOCA cases be concluded without any hindrance at the earliest as in MCOCA matters, it is practically impossible for the accused to get a bail. To ensure that trial be concluded at the earliest without any hindrance, legislature has enacted Section 10 with a mandate that if presence of accused is required for any other trial, preference will be given to the trial of MCOCA case and in case of collusion the trial of such other cases shall be remained in abeyance. But there is nothing in Section 10 which automatically keeps the trial of all other cases in abeyance till the conclusion of trial in MCOCA case. It is for the Court to decide; if the Special Court deems fit that due to pendency of other trial, trial in MCOCA case is being affected, Special Court can exercise its power under Section 10 of the Act directing to keep the said trial in abeyance till further order or till the conclusion of trial in MCOCA case. But where accused can face trial in other cases without any hindrance in the trial of MCOCA, no purpose would be achieved to adjourn the trial of such case or keep it in abeyance till the conclusion of trial in MCOCA matter.
50. If the contention of learned Special Public Prosecutor is accepted, it means that accused Jag Mohan @ Mohar Singh should be asked to stand trial in FIR No. 168/2003 after eleven years. Indisputably, accused Jag Mohan @ Mohar Singh was in judicial custody in the said SC No. 59/10 & 60/10 Page 61 of 106 State vs Jag Mohan @ Mohar Singh & another matter from the date of his arrest whereas the maximum sentence for the offence punishable under Section 411 IPC is mere three years. What purpose will be achieved to ask the accused to face trial, when he had already undergone the maximum sentence? Would it be justice or would it amount injustice? Certainly, injustice. Thus, the contention raised by learned Special Public Prosecutor is devoid of merit.
51. Further, there is no explanation from the prosecution why prosecution had not made any request to adjourn the said trial till the completion of present trial. Had accused been convicted in the said trial, would prosecution have raised the same plea? Answer would certainly be in negative.
52. The judgment of Mukhtiar Ahmed Ansari v. State (NCT of Delhi), Criminal Appeal No. 325 of 2003 decided on April 21, 2005 is apposite as the same question arose in the said case. In the said case, accused was charge-sheeted for the offence of kidnapping with ransom as well as was the offence of TADA for possessing a fire arm unauthorizedly in a notified area. However, accused was acquitted in Kidnapping for ransom case by a competent court. But during the trial of TADA, special designated court held the accused guilty on the basis of evidence led in the kidnapping for ransom matter and also opined that the said case was not decided in accordance with law. It is also pertinent to highlight that State did not challenge the acquittal of accused in the said matter. Question arose as to whether prosecution will be bound by the finding giving in favour of the accused in previous matter i.e. kidnapping for ransom matter. In this regard, Apex Court held:-
"The learned counsel for the appellant is also right in submitting that even on merits, the Designated Court SC No. 59/10 & 60/10 Page 62 of 106 State vs Jag Mohan @ Mohar Singh & another committed an error in convicting the appellant. The counsel submitted that kidnapping-case of Ved Prakash Goel resulted into acquittal by a competent court. The said decision is final. In view of acquittal of the appellant, it was not open to the Designated Court to reconsider the matter by doubting the decision or commenting upon it observing that the acquittal was undeserved or unwarranted and the appellant-accused had committed the offence with which he was charged.
In support of the argument, the learned counsel referred to a decision of this Court in Pritam Singh and Anr v. State of Punjab, AIR (1956) SC 415. In that case, one P was prosecuted under the Arms Act for possessing a revolver without holding valid licence. He was, however, acquitted by a competent court. Subsequently, he was tried on the charge of murder. The prosecution wanted to rely on recovery and factum of possession of revolver which resulted in acquittal in an earlier case. It was held that the doctrine of autrefois acquit would apply.
Referring to a leading decision of the Judicial Committee of the Privy Council in Sambasivam v. Public Prosecutor Federal of Malaya, (1950) AC 458, this Court said;
"The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver Ex. P- 56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged."
The counsel is right in contending that once the appellant-accused was acquitted in kidnapping-case the doctrine of autrefois acquit gets attracted.
(emphasis supplied)
53. In case FIR No.168/2003, issue before the concerned court was as to whether any stolen vehicle i.e. Qualis van bearing registration number HR 55A 3776 was recovered from the accused Jag Mohan @ Mohar Singh or not? The competent Court i.e. Court of learned SC No. 59/10 & 60/10 Page 63 of 106 State vs Jag Mohan @ Mohar Singh & another Metropolitan Magistrate held that prosecution failed to prove the charges and accordingly acquitted him. Indisputably, said finding was not challenged by the prosecution and this Court is not sitting in the appeal of the said finding. Thus, this Court has no jurisdiction to make any comment on the said finding. Since, the finding of case in FIR No. 168/2003 is not challenged by the prosecution, prosecution is bound by the said finding. In other words, in the present matter prosecution can not take the plea that any stolen vehicle was recovered from the possession of the accused Jag Mohan @ Mohar Singh.
Contentions relating to the incident took place on September 13, 2005:-
54. Mr. Rajiv Mohan, learned Special Public Prosecutor for the State astutely contended that since the testimony of investigating officer SI Balbir Singh and SI Pankaj remained unchallenged during trial and the defence version that accused Jag Mohan @ Mohar Singh was lifted from his house is not proved, there is no reason to disbelieve the prosecution version that accused Jag Mohan @ Mohar Singh was not arrested in the manner in which presented in the charge-sheet and the stolen vehicle and pistol were also not recovered from his possession. It was further submitted that the testimony of responsible police officials can not be discarded mere on the ground that no public witness joined the investigation. It was submitted that accused Jag Mohan @ Mohar Singh was a notorious criminal and no public person came forward to assist the police against such criminal. It was further contended that the deficiencies pointed out by learned defence counsel are not fatal to the prosecution case in any manner.
55. On the converse, Mr. Rajesh Anand Advocate refuted the SC No. 59/10 & 60/10 Page 64 of 106 State vs Jag Mohan @ Mohar Singh & another said contentions by arguing sagaciously that no reliance can be placed on the statement of police official witnesses; and from their testimony it will be clear that it was a stage managed show where even the next investigating officer was also decided in advance and even no effort was made to join any other agency knowingly well that it was a fabricated raid. It was contended that accused in his statement under Section 313 Cr.P.C. has taken a specific plea that alleged recovery had been planted upon him and in this regard questions were put to members of the raiding party. It was further contended that since accused had already been acquitted from the charges of recovery of alleged Qualis vehicle, it proves that accused was not arrested in the manner projected by the investigating agency. It was further contended that mere fact that accused did not lead any evidence in support of his plea that he was arrested from his house does not exonerate the prosecution from its liability to prove the guilt beyond reasonable doubt.
56. As already held that failure of the plea of alibi would not necessarily lead to the success of prosecution case, which has to be independently proved by prosecution beyond reasonable doubt. Similarly, it has also been held that prosecution is bound by the verdict of acquittal in case FIR No. 168/2003. Though acquittal of accused Jag Mohan @ Mohar Singh in case FIR No. 168/2003 is suffice to hold that no vehicle and fire arm were recovered from the possession of accused Jag Mohan @ Mohar Singh, yet since learned Special Public Prosecutor relied upon the said recovery vigorously, I deem it appropriate to examine the testimony of witnesses in detail.
57. To prove the recovery of Qualis vehicle and fire arm, prosecution has relied upon the testimony of PW1 constable Anangpal, PW2 ASI Ravi Shankar, PW3 ASI Devender Prasad, PW5 SI Balbir Singh, SC No. 59/10 & 60/10 Page 65 of 106 State vs Jag Mohan @ Mohar Singh & another PW6 SI Pankaj Yadav, PW20 inspector Rajbir Singh and PW22 Mr. R.N. Vashisht, the then inspector.
58. Prosecution has set up a case that at about 2:30 PM a secret information was received to PW5 thereafter a raiding party was constituted and information was recorded in the register at 2:35 PM and they left from the office at 3.00 PM and reached Connaught Place by 3:40 PM and apprehended the accused at 4:15 PM. There is major contradiction between the testimony of PW5 and other witnesses. PW2 deposed that SI Balbir Singh had received a secret information that Mohar Singh, a well known criminal of Darya Ganj area, would come in a stolen Qualis vehicle, and the said vehicle was wanted in case of PS Connaught Place, in the area of Connaught Place and would go to Gole Market side and he also used to keep illegal arms and he indulged in cases of money extortion by use of arms. PW22 also corroborated this information to some extent. But surprisingly PW5 who received this information did not depose so. He only deposed that he had received the secret information about Mohar Singh who was a proclaimed offender that at about 4:00 PM, he would be reaching in the area of Connaught Place. Thus, it is not clear what exact information was received by PW5.
59. PW2 in his cross-examination clarified that the secret informer did not inform about the registration number or colour of Qualis vehicle and in which case it was wanted. Nor investigating officer verified from the PS Connaught Place about the involvement of any such vehicle. Admittedly, no request was ever received from PS Connaught Place to the Crime Branch to render help in searching the said Qualis Car.
