Delhi District Court
State vs Ishwar @Nareshwar @ Kanchi on 21 October, 2024
CNR No. DLNE01-004577-2016
State v. Ishwar @ Nareshwar @ Kanchi etc.
SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
DLNE010045772016
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page
No. Nos.
1 Description of Case & Memo of Parties 2
2 The case set up by the Prosecution 2-5
3 Charges 5-6
4 Description of Prosecution Evidence 6-14
5 Statement of accused persons 14-15
Appreciation of Law, Facts & Evidence
6 Law Provisions and Legal Principles 15-24
7 Period of Preceding 10 Years and Nature of Past Cases 24-25
8 Effect of Decision in Past Cases 25
9 Third Instance of Organised Crime 25-28
10 Sanction 28-29
11 Confession 29
12 Conclusion and Decision 29
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
Page 1 of 29
PRAMACHALA
(Pulastya Pramachala)
Date: 2024.10.21
13:29:11
ASJ-03, North-East +0530
District,
Karkardooma Courts, Delhi
CNR No. DLNE01-004577-2016
State v. Ishwar @ Nareshwar @ Kanchi etc.
SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
Sessions Case No. : 218/2016
Under Section : 3(1)(i), 3(2), 3(3), 3(4) & 3(5) MCOCA
Police Station : Bhajanpura
FIR No. : 406/2016
CNR No. : DLNE01-004577-2016
In the matter of: -
STATE
VERSUS
1. ISHWAR @ NARESHWAR @ KANCHI
S/o. Sh. Nain Singh,
R/o. H.No. C-1/271, Yamuna Vihar, Delhi.
2. SUKHMEET SINGH @ NONU
S/o. Sh. Baljinder Arora,
R/o. H.No. D-238, Gali No.7, Bhajanpura, Delhi.
3. GAURAV SHARMA @ GOLU
S/o. Late Lasmi Narayan,
R/o. H.No. 1/4744, Gali No.7,
Balbeer Nagar Extension, Shahdara, Delhi.
4. MAJID KHAN @ KAMAL (since deceased)
S/o. Late Majeed,
R/o. H.No. C-1/290, Yamuna Vihar, Delhi.
...Accused Persons
Date of Institution : 05.12.2016
Date of reserving judgment : 21.10.2024
Date of pronouncement : 21.10.2024
Decision : All accused are Acquitted.
(Section 481 BNSS complied with by accused Gaurav Sharma @
Golu, only)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION
1. The above-named accused persons have been charge-sheeted by the police for having committed offences punishable under Section 3(1)(i), 3(2), 3(4) & 3(5) MCOCA.
Digitally signed by PULASTYA Page 2 of 29 PULASTYA (Pulastya Pramachala)PRAMACHALA PRAMACHALA ASJ-03, North-East District, Date: 2024.10.21 Karkardooma Courts, 13:29:21 Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
2. Briefly stated, SHO PS Bhajanpura submitted a proposal for registration of FIR under MCOCA. Inter alia that proposal mentioned that: -
"During the course of enquiry the following fact about his criminal activities and associates have come to notice: That he has a dedicated team of his associates who are involved in commission of heinous crimes like, attempt to murder, dacoity, robbery, criminal intimidation, illegal arms etc. they have a long criminal record. That he has been arrested in a number of criminal cases within the jurisdiction of various police station's of Delhi.That he himself is involved in as many as 15 criminal cases on various occasions. He started his criminal activities in the year 2006. Apart from that, there have been a number of cases not reported, as the complainants did not come forward to get their cases registered out of fear and terror of the accused in the area. This shows his continuous involvement in crimes.During this period he either remained in judicial custody or was continuously involved in commission of crimes by use of violence or threat of violence or intimidation or coercion. His mere presence in the society is detrimental to the peace and tranquility of the locality. Although no specific information into the property obtained by Ishwar@ Kanchi to be received however detail enquiry into the properties are going on. During the course of investigation the properties bearing .No. 21 IInd floor Gali no.2 Bhagwan Pur Jhorda and .C-1/271, Yamuna Vihar Delhi were found to be in his name. However, neither he nor the gang members have any legitimate source of income but they are spending lavishly and leading a lavish lifestyle. He had organized his gang and arranged sophisticated weapons for his gang. Enquiry into this aspect is still going on. On verification of the antecedents, credentials and criminal activeness and involvements in heinous crimes he has turned out to be a BC of "Bundle-A" of Bhajanpura Delhi. He is involved in many cases of Arms Act and illegal arms and ammunitions were recovered from his recovered from his possession or possession or at his instance. CONCLUSION:- This clearly indicates that he has been continuously doing the crime in a planned and organized mannered, after forming syndicate and earned many. He had been charge sheeted in above- mentioned cases before the competent court of law and cognizance has been taken against him. This makes out offence within the definition of organized crime as defined under MCOCA at extended to Delhi. Without registration of case, it would not be possible to reach to the right conclusion. This proposal is being forwarded to your good self for your kind approval for in invocation/registration of FIR under the penal provisions of MCOCA."
