Delhi District Court
Contention He Relied Upon Judgment; ... vs . on 21 April, 2012
State v. Hitender @ Chhotu and others
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 31/2011
ID No: 02401R0229192009
FIR No: 68/2008
PS. : Hauz Qazi
U/S : 3(1), 3(2) & 3(4) of
MCOCA
STATE
versus
1. HITENDER SINGH RAWAT @ CHHOTU
S/o Sh. Laxman Singh Rawat
R/o F-440 Ram Park Extension,
Loni Distt. Ghaziabad. .......Accused No. 1
2. PARVEEN KHOLI
S/o Sh. Amba Prasad
A-20/D Avantika Enclave, Sec. 2
Rohini, Delhi .......Accused No. 2
3. BHISHAM KUMAR @ CHINTU
S/o Sh. Ved Parkash
R/o 2137, Katra Gokul Shah,
Bazar Sita Ram, Delhi .......Accused No. 3
4. PARMOD SINGH @ PAMMI
S/o Sh. Vikram Sigh Goswami
R/o E-781, Ram Park Extn.
Loni, Ghaziabad, UP .......Accused No. 4
SC No. 31/2011 Page No. 1 of 72
State v. Hitender @ Chhotu and others
5. DESRAJ @ DESU
S/o Late Sh. Ramesh Chand
R/o 2037 Preeli Kothi,
Bazar Sita Ram, Delhi .......Accused No. 5
6. VINOD KUMAR @ GOLA
S/o Sh. Ramesh Chand
R/o 2061 Gali Ashok wali,
Bazar Sita Ram, Delhi .......Accused No. 6
7. DEEPAK @ CHOWDA
S/o Sh. Mool Chand
R/o 2037, Peeli Kothi,
Bazar Sita Ram, Delhi .......Accused No. 7
8. ASHOK JAIN
S/o Sh. Virender Parbhakar
R/o 3406, Bazar Sita Ram
Delhi .......Accused No. 8
9. RISHI PAL SHARMA @ PAPPU
S/o Sh. Het Ram
R/o 3159 Mohalla Deassan,
Hauz Qazi, Delhi .......Accused No. 9
10. GOPAL KRISHAN AGGARWAL
S/o Sh. Brij Kishore Aggarwal
R/o 2496, Gali Kashmiriyan
Chooriwalan, PS Hauz Qazi,
Delhi .......Accused No. 10
Date of institution : 20.07.2009
Date of order reserved on : 16.03.2012
Date of order : 21.04.2012
SC No. 31/2011 Page No. 2 of 72
State v. Hitender @ Chhotu and others
Present: Sh. Rajiv Mohan, learned Special Public
Prosecutor for State.
Sh. S.C. Buttan Advocate, learned counsel for
accused Ashok Jain
Sh. R.P. Tyagi Advocate, learned counsel for
accused Rishi Pal Sharma
Sh. Tanveer Ahmed Advocate, learned counsel for
accused Gopal Krishan Aggarwal
Sh. Rajesh Anand Advocate, learned counsel for all
other remaining accused persons.
O R D E R:
1. Brief facts of prosecution case as set out in the charge sheet are that on September 29, 2007 an FIR No. 356/07 P.S. Hauz Qazi was lodged under Section 302 IPC regarding murder of Vijay Singh Yadav @ Vijji. Initially investigation was conducted by the local police and thereafter investigation was assigned to Crime Branch where Insp. K.G. Tyagi conducted the investigation. After completion of investigation, charge sheet was filed, consequently, Court of Learned Metropolitan Magistrate took the cognizance and committed the case to the Court of Sessions for trial.
2. During the course of investigation, it was revealed that motive behind the murder of Vijay Singh Yadav was pecuniary gain. Accused persons namely Ashok Jain, Rishi Pal and Gopal Krishan Aggarwal had formed a nexus with a common motive to eliminate SC No. 31/2011 Page No. 3 of 72 State v. Hitender @ Chhotu and others Vijay Singh Yadav and in pursuance of their common design and for pecuniary gain they hired a gang of criminals to kill Vijay Singh Yadav. The members of the gang who took this task were Hitender Singh, Parveen Koli and Parmod Singh. Ashok Jain, Rishi Pal and Gopal Kishan Aggarwal got arranged the services of this gang through Bhisham, Vinod Kumar and Desraj. By the study of their antecedents and previous involvements, it was emerged that this gang was committing the offence by using violence for their pecuniary gain. The previous involvements of these accused persons were also studied. On analysing their antecedents are as under:
Role of Hitender @ Chhotu He was born in the year 1977. After the death of his brother Brijesh @ Birju, who was killed in an encounter in year 1998, he indulged in the crime and formed his own gang. He is known to have a dedicated team of associates/criminals like Kishan @ Fauzi and Deepak @ Charu who act with him under his leadership. He has been found involved in criminal activities with the same set of accomplices. His gang has been operating in areas of Delhi and Western U.P. He is known to move around in luxurious cars. He was found involved in following cases:-
(I) FIR No. 61/07 u/s 392/34 IPC P.S. Rohini (II) FIR No. 84/07 u/s 392 IPC P.S. Morad Nagar (III) FIR No. 662/07 u/s 394/34 IPC P.S. Rohini (IV) FIR No. 463/07 u/s 302/394/397/34 IPC P.S. Keshav SC No. 31/2011 Page No. 4 of 72 State v. Hitender @ Chhotu and others Puram (V) FIR No. 348/07 u/s 394 IPC P.S. Civil Line (VI) FIR No. 356/07 u/s 302/34 IPC P.S Hauz Qazi (VII) FIR No. 15/08 u/s 25/27 Arms Act P.S. I.P. ESTATE (VIII) FIR No. 218/07 u/s 392 IPC P.S. Inchauli ( U.P.) It was alleged that after the death of Brijesh @ Briju, Hitender @ Chhotu led a gang of criminals. His gang included dreaded criminals of U.P. like Dimple Tyagi, Kishan Pal @ Fauji and Deepak @ Charu. Other criminals like Parveen Koli and Parmod Singh @ Pammi also joined this gang. This gang is involved in many criminal cases like dacoity with murder vide FIR No. 463/07 under section 394/397/34 IPC P.S. Keshav Puram, murder vide FIR No. 356/07 under section 302/34 IPC P.S. Hauz Qazi, robbery vide FIR No. 408/02 under section 392/394/397/34 IPC P.S. Mangol Puri and vide FIR No. 61/07 under Section 392/34 IPC P.S. Rohini.
Whereas gangster Dimple Tyagi had been killed in encounter by U.P. Police, Kishan Pal @ Fauji is still at large. It was alleged that the court of competent jurisdiction had taken cognizance in all these cases.
Role of Deepak @ Chaura He was born in 1976. He studied up to 10th class. He has two sisters. He started his career as a peon. He soon indulged in crime and came in contact with Hitender @ Chhotu and joined his SC No. 31/2011 Page No. 5 of 72 State v. Hitender @ Chhotu and others gang. He has been found involved in criminal activity with the same set of accomplices. His gang has been operating in areas of Delhi and western UP. He is involved in following cases:-
(I) FIR No.408/02, u/s 392/394/397/411/120B/34 IPC PS Mangol Puri.
(II) FIR No.603/03 u/s 25 Arms Act PS Mangol Puri (III) FIR No.61/07 u/s 392/34 IPC PS Rohini (IV) FIR No.662/07 u/s 392/34 IPC PS Rohini (V) FIR No.356/07, u/s 302/120B/34 IPC PS Hauz Qazi.
Role of Parmod Singh Goswami @ Pammi He was born in year 1979 he is an electrician. He is involved in following cases:-
(I) FIR No. 46/08 u/s 25 Arms Act PS DBG Road (II) FIR No.356/07 u/s 302/34 IPC PS Hauz Qazi It was alleged that the Court of competent jurisdiction had taken cognizance in the above cases.
Role of Vinod Kumar @ Gola He was born in year 1974. He is 8th class pass. He was also working as Halwai in the business of catering. He has three brothers. He has been working with Gopal Krishan Aggarwal and helping him in day to day political activities. He was arrested in case FIR No.356/07 dated 29.09.2007 u/s 302 IPC PS Hauz Qazi. The SC No. 31/2011 Page No. 6 of 72 State v. Hitender @ Chhotu and others Court of competent jurisdiction had taken cognizance in this case.
Role of Desraj @ Desu He is 22 years old & educated up to 5th class. He also used to drive school bus. He has three brothers and 5 sisters. It is learnt that he was associated with Birju gang. He was arrested in case FIR No. 356/07, dated 29.09.2007 u/s 302 IPC PS Hauz Qazi. The Court of competent jurisdiction had already taken cognizance in this case.
Role of Bhisham @ Chintu He was born in year 1989 & studied up to 9th class. He has 2 sisters and a brother. He has been working as a henchman with Ashok Jain, Ex. Councillor MCD and is a B.C of Bundle of A of PS Hauz Qazi. He is involved in the following cases:-
(I) FIR No.155/02 u/s 324 IPC PS Hauz Qazi (II) FIR No.242/06 u/s 323/325/34 IPC PS Hauz Qazi (III) FIR No.356/07 u/s 302/34 IPC PS Hauz Qazi The Court of competent jurisdiction had already taken cognizance in all these cases.
Role of Rishipal @ Pappu Rishipal @ Pappu has a business partnership with Abhay SC No. 31/2011 Page No. 7 of 72 State v. Hitender @ Chhotu and others Singh Yadav, but their mutual relationship had not been cordial since the past few years. As per the statements of witnesses there were disputes between both of them over property in walled city area. Rishipal @ Pappu had doubled crossed Abhay Singh and Ashok Jain. It was alleged that he had told Ashok Jain that Abhay and Vijay Singh were behind the CBI Anti Corruption case against him. He told Ashok Jain that though he was a complainant in the CBI raid against him, but the main persons behind the raid were Abhay Yadav and Vijay Yadav. Statements further revealed that Rishipal @ Pappu was also annoyed with Abhay Singh for making a kidnapping case against Amar Pal Sharma, a cousin brother of Rishipal @ Pappu. In that case Abhay Singh had alleged that he suspected that Amar Pal Sharma had kidnapped his son, but later on Abhay's son had returned home on his own. With this motive in mind he formed a nexus with Ashok Jain and Gopal Krishan with a common intention to eliminate Vijay Singh Yadav @ Vijji and in pursuance of his common design; he conspired to hire a gang of criminals to kill Vijay Singh Yadav. He is involved in 2 cases of murder, one case of attempt to murder and criminal intimidation amongst other cases. He is B.C of bundle "A" of PS Hauz Qazi. He has amassed huge movable and immovable properties out of the ill-gotten money from the business of illegal constructions. He is known to have a number of high worth properties, which he jointly holds with Abhay Singh Yadav. He is involved in the following cases.
(I) FIR No.369/80 u/s 353/332/186 IPC PS Hauz Qazi. (II) FIR No.189/89 u/s 307/34 IPC PS Hauz Qazi, SC No. 31/2011 Page No. 8 of 72 State v. Hitender @ Chhotu and others (III) FIR No.111/89 u/s 506/323 IPC PS Hauz Qazi (IV) FIR No.616/98 u/s 302/323/506/216/34 IPC PS Kamla Market (V) FIR No.255/04 u/s 332/334/344 IPC & 466A DMC Act PS Hauz Qazi (VI) FIR No.351/07, u/s 448/474/ 475 & 466 A DMC Act PS Hauz Qazi.
(VII) FIR No. 356/07, u/s 302/34 IPC PS Hauz Qazi.
It was alleged that he Court of competent jurisdiction had already taken cognizance in all these cases.