60. It is admitted case of prosecution that raiding party was SC No. 59/10 & 60/10 Page 66 of 106 State vs Jag Mohan @ Mohar Singh & another comprising of as many as 15 police officials, one secret informer and one driver. It is also admitted case of prosecution that all 17 persons travelled in two vehicles i.e. one Qualis nine seater vehicle and one hired indica five seated car. Thus, the total capacity of both the vehicles was only 14, but seventeen police officials having strong body built having firearms and other things packed themselves in the said vehicles. But it is not clear how they packed themselves in two vehicles. Besides that all the witnesses are silent who hired the said indica car and when it was hired and from it was hired. It is also not clear who brought the said indica car to the office of Crime Branch and why the driver of said hired indica car was not asked to join the raiding party. There is nothing on record whether any payment was made for the said car or not. No registration number of the said car was noted down either in the departure entry or in the rukka. No temporary log book of the said car was maintained. Though during the trial of case FIR No. 168/2003 it was claimed that the said indica car was belonged to inspector Rajbir. But in the instant case neither PW20 inspector Rajbir claimed so nor any other witness stated so. Thus, it is not clear to whom the said indica car was belonged to; how it reached the office of Crime Branch R.K. Puram and what was its registration number and where it had gone. Even after eight year of the incident, indica car is still a mystery but prosecution did not deem it appropriate to clarify the same.
61. It is also admitted case of prosecution that after reaching Connaught Place, no intimation was given to the local police station; nor any help was taken from the local police station. Admittedly, now-a-days it is seldom to persuade a public person to join in the raiding party, but it is beyond imagination why the local police was not intimated or why request was not made to them to join the raiding party. Since, accused was a notorious criminal, in-charge of raiding party should have taken appropriate SC No. 59/10 & 60/10 Page 67 of 106 State vs Jag Mohan @ Mohar Singh & another assistance from the local police and should have also conducted proper barricading to avoid any untoward incident. Non intimating to the local police only suggest that the raiding party did not want to involve any other agency or person and due to that reason no sincere effort was made to join any independent witness either before apprehending the accused or subsequent thereto. As all the witnesses deposed that request was made only to passers by and not to any shop-keepers or from any person whose identity can be established. It is also beyond imagination why police always make a request to unknown passers by and why they do not make a request to the shop-keepers so that appropriate action can be taken against them later on if they refused to assist the police officials on flimsy ground. Such half hearted attempts always cast a doubt over the intention of investigating agency.
62. It is admitted case of prosecution that rukka Ex. PW5/B was sent from the spot to the SHO PS Connaught Place with a request to assign the further investigation to SI Pankaj Yadav (PW6). Now question arises as to whether SHO had any power to assign the investigation to any person, who is not working under his control or supervision? Answer to this question lies under Section 157 Cr. P.C, which reads as under:-
157. Procedure for investigation (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, SC No. 59/10 & 60/10 Page 68 of 106 State vs Jag Mohan @ Mohar Singh & another and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that--
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case (2) In each of the cases mentioned in clauses (a) and
(b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub-section, and, in the case mentioned in clause
(b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
63. It is limpid from Section 157 Cr.P.C. that after registration of FIR, SHO has two options either to proceed at the spot or to send his subordinate to investigate the facts and circumstances of the matter and if necessary to arrest the accused. But SHO has no power to depute any police officer who is not his subordinate. In this regard, the testimony of PW3 ASI Devender Prasad, duty officer of PS Connaught Place is also relevant, he in his cross-examination deposed that he did not know at whose instance the investigation was assigned to SI Pankaj Yadav. This shows that even SHO of PS Connaught Place did not direct the duty officer to assign the investigation to SI Pankaj Yadav. Admittedly, SI Pankaj Yadav was not working under the supervision and control of SHO PS Connaught SC No. 59/10 & 60/10 Page 69 of 106 State vs Jag Mohan @ Mohar Singh & another Place, thus, in terms of Section 157 Cr.P.C. SI Pankaj Yadav was not competent person to investigate the matter.
64. It is admitted case of prosecution that the rukka was sent at about 6:30 PM. PW3 deposed that rukka was produced before him at 6:35 PM, it means that PW2 reached police station within five minutes. PW2 further deposed that he returned to the spot at about 7:35 PM and at that time SI Pankaj Yadav was at the spot. Since, PW2 took mere five minutes to reach police station, it means he must have taken same time while coming back. In other words, the FIR must be completed by 7:30 PM. If it was so, it was impossible for PW6 to reach the spot at 7:35 PM. None of the witnesses deposed that any request was made to SI Pankaj Yadav to reach the spot either at the time of sending rukka or prior to that. Further, it is also admitted case of prosecution that the raiding party left from its office R.K. Puram at about 3:00 PM and reached the spot at 3:40 PM, it means same time must be taken by PW6 SI Pankaj Yadav. If at about 7:35 PM, he was at the spot, it means he must have left from his office at 6:50 PM. Does it mean that investigation was assigned to him prior to registration of FIR. Certainly, the same could not be assigned by SHO Connaught Place, then question arises who assigned the same; whether PW5 SI Balbir Singh and anyone else. Being SI, PW5 was not competent to assign the investigation to SI Pankaj Yadav. Though the raiding party was constituted under the supervision of PW22, but in his testimony he did not depose that he directed to assign the investigation to SI Pankaj Yadav. There is no iota of evidence to establish who had assigned the investigation of the case to PW6 SI Pankaj Yadav.
65. Further, it is the duty of every duty officer to record the substance of information in the daily diary register, which is commonly SC No. 59/10 & 60/10 Page 70 of 106 State vs Jag Mohan @ Mohar Singh & another called 'Qyami entry'. This is the mandate of Section 154 Cr.P.C. as well as Rule 24.1 of Punjab Police Rules. Rule is reproduced as under:
24.1 First Information how recorded-(1) Sections 154 and 155, Code of Criminal Procedure, provide that every information relating to an offence, whether cognizable or non-cognizable, shall be recorded in writing by the officer in-charge of a police station.
The distinction between the form of reports required by the above mentioned two sections has been defined as follows by the Punjab Chief Court (Now High Court):-
Every information covered by section 154, Criminal Procedure Code, must be reduced to writing as provided in that section and the substance thereof must be entered in the police station daily diary, which is the book provided for the purpose. It is only information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given which compels action under Section 157, Criminal Procedure Code.
66. From the above, it becomes explicit that it was the statutory duty of duty officer of PS Connaught Place to record the substance of information in the daily diary and to make endorsement on the rukka in this regard. But perusal of rukka reveals that no such information was recorded in the daily diary. PW3 in his testimony did not utter even a single word about any such entry. This proves that no such entry was made in the daily diary. This itself casts a serious doubt over the prosecution case.
67. It is admitted case of prosecution that accused had made a disclosure statement (Ex. PW6/C) at the spot wherein he confessed that he had purchased the said Qualis car from one Malhotra knowingly well that a case was registered against Malhotra qua the said vehicle. It is also admitted case of prosecution that the said Qualis car was wanted in case SC No. 59/10 & 60/10 Page 71 of 106 State vs Jag Mohan @ Mohar Singh & another FIR No. 168/2003, which was lodged by the bank against several persons qua several vehicles including said Malhotra as he failed to repay the loan amount. The said disclosure statement is signed by only one witness ASI Ravi Shankar (PW2) despite the fact that the raiding team was comprising of as many as 15 police officials including inspectors and sub-inspectors but none other than PW2 witnessed the execution of said disclosure statement. Does it mean that other police officials were not willing to become a witness to the execution of said document? Further, even PW2 in his entire deposition did not depose that the said document was executed in his presence. He remained silent about the said document. In other words, the sole witness regarding execution of said document also did not support the prosecution case. Admittedly, said disclosure was not signed by the accused, it only shows that he did not agree to its contents. In these circumstances, there is no scintilla of evidence to show that he procured the said vehicle knowingly well that it was a stolen property. Moreover, in the judgment of case FIR No. 168/2003, it had already been held that prosecution failed to establish that the said vehicle was a stolen property and said verdict was not challenged by the prosecution.
68. It is also admitted case of prosecution that on September 14, 2005 accused Jag Mohan @ Mohar Singh had made another disclosure statement Ex. PW6/D, which was also witnessed by PW2 and again accused refused to sign the same. Again, PW2 did not utter even a single word about the said disclosure statement. In other words, there is no witness except its author i.e.PW6 to prove the fact that the said disclosure was made by the accused. Since, accused refused to sign the same, it means that either he had not made any such disclosure statement or it was not recorded in the manner in which he disclosed the facts.
SC No. 59/10 & 60/10 Page 72 of 106State vs Jag Mohan @ Mohar Singh & another
69. As per prosecution version accused in his first disclosure statement disclosed that he had purchased the pistol in the sum of ` 50,000/- from one person named Amjad of Kairana, U.P. and he could get him arrested from Kairana. But on the next day in his disclosure statement, he informed the investigating officer that despite efforts he could not able to recollect the face feature or description of said person, thus, he would not be in a position to get him arrested from Kairana, U.P. but he expressed his desire to disclose something about his brothers and himself. Thus, as per prosecution version accused remembered at the time of arrest that he had purchased the pistol from Amjad resident of Kairana, U.P. and he could get him arrested but on the very next date he forget said Amjad. Does it mean that investigating officer intend to convey that accused was a patient of short term memory loss? But it was not so; rather from the facts and circumstances, it appears that it was a calculated move and this will be clear in the subsequent part of judgment.