3. On the basis of afore-said proposal, the then Joint Commissioner, Eastern Range, Delhi Police, granted sanction under Section Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 3 of 29 PRAMACHALA (Pulastya Pramachala) Date: 2024.10.21 ASJ-03,13:29:31 North-East District, +0530 Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura 23(1) of MCOCA and accordingly this FIR was registered on 27.05.2016 in PS Bhajanpura. This FIR was registered against accused Ishwar, s/o. Sh. Nain Singh, for offences under Section 3(2), 3(4), 4 of The Maharashtra Control of Organised Crime Act, 19991.
4. After registration of FIR, investigation of the present case was assigned to Sh. Sandeep Lamba, the then ACP, Gokalpuri. Accused Ishwar was in judicial custody in FIR No. 351/2016, PS Bhajanpura and with permission of the court on his production, he was arrested in this case. IO conducted further investigation and he examined several witnesses. Ishwar was also produced before DCP (East) and his confession was recorded under Section 18 of MCOCA on 18.06.2016. Subsequently, on 04.10.2016 investigation of this case was taken up by subsequent ACP. On 30.11.2016 accused Sukhmeet Singh @ Nonu was arrested in this case. Some more witnesses were examined in this case and some witnesses were allowed to be treated as protected witnesses. Their statements were also recorded u/s. 164 Cr.P.C. Documents related to property of accused Ishwar were seized.
5. After completion of investigation, sanction was accorded for prosecution of accused Ishwar @ Kanchi and on 05.12.2016 a charge sheet was filed against accused Ishwar @ Nareshwar @ Kanchi for offences punishable under Section 3(1)(i), 3(2), 3(4) & 3(5) MCOCA. Ld. Predecessor Judge of this court took cognizance of offences punishable under Section 3(1)(i), 3(2), 3(3), 3(4) & 3(5) MCOCA. On 28.05.2017, first supplementary chargesheet impleading accused Sukhmeet Singh @ Nonu, along with sanction u/s. 23(2) and other documents, was filed.
Digitally signed Page 4 of 29 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.10.21 Karkardooma Courts, Delhi 13:29:41 +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc.
SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
6. Subsequently, accused Gaurav Sharma @ Golu @ Khushiram Sharma and Majid Khan @ Kamal (since expired) were arrested on 26.07.2017 and 28.07.2017, respectively. On 02.11.2017, second supplementary chargesheet impleading accused Gaurav Sharma @ Golu @ Khushiram Sharma and Majid Khan @ Kamal (since expired), along with sanction u/s. 23(2) and other documents, was filed. On 09.01.2018, third supplementary chargesheet along with CA's report in respect of financial investigation with regard to accused Ishwar @ Kanchi @ Nareshwar, was filed.
CHARGE
7. While this case was at the stage of consideration on charge, a report was filed to inform death of accused Majid Khan @ Kamal on 17.07.2020, which was so recorded in order dated 15.04.2021. Accordingly, this stood abated against accused Majid Khan @ Kamal. On 18.02.2022, charges were framed against accused 1. Ishwar @ Nareshwar @ Kanchi, 2. Sukhmeet Singh @ Nonu, and 3. Gaurav Sharma @ Golu, for offences punishable under Section 3(1)(i), 3(2), 3(3), 3(4) and 3(5) of MCOCA, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -
"That you all indulged in continuing unlawful activities as members of organized crime syndicate within the jurisdiction of various police stations of NCT of Delhi w.e.f. year 2006 and thereafter continuously and during this period you all committed various cognizable offences viz. murder, attempt to murder etc. as mentioned in detail in the charge-sheet punishable with imprisonment for more than three years and in more than one case competent court has taken cognizance and thereby you all have committed above mentioned unlawful activities/organized crime individually or being a member of organized crime syndicate by use of violence, threat and also were found in illegal possession of arms with the objective of gaining pecuniary benefits and thus you all have committed offence of Digitally signed by PULASTYA Page 5 of 29 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma 13:29:50Courts, +0530 Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura organized crime punishable u/s 3 (1) (i) of MCOCA and within my cognizance.