Role of Ashok Jain Ashok Jain had previous political and personal enmity with Vijay Singh Yadav. As per the statement of witnesses, Vijay Singh @ Vijji had misbehaved with Ashok Jain on numerous occasions in public. As per the statement of witnesses Ashok Jain had believed that Abhay Singh and Vijay Singh Yadav were behind the anti corruption case of CBI against him. Ashok Jain also believed that he had lost his ticket to the Delhi assembly due to propaganda of Abhay Singh and Vijay Singh and he also thought that Vijay Yadav had been trying to weak him politically in the area. Bhisham @ Chintu was identified as lieutenant of Ashok Jain. Bhisham @ Chintu used to look after the work at the office of Ashok Jain. Statement of witnesses and disclosure statements of the accused persons revealed SC No. 31/2011 Page No. 9 of 72 State v. Hitender @ Chhotu and others that Ashok Jain felt that Vijay Singh @ Vijji threatened his supporters and was always trying to ruin his political career. With this motive in mind he formed a nexus with Rishipal @ Pappu and Gopal Krishan with a common intention to eliminate Vijay Singh Yadav @ Vijji and in pursuance of his common design, a gang of criminals was hired to kill Vijay Singh Yadav. He is suspected to have a number of Benami movable and immovable property assets which he amassed from his influence in MCD as he was a councillor of MCD.
Role of Gopal Krishan Aggarwal During investigation Gopal Krishan Aggarwal admitted that he had enmity with the deceased and that he had hired Hitender @ Chhotu to settle the financial dispute with Vijay Bansal. Gopal Krishan gave three lacs rupees to Hitender @ Chhotu through Vijay Singh @ Vijji and the final settlement was done at PS Civil Line. Inspector Vipin Kumar Bhatia PS Civil Line corroborated this fact. Gopal Krishan also revealed that he had a secret pact with Ashok Jain and Rishipal @ Pappu regarding the murder of Vijay Singh @ Vijji because as per them, Abhay Singh's main strength was Vijay Singh @ Vijji, and without him Abhay Singh would not be able to survive. As per statement of witnesses, Gopal Krishan and Ashok Jain used to hold secret meetings. Gopal Krishan and Vijay Singh @ Vijji had exchanged hot words over the issue of paying the remaining amount of money to Hitender @ Chhotu. He became a party to the SC No. 31/2011 Page No. 10 of 72 State v. Hitender @ Chhotu and others nexus that was formed between Rishipal @ Pappu and Ashok Jain and a gang of criminals was hired to kill Vijay Singh Yadav.
He was involved in case FIR No.155/03 dated 04.07.03 u/s 448 IPC PS Chandni Mahal. It was learnt that a case vide FIR No.04/06 EOU -5 New Delhi u/s 120B/32/13(1) (D) PC Act had been registered and CBI was going to file charge sheet in that case against Gopal Singh Aggarwal. He had also been arrested in a murder case vide FIR No.356/07 u/s 302/34 IPC PS Hauz Qazi.
He was suspected to have huge assets that he made out of betting and satta.
3. During investigation it was revealed that accused Hitender Singh Rawat @ Chhotu, Praveen Koli, Pramod @ Pammi and Deepak @ Chaura had formed an organised crime syndicate. Their activities clearly indicated that the purpose of these activities was to gain pecuniary benefits.
4. The involvements of these accused indicated that violence was being used by this gang to gain pecuniary benefits. The murder as reported in FIR No.356/07, PS Hauz Qazi as established during the investigation of that case that the same was committed by the above members. Their associates namely Bhisham @ Chintu, Desraj @ Desu and Vinod @ Gola, also participated in the crime. The activities of Bhisham @ Chintu and Desraj @ Desu also fall in SC No. 31/2011 Page No. 11 of 72 State v. Hitender @ Chhotu and others the category of continuing unlawful activities which was committed for the purpose of pecuniary gain.
5. During investigation it was revealed that service of the above mentioned members was hired by three persons namely G.K. Aggarwal, Ashok Jain and Rishipal Sharma @ Pappu. During investigation it was revealed that Hitender Singh Rawat @ Chhotu, Praveen Koli, Pramod @ Pammi, Deepak @ Chaura, Bhisham @ Chintu, Desraj @ Desu and Vinod @ Gola accused were not having any independent motive to kill Vijay Singh Yadav @ Vijji. To hire their services, money was provided by G.K. Aggarwal, Ashok Jain and Rishi Pal @ Pappu to this syndicate.
6. To ascertain the motive, several witnesses were examined. The property details of Rishi Pal @ Pappu were also obtained. By study of the documents, it was revealed that earlier accused Rishi Pal @ Pappu was the business partner of the brother of the deceased but later on some dispute had arisen between them for certain properties located in the area of walled city. Accused Rishi Pal @ Pappu joined hands with Ashok Jain. It is pertinent to mention that Rishi Pal @ Pappu was the complainant of the case in which raid was conducted by CBI against Ashok Jain. Rishi Pal had managed Ashok Jain to understand that it was the group of Abhay Singh Yadav and Vijay Yadav who was responsible for the raid. By this understanding Ashok Jain and Rishi Pal started working against Abhay Yadav and Vijay Yadav. This enmity was also increased when SC No. 31/2011 Page No. 12 of 72 State v. Hitender @ Chhotu and others Abhay Yadav falsely implicated Amar Pal Sharma, cousin of Rishi Pal @ Pappu in a kidnapping case.
7. It was also emerged during investigation that G.K. Aggarwal and deceased Vijji was also known to each other. G.K. Aggarwal was organizing Satta with Vijay Bansal. On one occasion accused G.K. Aggarwal hired the services of this gang through Vijay Yadav @ Vijji in a sum of ` 7 lacs to extend threat to one Vijay Bansal for not pressing for return of bookie amount of ` 36 lacs and also to settle the dispute with him and Dinesh Jain as per their desire. He paid `3 lacs as advance to the gang leader Hitender @ Chhotu and the balance amount was to be paid after completion of the task. G.K. Aggarwal got settled the issue through Civil Line Police and started demanding back the paid money but the syndicate was pressing hard to pay the balance amount. G.K. Aggarwal succeeded in convincing the syndicate that he had made the balance payment to Vijay Yadav @ Vijji with the intention that the syndicate will also be annoyed at Vijay Yadav @ Vijji and his plan of elimination of Vijji will be succeeded.
8. It was alleged that G.K. Aggarwal with this motive joined Ashok Jain @ Rishi Pal. In addition to this Ashok Jain was also having political enmity with Vijay Yadav. On some occasion deceased Vijay Yadav had misbehaved Ashok Jain publicly. In this way all these three in conspiracy with each other and having SC No. 31/2011 Page No. 13 of 72 State v. Hitender @ Chhotu and others independent motives worked to teach a lesson to Abhay Yadav & Vijay Yadav. For this purpose the gang members namely Hitender Singh Rawat @ Chhotu, Praveen Koli, Pramod @ Pammi, Deepak @ Chaura were hired through Bhisham @ Chintu who was working with Ashok Jain. The services of this gang was hired through Bhisham @ Chintu, an employee of Ashok Jain but the money was provided by Gopal Kishan Aggarwal because he was the person who would obtain monetary gain after elimination of Vijay Singh Yadav. As per the investigation the total amount to be paid for this killing was between `15 to 20 lacs.
9. That during the course of investigation, accused persons namely Hitender Singh Rawat @ Chhotu, Praveen Koli, Pramod @ Pammi, Deepak @ Chaura, Bhisham @ Chintu, Des Raj @ Desu, Ashok Jain @ Rishi Pal @ Pappu were arrested on February 24, 2009 and April 16, 2009 respectively in this case. As per investigation, role of accused Hitender Singh Rawat @ Chhotu, Praveen Koli, Pramod @ Pammi & Deepak @ Chaura, Desh Raj @ Desu Bhisham @ Chintu clearly falls under Section 3(1) and section 3 (4) of Maharashtra Control of Organized Crime, Act 1999 (As extended to NCT of Delhi). The role of accused Vinod @ Gola, Bhisham @ Chintu, Gopal Krishan Aggarwal, Ashok Jain & Rishi Pal @ Pappu clearly falls under Section 3 (2) of MCOCA.
10. I have heard Sh. Rajeev Mohan, Special Public Prosecutor for the State, Sh. Rajesh Anand, Advocate learned counsel SC No. 31/2011 Page No. 14 of 72 State v. Hitender @ Chhotu and others for all the accused persons except accused Ashok Jain, Gopal Kishan Aggarwal and Rishi Pal, Mr. S.C. Buttan, Advocate learned counsel for accused Ashok Jain, Mr. Tanveer Ahmed, Advocate learned counsel for accused Gopal Kishan Aggarwal and Mr. R. P. Tyagi, Advocate learned counsel for accused Rishi Pal, perused their written submissions and material available on record.
11. After hearing the submissions advanced by learned Special Public Prosecutor, it appears that accused Gopal Kishan Aggarwal, Ashok Jain and Rishi Pal @ Pappu had separate personal motive to eliminate Vijay Singh Yadav (all the above accused in short refer to as SET I) approached the accused Bhisham @ Chintu, Deepak and Deshraj (in short SET II) to hire the gang/syndicate led by accused Hitender @ Chattu comprising of Hitender, Parveen Kholi, Pramod Singh and Vinod Kumar (in short SET III). Thus, in short SET I accused hired the service of SET III through SETII to eliminate Vijay Singh Yadav @ Vijji.
12. Learned Special Public Prosecutor raised following contentions:
(I) During investigation of case FIR No. 356/07, P.S. Hauz Qazi, it was revealed that the murder of Vijay Singh Yadav @ Vijji was the result of contract killing by the syndicate run by accused Hitender @ Chotu. It was contended that after analysing the activities of the gang it was revealed that during last preceding 10 SC No. 31/2011 Page No. 15 of 72 State v. Hitender @ Chhotu and others years the gang was involved in various criminal cases committed for gaining pecuniary benefit and violence was used in commission of the crime. It was further revealed that in the last preceded 10 years Court had also taken cognizance in more than one charge-sheet filed against them. It was argued that in all the cases accused Hitender Singh @ Chotu was involved with his associates and he committed the crime with the help of his associates.
(II) It was contended that accused Hitender had not continued unlawful activities singly, rather he always remained associated with other persons. These persons were actively participated in commission of the crime. It was contended that to form a syndicate, association of two or more persons is required and thereafter either one of them or both can indulge in activities of organized crime. It was contended that accused Deepak, Vinod, Praveen, Pramod, Dimple Tyagi remained associated with accused Hitender @ Chotu.
(III) It was contended that accused Hitender @ Chotu, Praveen, Vinod, Deepak, Bhisham, Desh Raj and Kishan Pal were present with accused Hitender @ Chotu at the scene of crime when Vijay Singh Yadav was shot fired by Hitender Singh @ Chotu and Kishan Pal. It was contended that Vijay Singh Yadav was murdered for gaining the pecuniary benefit, thus, committed crime was the result of organized crime.SC No. 31/2011 Page No. 16 of 72
State v. Hitender @ Chhotu and others (IV) It was thus contended that accused Hitender, Deepak, Praveen, Pramod, Bhisham, Des Raj and Vinod have fulfilled all the requirements of the organized crime and thus liable for the offence punishable under Section 3 (1) of the MCOC Act.
(V) That accused Gopal Kishan, Rishipal and Ashok Jain are facing trial qua for the offence punishable under Section 302/120B IPC in case FIR No. 356/07, P.S. Hauz Qazi. Since they were involved in the conspiracy of the murder of Vijay Yadav, it was contended that the said accused persons are also liable for the offence punishable under Section 3 (2) of the MCOC Act.
(VI) It was contended that to make out a case for the offence punishable under Section 3 (2) of the MCOC Act, requirement of Section 2 (d) is not mandatory and in support of his contention he relied upon Judgment; Govind Sakha Ram Ubhe Vs. State of Maharashtra 2009 ALL MR (CRI) 1903.