70. On September 14, 2005 investigating officer (PW6) moved an application Ex. PW29/DF before the Court of learned Metropolitan Magistrate to seek police custody of accused for three days but granted for one day, on the ground that the source of recovered weapon was to be ascertained from Kairana, U.P. and Malhotra who was wanted in case FIR No. 168/2003 was to be arrested. It means that that the disclosure statement Ex. PW6/D was not made till the time the remand application was moved. It is common fact that remand application is taken up by the Court in post lunch sessions. It means that till post lunch session of September 14, 2005 accused did not disclose the investigating officer that he could not get arrested Amjad. PW29 in his cross-examination candidly admitted that PW6 SI Pankaj did not visit Kairana either on 14.09.2005 or 15.09.2005 either with the accused or of his own. Thus, it becomes clear SC No. 59/10 & 60/10 Page 73 of 106 State vs Jag Mohan @ Mohar Singh & another that no attempt was made to ascertain the identity of said Amjad. PW29 also admitted that accused Jag Mohan was not released during the police custody for the purpose of investigation of case FIR No. 168/2003. It is admitted case of prosecution that Malhotra was wanted in case FIR No. 168/2003 and not in the present case. In means that no attempt was made even to arrest Malhotra. In other words, though accused was taken on police remand on the plea that police had to arrest Malhotra, who was proclaimed offender in several cases and Amjad was to be arrested from Kairana, yet PW6 SI Pankaj did not take any step either to arrest Malhotra or Amjad. This shows that his priority was not to arrest said person but something else, which will be discussed in subsequent part of the judgment. If PW6 had any doubt about the correctness of Ex. PW6/C, he should have interrogated the accused in detail prior to moving remand application. Since, police custody was obtained on the basis of disclosure statement Ex. PW6/C, there was no occasion for PW6 to record further disclosure statement without making sincere efforts to apprehended Amjad and Malhotra. But no such effort was made and it appears that in order to show why no such effort was made, another disclosure statement Ex. PW6/D was recorded. The manner in which the disclosure statements of accused were recorded create a reasonable doubt over the prosecution version. It is also pertinent to state that pursuant to the information disclosed in Ex. PW6/C and Ex. PW6/D nothing was recovered at the pointing of accused Jag Mohan @ Mohar Singh, thus both the said disclosure statements are hit by Section 25 of Evidence Act.
71. Taking into account the aforesaid discussion, I am of the considered opinion that besides the acquittal in case FIR No. 168/2003 there are other sufficient reasons to create reasonable doubt over the alleged raid, which further doubts the recovery of Qualis Car and pistol, SC No. 59/10 & 60/10 Page 74 of 106 State vs Jag Mohan @ Mohar Singh & another thus, I am of the considered opinion that prosecution has failed to bring home the guilt of accused Jag Mohan @ Mohar Singh beyond reasonable doubt for the offence punishable under Section 186/353 IPC and under Section 25 and 27 of the Arms Act.
Contentions relating to provisions of MCOCA:-
72. Learned Special Public Prosecutor vigorously contended that there are overwhelming evidence to prove the guilt of both the accused persons for the offence punishable under Section 3(4) of MCOCA. However, he fairly conceded that during trial, no cogent evidence has been surfaced on record to prove the guilt of accused persons for the offence punishable under Section 3(5) of MCOCA as there is no admissible evidence on record to prove that the properties occupied by the accused persons were derived or obtained by them from commission of an organized crime or same had been acquired from organized crime syndicate fund. However, he swiftly added that but there are sufficient evidence to prove the guilt of accused persons for the offence punishable under Section 4 of MCOCA as prosecution has succeeded to prove that accused persons were found in possession of several movable and immovable properties and during investigation and trial they failed to account for the said properties. It was contended to prove the guilt of accused for the offence punishable under Section 4 of the MCOCA prosecution is not required to prove that the said properties were acquired from the fund of organized crime syndicate; rather prosecution is required only to prove the possession and in terms of Section 17 (2) of the MCOCA onus will be upon the accused to disprove the prosecution case and since in the instant case accused persons failed to adduce any evidence, accused persons are liable for the offence punishable under Section 4 of SC No. 59/10 & 60/10 Page 75 of 106 State vs Jag Mohan @ Mohar Singh & another the MCOCA. It was further contended that since in the instant case accused Jag Mohan @ Mohar Singh being the member of organized crime used violence against the police officials by pointing out a pistol upon them to retain his possession unlawfully over the stolen Qualis car, the act of accused squarely falls with the definition of organized crime as defined under Section 2 (1)(e) of the MCOCA, thus accused Jag Mohan is also liable for the offence punishable under Section 3(1) (ii) of MCOCA. It was further contended that though no charge is framed against the accused for the offence punishable under Section 4 of the MCOCA, but in terms of Section 7 of the MCOCA accused persons can be held guilty for the offence punishable under Section 4 and under Section 3 (1)(ii) of MCOCA.
73. Per Contra, learned counsel appearing for the accused sagaciously contended that there is no iota of admissible evidence either to prove the guilt of accused persons for the offence punishable under Section 3(2) and 3(4) or 3(1)(ii) or 4 of MCOCA. It was contended that previous involvements in criminal cases may be relevant to satisfy the condition of Section 2 (1)(d) of MCOCA but no conviction can be recorded under MCOCA on the basis of previous record of accused persons as under
MCOCA previous criminal activities are not offence but the organized crime as defined under Section 2 (1)(e) of MCOCA and in the instant case since accused had already been acquitted from the charges of recovery of stolen Qualis car, the alleged act does not fall within the purview of Section 2 (1)
(e) of MCOCA. It was further contended that the entire episode is a stage managed show and even PW6 being the sub-inspector was not competent to move the proposal to invoke MCOCA. It was further contended that from the record, it is clear that proposal was not in existence till the filing of charge-sheet in the Court as this crucial document was not part of the record. It was further contended that though accused Jag Mohan @ Mohar SC No. 59/10 & 60/10 Page 76 of 106 State vs Jag Mohan @ Mohar Singh & another Singh was produced before the court of learned Metropolitan Magistrate on September 14, 2005 but Court was not informed that investigating officer was moving any proposal to invoke provisions of MCOCA and even on September 15, 2005 when accused moved the bail application before the Court of learned Metropolitan Magistrate, there was no contention from prosecution side that provisions of MCOCA had been invoked against the accused persons. It was further contended that from the approval it becomes clear that it was a fabricated document as none except Chief Public Prosecutor put date below his signature. The said document is giving impression that all persons were sitting in the same room, which itself creates a serious doubt over the intention of the investigating agency. It was further contended that as per sanction all brothers of the accused Jag Mohan @ Mohar Singh were members of the alleged organized crime syndicate but till date no challan has been filed against them. Had they been member of any organized crime syndicate investigating officer would have certainly filed challan against them. This further indicates that accused persons have been falsely implicated in this case. It was further contended that there is no iota of admissible evidence to prove the guilt of accused either under Section 3(1)(ii), 3(2), 3(4), 3(5) or 4 of the MCOCA and accused persons deserve acquittal with all honour.
74. Vide approval order dated September 15, 2005 (Ex. PW7/A) approval was granted against accused Jag Mohan @ Mohar Singh and his brothers namely Jai Chand, Khoob Singh, Sher Singh and Brij Mohan for the offences punishable under Section 3(2) and 3(4) of MCOCA. Thereafter vide order dated February 10, 2006 (Ex. PW7/B) sanction qua accused Jag Mohan @ Mohar Singh was granted to prosecute him for the offence punishable under Section 3(2) and 3(4) of MCOCA. Similarly vide order dated July 13, 2009 sanction qua Jai Chand @ Munna was granted for the SC No. 59/10 & 60/10 Page 77 of 106 State vs Jag Mohan @ Mohar Singh & another offence punishable under Section 3(2) and 3(4) of MCOCA. Accordingly, charge-sheets were filed against both the accused persons for the offence punishable under Section 3(2) and 3(4) of MCOCA. Additional charges were also levelled against accused Jag Mohan @ Mohar Singh for the offence punishable under Section 186/353/411 IPC read with 25 and 27 of Arms Act.
75. Vide order dated March 26, 2010 a charge for the offence punishable under Section 3(2) and 3(4) of the MCOCA was framed. Simultaneously, a separate charge for the offence punishable under Section 186/353 IPC read with Section 25 and 27 Arms Act was framed against the accused Jag Mohan @ Mohar Singh.