Secondly, during the above said period while indulging in continuing unlawful activities individually or being the member of organized crime syndicate, you all conspired or abetted or knowingly facilitated or prepared, harbored or concealed the commission of organized crime or the members of the syndicate with the objective of gaining pecuniary benefits and thereby you all have committed offence punishable u/s 3 (2) & 3 (3) of MCOCA and within my cognizance.
Thirdly, during the aforesaid period while doing the continuing unlawful activities individually or being the member of organized crime syndicate with the objective of gaining pecuniary benefits, you all possessed or acquired unaccountable movable and immovable properties (as mentioned in the charge-sheet) and thereby you all have committed offence u/s 3 (4) and 3 (5) MCOCA and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE
8. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C., which are FIR No.378/06 as Ex.A-1 (colly. 5 pages); FIR No.378/06 along with order dated 02.12.2011 and 07.06.2012 as Ex.A-2 (colly. 5 pages); charge framed against accused Danish Malik on 02.12.20211 as Ex.A-3; chargesheet filed in FIR No.119/10 as Ex.A-4 (colly. 14 pages); arrest memo of Gourav Sharma @ Golu in FIR No.119/10 as Ex.A-5; judgment dated 07.06.2012 passed in FIR No. 378/06 as Ex.A-6 (colly. 7 pages); FIR No.119/10 along with order dated 16.09.2011 as Ex.A-7 (colly. 3 pages); three separate charges framed in FIR No.119/10 along with order to this effect all dated 15.02.2011 as Ex.A-8 (colly. 3 pages), Ex.A-9 (colly. 2 pages) & Ex.A-10 (colly. 2 pages); judgment dated 16.09.2011 passed in FIR No.119/10 as Ex.A-11 (colly. 13 pages); FIR No.75/06 as Ex.A-12 (colly. 2 pages); FIR No.636/06 as Ex.A-13 (colly. 5 pages); FIR No.314/07 as Ex.A-14 (colly. 2 pages); FIR No.71/08 as Ex.A-15 (colly. 2 pages); FIR No.44/08 as Ex.A-16 (colly. 3 pages); FIR No.40/08 as Ex.A-17 (colly. 5 pages); FIR Digitally signed by Page 6 of 29 (Pulastya Pramachala) PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date:Courts, Karkardooma 2024.10.21 Delhi 13:30:00 +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura No.157/08 as Ex.A-18 (colly. 2 pages); charge framed on 13.10.2016 in FIR No.356/16 as Ex.A-19; FIR No.168/10 as Ex.A-20 (colly. 4 pages); FIR No.159/11 as Ex.A-21 (colly. 2 pages); FIR No.85/15 as Ex.A-22 (colly. 3 pages); FIR No.231/16 as Ex.A-23; FIR No.347/16 as Ex.A-24 (colly. 2 pages); FIR No.351/16 as Ex.A-25 (colly. 2 pages); FIR No.356/16 as Ex.A-26 (colly. 2 pages); FIR No.237/20 as Ex.A- 27 (colly. 2 pages); FIR No.252/20 as Ex.A-28 (colly. 2 pages); arrest memo of Ishwar @ Nareshwar @ Kanchi, Sukhmeet & Gourav Sharma @ Golu in FIR No.406/16 as Ex.A-29, Ex.A-30 & Ex.A-34, respectively; chargesheet filed in FIR No.356/16 as Ex.A-31 (colly. 10 pages); chargesheet filed in FIR No.351/16 as Ex.A-32 (colly. 11 pages); FIR No.27/17 as Ex.A-33 (colly. 3 pages); personal search memo of Gourav Sharma @ Golu in FIR No.406/16 as Ex.A-35; notice u/s. 91 Cr.P.C. dated 10.10.2017 sent by ACP Gokalpuri to Branch Manager, Axis Bank, G.T. Road, Panipat, Haryana, pertaining to FIR No.406/16 as Ex.A- 36; statement of account for period 15.06.2011 to 11.10.2017 of Account No. 911010030422164 generated from Axis Bank Ltd. as Ex.A-37 (colly. 17 pages); notice u/s. 91 Cr.P.C. sent by ACP Gokalpur to Manager, PNB, Bhajanpura, Delhi as well as to Manager Indian Overseas Bank, Yamuna Vihar, Delhi, pertaining to FIR No.406/16 as Ex.A-38 & Ex.A-40; account ledger inquiry belonging to Sukhmeet Singh Arora of PNB for the period 20.07.2015 to 01.03.2016 as Ex.A-39 (colly. 