(VII) That since the murder of Vijay Singh Yadav was the out come of organized crime and accused persons namely Gopal Kishan Aggarwal and Rishipal and Ashok Jain have already been charged for the said murder with the aid of Section 120B IPC, they are also liable for the offence punishable under Section 3 (2) of the MCOC Act.
(VIII) That accused Gopal Kishan Aggarwal had given SC No. 31/2011 Page No. 17 of 72 State v. Hitender @ Chhotu and others a sum of ` 3 lacs to accused Hitender for the murder of Vijay Singh Yadav, thus, contended that offence was committed for pecuniary gain.
(IX) That accused Ashok Jain had joined the conspiracy with accused Hitender Singh and others as he had political enmity with deceased Vijay Yadav and accused Bhisham Singh, who was working in the office of Ashok Jain was found at the scene of crime. It was argued that Vijay Singh Yadav had insulted Ashok Jain publicly during the election held prior to the incident.
(X) That accused Rishi Pal was associated with accused Hitender and his gang. It was submitted that at the stage of charge the Court is not supposed to assess the probative value of the material on record, thus at this stage the evidence produced by the prosecution cannot be discarded.
13. Mr. Rajesh Anand, learned counsel appearing for accused persons of SET II & SET III raised the following contentions:
(I) That the present case is the result of personal vendetta and an example of misuse of the stringent provisions of laws as an FIR was lodged against the investigating officer named inspector K.G. Tyagi of case FIR No. 356/07 at the instance of one of the accused. Thus, it was contended that stringent provisions of MCOCA SC No. 31/2011 Page No. 18 of 72 State v. Hitender @ Chhotu and others were invoked in the present case with malafide intention to deprive the accused persons to secure bail in case FIR No 356/07. It was urged that malafide intention reflects from the attitude of investigating agency and prosecution that they did not supply the copy of previous charge-sheets to the accused persons despite the accused persons had moved an application in July 2009. It was stated that prosecution has supplied the copy of previous charge-sheets in piece-meal in the year 2011 only.
(II) That the entire prosecution case is revolved around case FIR No. 356/207, but there was no allegation against the accused persons that accused persons of SET III were running an organized crime syndicate or they were the member of any syndicate or gang. It was alleged that due to that reason, provisions of MCOCA were not invoked in case FIR No. 356/07.
(III) That the list of previous cases which has been filed by the prosecution does show that accused persons of SET II & III were involved in any organized crime activities or they were either running any syndicate or member of any syndicate, thus contended that prosecution has failed to satisfy the requirement of Section 2(1)
(d) of MCOCA against the accused persons of SET II & SET III.
(IV) That before filing the charge-sheet in the instant case, investigating officer had not conducted any investigation except to collect the information of previous involvements of accused SC No. 31/2011 Page No. 19 of 72 State v. Hitender @ Chhotu and others persons. Except that investigating officer has reproduced the investigation conducted in case FIR No. 365/07. It was submitted that investigating officer trying to get verdict of case FIR No. 356/07 in the instant case, which is not permissible under law.
(V) That in case FIR No. 356/07, it was no where alleged that accused Hitender Kumar @ Chottu was running an organized syndicate or that other accused were member of his syndicate.
(VI) That as per prosecution case, MCOCA was invoked in this case as accused persons had made the part payment of consideration to the gang leader Hitender @ Chottu to eliminate Vijay Singh Yadav. It was contended that this submission is contrary to the averments made in charge-sheet of case FIR No. 356/07. It was submitted that as per the charge-sheet of case FIR No. 356/07, there was some financial dispute of ` 36 lac between one Vijay Bansal and Ashok Gupta, who allegedly was known to accused Gopal Kishan Aggarwal. It was further mentioned in the said charge-
sheet that accused Hitender was allegedly asked to mediate in the said financial dispute. For the mediation, a sum of ` 3 lac was given to Hitender by Gopal Kishan Aggarwal through deceased Vijay Singh Yadav. As per charge-sheet, ultimately that dispute was settled at PS Civil Lines through inspector Vipin Bhatia.
(VII) That it is the admitted case of prosecution in case SC No. 31/2011 Page No. 20 of 72 State v. Hitender @ Chhotu and others FIR No. 356/07 that individual motive was the result of murder of Vijay Singh Yadav, there was no allegation that the alleged murder had taken place due to pecuniary benefits.
(VIII) That the list of previous cases does not qualify the condition of Section 2 (1)(d) and 2(1)(e) of MCOCA.
14. Mr. Tanveer Ahmed learned counsel appearing for accused Gopal Krishan Aggarwal contended that previous three cases have been used to invoke MCOCA against the accused. It was contended that in case FIR No. 155/03 under Section 448 IPC PS Chandni Mahal, investigating agency filed only cancellation report, which was accepted by the Court. It was further contended that in case FIR No. 4/06 under Section 120B/32/13(1) (D) of Prevention of Corruption Act, CBI had not filed any charge-sheet till the filing of present case. It was contended that though in case FIR No. 356/07, Court had taken the cognizance but contended that in the charge- sheet there is no whisper that accused was involved any kind of organized crime or member of any syndicate.
15. Mr. S.C. Buttan learned counsel appearing for accused Ashok Jain contended that accused was arrested in case FIR No. 356/07 on August 20, 2008 and at that time no other case was pending against the accused, thus it can not be said that he was member of any syndicate or gang. It was further submitted that in the instant case, Court had taken the cognizance on May 21, 2009 but by SC No. 31/2011 Page No. 21 of 72 State v. Hitender @ Chhotu and others that time no sanction was granted to prosecute the accused under the provisions of MCOCA. It was contended that since case under Prevention of Corruption Act had been withdrawn by the prosecution for want of sanction before taking cognizance in this case, thus said case can not be considered at the time of taking cognizance in the instant case. It was submitted that prosecution has failed to satisfy the pre-condition of Section 2(1)(d) and 2(1)(e) of MCOCA before invoking the stringent provisions of MCOCA against the accused.
16. Mr. R. P. Tyagi, learned counsel appearing for accused Rishi Pal contended that there is no ioto of evidence that accused Rishi Pal was the member of any organized crime syndicate. It was submitted that accused had no relation with the Hitender & others and the theory of prosecution that Rishi Pal had convinced the accused Ashok Jain that deceased Vijay Singh Yadav and Abhey Yadav were behind the CBI raid is without any basis and contrary to the allegations levelled in the charge-sheet. It was submitted that it is admitted case of the prosecution that Rishi Pal was doing illegal construction with the connivance of Abhey Singh Yadav, if it was so then why the investigating agency had not impleaded Abhey Yadav for the said alleged illegal construction. It was argued that there is no evidence to show that accused Rishi Pal had provided any fund in order to eliminate deceased Vijay Singh Yadav. It was contended that the alleged previous involvements are not sufficient to invoke MCOCA against accused Rishi Pal @ Pappu.
SC No. 31/2011 Page No. 22 of 72State v. Hitender @ Chhotu and others
17. After hearing the submissions advanced by learned counsel for the parties and perusal of record and their written submissions, I am of the view that there are some important facts in this case, which will be relevant for the discussion and same are as under:
(1) That the case of FIR No. 356/07 PS Hauz Qazi is the epicentre of the present case. In the said case, all the accused persons are facing trial for the offence punishable under Section 302/120B IPC.
(2) That prosecution had not invoked the stringent provisions of MCOCA against the accused persons in case FIR No. 356/07.
(3) That the charge-sheet of case FIR No. 356/07 was prepared on February 21, 2008 whereas the application to seek sanction for MCOCA was moved on August 21, 2008.
(4) That no significant investigation has been conducted in the present case except to collect the previous involvements of accused persons.
18. Before dealing with the submissions of learned counsel for parties, I deem it appropriate to have a look over the object of MCOCA and other relevant provisions of the Act.
SC No. 31/2011 Page No. 23 of 72State v. Hitender @ Chhotu and others (1) The statement of object and reasons of enacting MCOCA is :-
"Organised crime has been for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract killing, extortion, smuggling in contrabands, illegal trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organised crime being very huge, it has had serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and thus, there was immediate need to curb their activities.
It was also noticed that the organized criminals have been making extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice.
2. The existing legal framework i. e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organised crime. Government, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime.
It is the purpose of this act to achieve these objects."
PREFACE As explained in the statement of object and reasons, the menace of organised crime, was on the increase and there was no effective law in the Maharashtra State to effectively control the organised crimes. Mumbai being the economic capital of India, it is a targetted centre of criminals who SC No. 31/2011 Page No. 24 of 72 State v. Hitender @ Chhotu and others hoard money through illegal means. In recent years criminal activities like murders of tycoons related to film industry as well by builders, extortion of money from businessmen, abduction etc. show that criminal gangs are active in the state. To cope with them- legislation in the lines of the present law was essential. Effective measures against the misuse of law have been provided in the Act itself. It is hoped that with the passing of this law, unlawful elements spreading terrorism in the society can be controlled to great extent and it will go a long way in minimizing the feeling of fear spread in the society.
Preamble reads as under:
To make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto.
(2) Section 2(1)(e) defines "organized crime" and same reads as under:
(e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency;
Section 2(1)(f) defines "organized crime syndicate" and same runs as under:
(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate of gang indulge in activities of organised crime;
Section 2(1)(d) defines "continuing unlawful activities"
as under:
(d) "continuing unlawful activity" means an activity prohibited SC No. 31/2011 Page No. 25 of 72 State v. Hitender @ Chhotu and others by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;
19. In case Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & others MANU/SC/0289/2010 it was held that :-
"The interpretation must depend on the text and the context. These are the bases of interpretation. The interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. No part of the statute and no word of a statement can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
20. In the light of the above observation of Apex Court, it becomes crystal clear that at the time of interpreting the stringent provisions of law, one has to keep in mind the objects and reasons of its enactment.
21. Admittedly, prosecution has invoked the stringent provisions of MCOCA against the accused persons on the basis of involvements of accused persons in case FIR No. 356/07 PS Hauz Qazi but it is also true that investigating agency had not invoked the stringent provisions of MCOCA in the said case. Now, pivotal SC No. 31/2011 Page No. 26 of 72 State v. Hitender @ Chhotu and others question arises for consideration as to whether investigating agency can wield a single case to satisfy the requirement of Section 2(1)(d) as well as Section 2(1)(e) of the Act to invoke stringent provisions of MCOCA?
22. It is admitted case of the prosecution that in the instant case charge-sheet has been filed against the accused persons for the offence punishable under Section 3(1), 3(2) and 3(4) of MCOCA.
23. Punishment for organized crime is defined under Section 3 of the Act whereas organized crime is defined under Section 2(1)(e) of the Act. Section 3 (1) reads as under:-
3. Punishment for organised crime-
(1) Whoever commits an offence of organised crime shall,
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
Prosecution case is that accused persons had committed murder of Vijay Singh Yadav and the said murder was the result of organized crime. But in the murder case, prosecution to its wisdom had not invoked the provisions of MCOCA. Prosecution had preferred to invoke the stringent provisions of MCOCA after about SC No. 31/2011 Page No. 27 of 72 State v. Hitender @ Chhotu and others 10 months of the said murder case. Admittedly, FIR No. 356/07 was registered on September 29, 2007 whereas present FIR No. 68/08 was registered on August 1, 2008. Now, position is that all the present accused persons are facing trial of the murder of Vijay Singh Yadav in case FIR No. 356/07. Simultaneously, they are also facing trial of murder of Vijay Singh Yadav in the instant case on the ground that the murder of Vijay Singh Yadav was the result of organized crime. In other words, prosecution is trying to seek life imprisonment/death sentence, as the case may be, twice for the accused persons for the murder of Vijay Singh Yadav.