76. Thus, it becomes clear that neither of the accused was either charge-sheeted or charged for the offence punishable under Section 3(1)
(ii), 3(5) or Section 4 of the MCOCA. Till date, no request was made to amend the charge. But during the course of final arguments, learned Special Public Prosecutor all of sudden raised the plea that accused Jag Mohan @ Mohar can be held guilty for the offence punishable under Section 3(1) (ii) and both of them are also liable for the offence punishable under Section 4 of the MCOCA besides 3(4) of the Act. No doubt Section 7 of the MCOCA empowers the Special Court to convict a person for any other offence under MCOCA or any other law for the time being in force even if such accused is not charged for the said offence. But such type of laxity in such a heinous crime is not appreciable.
77. Since neither during the trial any evidence is led to prove the guilt of accused persons for the offence punishable under Section 3(2) and 3(5) of the MCOCA nor any such evidence is pointed out by learned SC No. 59/10 & 60/10 Page 78 of 106 State vs Jag Mohan @ Mohar Singh & another Special Public Prosecutor during the course of final arguments; rather it was fairly conceded that there is no evidence to attract the provisions of Section 3(5) of MCOCA. Thus, it becomes clear that there is no iota of evidence against the accused for the offence punishable under Section 3(2) and 3(5) of MCOCA.
78. Now coming to the offence punishable under Section 3(1) (ii) of MCOCA. As per contention raised by learned Special Public Prosecutor Section 3(1) (ii) is attracted in this case as accused Jag Mohan @ Mohar Singh had used violence by pointing out a pistol upon PW5 Balbir Singh to retain his unlawful possession over the stolen Qualis Car. Since, accused Jag Mohan @ Mohar Singh has already been acquitted from the charges of Section 353/186 IPC read with 25 and 27 of Arms Act, I do not find any substance in the contention of learned Special Public Prosecutor. To my mind, to hold the accused Jag Mohan @ Mohar Singh guilty for the offence punishable under Section 3(1) (ii) of MCOCA, prosecution has to establish beyond reasonable doubt that any raid was conducted on September 13, 2005 and during the raid accused Jag Mohan was arrested and found in the possession of stolen Qualis Car and fire arm but prosecution failed to prove the same. Accordingly, I am of the considered opinion that prosecution has also failed to prove the guilt of accused Jag Mohan @ Mohar Singh for the offence punishable under Section 3(1)(ii) of MCOCA.
79. Now adverting to the contentions relating to offence punishable under Section 4 of the MCOCA. After the verdict of Apex Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) Section 4 reads as under:
"4. Punishment for possessing unaccountable wealth on behalf member of organized crime syndicate : If any SC No. 59/10 & 60/10 Page 79 of 106 State vs Jag Mohan @ Mohar Singh & another person on behalf of a member of an organized crime syndicate is, or, at any time (after coming into force of this Act) has been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years which may extend to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lakh and such property shall also be liable for attachment and forfeiture, as provided by Section 20."
(emphasis supplied)
80. In order to prove the guilt of accused persons, prosecution is required to prove beyond reasonable doubt that (i) accused were holding the property on behalf any person who was member of a organized crime syndicate; (ii) accused were found either in possession of such property at the time of arrest or at any time after 02.01.2002 when the MCOCA was enacted in Delhi; (iii) accused failed to account for their possession over the property satisfactorily. If prosecution succeeds to establish the above stated facts beyond reasonable doubt then in terms of Section 17(2) of MCOCA presumption shall be drawn in favour of prosecution that such property has been acquired or derived by their illegal activities.
81. During the course of arguments, learned Special Public Prosecutor failed to point out any evidence on record, which may show that accused persons were holding any property on behalf of any member of organized crime syndicate. Rather, prosecution contention is that they were holding the properties being a member of organized crime and not on behalf of any member of organized crime syndicate. Since, Section 4 of MCOCA is unambiguous and it attracts where any person is found holding any movable or immovable properties on behalf of any member of organized crime syndicate, thus, to my mind prosecution has also failed to satisfy the first precondition to invoke the provisions of Section 4 of the SC No. 59/10 & 60/10 Page 80 of 106 State vs Jag Mohan @ Mohar Singh & another MCOCA.
82. Second necessary condition to prove the guilt of a person under Section 4 is that such person must be holding such properties after the implementation of the MCOCA in Delhi. Since, MCOCA was extended to Delhi w.e.f. 02.01.2002, prosecution has to establish that accused persons had acquired or obtained such properties from such member after 02.01.2002.
83. As para 16 of the challan accused Jag Mohan @ Mohar Singh was found in the possession of a Maruti Car 800CC bearing registration number DL 3C 7199. But during trial, prosecution has failed to adduce any evidence to establish that accused Jag Mohan was either holding the said vehicle on behalf of any member of organized crime syndicate or he was holding the same on behalf of such person after implementation of provisions of MCOCA in Delhi. On the contrary, during investigation, investigating officer had collected the copy of registration certificate (placed at Challan Page No. 303). This document shows that the said vehicle is registered in the name of accused Jag Mohan since July 3, 1990. This establishes that accused had acquired the said Maruti car much prior to implementation of MCOCA in Delhi. Qua Qualis Car it has already been held that prosecution has failed to establish its recovery from the accused Jag Mohan. In other words, prosecution has failed to satisfy the preconditions qua movable properties.
84. In order to prove the possession of accused Jag Mohan over certain immovable properties, prosecution has strongly relied upon the report of Mr. U.B. Tripathi (PW15) Additional Director of Vigilance, Delhi Jal Board. Said report is exhibited as Ex. PW15/B. The said report was SC No. 59/10 & 60/10 Page 81 of 106 State vs Jag Mohan @ Mohar Singh & another submitted in pursuance to the notice Ex. PW15/A issued under Section 91 Cr.P.C.
85. Vide notice Ex. PW15/A, Director of Delhi Jal Board was informed that several bills i.e. 11 in number were recovered during investigation of the matter and he was further directed to provide information regarding due pending, due cleared and mode of payment till date against the said bills and request was also made to conduct a survey to find out the real user of the Jal Board connections and was asked to submit a report. As per notice, three connections were issued in the name of Mr. Kishori Lal resident of property number 3808, one connection was in the name of Mr. Jai Kishan Kapoor resident of property number 3808, one connection was issued in the name of Vidhyawati qua property number 3828-29, one connection each was issued in the name of Kusum Kapoor, Janki Das and N.R. Vaidhya qua property number 3814 and two connections were issued in the name of Baldev Raj Mahajan and one connection was issued in the name of Sewa Ram qua Stall No. 2, 29. All properties were located Dr. David Street, Darya Ganj, Delhi.
86. Pursuant to the said notice, report Ex. PW15/B was submitted stating that property number 3808 where four connections were installed found locked since long and on inquiry it was revealed that none is residing therein since long. Property number 3828-29 where one connection was installed also found locked. One tea shop was found running at property number 2, 29 Dr. David Street Darya Ganj, Delhi. Premises qua connection in the name of Kusum Kapoor and Janki Das were also found locked. Qua connection in the name of N.R. Vaidhya it was submitted that the said connection had been shown cut off in Revenue Record and presently it was found to be used by Vijay Mahajan. Qua two SC No. 59/10 & 60/10 Page 82 of 106 State vs Jag Mohan @ Mohar Singh & another connections in the name of Baldev Raj Mahajan it was submitted that one connection had been shown cut off in the Revenue Record but the same was restored at the the site and was in the possession of Sh. Ramesh Mahajan and second connection was in the name of Baldev Raj Mahajan but used by Ramesh Mahajan. It was also submitted that Baldev Raj Mahajan was the uncle of Vijay Mahajan and Ramesh Mahajan. In the last para of his report, it was submitted that one unknown resident who did not wish to disclose his name informed the official of Delhi Jal Board that all above properties except property number 3813 were being used by Mohar Singh, who was in jail at that time. On the basis of said line, it was contended by learned Special Public Prosecutor that prosecution has succeeded to establish that property number 3808, 3814, 3828-29 and tea stall number 2 of property number 29 were in the possession of accused Jag Mohan @ Mohar Singh and Jai Chand.
87. Admittedly, PW15 himself did not conduct the survey because as per report, survey was conducted by a Vigilance Team of Delhi Jal Board. Prosecution even did not deem it appropriate to produce the members of the team who conducted the survey. There is no evidence whatsoever who was the said unknown person and on what basis he had told the Vigilance Team that the said properties were being used by Mohar Singh. Said information may be relevant for the purpose of further investigation to find out to whom the said properties belonged to but certainly not sufficient to arrive at any conclusion. Mere by saying by any unknown person that a particular property belonged to Mr. A or Mr. B is not sufficient to arrive at conclusion that the said property belonged to such person. Admittedly, tea shop was found running at the property number 29 Dr. David Street, Darya Ganj. But no attempt was made to record the statement of said tea vendor to find out to whom the said property belonged SC No. 59/10 & 60/10 Page 83 of 106 State vs Jag Mohan @ Mohar Singh & another to. Admittedly, Ramesh Mahajan was found in one of the properties, but he was not produced in the witness box to prove that any of the above properties are in the possession of accused persons. Similarly, no evidence is produced to establish that accused persons were holding the said properties after 02.01.2002 i.e. after implementation of MCOCA in Delhi.