2 Pages); statement of account of A/c. No.224901000003048 belonging to Sukhmeet Singh Arora for the period 01.01.2012 to 19.03.2016 generated from Indian Overseas Bank, Yamuna Vihar, Delhi as Ex. A-41 Digitally signed by Page 7 of 29 PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.10.21 Karkardooma Courts, 13:30:10 Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura (colly. 22 Pages); proceedings prepared by Sh. Sunil Kumar Sharma as Ex.A-42; and judicial proceeding as prepared by Sh. S.P.S. Laler as Ex.A-43.
9. Prosecution examined 26 witnesses in support of its case. A brief description of the same is being given here. PW1/ASI Himmat Singh was Duty Officer and he registered FIR on 27.05.2016 in the present case. PW2/Sh. Tazim Khan proved certified copy of his written complaint dated 04.05.2016, which is Ex.PW2/A. In this complaint, he alleged that accused Ishwar @ Kanchi had assaulted him with bricks and accused Nonu and Bhim Rana had hit him. He further deposed that all three persons used to extort money in the area of Yamuna Vihar and people used to pay them out of fear. PW2 identified accused Ishwar @ Kanchi and Nonu before the court. However, this witness could not recollect the FIR number, which was registered on the basis of his aforesaid complaint.
10. PW3/Sh. Pankaj Gupta was Manager in Hotel Sunshine Park, Sahibabad, U.P. PW3 proved check-in and check-out entry in the name of Ishwar Singh as Ex.PW3/A. PW4/Sh. Anil Negi was Manager in Rajpath Residency Hotel, Kaushambi, Ghaziabad, U.P. PW4 proved check-in and check-out entries in the name of Sukhmeet Singh Arora as Ex.PW4/A. PW4 identified accused Sukhmeet Singh Arora before the court.
11. PW5/Sh Junaid proved certified copy of his written complaint dated 31.01.2015, which is Ex.PW5/A. On his complaint, FIR No. 85/15, PS Gokalpuri was registered. He further deposed about contents of his complaint.
Digitally signed by PULASTYAPULASTYA PRAMACHALA PRAMACHALA Date: 2024.10.21 Page 8 of 29 (Pulastya Pramachala) 13:30:18 +0530 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
12. PW6/Sh. Ajeet Singh was Alternate Nodal Officer in Vodafone Idea Ltd. PW6 proved CDR, certificate under Section 65-B of I.E. Act and Cell ID Chart in respect of mobile no. 8860160225, as Ex.PW6/A to Ex.PW6/C, respectively. PW6 also proved CDR of mobile nos. 9953822694, 8860458450, 9837132694 and 7838627121 as Ex.PW6/D to Ex.PW6/G, respectively. Certificate u/s 65B of I.E. Act and Cell ID Chart, in respect of aforesaid 4 CDRs as Ex.PW6/H and Ex.PW6/I, respectively. PW6 also proved photocopy of letter no.19-3/2012-S-I dated 17.05.2012, issued by ADG Security, Ministry of Communication and Information Technology, Govt. of India, to all Telecom Service Providers, which is Ex. PW6/J. PW6 also proved certified copy of record mentioning details of subscribers, which mentions name of Sukhmeet Singh Arora, Bhushan Verma, Vijender Sharma, Manju Devi and Bhim Singh Rana. Certified copy of said record is Ex.PW6/K. PW6 also proved photocopy of CAF attested by Sh. Saurabh Aggarwal pertaining to mobile no. 9873132694 and 995382269 in the name of Sukhmeet Singh Arora, which are Ex.PW6/L and Ex.PW6/M, respectively; that of mobile no. 8860458450, in the name of Bhushan Verma as Ex.PW6/N; and that of mobile no. 8860160225, in the name of Manju Devi as Ex.PW6/O.