24. As already stated that organized crime is defined under Section 2(1)(e) of the Act whereas punishment is provided under Section 3 of the Act. To investigate the organized crime, statute has empowered the investigating agency to intercept the communication and detail procedure has been prescribed under Section 14 of the Act. This establishes that investigating agency needs some extra tools to crack the organized crime. Similarly, section 18 of the Act empowers the investigating agency to record the confessional statement of a person involved in organized crime and such confessional statement is admissible in evidence. This again establishes that legislature has deemed it appropriate to provide more teeth to the investigating agency to prevent and control the menace of organized crime.
25. Section 11 of the Act empowers the Special Court to SC No. 31/2011 Page No. 28 of 72 State v. Hitender @ Chhotu and others transfer the cases to regular court for further trial, if it opines that no case is made out against the accused persons under MCOCA. Section 11 reads as under:
11. Power to transfer cases to regular Courts.
"Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence."
From Section 11 it becomes abundantly clear that legislature was aware that substantive offence is required to invoke the provisions of MCOCA and situation may arise when charge-sheet was filed against the accused persons under MCOCA along with other provisions of law and Special Court may opine that no case is made out against such accused under MCOCA. To deal with such situation, Special Court is empowered to transfer such cases to regular courts for further trial of the matter.
26. Reading of Section 2(1)(e) with Sections 14, 11 and 18 leaves no scintilla of doubt in the mind that organized crime is totally different from continuing unlawful activities as defined under Section 2(1)(d) of the Act. It is pertinent to state here that "continuing unlawful activities" as defined under Section 2(1)(d) is not punishable under MCOCA. This view is upheld by the High Court of Bombay while upholding the constitutional validity of Section 2(1)(d) of the Act in Bharat Shanti Lal Shah v. State of SC No. 31/2011 Page No. 29 of 72 State v. Hitender @ Chhotu and others Maharastra, 2002 BLR-1-527 wherein in para 25 it was held:
"Then we would consider the submission of Shri Manohar that the definition of continuing unlawful activity violates the mandate of Article 14 and is therefore liable to be struck down. According to the learned counsel unequal are being treated as equals. Persons charge only once are not brought within the purview of the act but a person with several charges framed and cognizance taken by competent court who later on are acquitted are covered by the definition. According to him therefore a person is acquitted of ten charges cannot be treated as equal to a person who is charged and convicted of only one offence. In our opinion, there is no violation of Article 14 by this definition. If we read the definition again, what has been defined as continuing unlawful activity is a member of organized crime syndicate in respect of which any activity prohibited by law and done repeatedly i.e. more than one for which charge sheet has been filed in the court of competent jurisdiction in the past ten years. The purpose of definition is to define what continuing unlawful activity is and it is for the purposes of defining what is continued unlawful activity that those charges are to be taken into consideration. Mere taking into consideration of such charges cannot result in discrimination of the kind alleged by Shri Manohar. The activity must be continuing unlawful activity and to define it with clarity it is provided that any person who in the past was charge sheeted for more than one charge of such activity or crime the cognizance of which has been taken and imprisonment for which is more than three years should be taken into account. The fact of the person having been charge sheeted in such cognizable offences in the past makes the unlawful activity, continuing unlawful activity. This section only defines what the activity is. It does not itself provide for any punishment for that activity. Had punishment been provided the submission that it treats while punishing unequal as equals may carry weightage."
(emphasis supplied)
27. If the provisions of the Act are read in entirety, they will show that offence of "organized crime" is constituted by atleast SC No. 31/2011 Page No. 30 of 72 State v. Hitender @ Chhotu and others one instance of continuation, apart from continuing unlawful activity evidenced by more than one charge-sheets in preceding ten years. This is so because:-
(a) If "organized crime" was synonymous with "continuing unlawful activity", two separate definitions were not necessary.
(b) The definitions themselves show that ingredients of use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of "continuing unlawful activity" but find place only in the definition of "organized crime".
(c) What is made punishable under section 3 is "organized crime" and not "continuing unlawful activity."
(d) If "organized crime" were to refer to only more than one charge-sheet filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) on the basis of consequences of resulting in death or otherwise would have been pharsed differently, namely, by providing that "if any one of such offence has resulted in the death", since continuing unlawful activity requires more than one offence.
Reference to "such offence" in Section 3(1) implies a specific act or omission.
(e) If the offence of organized crime itself is comprised of previous offences in respect of which charge-sheets have been filed, SC No. 31/2011 Page No. 31 of 72 State v. Hitender @ Chhotu and others or in other words such charge-sheets are a component of the offence of organized crime, all such offences referred to in such charge- sheets could be tried at one trial, and the rider in Section 7 about triability of the accused under the Code at the same trial would be redunant.
(f) Entire Section 18 of the Act would become redundant if "continuing unlawful activity" evidenced by proof of filing of two charge-sheets is equal to organized crime. Since question of recording confessions would not arise. Certified copies of charge- sheets, with certififed copy of order thereon by the Court taking cognizance, would be admissible without formal proof and if this itself was enough to constitute offence, no other evidence would be required to be tendered.
(g) For the same reason, there may be no need to examine any witnesses and consequently Section 19 would be redundant.
(h) If proof of filing of two charge-sheets is enough to establish offence of organized crime, there may be no occasion to carry out any investigation, other than collecting copies of charge- sheets. Consequently, it would be unnecessary for high ranking police officers to wield the power to allow recording information or to sanction prosecution after such charge-sheets are collected.
28. Perusal of the proposal to seek the approval of competent authority to invoke the stringent provisions of MCOCA, it SC No. 31/2011 Page No. 32 of 72 State v. Hitender @ Chhotu and others becomes crystal clear that investigating officer had used FIR No. 356/07 to satisfy the condition of 2(1)(d) of the Act against all the accused persons.
(i) As per proposal, accused Parmod Singh @ Pammi was involved only in one more case i.e. FIR No. 40/08 under Section 25 Arms Act PS DBG Road besides the case FIR No. 356/07. By stretch of no imagination, offence of Section 25 Arms Act can satisfy the requirement of Section 2(1)(d) of the Act.
(ii) Similarly, accused Vinod Kumar Gola, Desh Raj @ Desu and Ashok Jain were not involved in any other case except FIR No. 356/07 at the time of invoking stringent provisions of MCOCA.
(iii) Similarly, accused Bhisham @ Chintu was involved only in two bodily injury cases i.e. case FIR No. 155/02 under Section 324 IPC and FIR No. 242/06 under Section 323/325/34 IPC, both of PS Hauz Qazi besides the case FIR No. 356/07. Needless to say that these bodily injury cases can not be considered to make out a prima-facie case under MCOCA.
(iv) Similarly, accused Gopal Krishan was involved only in two cases i.e. FIR No. 155/03 under Section 448 IPC PS Chandni Mahal, but this case can not satisfy the condition of Section 2(1)(d) of the Act. It is stated that accused was also involved in case FIR No. 4/06 under Section 120B/32/13(1) P.C. Act, but admittedly, CBI had SC No. 31/2011 Page No. 33 of 72 State v. Hitender @ Chhotu and others not filed the charge-sheet against the accused either at the time of seeking approval or even at the time when Court had taken cognizance in this case. In other words, no other case was pending against the accused except FIR No. 356/07 PS Hauz Qazi.
29. Thus, it becomes clear that six accused persons out of nine were not involved in any other major case except case FIR No. 356/07 at the time of seeking approval to invoke stringent provisions of MCOCA against them. Thus, it appears that FIR No. 356/07 was used as a device to satisfy the requirement of Section 2(1)(d) of the Act to invoke stringent provisions of MCOCA against the above six accused persons. Had the FIR No. 356/07 not been used against the above six persons, investigating agency would not have any material to invoke MCOCA against the above six persons. Learned Special Public Prosecutor submitted that to invoke the provisions of Section 3(2) and 3(4), prosecution is not required to satisfy the condition of Section 2(1)(d) of the Act. At the time of seeking approval, it is not important what learned Special Public Prosecutor was thinking but the real question is what was in the mind of the investigating agency. If it was hovering in the mind of investigating agency that requirement of Section 2(1)(d) is not mandatory for prosecuting a person for the offence punishable under Section 3(2) and 3(4) of the Act, investigating officer would refer to the same and certainly he would not use FIR No. 356/07 as a tool to satisfy the condition of Section 2(1)(d) against them to invoke the stringent provisions of SC No. 31/2011 Page No. 34 of 72 State v. Hitender @ Chhotu and others MCOCA.
30. If investigating agency is permitted to use a single case to satify the requirement of Section 2(1)(d) as well as to use it as a main case to seek conviction of accused, then havoc will prevail. For instance, suppose A & B were involved in some crime connected to organized crime prior to the enactment of MCOCA. After enactment of MCOCA, they again arrested in similar offence but since they were not satifying the condition of two cases, investigating agency was not in a position to invoke MCOCA against them at the time of filing charge-sheet. Thus, initally investigating officer files a charge-sheet against them under the ordinary provisions of law and when court takes the cognizance of the said charge-sheet, investigating officer decides to register another FIR attracting the provisions of MCOCA despite the fact that the said persons had not committed any fresh offence. To my mind, this was neither nor could be the intention of legislature at the time of enacting the MCOCA.
(i) Secondly, if we accept the concept of prosecution as propounded in the present case, it means that investigating agency is empowered to invoke the stringent provisions of MCOCA even after the acquittal or conviction of the accused persons in case FIR No. 356/07.
(ii) Similarly, for instance if the accused persons though invovlved in multiple cases but have already been acquitted in all SC No. 31/2011 Page No. 35 of 72 State v. Hitender @ Chhotu and others cases and not involved in any fresh case can they be slapped with the stringent provisions of MCOCA mere fact that they were involved in more than two cases despite the fact that they have not committed any fresh offence. In other words, all such accused persons are totally on the mercy of law enforcing agency. To my mind, this was not the intention of legislature at the time of invoking provisions of MCOCA.
31. In view of the above, I am of the opinion that a single case cannot be used to satisfy the requirement of Section 2(1)(d) as well as Section 2(1)(e) of the MCOCA.
32. Since, learned Special Public Prosecutor vigorously contended that FIR No. 356/07 was the result of organized crime and same was not used to satisfy the requirement of Section 2(1)(d) of the Act, I prefer to deal it first.
33. As already discussed that at the time of seeking approval to invoke stringent provisions of MCOCA, investigating agency had used FIR No. 356/07 as one of the tools to invoke MCOCA against the accused persons. Secondly, if prosecution is considering FIR No. 356/07 as a main case, then to secure the conviction under Section 3(1) of the Act, prosecution has to establish the death of Vijay Singh Yadav as well as to show that accused persons were involved in his murder. Perusal of charge-sheet filed in the present case reveals that only 10 witnesses have been cited SC No. 31/2011 Page No. 36 of 72 State v. Hitender @ Chhotu and others regarding the incident of case FIR No. 356/07 whereas total 65 witnesses have been cited in case FIR No. 356/07. Even autopsy report is not filed in the present charge-sheet. How can prosecution establish the guilt of accused persons in the absence of all relevant witnesses and documents, which are not part of the present charge- sheet. This itself shows that investigating agency intended to use FIR No. 356/07 as one of the previous involvements of the accused persons.
34. Needless to say that prosecution has to prove the guilt of accused persons beyond the shadow of all reasonable doubts irrespective of the fact whether charges are under Penal Code or under MCOCA. Unless investigating agency filed all the documents relating to the offence committed in case FIR No. 356/07, how can prosecution prove the guilt of accused persons under MCOCA attracting the maximum sentence of death or life imprisonment.