88. No doubt, accused Jag Mohan @ Mohar Singh in his statement under Section 313 Cr.P.C disclosed his address as 3808, David Street, Darya Ganj, Delhi and accused Jai Chand has also disclosed his address as 3814, David Street, Darya Ganj, Delhi but it does not prove anything else except that they are residing at the given address. Mere fact that they are residing at the given address is not sufficient to arrive at a conclusion that either they were holding the said premises on behalf of any member of organized crime syndicate or that they had acquired the said properties from the commission of organized crime or through the fund of organized crime syndicate. If investigating agency had any doubt either about the source of fund through which they acquired the said property or about their lawful possession of the said properties, they were supposed to give notice to the accused persons to explain in which capacity there were residing in the said premises. Needless to say there are numerous ways to occupy any property; one may be tenant; licensee; lessee, owner, unauthorized occupant, owner by way of adverse possession etc. But mere fact that a person is occupied any property is not ipso-facto sufficient to arrive at a conclusion that he was holding the possession on behalf of any member of organized crime or that he had derived or obtained the said property from commission of organized crime or from the fund of organized crime syndicate. Even PW8 Bobby Kapoor, son of owner of property no. 3814, in his deposition clarified that accused Jai Chand was one of the tenants in the property number 3814. When it is admitted case of SC No. 59/10 & 60/10 Page 84 of 106 State vs Jag Mohan @ Mohar Singh & another prosecution that he was one of the tenants in the said properties, how it can be said that he was holding the said property on behalf of any member of organized crime syndicate.
89. It is admitted case of prosecution that mother of PW8 was the owner of property number 3814 David Street, Darya Ganj, Delhi. PW8 in his deposition testified that the said property was in the possession of various tenants. Some tenants had vacated the premises but it was let out to new tenants. There were total 22 tenants in the said property. He further deposed that accused Jai Chand had occupied some portion of the property being tenant but he had occupied some portion illegally and for that a civil litigation was going on between him and his mother. He further deposed that after the death of his mother, said litigation was going on between him and Jai Chand. He further deposed that accused Jai Chand had claimed his ownership over some portion of the property on the basis of some forged signature of his mother and his. Admittedly, during investigation, investigating officer did not deem it appropriate to conduct any investigation about the said documents. On the contrary, PW29 in his cross-examination admitted that during investigation no evidence was surfaced that accused persons had ever prepared any forged or false document pertaining to any property. Nor any evidence was surfaced that any civil court had ever declared that any of the documents produced by the accused persons was false, forged or fabricated. Admittedly, till date there is no finding in the said civil litigation that the documents on the basis of which accused Jai Chand is claiming his ownership are forged. PW8 admitted in his examination-in-chief that he had not lodged any police complaint about the said alleged illegal possession of Jai Chand and he gave explanation for not lodging a complaint that the said possession was not taken by the accused Jai Chand in his presence but it was taken in the SC No. 59/10 & 60/10 Page 85 of 106 State vs Jag Mohan @ Mohar Singh & another life time of his mother. Thus, PW8 intends to convey that he did not have any personal knowledge about the fact of taking any portion of the property illegally by Jai Chand. Since, PW8 did not support the prosecution case he was got declared hostile and cross-examined by learned Additional Public Prosecutor. In his cross-examination, he deposed that accused never threatened him to kill if he intended to report the matter to the police and further clarified that accused persons are in possession of the rent receipts. He also denied the suggestion that accused persons used to occupy the possession of vacant premises by breaking their locks. In view of the above deposition of PW8, I am of the view that there is nothing in his testimony which may help the prosecution in any manner to prove the guilt of accused persons for the offences punishable under any sub-section of Section 3 of the MCOCA.
90. Qua property number 3814, testimony of PW24 Mr. Surender Mohan is also relevant. He was also one of the tenants in the said property. He deposed that he had taken a ground floor in the said property on rent in the year 1970 and thereafter in the year 1975 he entered into an agreement with landlady to construct basement and in 1978 he entered into another agreement qua first floor. Thus, since 1978 he was occupying basement, ground floor and first floor. He further deposed that in the year 1988-89 he had shifted his business activities of manufacturing units from the said premises to F-90/31 Industrial Area, Okhla, Delhi but he started using the said premises for his office and go-down. He further deposed that when he took the premises on rent in 1970, accused Jai Chand was residing there as a tenant. This further proves that accused Jai Chand has been residing in the said premises prior to 1970 as a tenant, thus prosecution can not say that accused failed to account for his possession over the said property. He further deposed that in the year 1980 accused Jai Chand had SC No. 59/10 & 60/10 Page 86 of 106 State vs Jag Mohan @ Mohar Singh & another also taken one portion in the said property as tenant and his brothers namely Mohar Singh, Sher Singh, Brij Mohan, Khoob Singh and Pappu had also taken one portion in the said property as tenant. He further deposed that in the year 2004 accused Jai Chand, Mohar Singh and their brothers had put lock on the entry gate of his portion and stated that they had purchased the entire building and asked him to vacate the premises. Accordingly, he went to PS Darya Ganj four days continuously but police did not record his complaint and at last he had filed a civil suit. In his cross- examination, he clarified that he did not file any criminal case against the accused for the alleged threat and above incident. It is pertinent to state that prosecution has projected the accused persons as deadly criminals and alleged that due to their criminal activities no one dared to lodge any complaint with the police. But here PW24 categorically deposed that he visited PS Darya Ganj four days continuously but his complaint was not recorded. Does it mean that police officials of PS Darya Ganj were in hand gloves with the accused persons?
91. Though PW24 deposed that the civil suit filed by him was decided by the Court on July 11, 2011, yet he did not depose what was the fate of said suit? Whether it was decided in his favour or against him. He further deposed that in the year 2005, accused Jai Chand had filed a civil suit against him and also produced a fictitious advocate from his side in the Court, consequently, he made a complaint with the crime branch in the year 2009 i.e. FIR No. 102/2009 and same is pending before the Court.
92. Prosecution has set up a case that PW24 had made a statement to the investigating officer on September 26, 2005. But PW24 categorically deposed that he had not made any statement to the police on September 26, 2005. On the contrary he categorically deposed that his SC No. 59/10 & 60/10 Page 87 of 106 State vs Jag Mohan @ Mohar Singh & another statement was recorded on June 30, 2009, September 10, 2010 and May 10, 2011 and further clarified that all his statements were recorded in case FIR No. 521/2005 i.e. present case. He further deposed that his first statement dated June 30, 2009 was recorded by the reader of ACP Mr. Joy Tirkey and his second statement dated September 10, 2010 was recorded by inspector Ashok Kumar in the chamber of his counsel and his last statement dated May 10, 2011 was recorded by inspector Ashok Kumar at his residence. Thus, PW24 not only remembered when his statements were recorded but also remembered who recorded the same and where it was recorded. Thus, it is difficult to disbelieve him. But his testimony is contrary to prosecution case as no such statement was filed by the prosecution on record. Learned Special Public Prosecutor candidly admitted that no such statement of the witness was ever recorded, thus, the question of supplying the same to the accused did not arise. Since, no such statement is available on record, the testimony of PW24 becomes doubtful, thus does not inspire any confidence.
93. Further, PW24 in his cross-examination admitted that he had shifted his entire manufacturing units from the said premises. Though he deposed that he was using the said premises as his office and go-down, yet no evidence was produced in this regard. In his cross-examination he admitted that he did not produce any document before investigating officer to show that he was using the said premises for his office purpose. Had he been using the said premises for his office or go-down, it would not be possible for any person to occupy the said premises. It is common fact that in Delhi numerous litigations are going on between tenants or between tenants and landlords for one reason or another. But the said litigation is not suffice to reach any conclusion that one of the parties is occupying the premises on behalf of any member of organized crime syndicate.
SC No. 59/10 & 60/10 Page 88 of 106State vs Jag Mohan @ Mohar Singh & another
94. At last, the landlady or her son i.e. PW8 was the relevant witness to testify whether PW24 was occupying the premises unauthorizedly or accused Jai Chand and his brothers had occupied the said premises illegally or unlawfully but PW8 did not state any thing. Rather he deposed that accused persons never threatened him and they are in the possession of rent receipts. He did not depose that accused persons had occupied the portion of PW24 at any point of time.
95. In view of the aforesaid discussion, I am of the opinion that his testimony is not helpful to the prosecution to bring home the guilt of accused either for the offence punishable under Section 3(1)(ii), 3(4) or 4 of MCOCA.