13. PW7/Sh. Kundan Singh was owner of Milan Guest House, Dhanolti, Tehri Garhwal, Uttarakhand. PW7 proved photocopy of check-in and check-out entry of the register in the name of customer namely Mohit Rana, as Ex.PW7/A.
14. PW8/Sh. Kuldeep Singh Negi was running guest house at Glan Gowan Estate, Library, Mussoorie, Uttarakhand. PW8 proved Digitally signed by Page 9 of 29 PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma Courts, 13:30:27 Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura photocopy of check-in and check-out entry of customer namely Sukhmeet Singh @ Nonu made in his register book as Ex.PW8/A; photocopy of relevant bill no. 1842 as Ex.PW8/B (OSR) and photocopy of ID proof of aforesaid customer as Ex.PW8/C (OSR). PW8 identified accused Sukhmeet Singh Arora, during his testimony before the court.
15. PW9/Sh. Dinesh Kumar deposed about receiving confessional statement of accused Ishwar @ Kanchi, u/s 18 of MCOC Act. PW9 proved his order on the application of IO as Ex.PW9/A; memorandum of chamber proceeding dated 18.06.2016 as Ex.PW9/B. He deposed about preparing similar memorandum of chamber proceeding dated 10.12.2016 in respect of Sukhmeet Singh @ Nonu, which was proved as Ex.PW9/C.
16. PW10/Protected Witness 'Y' deposed against accused Ishwar, Majid, Nonu and Gaurav that they were involved into money extortion. He deposed in general terms as to who Ishwar and his other friends used to extort money from builders, doctors etc. PW10 deposed that Ishwar @ Kanchi wanted to use PW10 also like Kanchi used other boys viz. accused Nonu and Golu. PW10 further deposed that accused Ishwar @ Kanchi had implicated PW10 in one or two cases along with him, so that PW10 continued working for him. PW10 identified accused Gaurav, Nonu @ Sukhvinder and Kanchi.
17. PW11/Sh. Kapil Mittal was Chartered Accountant, who had assessed income and value of wealth of Manju Devi and Mr. Ishwar Singh. He proved his report dated 24.11.2017 as Ex.PW11/A; calculation table as Ex.PW11/B and index of documents as Ex.PW11/C. Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.10.21 Page 10 of 29 (Pulastya Pramachala) 13:30:37 +0530 ASJ-03, North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
18. PW12/Sh. Anuj Kapoor and PW13/Mohd. Suhail were bank officials of Axis Bank, Yamuna Vihar Branch, Delhi. PW13 proved certified copy of bank statement of account no.911010030422164 in the name of Manju Devi as well as of account no. 914010009858421 in the name of Ishwar Singh and Manju Devi and relevant certificates thereof.
19. PW14 was protected Witness 'B'. He was resident of Yamuna Vihar, Delhi till 2013-14 and thereafter, he shifted to Krishna Nagar, Delhi. He knew accused Ishwar @ Kanchi since 2003-05. He made his statement regarding his interaction with this accused and his companions. He also made statement in respect of demand of extortion by accused Ishwar @ Kanchi, on the basis of information received by him from others. He further testified about his car being forcibly taken away by accused Ishwar @ Kanchi in the year 2007-08 and about making him a call in the year 2015-16 to say that this witness had fired at Golu. Similarly, he testified about some incident of 2005-07 and then the facts related to marriage of accused Ishwar Kanchi. PW14 also testified about some incident of 2015-16 regarding calls made by Nonu to the father of this witness and robbery with his father. All these informations were received by this witness from his father and a case was registered regarding that incident. PW14 also testified about calls received by him from Nonu and others to put pressure for withdrawal of that case. He also testified about forcible taking away of Wagon-R car of his brother by Kanchi and Bhim in the year 2015 and once again this court had recorded that such statement was based on hearsay evidence. This witness proved his statement recorded under Section 164 Digitally signed by PULASTYA Page 11 of 29 PULASTYA(Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.10.21 Karkardooma Courts, Delhi 13:30:45 +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura Cr.P.C. as Ex.PW14/A.