35. As already discussed that allegations contained in case FIR No. 356/07 are the epicentre of the present case. In both the cases, the death of Vijay Singh Yadav is the subject matter. Suppose, in both the cases, prosecution succeeds to prove the guilt of accused persons, it means that accused persons will be liable for double punishment of the same act. And suppose, if prosecution fails to prove the guilt of all or some of accused persons in case FIR No. 356/07, whether in that situation it will be justified to convict and sentence the accused persons for life imprisonment or death for the SC No. 31/2011 Page No. 37 of 72 State v. Hitender @ Chhotu and others same act. Needless to say to prove the previous continuing unlawful activities, prosecution is not supposed to prove the past crimes. It has to only prove that prosecution has filed the charge-sheets and competent court had taken the cognizance. But only on the basis of previous involvements, no conviction can be held under Section 3 of the Act.
36. Pondering over the ongoing discussion, I am of the considered opinion that FIR No. 356/07 has been used to satisfy the requirement of Section 2(1)(d) of the Act and in the facts and circumstances of the case, same can not be used as a main case.
Contentions relating to the issue as to whether the object of the murder in case FIR No. 356/07 was pecuniary gain or not:
37. Learned Special Public Prosecutor vehemently contended that accused persons of SET I had hired the service of accused of Set III to eliminate the deceased Vijay Singh Yadav. It was contended that accused Gopal Krishan Aggarwal had paid the amount of his share to the gang leader Hitender whereas the money of the share of accused Ashok Jain and Rishi Pal was to be paid after the killing of Vijay Singh Yadav. It was submitted that total amount between ` 15 to ` 20 lac was agreed to be paid to the gang leader Hitender. Accordingly, it was contended that the object of killing was pecuniary benefit, thus it amounts an organized crime.
SC No. 31/2011 Page No. 38 of 72State v. Hitender @ Chhotu and others
38. Per Contra, learned counsel appearing for the accused persons countered the said contentions by arguing sagaciously that there is no iota of evidence on record to show that either accused Gopal Krishan Aggarwal had paid any amount to Hitender for the alleged murder or any deal had ever taken placed between the accused persons to eliminate Vijay Singh Yadav. It was contended that the contentions raised by learned Special Public Prosecutor is contrary to the allegations levelled in the charge-sheet of FIR No. 356/07. It was contended that as per the allegations contained in the said charge-sheet, the murder of Vijay Singh Yadav was the result of personal motive of individual accused persons as they had grudge against him.
39. As per the charge-sheet filed in the present case, money to kill Vijay was provided by Gopal Krishan Aggarwal as he was the persons who would get monetary benefit after the elimination of Vijay Singh Yadav and investigation revealed that the total amount was to be paid between `15 to `20 lac. It is pertinent to state here that there is no allegation in the present charge- sheet that accused Gopal Krishan Aggarwal had paid the amount of his share and the money of the share of accused Ashok Jain and Rishi Pal was to be paid after the completion of the work. Thus, the contention of learned Special Public Prosecutor to that extent is contrary to the record, thus does not inspire any confidence.
40. Now, question arises as to whether these facts SC No. 31/2011 Page No. 39 of 72 State v. Hitender @ Chhotu and others revealed during the investigation of case FIR No. 356/07. Perusal of the charge-sheet of case FIR No. 356/07 reveals that accused Gopal Krishan Aggarwal had some financial dispute to the tune of ` 36 lac with one person named Vijay Bansal. To settle the said dispute, accused Gopal Krishan Aggarwal had hired the service of accused Hitender through deceased Vijay Singh Yadav to intimidate Vijay Bansal to settle the said dispute at the terms and conditions of Gopal Krishan Aggarwal. For that accused Gopal Krishan Aggarwal had paid ` 3.00 lac to Hitender through deceased Vijay Singh Yadav. Balance amount was to be paid after the settlement. As per charge- sheet, accused Gopal Krishan Aggarwal had succeeded to settle the matter with Vijay Bansal through inspector Vipin Bhatia of PS Civil Lines. When the said dispute was settled between Gopal Krishan Aggarwal and Vijay Bansal through inspector Vipin Bhatia, accused Hitender asked Gopal Krishan Aggarwal to pay the balance amount, which he refused and stated that he had paid the balance amount to deceased Vijay Singh Yadav. But the alleged balance amount was not paid to Hitender. Except the above transaction between accused Gopal Krishan Aggarwal and Hitender, there is no reference of any other transaction between them. Thus, as per the investigation conducted in case FIR No. 356/07, amount of ` 3 lac was paid to pressurize Vijay Bansal to settle the financial dispute with Gopal Krishan Aggarwal at his terms and conditions and not to eliminate the deceased. Moreover, the said amount was given through deceased himself. Thus, the contention of learned Special Public Prosecutor SC No. 31/2011 Page No. 40 of 72 State v. Hitender @ Chhotu and others that accused Gopal Krishan Aggarwal had paid the amount of his share to the gang leader Hitender for the murder of Vijay Singh Yadav is without any basis. Similarly, there is no allegation in the charge-sheet of case FIR No. 356/07 that accused Ashok Jain and Rishi Pal had agreed to make the payment of their share after the murder of Vijay Singh Yadav. Similarly, there is no allegation that the service of the gang led by Hitender was hired in the sum of ` 15 to ` 20 lac. In the absence of any material on record, the contention raised by learned Special Public Prosecutor does not inspire any confidence.
41. On the converse, from the allegations levelled in the charge-sheet of case FIR No. 356/07, all the SET of accused persons i.e. ( SET I, II, III) had separate motive to eliminate Vijay Singh Yadav, thus they joined hand with each other. Accordingly, the contention of learned Special Public Prosecutor that the murder of Vijay Singh Yadav was the result of contract killing is not tenable.
Contentions relating to as to whether the accused persons of SET III qualifies the condition of Section 2(1)(d) of MCOCA:
42. Learned Special Public Prosecutor vigorously contended that during the investigation it was surfaced that the accused persons of SET III were found involved in various cases in the preceeding last 10 years where they committed the offence as a member of syndicate for the purpose of pecuniary gain by using SC No. 31/2011 Page No. 41 of 72 State v. Hitender @ Chhotu and others violence. It was further submitted that during the last 10 preceeding years, competent court had taken cognizance of the more than two cases. It was submitted that in all the cases registered against Hitender, he was found committing the offences with the help of other associates. It was further submitted that accused Hitender had not continued his unlawful activities singly rather he always remained associated with other persons, who were actively participating in the commission of crimes. It was submitted that to form a syndicate, association of two or more person is required and thereafter either one of them or both can indulge in the activities of organized crime.
43. On the converse, Sh. Rajesh Anand, learned counsel appearing for SET III accused astutely contended that none of the charge-sheets relied upon by the prosecution pertained to any act or offence relating to organized crime. It was contended that there was no allegation that accused Hitender was running an organized crime syndicate or that he was associated with any organized crime syndicate or member of any such syndicate or that he had committed any unlawful activity at the behest of any organized crime syndicate for pecuniary gain. It was submitted that in most of the cases, accused Hitender and others were not accused initially, rather they were arrested on the basis of disclosure statement of other accused persons and in most of the cases, accused Hitender and others have already been acquitted. It was further submited that even in the charge-sheet of case FIR No. 356/07, it is no where mentioned that SC No. 31/2011 Page No. 42 of 72 State v. Hitender @ Chhotu and others accused Hitender was running any organized crime syndicate.
44. Prosecution case is that accused Hitender was running a organized crime syndicate with his associates namely Parveen Kholi, Pramod Singh and Vinod Kumar. In order to show prima-facie that accused Hitender was running a syndicate, prosecution alleged that accused Hitender was involved in the following nine cases:
(i) FIR No. 244/01 under section 323/325/308/34 IPC PS Loni.
(ii) FIR No. 408/02 under section 392/394/397/34 IPC PS Mangol Puri Delhi
(iii) FIR No. 61/07 under section 392/34 IPC PS Rohini
(iv) FIR No. 251/07 under section 392 IPC PS Morad Nagar
(v) FIR No. 662/07 under section 394/34 IPC PS Rohini
(vi) FIR No. 463/07 under section 394/397/302/34 IPC PS Keshav Puram
(vii) FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi
(viii) FIR No. 209/07 under section 302/201 IPC PS Doiwala, Dehradun
(ix) FIR No. 15/08 under section 25/27 Arms Act PS IP Estate.
45. Prima-facie above detail shows that accused Hitender is involved in multiple cases of robbery and dacoity, which prima- facie shows that accused Hitender is involved in offences which were committed for pecuniary gain by using violence. But scrutiny of SC No. 31/2011 Page No. 43 of 72 State v. Hitender @ Chhotu and others cases gives contrary picture.
46. First of all, it is pertinent to state here that the conduct of investigating agency is not appreciable as investigating officer did not deem it appropriate even to file the charge-sheets of the previous cases of the accused persons to enable this Court to examine whether the alleged previous cases qualify the condition of Section 2(1)(d) of MCOCA or not. Rather he preferred to file only FIR of few cases. Even prosecution also failed to file the previous charge-sheets despite the application moved by the accused persons. At last prosecution preferred to file the charge-sheets of eight cases only on December 17, 2011 and charge-sheet of nine cases were filed only on January 10, 2012. Needless to say that the stringent provisions of MCOCA debars the accused to get bail at initial stage. Thus, when investigating agency invokes MCOCA against accused persons, it is the paramount duty of the investigating agency and prosecution too to comply with the provisions of law in its letter and spirit. But in this case, prosecution and investigating agency failed to do so as they took about three years to file the charge-sheets of previous cases. Such apathy is not expected in such a heinous crime.
47 Reverting back to the above nine cases against accused Hitender. Though prosecution has furnished the detail of nine cases against the accused Hitender, yet prosecution preferred not to file complete charge-sheets in three cases i.e. FIR No. 244/01, FIR No. 251/07 and FIR No. 209/07. On perusal of the incomplete SC No. 31/2011 Page No. 44 of 72 State v. Hitender @ Chhotu and others charge-sheet of case FIR No. 244/01, it appears that the incident had taken place due to some previous enmity and there is nothing in the said charge-sheet that the committed offence was committed either being the member of organized crime syndicate or on behalf of such syndicate.
(i) Similarly, from the incomplete charge-sheet of case FIR No. 251/07, it appears that charge-sheet was filed against accused Vikas Yadav whereas the name of accused Hitender was mentioned in column no.2, it is not clear from the said charge-sheet whether any supplementary charge-sheet was filed against accused Hitender subsequently or not.
(ii) Similarly, in case FIR No. 209/07, investigating agency preferred to file only the first page of the charge-sheet, cognizance order and copy of two daily diaries. It is pertinent to state here to qualify the requirement of Section 2(1)(d) of MCOCA prosecution has to show prima-facie that the alleged offence was related to the organized crime and the same was committed being the member of syndicate or on behalf of such syndicate. To establish this prima- facie, investigating officer was duty bound to file the complete copy of charge-sheet along with the cognizance order but he failed to do so. From the said half-hearted attempt, prosecution is unable to show that the alleged committed crime was related to the organized crime activities of the accused persons.
SC No. 31/2011 Page No. 45 of 72State v. Hitender @ Chhotu and others
(iii) Thus, to my mind said three charge-sheets can not be considered at the time of examining the continuing unlawful activities of accused Hitender and his alleged syndicate.
(iv) Similarly, one case i.e FIR No. 15/08 pertains to Section 25 & 27 of Arms Act and by no stretch of imagination it can qualifies the condition of section 2(1)(d) of MCOCA.