96. Now coming to the property located at S-513 School Block, Shakarpur, Delhi. In this regard the testimony of PW9, PW16, PW17 are relevant. PW9 Satish Makkar deposed that he is owner of one shop located in the said premises and further deposed that he knew the accused Mohar Singh as he had his office at the third floor of the same building and further deposed that he did not know who used to look after the said shop. PW16 deposed that he had purchased one shop at third floor in the said building in the year 1998 and after 2-3 years, he had sold the said shop to Jag Mohan in the sum of between ` 1.50 lac to ` 2.00 lac. During cross- examination conducted by learned Special Public Prosecutor, he deposed that he did not know whether Jag Mohan was having any other shop in the said building or not. He denied the suggestion categorically that he had sold the said shop under the fear of Jag Mohan @ Mohar Singh. PW17 is the wife of PW16 but she did not depose anything against the accused. At the most from the testimony of PW16 it is proved that he had sold his shop to accused Jag Mohan @ Mohar Singh in the year 2000-2001. Thus, it SC No. 59/10 & 60/10 Page 89 of 106 State vs Jag Mohan @ Mohar Singh & another becomes clear that accused had purchased the shop much prior to 02.01.2002 when MCOCA was enforced in Delhi. Further, the above testimonies are not suffice to prove that accused Jag Mohan was holding that said property on behalf of any member of organized crime syndicate. Since, PW16 himself deposed that he had sold the said shop to accused, thus, it can not be said that accused failed to account for the said property.
97. Now coming to the testimony of PW32 Somnath on whose testimony learned Special Public Prosecutor strongly relied upon. In his examination-in-chief, he deposed that he had purchased property number S-206 in the name of his wife and some civil litigation was going on between him and one Sharda. He further deposed that accused Jai Chand intended to grab the said property by asking him to sell the same and also threatened to kill him and further deposed that accused Jai Chand had threatened him either to give the house or shop to him otherwise he would kill him and his sons but deposed that the said threats were given to him in the year 1995. He made a complaint to the Commissioner of Police. To a leading question, he deposed that he did not remember the date, month and year of the said threat. Since witness was not supporting the prosecution version he was got declared hostile and cross-examined by the learned Special Public Prosecutor. During cross-examination, no question was put to him when the alleged threat was given to him. Nor any question was put to him about the complaint made to the Commissioner of Police. On the contrary in his cross-examination, he admitted that he did not state to the police that accused Jai Chand had threatened him either to give the house or shop otherwise he would kill him and his sons. Thus, it becomes clear that he has introduced this fact first time in the Court, which amounts substantial improvement, which effects core of prosecution case, thus, no reliance can be placed on his testimony to that extent. Though he SC No. 59/10 & 60/10 Page 90 of 106 State vs Jag Mohan @ Mohar Singh & another remembered about the civil litigation, yet failed to remember whether any injunction order was passed in favour of accused Jai Chand by the Court qua property number S-206. He also denied the suggestion that accused Jai Chand was in possession of the said property. Rather, he reiterated that property is in his possession. He also did not remember whether accused was discharged in case FIR No. 186/2005 or not. He also failed to recollect whether the FIR was lodged against Jai Chand and Rajesh or not. He also failed to recollect whether accused was discharged in a case lodged by his wife at PS Tilak Marg. He further deposed that a police official from PS Mehraulli came to his house and interrogated him in the present case but again stated that he might be interrogated by Joy Tirki but in the next breath stated he did not remember whether he was interrogated by Joy Tirki or not. He further deposed that he did not remember whether accused Jai Chand had filed a Criminal Writ Petition against him and police and took the plea that he did not remember the same as he is illiterate. If he was illiterate, how he had made a complaint to Commissioner of Police. Further, how illiteracy is relevant to the fact whether accused filed the Criminal Writ Petition or not. But he got remembered that he appeared before the Hon'ble High Court but again forgot whether he filed any reply in the said petition or not. This shows that witness avoided several questions and attempted to conceal several facts from the Court. When his attention was drawn towards his statement Ex. PW32/D1 made before the police, he deposed that he did not remember whether he had stated to the police that accused Jai Chand had filed a civil case against him in the High Court and same was dismissed. He also stated that he did not remember if he stated to the police that accused Jai Chand had claimed that property number S-206 belonged to him and claimed that they were tenant in the property located at Nai Sarak and also stated that he did not remember that accused claimed that he was tenant in S-206 and sought relief that he should not be SC No. 59/10 & 60/10 Page 91 of 106 State vs Jag Mohan @ Mohar Singh & another evicted from S-206. From this it becomes clear that witness is even not remembered what statement he had given to the police. However, from his testimony it can safely be culled out that some civil litigation was going between him and accused Jai Chand. He had made substantial improvements in his testimony that accused Jai Chand threatened him either to give his shop or house otherwise he could kill him and his sons, no reliance can be place on his testimony to that extent. Further, it is not clear when the alleged threat was made. As already discussed that previous criminal record may be relevant to decide whether stringent provisions of MCOCA are to be invoked or not but no conviction can be recorded on the basis of any previous incident in which accused had either discharged or acquitted. Thus, to my mind, testimony of PW32 is not helpful to the prosecution in any manner to prove the culpability for the offences punishable under any sub-section of Section 3 of MCOCA.
Circumstances under which approval was moved and granted to invoke the stringent provisions of MCOCA:-
98. It is admitted case of prosecution that accused Jag Mohan @ Mohar Singh was arrested from the area of Connaught Place on September 13, 2005. As per arrest memo he was arrested at 8:30 PM. PW6 in his examination-in-chief deposed that after arresting the accused, he took his personal search; prepared the site plan; thereafter interrogated him and recorded his disclosure statement Ex. PW6/C but accused refused to sign the same. Case property was deposited at PS Connaught Place. Thus, PW6 must have taken at least minimum one hour in conducting all these proceedings. It means that PW6 along with accused was at spot till 9:30 PM. Since, raiding party took about 40 minutes to reach spot from its office, if same time was taken to reach office, it means that PW6 along with the accused could not have reached the office prior to 10:10 PM.
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99. PW6 further deposed that after reaching office, he again interrogated the accused and recorded his disclosure statement Ex. PW6/D. Since, Ex. PW6/D bears the date of September 14, 2005, it means that same was recorded after mid-night. It is also admitted case of prosecution that on September 14, 2005 PW6 moved an application before the Court of learned Metropolitan Magistrate to seek police remand of accused Jag Mohan for three days on the grounds inter-alia that he had to ascertain the source of pistol in Kairana, UP and had to arrest one Malhotra, who was a proclaimed offender in various cases. It is common fact that such applications are dealt with by the Court of Metropolitan Magistrates in post lunch Sessions. Now coming to the disclosure statement Ex. PW6/D wherein accused had already disclosed that he could not get arrested Amjad from Kairana, UP and he was not recollecting his face features. If Ex. PW6/D was recorded in the office as deposed by PW6 it means that it was in the knowledge of PW6 at the time of moving police remand application Ex. PW29/DF that accused was not in a position to get arrested the person from whom he allegedly procured the recovered pistol. If it was so, question arises why PW6 had obtained the police custody by concealing facts from the Court.
100. It can be argued that PW6 had not recorded the disclosure statement in the mid-night, he must have recorded the same after obtaining the police custody. If it was so, PW6 must have deposed so in his deposition. But no attempt was made on the part of prosecution to seek any clarification from the witness. Secondly, it means that after obtaining the accused on police remand, it was come to the knowledge of PW6 that accused was not in a position to get arrested Amjad from Kairana, UP and so called proclaimed offender Malhotra. It is also admitted case of prosecution that no effort was made either by PW6 or PW29 to apprehend SC No. 59/10 & 60/10 Page 93 of 106 State vs Jag Mohan @ Mohar Singh & another the said persons. In other words, accused was not required for the purpose of investigation as police remand was obtained only on two grounds as already stated.
101. Admittedly, at the time of moving application for police custody, PW6 did not disclose to the Court that the previous activities of accused were being analysed for further investigation or to invoke the stringent provisions of MCOCA. Since, applications of police custody are being dealt by the Court of Metropolitan Magistrates in post-lunch sessions and we assume that the application of PW6 was taken at 2:00 PM and he must have been freed by 2:30 PM. At least 30 minutes time was required to reach from Tis Hazari to R.K. Puram, it means that he could not have reached his office prior to 3:00 PM. In other words, the disclosure statement Ex. PW6/D must be made after 3:00 PM. We also assume that after reaching office PW6 immediately interrogated the accused, it means that the said alleged disclosure statement Ex. PW6/D must have been recorded sometimes between 3:00 PM to 3:30 PM.