20. PW15/Insp. Vijay Kumar Shrotrya was SHO of PS Bhajanpura, who had sent proposal for registration of this FIR. He proved his proposal as Ex.PW15/A and deposed about the basis for sending this proposal. He had also prepared tehrir for registration of FIR i.e. Ex.PW15/B.
21. PW16/Sh. R. Sathiya Sundaram had recorded confessional statement under Section 18 of MCOCA of accused Majid Khan on 05.08.2017. He proved that statement as Ex.PW16/B. PW17/Sh. Rishipal had also recorded confessional statement u/s. 18 of MCOCA of accused Ishwar @ Kanchi on 18.06.2017 and that statement was proved as Ex.PW17/A. PW18/Sh. Omvir Singh had also recorded confessional statement u/s. 18 of MCOCA of accused Sukhmeet Singh @ Nonu on 10.12.2016 and this statement was exhibited as Ex.PW18/A. PW18 had also recorded confessional statement of accused Gaurav @ Golu on 01.08.2017, which was proved as Ex.PW18/C.
22. PW19/Sh. Ravinder Yadav had accorded sanction for prosecution u/s. 23(2) of MCOCA against accused Sukhmeet Singh vide sanction order dated 26.05.2017, which is Ex.PW19/A. He also accorded similar sanction for prosecution of accused Gaurav Sharma @ Golu and Majid Khan on 21.10.2017 vide sanction order Ex.PW19/B.
23. PW20/Insp. Shailendra had joined investigation with IO/ACP Sandeep Lamba on 22.06.2016 and thereafter with next IO/ACP Sachin Sharma on 30.11.2016. He was witness to seizure of documents from Ms. Manju, w/o. accused Ishwar @ Kanchi and Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 12 of 29 PRAMACHALA (Pulastya Date: Pramachala) 2024.10.21 ASJ-03, North-East District, 13:30:54 Karkardooma +0530 Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura arrest of accused Sukhmeet Singh as well as accused Majid Khan (who has already expired).
24. PW21/Sh. Kailash Saklani was running a guest house in Dehradun, but nothing concrete came out from his testimony qua the accused persons. PW22/Sh. Kamal Singh Rana was complainant in some FIR regarding incident of snatching.
25. PW23/Sh. Sandeep Lamba was first IO of this case. He arrested accused Ishwar @ Kanchi in this case. He recorded statement of witnesses like Manager of Sun Shine Hotel, Ghaziabad, U.P.; Manager of Milan Hotel in Dhanaulti; Manager of Hotel Rajpath, Ghaziabad, U.P. PW23 had produced accused Ishwar @ Kanchi before DCP (East) for recording his confessional statement. He had seized the documents related to property from wife of accused Ishwar @ Kanchi and he got appointed a Chartered Accountant for valuation of properties of Ishwar @ Kanchi.
26. PW24/Sh. Satish Golcha had accorded sanction u/s. 23(1)(a) for registration of FIR in this case on 24.05.2016 vide sanction order Ex.PW24/A. He also accorded sanction for prosecution of accused Ishwar @ Kanchi on 02.12.2016 vide sanction order Ex.PW24/B.
27. PW25/Retd. ACP Sh. Mahender Kumar Meena had taken up further investigation after ACP Sachin Sharma. He had examined three protected witnesses i.e. PW 'C', PW 'D' and PW 'E' and he got their statement recorded u/s. 164 Cr.P.C. He seized bank statement in the name of Manju Devi, w/o. Ishwar. He had applied sanction for prosecution of accused Gaurav @ Golu and Majid Khan. He obtained valuation report from Chartered Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.10.21 Page 13 of 29 (Pulastya Pramachala) 13:31:04 ASJ-03, +0530 North-East District, Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura Accountant and prepared 3rd supplementary chargesheet, which was filed in the court.