48. Though in three cases i.e.FIR No. 61/07, FIR No. 662/07 and FIR No. 463/07 prosecution has filed the certified copy of charge-sheets, yet the same were not filed against the accused Hitender and his alleged associates. In FIR No. 61/07 under section 392/34 IPC PS Rohini, initially accused Vikas Yadav and Hari Jagdish were arrested, but complainant failed to identify them and in their disclosure statement they disclosed the name of accused Dimple Tyagi and Hitender. But they (Hitender and Dimple Tyagi) could not be arrested, thus investigating officer filed a charge-sheet against accused Vikas Yadav and Hari Jagdish stating that supplementary charge-sheet would be filed against Hitender and Dimple Tyagi on their arrest. But prosecution has not filed any supplementary charge- sheet against them till date. At least the same has not been produced before this Court till date. Thus, in FIR No. 61/07 no charge-sheet has been filed against accused Hitender.
(i) Similarly in case FIR No. 662/07 under section 394/34 PS Rohini, the allegations were that some unknown persons had SC No. 31/2011 Page No. 46 of 72 State v. Hitender @ Chhotu and others robbed innova car. The said car was recovered unclaimed after few days. Initially accused Hari Jagdish was apprehended and in his disclosure statement, he disclosed the name of accused Hitender, Dimple Tyagi and Parveen Kohli but no charge-sheet could be filed against them for want of their arrest. Charge-sheet was filed against Hari Jagdish and another accused named Parveen stating that separate charge-sheet would be filed against accused Hitender, Dimple Tyagi and Parveen Kholi on their arrest, but there is nothing on record to show whether any supplementary charge-sheet has been filed against them till date. At least no such charge-sheet has been brought in the notice of this Court.
(ii) Thus, it becomes abundantly clear that the name of Hitender and his alleged associates were not mentioned in the FIR their name cropped up in the disclosure statement of arrested accused persons. No charge-sheet has been filed against Hitender and his alleged associates. At least the same has not been produced before this Court. It is admitted case of the prosecution that accused Hitender, Parveen Kohli and Kishan Pal in custody for the last more than four years. Despite that it is not clear whether investigating agency had filed separate charge-sheet against them in the above cases or not. In such a scenario, it is seldom to draw any adverse inference against the accused persons on the basis of above charge- sheets.
(iii) Similarly, in case FIR No. 463/07 under section SC No. 31/2011 Page No. 47 of 72 State v. Hitender @ Chhotu and others 395/397/302/120B IPC PS Keshav Puram the allegations were that some unknown persons had robbed the deceased at the gun point. Initially accused Vikas Yadav and Hari Jagdish were arrested and in their disclosure statements the name of accused Hitender, Parveen Kohli and Kishan Pal were cropped up. However, they could not be arrested. Accordingly, charge-sheet was filed against them mentioning that separate charge-sheet would be filed against Hitender, Parveen Kohli and Kishan Pal after their arrest. Though it appears that subsequently prosecution had filed supplementary challan against accused Hitender, but prosecution preferred to file only front page of the chage-sheet and failed to file the complete supplementary challan. Thus, prosecution deprived this Court from knowing the allegations against the accused Hitender, hence the half hearted act of investigating agency is not helpful to the prosecution to bring the said piece of paper within the purview of section 2(1)(d) of MCOCA.
49. In case FIR No. 408/02 under section 392/394/397/34 IPC PS Mangol Puri charge-sheet was filed against accused Hitender, Hari, Vinod Singh, Harkesh and Harish Chander stating that separate charge-sheet would be filed against accused Deepak, Ajay and Jaibir on their arrest. But there is nothing on record, which may show that investigating agency had filed any separate challan against accused Ajay and Jaibir till date, but it reveals that investigating agency had filed supplementary charge-sheet against accused Deepak subsequently and Court had framed charges against him also. Thus, SC No. 31/2011 Page No. 48 of 72 State v. Hitender @ Chhotu and others this is the only charge-sheet which can be used against Hitender and Deepak.
50. Now coming to the last remaining charge-sheet i.e FIR No. 356/07 under Section 302/34 IPC PS Hauz Qazi. As already stated that there is nothing in the said charge-sheet that the alleged murder was the result of oragnized crime. At the most, it is culled out that several persons with different motives joined hands with each other, thus the alleged murder appears to be the outcome of individual motive of each set of accused. At the most it can be said that accused Hitender and deceased Vijay Singh Yadav were indulged in advancing threat against consideration because prosecution case is that accused Gopal Krishan Aggarwal had availed the service of Hitender through Vijay Singh Yadav to extend threat to one Vijay Bansal with whom he had some financial dispute.
51 Now question arises as to whether the charge-sheet of case FIR No. 408/02 under section 392/394/397/411/120B IPC and FIR No. 356/07 under section 302/34 IPC are sufficient to draw an inference that accused Hitender was running any organized crime syndicate. Admittedly, the accused persons i.e Hari, Vinod Singh, Harkesh and Harish Chander who were co-accused with Hitender in case FIR No. 408/02 were not his associates in case FIR No. 356/07. However, accused Deepak who was co-accused in case FIR No. 408/02 was also involved in FIR No. 356/07. Similarly, the co- accused mentioned in case FIR No. 356/07 were not co-accused with SC No. 31/2011 Page No. 49 of 72 State v. Hitender @ Chhotu and others Hitender in case FIR No. 408/02. In such a scenario on the basis of these two charge-sheets is is seldom to draw an inference that accused Hitender was running any oragnized crime syndicate. Mere fact that more than one accused is involved in both the cases and Hitender and Deepak are common in both the cases is not sufficient to cull out that Hitender was running any organized crime syndicate.
52. Accused Parveen Kholi has been shown involved in three previous cases i.e. FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi, FIR No. 209/07 under section 302/201 IPC PS Doiwala Dehradun and FIR No. 662/07 under section 394/34 IPC PS Rohini. As already discussed that charge-sheet in case FIR No. 209/07 is incomplete, thus no adverse inference can be drawn against the accused on the basis of said FIR. As already discussed that no charge-sheet has been filed against accused Parveen Kohli in case FIR No. 662/07, thus no adverse inference can be drawn against the accused. Now, only case FIR No. 356/07 is left in which all accused were involved.
53. Similarly though accused Parmod has also been shown involved in three cases i.e FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi, 209/07 under section 302/201 IPC PS Doiwala Dehradun and FIR No. 40/08 under section 25 Arms Act PS DBG Road, yet as already discussed that no complete charge-sheet has been filed in case FIR No. 209/07 and case FIR No. 40/08 cannot be connected with the organized crime. Thus, the only case left is SC No. 31/2011 Page No. 50 of 72 State v. Hitender @ Chhotu and others FIR No. 356/07 in which all the accused are involved.
54. Accused Vinod is found involved only in one case i.e. FIR No. 356/07 under Section 302/34 IPC PS Hauz Qazi.
55. Thus, it becomes clear that the relevant charge-sheets qua accused persons of SET III were actually as under:
Name of accused Charge-sheet with FIR No.
Hitender (i) FIR No. 408/02 under section
392/394/397/411/120B IPC
(ii) FIR No. 356/07 under section
302/34 IPC
Parveen Kohli (i) FIR No. 356/07 under section
302/34 IPC
Parmod (i) FIR No. 356/07 under section
302/34 IPC
Vinod (i) FIR No. 356/07 under section
302/34 IPC
56. Now coming to the case of accused persons of SET II. As per prosecution, accused Deepak was found involved in four cases i.e. FIR No. 408/02 under section 392/394/397/34 IPC PS Mangol Puri, FIR No. 603 under section 25 Arms Act PS Mangol Puri, FIR No. 242 under section 323/326/34 IPC PS Hauz Qazi and FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi. In the charge-sheet of case FIR No. 408/02 it is mentioned that separate charge-sheet would be filed against the accused on his arrest. Subsequently, supplementary charge-sheet was filed against the SC No. 31/2011 Page No. 51 of 72 State v. Hitender @ Chhotu and others accused Deepak, accordingly, Court had framed the charges against him also.
(i) Since charge-sheet in case FIR No. 603/03 pertains to the recovery of knife under Arms Act only, by no stretch of imagination it can be connected with the organized crime or syndicate.
(ii) As per the allegations levelled, charge-sheet of case FIR No. 242/06 pertains to the minor incident of quarrel wherein accused Deepak and his co-accused caused some simple and grievous injury to the complainants. There is nothing in the charge-sheet which may suggest that it was committed being the member of any organized crime syndicate or on behalf of such syndicate. Thus, the above two charge-sheets are not relevant to determine the test of Section 2(1)(d) of MCOCA. Now the only charge-sheet is left of FIR No. 356/07 PS Hauz Qazi.
57. Accused Bhisham was also found involved in four cases i.e. FIR No. 155/02 under section 324 IPC PS Hauz Qazi, FIR No. 242/06 under section 323/326/34 IPC PS Hauz Qazi, FIR No. 356/07 under section 302/34 IPC and FIR No. 209/07 under section 302/210 PS Doiwala Dehradun.
(i) Charge-sheet of case FIR No. 155/02 pertains to the minor incident of quarrel for simple sharp injury and there is nothing SC No. 31/2011 Page No. 52 of 72 State v. Hitender @ Chhotu and others in the charge-sheet, which may even suggest the alleged offence was committed either being the member of organized crime syndicate or on behalf of such syndicate.
(ii) Similarly, the charge-sheet of case FIR No. 242/06 pertains to the minor incident of quarrel as already discussed, thus it can not be considered to determine the test of section 2(1)(d) of the Act.
(iii) As already discussed that the charge-sheet in FIR No. 209/07 is incomplete and from the said charge-sheet it does not reveal whether the alleged committed murder was an organized activity or the same was committed being the member of any syndicate or on behalf of such syndicate, no adverse inference can be drawn against the accused. Now the only charge-sheet is left of the case FIR No. 356/07.
58. Accused Desh Raj was found only in two cases i.e. FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi and FIR No. 209/07 under section 302/201 IPC PS Doiwala Dehradun. Since no complete charge-sheet has been filed in case FIR No. 209/07, no adverse inference can be drawn on the basis of said charge-sheet. The remaining charge-sheet is in case FIR No. 356/07.
59. Thus, it is limpid that the relevant charge-sheet qua accused of SET II are as under:
SC No. 31/2011 Page No. 53 of 72State v. Hitender @ Chhotu and others Name of accused Charge-sheet with FIR No. Deepak (i) FIR No. 356/07 under section 302/34 IPC
(ii) FIR No. 408/02 under section 392/394/397/411/120B/34 IPC Bhisham (i) FIR No. 356/07 under section 302/34 IPC Desh Raj (i) FIR No. 356/07 under section 302/34 IPC
60. Now coming to the accussed persons of SET I. Prosecution has relied upon the seven charge-sheets against accused Rishi Pal. But in case i.e. FIR No. 111/89 under section 506/323 IPC PS Hauz Qazi, no charge-sheet has been filed by the prosecution, thus no adverse inference can be drawn against the accused on the basis of said charge-sheet.
(i) In FIR No. 225/04 under section 332/333/344 read with 466A DMC Act but only incomplete charge-sheet has been filed. However from perusal of the accompanied documents, it reveals that a charge for the offence punishable under Section 461 DMC Act was framed against the accused to which he pleaded guilty. From the incomplete challan, it can not be said that the committed offence was related to the organized crime activities in any manner, thus no adverse inference can be drawn against the accused on the basis of said charge-sheet.
(ii) Charge-sheet of case FIR No. 369/80 under section 353/332/186/34 IPC pertains to a minor incident, which had taken all SC No. 31/2011 Page No. 54 of 72 State v. Hitender @ Chhotu and others of sudden and there is nothing in the charge-sheet, which may suggest that the incident had any connection with the organized crime syndicate in any manner. Thus, on the basis of said charge- sheet no adverse inference can be drawn against the accused.
(iii) Similarly, the charge-sheet of case FIR No. 189/89 under section 324/307/34 IPC read with 27 Arms Act pertains to a incident which had taken place due to some previous enmity and has no concern with the organized crime syndicate in any manner. Thus, on the basis of said charge-sheet also no adverse inference can be drawn against teh accused.