102. PW6 in his examination-in-chief deposed that after analysing the previous criminal activities of accused, he made a proposal to invoke MCOCA against him. In his proposal Ex. PW6/F, he recited that during interrogation, accused disclosed some startling facts about his criminal activities and pointed the same in his proposal. It proves that PW6 thought to move the proposal after recording the disclosure statements of accused. As already stated that the disclosure Ex. PW6/D could not be recorded prior to 3:30 PM. It means that PW6 decided to move the proposal approximately at 3:30 PM. Admittedly, accused did not disclose the detail of cases in which he was wanted; nor he disclosed the fate of such cases. It means that PW6 had collected the same before making the SC No. 59/10 & 60/10 Page 94 of 106 State vs Jag Mohan @ Mohar Singh & another proposal. But PW29 in his cross-examination admitted that there was nothing on record, which may suggest that PW6 had left from his office to collect any information of the accused. In his testimony, PW6 did not divulge how he collected the detail about the accused. As per the detail given in initial proposal, accused was involved in 10 cases in different police stations but he had already been acquitted in all cases except one which was pending. One can say that PW6 might have collected the information either from CRO or from the computer; but PW6 was supposed to state so in his deposition. But he did not state so. Thus, prosecution failed to establish how PW6 collected the detail of cases. After analysing the previous involvement of accused, he arrived at a conclusion that he personally felt that provisions of section 3 of MCOCA is attracted in the matter. The initial proposal is running into five pages typed on computer. If we assume that he had acted like a super cop, even then at least 3-4 hours were needed to prepare the initial proposal as he was required to go through the detail of his previous cases; to analyse the same and to decide that his previous involvements are of such a nature, which attracts the provisions of MCOCA. The author of such important document did not deem it appropriate to put date below his signature. Was it an inadvertent omission or a deliberate attempt to conceal true facts i.e. the date when the said proposal was moved? It is pertinent to state that prior to that whatever documents were prepared by PW6, same bore the signature of PW6. Thus, it is seldom to believe that omission was an inadvertent.
103. PW6 sent his proposal to inspector AATS, who forwarded the same to ACP/AATS stating that after going through documents, record and confession he personally felt that provisions of section 3 of MCOCA is applicable against the accused. But surprisingly, he also failed to put date below his signature. Was it an inadvertent omission or a deliberate attempt SC No. 59/10 & 60/10 Page 95 of 106 State vs Jag Mohan @ Mohar Singh & another to conceal true facts? It is also pertinent to state that PW6 did not state that he had collected any document; nor any document was sent along with the proposal. In the name of document, it was a note prepared by PW6. There was no confession. It was mere a disclosure statement and even it did not bear the signature of accused despite the fact it was claimed that the said disclosure was made voluntarily. First question arises if it was voluntarily why accused refused to sign. Since, accused refused to sign, prima-facie it shows that it was not a voluntarily. If no document or record was sent along with the proposal, question arises which documents and record were perused by inspector/AATS.
104. ACP/AATS sent the said proposal to Special Public Prosecutor. But again, ACP/AATS failed to put date below his signature. Was it an inadvertent omission on the part of ACP/AATS or a deliberate attempt to conceal true facts. Since, PW6 and his two immediate officers did not put date below their signature, it shows that it was not an inadvertent omission but a deliberate attempt as it is seldom to digest that it was a mere co-incidence.
105. When said initial proposal was received in the office of Chief Prosecutor/Special Public Prosecutor Mr. K.K. Singh, he raised certain objections and sent back the file to ACP/AATS. While returning the file, Mr. K.K. Singh put date as 14.09.2005 below his signature. Thus, he was the first person who put date below his signature. Admittedly, the office of Chief Prosecutor is not located in R.K. Puram. PW29 deposed that his office was either in Patiala House Court complex or Tis Hazari courts complex. As already stated that PW6 must have taken minimum 3-4 hours to prepare the proposal and if the file was taken by hand to the office of Chief Public Prosecutor, it means that the carrier could not have reached his office prior SC No. 59/10 & 60/10 Page 96 of 106 State vs Jag Mohan @ Mohar Singh & another to 8:00/8:30 PM. Since, Chief Public Prosecutor have raised certain objections, it means that he must have also taken some time to go through the file also. If he had taken minimum one hour time in going through the file, recording his objections, it means that the person who brought the file to his office, could not have returned to his office prior to 10:00 PM.
106. After receiving file, ACP assigned the same to PW6. But again, ACP failed to put date below his signature. After receiving file, PW6 scrutinized the record of PS Darya Ganj and gave facts in brief of six cases. He recited in his proposal that the records present in the office of police station Darya Ganj was examined. It means that after receiving the file from the office of ACP, PW6 went to PS Darya Ganj and examined the record qua accused Jag Mohan. Since, his second proposal also contained the information of case of PS Shakarpur and Vasant Kunj. It means that either he himself went to the said police stations or sent someone to collect the record of accused from the said police stations. After collecting all the information, he must have gone through the same minutely and prepared a rough note and then final note. This shows that he must have taken substantial time in preparing the note, which is running into more than 3 pages.
107. Thereafter, PW6 again sent the file to ACP/AATS. But again he failed to mention date below his signature. Question arises whether it was an inadvertent omission or a deliberate attempt? To my mind, same can not be an inadvertent omission; rather it was a deliberate attempt. After receiving the file from PW6, ACP/AATS forwarded the proposal to Chief Public Prosecutor but he also failed to mention date below his signature. This further strengthen the doubt that it was a deliberate attempt on the part of PW6, inspector and ACP of AATS to conceal true facts.
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108. After going through the file, Chief Public Prosecutor opined that police might go ahead to invoke MCOCA subject to the approval of competent authority. Again, Chief Public Prosecutor put date below his signature as 15.09.2005.
109. After receiving file from Chief Public Prosecutor, ACP/AATS sent the file to DCP/C&R with a request that file be sent to local police to investigate the MCOCA matter. But again ACP failed to put date below his signature. On 15.09.2005 DCP/C&R sent the file to Addl. CP/Crime with a request to send the file to Central District for further investigation.
110. After receiving file from DCP/C&R, Addl. CP made following notes:
"Since Jag Mohan @ Mohar Singh and his brother along with their associates run a crime syndicate, may kindly forward to JTCP/NR for application of MCOCA as it can be better investigated in Central District."
-sd-
15.09.2005 Discussed with JT CO/CR.
-sd-
15.09.2005 I have gone through the case file and other material on record submitted by ACP/AATS. It is fit case to be investigated under MCOCA as extended to Delhi.
Proposal Approved. Let ACP Joy Tirki investigate.
-sd-
15.09.2005 SC No. 59/10 & 60/10 Page 98 of 106 State vs Jag Mohan @ Mohar Singh & another
111. Thus, from the above it appears that initially Additional Commissioner of Police recommended to send the file to Joint Commissioner of Police/Northern Range with a recommendation to send the file to Central District for investigation. Thereafter, he discussed the file with Joint Commissioner and then gave approval and assigned the investigation to Mr. Joy Tirki, the then ACP.
112. It is pertinent to state that PW29 in his cross-examination candidly admitted that there was nothing in the record, which may show that SI Pankaj Yadav had sent either copy of any FIR, copy of any charge- sheet or cognizance order along with the proposal. Neither PW6 deposed that he had sent any material along with his proposal nor any such material was ever produced in the Court. If no such material was sent, question arises which other material was gone through by Addl. CP at the time of giving approval.
113. It is apparent that there is no reference in the said order that any formal order was required to be issued pursuant to that order. But there is a formal order dated 15.09.2005 (Ex. PW7/B). As per Ex. PW7/B the approval was granted for the offence punishable under Section 3(2) and 3(4) of MCOCA. The last line 'ACP/Joy Tirki to investigate' is written in hand. This shows that when the said formal order was prepared, matter was not assigned to ACP/Joy Tirki as mentioned in the order in noting file. Further, in the noting file there is no reference that the approval was granted for the offence punishable under Section 3(2) and 3(4) of MCOCA. It only states that proposal is approved. It is pertinent to state that SI Pankaj Yadav did not propose to invoke provisions of 3(2) and 3(4) of MCOCA. He only recommended that in his personal opinion provisions of section 3 of MCOCA is attracted in the matter. Needless to say that there are five sub-
SC No. 59/10 & 60/10 Page 99 of 106State vs Jag Mohan @ Mohar Singh & another sections to section 3 of MCOCA. Thus, it is not clear that at what stage, it was decided to grant approval for the offence punishable under Section 3(2) and 3(4) of MCOCA. Needless to say that formal order, if any, is required to be issued strictly in terms of the order passed by the authority in noting file. Since, in the noting file there is no reference of Section 3(2) and 3(4), it further casts a serious doubt over surreptitious circumstances under which the approval was given.
114. It is admitted case of prosecution that on September 15, 2005 accused Jag Mohan @ Mohar Singh had moved a bail application and the bail application was attended by SI Pankaj Yadav. He also admitted that as per record, no submission was advanced either by SI Pankaj Yadav or prosecution that any proposal had been moved on 14.09.2005 to invoke the provisions of MCOCA or that the proposal had already been put up before the senior officer for consideration or that the same was put before the senior public prosecutor for his opinion or that upon his opinion the investigation was being carried out for the purpose of MCOCA. As already discussed, as per Ex. PW6/F, by 15.09.2005 Chief Public Prosecutor had already given his opinion that police might go ahead with the matter to invoke MCOCA. Thus, PW6 should have opposed the bail application on the grounds inter-alia that a proposal to invoke MCOCA is under consideration. But no such submission was made.
115. PW29 also admitted in his cross-examination that office of PW6 was at R.K. Puram whereas office of Addl. C.P. is located in PHQ while office of Chief Public Prosecutor was either in Patiala House Court or in Tis Hazari Court. He also admitted that there was nothing on record, which suggest that SI Pankaj Yadav had gone out of his office either on 14.09.2005 or 15.09.2005. Since, the office of all the officers relating to SC No. 59/10 & 60/10 Page 100 of 106 State vs Jag Mohan @ Mohar Singh & another proposal was located at different places and there is nothing on record which may show that PW6 had either visited their office personally or sent someone, it creates further doubt how the things moved so smoothly and swiftly. Since, accused persons were taking the plea since beginning that proposal Ex. PW6/F is fabricated document and it was created later on, it was the duty on prosecution to lead sufficient cogent evidence to demolish the said plea. But no such step was taken in this regard.