28. PW26/Sh. Sachin Sharma was 2nd IO of this case. He had examined four witnesses including protected witness 'Y'. He had arrested accused Sukhmeet Singh. He had filed first chargesheet against accused Ishwar @ Kanchi. He produced accused Sukhmeet before DCP (East) for recording his confessional statement. He also got recorded statement of PW 'A' and PW 'B' u/s. 164 Cr.P.C. Subsequently, he prepared and filed supplementary chargesheet against accused Sukhmeet. Thereafter, he arrested accused Gaurav @ Golu and he produced him before DCP (East) for recording his confessional statement. STATEMENT OF ACCUSED PERSONS
29. Vide order dated 07.10.2024, ld. Prosecutor was requested to furnish draft of incriminating evidence against the accused persons, so that same could be taken into consideration for preparing questionnaires to be put before the respective accused and to seek response to such incriminating evidence. However, ld. Prosecutor filed only a list of witnesses who have been examined in this case, with one liner description of such witness. This list actually does not refer to any incriminating evidence.
30. The evidence can be termed as incriminating, only if such evidence tends to prove or aid in proving the charges framed against the accused persons. For that purpose, the natural exercise would be to assess the evidence on their face value itself, so as to be sure that if accepted as per their face value, such evidence would prove the charges against the accused persons. This exercise involves appreciation of evidence on the Digitally signed by Page 14 of 29 PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma Courts, 13:31:16 +0530 Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura parameters of ingredients of the alleged offences. On careful scrutiny of evidence on the record, it was found by me that there is no incriminating evidence to satisfy the requisite ingredients of the alleged offences. I found that the case presented by the prosecution lacked in satisfying the basic legal requirements for the alleged offences. Hence, I did not find any occasion to put a particular evidence before the accused persons, so as to seek their response. Accoredingly, statement of accused persons u/s 351 BNSS was dispensed with and this court proceeded to pass judgment as per Section 255 BNSS. The reasons to reach afore- said conclusion, are as follows.
APPRECIATION OF LAW, FACTS AND EVIDENCE LAW PROVISIONS & LEGAL PRINCIPLES
31. In order to discuss the legal requirements, it would be apt to reproduce the Clauses 'd', 'e' and 'f' of sub-section (1) of Section 2 of MCOCA. These read as under: -
"(d) "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an 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 period of ten years and that Court has taken cognizance of such offence;
(e) "organized crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency;
(f) "organized crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organized crime;"Digitally signed by PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
Page 15 of 29 (Pulastya Pramachala)
2024.10.21
ASJ-03, North-East
13:31:24 District,
+0530
Karkardooma Courts, Delhi
CNR No. DLNE01-004577-2016
State v. Ishwar @ Nareshwar @ Kanchi etc.
SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
32. Section 3 of MCOCA provides for punishment for organised crime and states as under - (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.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(5) Whoever holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs."
33. From the definitions of organized crime syndicate as defined u/s 2(f) of the MCOCA, organized crime as defined u/s 2(e) of the MCOCA and continuing unlawful activity as defined u/s 2(d) of the MCOCA, it is well reflected that these three elements are interdependent. The existence of one element leads to the establishment of the other and vice versa.
34. As per section 2(f) of the MCOCA, to establish existence of an organized crime syndicate, it has to be shown that there was Digitally signed Page 16 of 29 (Pulastya Pramachala) PULASTYA by PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma 13:31:37 Courts, Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura group of two or more persons who either singly or jointly, indulged in activities of organized crime as a syndicate or a gang. Therefore, as per section 2(f) of the MCOCA, it is not sufficient that there is a group of two or more persons who commit crime as a syndicate or a gang, but what is further required, is that such crime so committed also fulfills the conditions which shall make it an organized crime. Similarly, according to Section 2(e), an organized crime is any continuing unlawful activity done by a person either singly or jointly but as a member of a crime syndicate or on behalf of such crime syndicate. At the same time, it is further required that this continuing unlawful activity is done/committed by using violence or threat of violence or intimidation or coercion or other unlawful means and should be done with an objective of gaining pecuniary benefits or gaining undue economic or other advantages for himself or for any person, or for promoting insurgency. Therefore, for the existence of an organized crime syndicate, commission of organized crime is a sine qua non and an act alleged as organized crime has to necessarily fall within the definition of continuing unlawful activity which is provided u/s 2(d) of the MCOCA. At the same time, it also has to satisfy the purposes and the means for commission of crime as provided in section 2(e) of the MCOCA. A continuing unlawful activity is defined u/s 2(d) of the MCOCA as an activity which is prohibited by the law for the time being in force and this activity has to be a cognizable offence carrying punishment of three years or more. Furthermore, this activity should have been undertaken either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate Digitally signed Page 17 of 29 by PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.10.21 Karkardooma Courts, 13:31:46 Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura and further, in respect of this activity, in preceding period of 10 years, more than one chargesheet should have been filed before a court of the competent jurisdiction which had taken cognizance of such offence.