(iv) Charge-sheet of case FIR No. 351/07 under section 448 IPC read wtih 474/475 DMC Act and FIR No. 12/09 under section 448 IPC pertain to raise unauthorised construction after breaking open the MCD seal and in the charge-sheet there is no allegation which may show that accused had committed the alleged crime either being the member of organized crime syndicate or on behalf of such syndicate. Thus, no adverse inference can be drawn on the basis of these two charge-sheets.
(v) In case FIR No. 616/98 under section 323/506/302/34 IPC PS Kamla Market, police had filed the charge-sheet against accused Rajinder Sharma, Abhey Singh Yadav and Rishi Pal. Name of Sanjiv Sharma had been mentioned in colum no.2. Perusal of charge-sheet reveals that FIR was registered on the statement of eye SC No. 31/2011 Page No. 55 of 72 State v. Hitender @ Chhotu and others witness Yogesh Kumar who categorically made allegations against four persons (i) Abhey Yadav (ii) Ajay Yadav (iii) Vijay Yadav (iv) Rajinder @ Bhola. It is pertinent to state that first three accused persons are real brother and Vijay Yadav is the deceased in case FIR No. 356/07 PS Hauz Qazi. In the entire charge-sheet there is no allegation against accused Rishi Pal. However, from the documents on record, it appears that subsequently a supplementary challan was filed against accused Rishi Pal and charges were framed against him for the offence under Section 216(I) IPC to the effect that he had harboured accused Abhey Singh Yadav and Inspector Ram Pal despite the fact that they were declared proclaimed offender by the Court. I am unable to understand, how this charge-sheet is helpful to the prosecution. Rather, it reflects the criminal record of deceased Vijay Yadav and his brothers.
(vi) In the case FIR No. 37/2000 under section 323/341/506/34 IPC PS Hauz Qazi, charge-sheet was filed only against Dhiraj despite the fact that complainant had made allegations against accused Rishi Pal also. In the charge-sheet it is categorically mentioned that complainant had falsely implicated the accused Rishi Pal, accordingly police had not filed the charge-sheet against him. Despite that investigating agency did not hesitate to use the said charge-sheet to invoke the stringent provisions of MCOCA against the accused. This is nothing but the gross misuse of the powers. In fact both the FIRs i.e FIR No. 616/98 and 37/2000 are totally abuse of the process of law and it appears that neither investigating officer SC No. 31/2011 Page No. 56 of 72 State v. Hitender @ Chhotu and others nor sanctioning authority had even bothered to go through the contents of charge-sheets before placing reliance on the same. Needless to say that at time of invoking stringent provisions of law, investigating agency as well as prosecution should take extra pre- caution as any laxity on their part may violate the human rights of the accused. It is pertinent to state that investigating agency and prosecution have to play a dual role i.e. to book the real culprit and prosecute him before the Court of law. Simultaneously, they have also ensure that their act may not violate the fundamental and human rights of the accused. But the above two cases provides an opportunity to the accused persons to raise an eyebrow on the credibility of the investigating agency and prosecution too.
(vii) Thus, to my mind no reliance can be placed on these above two charge-sheets. Now the only case left is FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi.
61. Accused Ashok Jain was found involved in two cases i.e. R.C. No. 39/04 under section 9 of POC Act and case FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi. In the charge-sheet of former case all the allegations are against Ashok Jain, allegations do not reveal that the alleged offence was committed either being a member of organized crime syndicate or on behalf of such syndicate. Thus, to my mind said charge-sheet is not relevant at the time of determining as to whether accused Ashok Jain qualifies the condition of Section 2(1)(d) of MCOCA. The another case is FIR No. 356/07 SC No. 31/2011 Page No. 57 of 72 State v. Hitender @ Chhotu and others PS Hauz Qazi.
62. Accused Gopal Krishan Aggawal was found involved in five cases i.e. FIR No. 155/03 under section 448 IPC PS Chandni Mahal, R.C. SIB 2006E/2004 under section 120B, 217 & 420 IPC read with section 13(2) read with 13(1) (d) of POC Act, FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi, FIR No. 100/08 under section 323/341/34 IPC PS Hauz Qazi and FIR No. 32/09 under section 309 IPC PS Chandni Mahal. But in none except FIR No. 356/07 any charge-sheet is filed by the prosecution. In the absence of any charge-sheet, no adverse inference can be drawn against the accused on the basis of above four cases. The only case where charge-sheet has been filed is FIR No. 356/07 PS Hauz Qazi.
63. Thus, it becomes cystal clear that the charge sheet of case FIR No. 356/07 under section 302/34 IPC PS Hauz Qazi is relevant qua all the accused persons of SET I.
64. In other words, the charge sheet of case FIR No. 356/07 under section 302/34 IPC is relevant qua all the accused persons. Accused Hitender and Deepak are also found involved in one more case i.e. FIR No. 408/02 under section 392/394/397/411/120B/34 IPC.
65. Now question arises as to whether in this background any offence under MCOCA is made out against any of the accused SC No. 31/2011 Page No. 58 of 72 State v. Hitender @ Chhotu and others persons or not?
66. Before dealing with the above question, first, I will deal with the contention raised by learned Special Public Prosecutor that as per the judgment of Govind Sakharam Ubhe v. State of Maharastra, 2009 ALL MR (CRI) 1903 section 2(1)(d) does not talk about the charge-sheet qua individual member but it refers to the charge-sheet qua organized crime syndicate. It was contended that if it is prima-facie established that organized crime syndicate satisfied the requirement of Section 2(1)(d) of the Act, it is not necessary that all the accused are also required to satisfy the said condition.
67. Relevant facts of the said case were enumerated in para 27, same is reproduced as under:
"27. Gist of statement of Mr. `X'.:
The appellant who is cable distributor/operator is known to him personally. Every month a meeting is convened of cable operators. In such meetings business activities and other consequential matters are discussed for redressal of grievances of the cable operators. From 28/4/2005 he was receiving threatening calls from one Ravi Pujari. An amount of Rs.50 lakhs was demanded from him as extortion amount., The said extortion amount was to be paid to Guru Satam. He was given threats of dire consequences if the amount was not paid. In the meeting held in May 2005 he disclosed the above facts to all business colleagues. At that time the appellant whom he personally knows was present. The appellant told him that he knew a relative of Guru Satam personally. Two to three days after the said meeting the appellant told him to come to a particular place. Around 7 p.m. in the evening he along with his another business friend reached that place. The appellant was present there. The appellant dialed someone and 15 to 20 minutes thereafter two unknown persons came on the motorcycle. The appellant SC No. 31/2011 Page No. 59 of 72 State v. Hitender @ Chhotu and others introduced them to him as Bhushan Satam s/o Guru Satam and Sachin Shetye a relative of Guru Satam. He apprised Bhushan Satam about the phone calls which he had received from Guru Satam. He told Bhushan Satam that the extortion amount was quite large and out of his reach. Thereafter Bhushan Satam and Sachin Shetye talked to Guru Satam and Guru Satam insisted for payment of certain amount. He expressed inability to pay even that amount. He told them the amount which he could pay. Bhushan Satam then said that he should keep that amount ready with him within two days. Two days after that meeting at around 5 p.m. the appellant phoned him and asked him to reach near a particular place and hand over the agreed amount to Bhushan Satam for onward payment to Guru Satam. Accordingly he packed the amount in bundles and along with his friend reached that place at about 8 p.m. The appellant was present there. He gave the said amount to the appellant for handing it over to Bhushan Satam and Sachin Shetye. He did not receive any threatening calls thereafter. "
(emphasis supplied)
68. First of all it is pertinent to state here that the stringent provisions of MCOCA were invoked with the substantive offence of extortion. In the background of the above facts, it was held that:
"29. The irresistible, prima facie, conclusion from the above statements is that the appellant intimately knows the son and a relative of Guru Satam. This is evident from the fact that he was confident that he would settle the extortion amount. He, therefore, took lead in settlement talks. His intimacy with Guru Satam gang is evident from the fact that within 15 minutes of his dialing the son and relative of Guru Satam, they came to the agreed place. The appellant was present when the extortion amount was settled. The appellant was present when the extortion amount was to be handed over. In fact he took that amount from Mr. `X' and through Guru Satam's son and relative he handed it over to Guru Satam. That the money reached Guru Satam is prima facie evident from the fact that Mr. `X' stopped receiving threats thereafter.
30. Prima facie, it is difficult to accept the story of the appellant SC No. 31/2011 Page No. 60 of 72 State v. Hitender @ Chhotu and others that he merely wanted to help Mr. `X'. The appellant's intimacy with Guru Satam's son, his being present at the time of settlement of extortion amount and at the time of handing over the said amount cannot be lightly brushed aside. It is difficult to digest prima facie the appellant's case that he merely wanted to help Mr. `X'. If that was so, he could have merely introduced Mr. `X' to right persons. There was no need for him to play such active role. The fact that after the money was paid Mr. `X' stopped receiving threats is important. Thus, prima facie, it appears that the appellant is a member of the organized crime syndicate of Guru Satam and is connected with its activities of collecting extortion amount by giving threats. We prima facie also feel that charge of abetment is rightly framed. It is true that in Ranjitsingh Sharma's case the Supreme Court has reiterated that it is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment. Prima facie, we feel that by taking part in the negotiations of extortion amount and by taking charge of the extortion amount and handing it over to Guru Satam's son so that it reaches Guru Satam, the appellant has intentionally aided the commission of the crime. He has actively participated in the crime. The argument of Mr. Desai that offence of abetment is not made out must, therefore, fail."
69. In para 35, Court discussed Section 2(1)(d) of the Act and same is reproduced as under:
35. It is now necessary to go to the definition of `continuing unlawful activity'. Section 2(1)(d) defines `continuing unlawful activity' to mean an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one charge- sheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a `continuing unlawful activity' - a) the activity must be prohibited by law; b) it must be a cognizable offence punishable with imprisonment of three years or more; c) it must be undertaken singly or jointly; d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate; e) in respect of which more than one charge-sheet have been filed before a competent court.SC No. 31/2011 Page No. 61 of 72
State v. Hitender @ Chhotu and others
36. The words `in respect of which more than one charge-sheet have been filed' cannot go with the words `a member of a crime syndicate' because in that case, these words would have read as `in respect of whom more than one charge-sheet have been filed'.
37. But even otherwise, if all provisions are read together we reach the same conclusion. Section 2(1)(d) which defines `continuing unlawful activity' sets down a period of 10 years within which more than one charge- sheet have to be filed. The members of the crime syndicate operate either singly or jointly in commission of organized crime. They operate in different modules. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum of fine of Rs.5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate. Therefore, if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case. The organized crime committed by him will be a part of the continuing unlawful activity of the organized crime syndicate. What is important is the nexus or the link of the person with organized crime syndicate. The link with the `organized crime syndicate' is the crux of the term `continuing unlawful activity'. If this link is not established, that person cannot be roped in."
70. It is limpid from the above judgment that if a person SC No. 31/2011 Page No. 62 of 72 State v. Hitender @ Chhotu and others is a member of organized crime syndicate and in preceding ten years one charge-sheet has been filed in respect of organized crime against any member of such syndicate, then said charge-sheet can be used against the another member also who commits an offence on behalf of such syndicate, thus will be liable for stringent provisions of MCOCA though only one case is registered against him.
71. In State of Maharastra v. Jagansingh Nepal @ Jagya and another (Bombay High Court) decided on August 5, 2011 in Criminal Appeal No. 20 of 2011 it was held in para 38 that:
".......Unless there is prima facie material, firstly, to establish that there is an organised crime syndicate and, secondly, that organised crime has been committed by any member of the organised crime syndicate or any person on behalf of such syndicate, the provisions of MCOCA cannot be invoked. In the earlier paragraph we have discussed in detail as to what are the ingredients so as to constitute an offence of "organised crime".