116. PW29 also admitted that proposal Ex. PW6/F was not filed along with the charge-sheet. PW6 produced the said proposal during his testimony. Along with the proposal no other document was filed. This shows that no other document was ever produced before the competent authority at the time seeking approval. If so such document was produced, question arises which other documents were gone through by the Addl. Commissioner of Police while granting approval.
117. Though it is implausible but assuming for the sake of arguments that all officers connected with the proposal i.e. SI Pankaj Yadav, inspector/AATS, ACP/AATS, DCP/C&R, Chief Public Prosecutor, Addl. C.P. and Joint C.P. acted with rocket speed and succeeded to clear the proposal in less than 48 hours, but surprisingly the same team took another 48 hours just to hand over the file to ACP Mr. Joy Tirki. PW29 in his cross-examination candidly admitted that he had received the case file on 17.09.2005. This is another reason, which creates a doubt that things were actually not happened in the same manner in which projected before the Court.
118. No doubt one single factor is not sufficient to hold that proposal was not in existence but cumulative effect of the above is that it is SC No. 59/10 & 60/10 Page 101 of 106 State vs Jag Mohan @ Mohar Singh & another seldom to brush aside the defence version that the proposal was in existence on September 15, 2005 or it was not a manufactured document. Even during trial, no sincere attempt was made by the prosecution to clear the clouds of doubt over the manner in which the proposal was approved.
119. It is well settled law that under MCOCA accused can not be held guilty for his previous involvements. His previous involvements are relevant to fulfill the requirements of Section 2(1)(d) but said previous involvements are not relevant to convict a persons as it would amount doubt jeopardy. To convict a person under MCOCA, prosecution has to prove organize crime as defined under Section 2(1)(e) of the MCOCA. But in the instant case all public witnesses examined by the prosecution are related to the previous involvements of accused persons wherein accused persons have either been acquitted, discharged or convicted. Thus,their testimony is not relevant to prove the organized crime; their testimony may be relevant to fulfill the requirements of Section 2(1)(d) of the MCOCA but not sufficient to hold the accused persons guilty either for the offences punishable under Section 3(2) and 3(4) as charged or 3(1)(ii) and 4 of the MCOCA as prayed by learned Special Public Prosecutor.
120. It is admitted case of prosecution that accused persons were notorious criminals as they were involved in various criminal matters. It is also admitted case of prosecution that at the time of arrest one mobile phone was recovered from the possession of the accused Jag Mohan @ Mohar Singh. But surprisingly no effort was made even to analyse the calls detail of so called deadly criminal. It is also admitted case of prosecution that on September 13, 2005 he was going to meet someone at Gole Market but surprisingly no effort was made to ascertain to whom he wanted to meet or for what purpose he wanted to meet with that person. At the time of SC No. 59/10 & 60/10 Page 102 of 106 State vs Jag Mohan @ Mohar Singh & another dealing with such criminals investigating agency should have relied upon scientific evidence instead of oral evidence. But in the instant case even no effort was made to analyse the calls detail of accused persons.
121. From the case title Jag Mohan @ Mohar Singh v. UOI (supra) it is clear that he was detained under NSA on August 20, 2000. Since the plea of detenu was dismissed vide order dated July 9, 2001, it means that he must have been released after July 9, 2001. From the bare perusal of the said case, it will be clear that investigating agency was well aware about the accused Jag Mohan, his previous criminal record and about his activities. As per the charge-sheet last case was registered against accused Jag Mohan was FIR No. 539/2001 dated 29.12.2001 under section 25 Arms Act PS IP Estate. Though the FIR No. 168/03 was registered on 05.04.2003 but it was not against the accused. He was charge-sheeted in the said case as the recovered Qualis car was wanted in said case. This shows that he was not involved in any serious offence after his release from NSA. Hence, there are two possibilities, firstly that accused might have reformed himself and refrained from illegal activities or that he continued with his activities in such a way that victims were not daring to come forward to lodge a complaint against him and his brothers.
122. To deal with such criminals effectively and efficiently legislature has empowered the investigating agency to intercept their conversations by inserting Section 14 in MCOCA. Thus, when accused Jag Mohan @ Mohar was released from NSA and police had information that he was still indulging in criminal activities and victims were not coming forward to make a complaint against him, investigating agency should have invoked said provisions before arresting him. But in the instant case no effort was made to collect any scientific evidence; rather preferred to rely SC No. 59/10 & 60/10 Page 103 of 106 State vs Jag Mohan @ Mohar Singh & another upon oral evidence and most of them turned hostile during trial. Even investigating officers did not hesitate to rely upon the unsigned disclosure statement of accused, certainly such documents can not help prosecution in any manner. To my mind, some better investigation was expected in such a heinous crime.
123. At last, I deem it appropriate to refer to the deposition of PW12 inspector Kushal Singh, PW13 SI Nand Kishore and PW14 inspector Rajesh Malhotra. PW12 deposed that on March 23, 2005 while he was posted as in-charge of police post Red Fort, he had received information from reliable source that three persons namely Jag Mohan @ Mohar Singh, Jai Chand @ Munna and Brij Mohan @ Pappu used to extort money from the shop-keepers of Chandni Chowk. Consequently, he made enquiry but none came forward and thereafter he lodged a DD No. 15A (Ex. PW12/A). In his cross-examination, he testified that after receiving the information, he conducted an inquiry but it could not be ascertained to whom they extorted. He further deposed that since no person came forward to say that he had been extorted by the accused, he had not taken any action on the said information. PW13 in his examination-in-chief deposed that on July 4, 2005 some persons told him that Jag Mohan @ Mohar Singh, Jai Chand, Sher Singh, Khoob Singh and Brij Mohan were indulging in the activities of threatening the people so that people could vacate their house/property and accused persons were found indulging in occupying properties unauthorizedly. Consequently, he recorded DD No. 87B (Ex. PW13/A). In his cross-examination, he deposed that since the above persons were B.C. firstly he came to know about the the said facts from the police record. He further deposed that since no person came to forward to lodge a complaint, he did not take any action against the accused. He further testified that in his tenure, he did not receive any complaint against the accused persons.
SC No. 59/10 & 60/10 Page 104 of 106State vs Jag Mohan @ Mohar Singh & another He further admitted that no incident had taken place in his tenure which may show that accused persons had occupied any property unauthorizedly in the area. He further deposed that since no one came forward, he found the information as bogus. PW14 in his cross-examination deposed that police failed to convince the public persons. He further deposed that he brought the information in the notice of SHO but he asked him to record the information in register only but no action was taken on the said information. He further deposed that he can not tell any reason why police had not taken any action on the information received by him.
124. It is pertinent to state that on receipt of any information about the commission of a cognizable offence, it is the duty of police officer to register an FIR and to investigate the matter in accordance with law. But no such step was taken, reasons best known to the police. Assuming for the sake for arguments that any such information was received to PW12 to PW14 and public persons failed to come forward to help the police. Does it mean that police was helpless? There are ample provisions to deal with such situation. Further, what steps were taken by the police to create a faith among the public persons. There were several ways to deal with the situation. Police could start monitoring their movements and activities and could identify the persons who used to give money to the accused persons. Even police could also invoke the provisions of MCOCA. Police could also take steps to intercept their telephone calls. Mere making entry in the register was not the solution. Even during investigation of the case, investigating officer failed to collect any evidence to show that accused persons had extorted money from any persons or they threatened any person to vacate his premises or they occupied the premises unauthorizedly by giving threat to its lawful occupants. In the absence of any cogent evidence in support of DD Ex. PW12/A, Ex.PW13/A and SC No. 59/10 & 60/10 Page 105 of 106 State vs Jag Mohan @ Mohar Singh & another Ex.PW14/A, I am of the view no reliance can be placed on the testimony of PW12 to PW14.
125. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of both the accused persons beyond reasonable doubt for the offence punishable under Section 3(2) and 3(4) of MCOCA as charged and for the offence punishable under 4 of MCOCA as prayed by learned Special Public Prosecutor. Prosecution has also failed to prove the guilt of accused Jag Mohan @ Mohar Singh for the offence punishable under Section 3(1)(ii) of MCOCA as prayed by learned Special Public Prosecutor. Thus, I hereby acquit them thereunder. Prosecution has also failed to bring home the guilt of accused Jag Mohan @ Mohar Singh beyond reasonable doubt for the offence punishable under Section 186/353 IPC and under Section 25/27 of Arms Act, thus I also acquit him thereunder.
Announced in the open Court (PAWAN KUMAR JAIN)
on this 27th day of March, 2014 Additional Sessions Judge-01,
Designated Court,
Central District, Tis Hazari, Delhi
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