The prosecution will, therefore, have to firstly establish that there is an organised crime syndicate. It will have to satisfy that there exist the ingredients of "continuing unlawful activity". It will thereafter have to satisfy that the ingredients of the "organised crime" as spelt out by us hereinbefore exist, prior to invoking the provisions of MCOCA. We are, therefore, unable to accept the contention that if the wider meaning is given, the MCOCA can be invoked even for sundry offences. As held by the Apex Court in the case of Ranjitsing Brahmajeetsing Sharma (supra), merely because the person who cheats or commits a criminal breach of trust more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. By the same analogy, if a person commits murder more than once, would not by itself be sufficient to attract the provisions of MCOCA. At the cost of repetition, we make it clear that unless all the ingredients to constitute the offence punishable under MCOCA are available, it will not be permissible to invoke the provisions of MCOCA."
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72. Reverting back to the case in hand. First question arises as to whether there is sufficient material to show prima-facie that accused persons formed any organized crime syndicate?
73. There are only two relevant charge-sheets i.e charge- sheet of case FIR No. 408/02 PS Mangol Puri and FIR No. 356/07 PS Hauz Qazi. In case FIR No. 408/02 under section 392/394/397/411/12B/34 IPC read with 25 and 27 of Arms Act charge-sheet was filed against five persons namely (i) Hitender (ii) Hari (iii) Vinod Singh (iv) Harkesh (v) Harish Chander. At the time of filing charge-sheet against above five persons, it was mentioned that three accused persons namely (i) Ajay (ii) Deepak and (iii) Jasbir were avoiding their arrest, thus separate charge-sheet would be filed against them on their arrest. But no such charge-sheet has been produced before this Court qua accused Ajay and Jasbir till date. Since no charge-sheet has been filed against the said persons, no adverse inference can be drawn against them. Thus, the charge-sheets of case FIR NO. 408/02 can be used only against accused Hitender, Hari, Vinod Singh, Harkesh, Harish Chander and Deepak. As per allegations levelled in the said charge-sheet, a sum of ` 17.75 lac were robbed from the complainant and a part of booty was recovered from the accused Hitender and his co-accused. However, no accused person except Hitender and Deepak was involved in case FIR No. 356/07. Moreover, in case FIR No. 356/07 it is mentioned that accused Hitender was having a syndicate comprising of Parveen SC No. 31/2011 Page No. 64 of 72 State v. Hitender @ Chhotu and others Kohli, Parmod Singh and Dimple Tyagi (since deceased). There is nothing in FIR No. 408/02 even to suggest that the said accused were members of his syndicate. Similarly, there is nothing in FIR No. 408/02 that accused had committed the alleged offence either being the member of syndicate or on behalf of such syndicate. Thus, on the basis of these two FIRs it is difficult to drawn an inference that accused Hitender was running any syndicate with Parveen Kholi, Parmod Singh and Dimple Tyagi as alleged by the prosecution.
74. As already discussed that a single case can not be used for dual purpose i.e. to satisfy the requirement of section 2(1)(d) of the Act as well as condition of section 2(1)(e) of the Act. In other words, prosecution can not be allowed to use the charge-sheet of FIR No. 356/07 for both the purpsoes.
75. If we consider the charge-sheet of FIR No. 356/07 for the purpose of sastifying the requirement of Section 2(1)(d) of the Act, it means it cannot be used for substantive offence, but prosecution case is that the murder of deceased Vijay Singh Yadav is the result of organized crime. It means prosecution intention is to use the charge-sheet of case FIR No. 356/07 to satisfying the requirement of 2(1)(e) of the Act. If it is so, then the sole charge-sheet of case FIR No. 408/02 is not sufficient to invoke stringent provisions of MCOCA because at least two charge-sheets pertaining to the activities of organized crime are required to satisfy the condition of Section 2(1)(d) of the Act.
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76. Since, prosecution has considered the case FIR No. 356/07 as substantive offence to invoke the provisions of MCOCA on the ground that the murder was committed with objective of gaining pecuniary benefit. As already discussed, nothing was surfaced during the investigation of case FIR No. 356/07 that the alleged murder was committed with the objective of gaining pecuniary benefit. Rather on the contrary as per charge-sheet of case FIR No. 356/07, all the accused with different motive joined hands to eliminate the deceased.
77. Prosecution has also failed to convince the Court why investigating agency had lodged a separate FIR under MCOCA after 10 months of filing of the charge-sheet in case FIR No. 356/07. If investigating agency had any material to show that the alleged murder was the outcome of organized crime, investigating agency should have invoked the provisions of MCOCA in the FIR No. 356/07 itself. If the evidence relating to organized crime surfaced later on, then investigating agency had power to further investigate the matter under section 173(8) of the Code of Criminal Procedure, thus investigaing agency could easily filed the supplementary charge-sheets against the accused when it was revealed that the alleged murder was the outcome of organized crime. But investigaing agency did not follow the established procedure prescribed under the law. Rather preferred to register a separate FIR SC No. 31/2011 Page No. 66 of 72 State v. Hitender @ Chhotu and others with an intention to use FIR No. 356/07 to satify the condition of section 2(1)(d) of the Act also. This casts a doubt over the bonafide intention of the investigating agency.
78. Under section 18 of the Act, police officer of a particular rank has power to record the confessional statement of the accused and same is admissible in evidence. Despite that investigating agency failed to obtain any confessional statement of any of the accused. On the contrary, in case FIR No.356/07 where confessional statement before the police is not admissible and hit by section 25 of the Evidence Act, investigating officer was very keen to record the multiple confessional statements of the accused persons. This shows that no intensive investigatation was conducted in this case. This further corroborates from the list of documents attached with the charge-sheet of this case wherein 34 documents are mentioned and all but for approval, sanction and arrest memo etc, pertain to the previous charge-sheets. It means that prosecution intends to secure the conviction of the accused persons just by proving the certified copy of previous charge-sheets. If the intention of the lagislature was so, there was no need to provide additional powers to the investigating agency while dealing with cases of MCOCA. This again casts a doubt over the intention of investigating agency while invoking MCOCA against all the accused persons.
79. Learned Special Public Prosecutor vehemently SC No. 31/2011 Page No. 67 of 72 State v. Hitender @ Chhotu and others contended that since a charge has already been framed against all the accused persons for the offence punishable under Section 302 read with 120B IPC, thus Court had already taken a prima-facie view that all the accused were involved in the murder of deceased Vijay Singh Yadav. It was contended that now this Court has no other option except to frame a charge against the accused persons. I am unable to understand the sanctity of such arguments. By raising such type arguments, prosecution trying to say that the offence of murder and organized crime are the same but it is not so. One may be interested in the murder of a particular person but may have no connection in the organized crime activities. Conspiracy of a murder and conspiracy of a oragnized crime both are two different things. It is admitted case of the prosecution that accused Gopal Krishan Aggarwal had some financial dispute with one Vijay Bansal and to settle the said dispute accused Gopal Krishan Aggarwal had hired the service of gang led by Hitender through deceased Vijay Singh Yadav and also paid ` 3.00 lac to Hitender through Vijay Singh Yadav. If it was so, it means that deceased Vijay Singh Yadav was also either a member of the gang led by Hitender or he was a facilator to the said gang. It is also admitted case of the prosecution that accused Gopal Krishan Aggarwal was running a satta business and had a dispute with Vijay Bansal pertaining to the said satta transaction. It is also admitted case of prosecution that accused Gopal Krishan Aggarwal had settled the said dispute with the help of inspector Vipin Bhatia of PS Civil Lines. I am unable to understand since when police officials have started to mediate in the settlement of unlawful transaction.
SC No. 31/2011 Page No. 68 of 72State v. Hitender @ Chhotu and others Needless to say that the satta transaction is also one of the kind of organized crime, but instead of taking any action in accordance with law, police officer preferred to mediate the transaction, this only proves the nexus between the criminals and unscrupulous police officers. It is also admitted case of the prosecution that the amount for service of alleged gang of Hitender was paid by accused Gopal Krishan Aggarwal. If accused Gopal Krishan Aggarwal already knew the accused Hitender and he had already paid ` 3.00 lac earlier, where was the need for him to take the service of accused Bhisham. Mere fact that accused Ashok Jain and Rishi Pal were also interested in the murder of deceased does not mean that they were part of organized crime activities. There is no infinitesimal evidence that the accused Ashok Jain and Rishi Pal had in any manner either abeted or facilated in the commission of alleged organized crime. In the absence of any overt act, it is difficult to rope them with the alleged organized crime activities.
80. Learned Special Public Prosecutor made an attempt to connect them with the organized crime with the help of Sakharam's case (supra) but it is pertinent to mention here that in Sakharam's case the appellant had played an active role in the commission of organized crime, which is missing in the present case. There is no specific overt act on the part of accused Ashok Jain and Rishi Pal, which may show that they had any nexus with the alleged syndicate or they were member of the alleged syndicate. Thus, there SC No. 31/2011 Page No. 69 of 72 State v. Hitender @ Chhotu and others is not sufficient material to show that accused Rishi Pal and Ashok Jain had any nexus with the organized crime syndicate.
81. At the cost of reptition, it is pertinent to state that the entire prosecution case is based on the previous involvements of the accused Hitender. On the basis of his previous involvements, it was contended that accused Hitender was running a gang or organized crime syndicate and used to commit unlawful activities with his associates. But astonishingly neither the investigating agency nor prosecution had enough time to file the alleged charge-sheets on the court record pertaining to the alleged involvements of accused Hitender. As already discussed prosecution has not filed the relevant charge-sheets qua Hitender. In other words, prosecution made an attempt to built up an edifice without having foundation.
82. Had the investigating agency filed the complete charge-sheets of previous involvements of accused Hitender particularly charge-sheets of case FIR No. 61/07 under section 392/34 IPC PS Rohini, FIR No. 251/07 under section 392 IPC PS Morad Nagar, FIR No. 662/07 under section 394/34 PS Rohini and 463/07 under section 394/397/302/34 PS Keshav Puram, prosecution would be in a better position to establish prima-facie that accused Hitender had formed a gang with Hari Jagdish, Vinod, Harkesh Dimple Tyagi, Vikas Yadav, Parveen, Parveen Kholi and Deepak. Since, in the said cases, violence was used with the objective to gain SC No. 31/2011 Page No. 70 of 72 State v. Hitender @ Chhotu and others pecuniary benefits and all the said offences were committed in the year 2007 itself, prosecution would be in a better position to show prima-facie that the activities of the said gang pertained to organized crime. But investigaing officer to his wisdom did not file the complete charge-sheets in the above cases.
83. But on the basis of two admissible charge-sheets of case FIR No. 408/02 and 356/07, it is seldom to drawn an inference that accused Hitender was running a gang with his co-accused Parveen Kholi, Deepak, Parmod and Vinod. Since, there is no sufficient evidence to show prima-facie that accused Hitender was running any organized crime syndicate or gang, no charge under the provisions of MCOCA can be framed against any of the accused persons.
84. Pondering over the ongoing discussion, I am of the considered opinion that there are not sufficient material on record to make out a prima-facie case under Section 3(1), Section 3(2) and Section 3(4) of the MCOCA against any of the accused persons, thus, I hereby discharge all the accused persons from the above charges. All the accused be set a liberty forthwith if not required in any other case provided they furnish a personal bond of ` 10,000/- with one surety in the like amount in each case for a period of six months with condition that they shall appear before the appellate Court as and when receive any notice or summon during the said period.
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85. Copy of order be given to the Learned Special Prosecutor for the State.
Announced in the Open Court
On 21st day of April, 2012 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL DISTT, TIS HAZAZRI COURTS
DELHI
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