35. Hon'ble Bombay High Court dealt with the requisite criteria to charge a person with allegation of committing organized crime. The relevant observations of the Bombay High Court in the case titled as Madan vs. State of Maharashtra, 2009 SCC OnLine Bom 483, are reproduced herein below: -
"....for charging a person of organized crime or being a member of organized crime syndicate, it would be necessary to prove that the persons concerned have indulged in:
i. an activity, ii. which is prohibited by law, iii. Which is cognizable offence punishable with imprisonment for three years or more, iv. undertaken either singly or jointly, as a member of organised crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate.
v. (a) in respect of similar activities (in the past) more than one chargesheets have been filed in competent court within the preceding period of ten years
(b) and the court has taken cognizance of such offence vi. The activity is undertaken by:
(a) violence, or
(b) threat of violence, or intimidation or
(c) coercion or
(d) other unlawful means.
vii. (a) with the object of gaining pecuniary benefits or gaining undue or other advantage for himself or any other person, or
(b) with the object of promoting insurgency."
36. It was further observed in aforesaid judgment as under: -
"40. The learned Additional Public Prosecutor rightly submitted that conviction or acquittal are not relevant and for this purpose relied on observations in judgment in Bharat Shantilal Shah V. State of Maharashtra, 2003 ALL MR (Cri) 1061 (para 27) and State of Maharashtra V. Bharat Shantilal Shah, 2008 AIR SCW 6431, on which even the learned counsel for appellants had placed reliance.Digitally signed by PULASTYA Page 18 of 29 PULASTYA(PulastyaPRAMACHALA Pramachala)
PRAMACHALA Date:
ASJ-03, North-East District, 2024.10.21 Karkardooma13:31:55 Courts, Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
41. Since conviction or acquittal in a case previously filed are irrelevant, it would be unnecessary to look into evidence in respect of such crimes tendered in the present trial.
52. For proving the offence of organized crime, it has to be proved among other things that accused indulged in continuing unlawful activity. For proving involvement in continuing unlawful activity, it is not necessary to prove the past crime, but only the fact that a chargesheet has been filed in respect of that crime, that the crime bears punishment of three years or more and that the court has taken cognizance of the crime. Therefore, examining witnesses in proof of past crime itself is unnecessary and also undesirable, because it is not the requirement or ingredient of offences under MCOC Act ".
37. In this case, following legal principles were summarized as related to MCOCA: -
"(i) As held by the Supreme Court in State of Maharashtra and others V. Lalit Nagpal Somdatta Nagpal and another, reported at (2007) 4 SCC 171, the provisions of MCOC Act have to be strictly interpreted.
(ii) Since the definition clauses, Sections 2(d), (e) and (f), use the word 'means', the definition are exhaustive.
(iii) The definitions are unambiguous and words used are not susceptible to two interpretations.
(iv) As observed by the Apex Court in Ranjitsingh Brahmajeetsing Sharma V. State of Maharashtra and another, reported at 2005 Cri.
LJ 2533, the words 'other unlawful means' have to be read ejusdem generis, the phrases 'by use of violence' etc.
(v) Similarly, the words 'other advantage' has to be read ejusdem generis 'pecuniary benefits' as held by a Division Bench of this Court in Sherbahadur Akram Khan and others v. State of Maharashtra, reported in 2007(1) Bom CR (Cri) 26.
(vi) As held by a Division bench of this Court in Bharat Shantilal Shah v. State of Maharashtra, reported at 2003 ALL MR (Cri) 1061, and Jaising Asharfilal Yadav and others v. State of Maharashtra and another, reported at 2003 ALL MR (Cri) 1506, continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organized crime and the purpose thereof is to see antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(e) and Section 3, which respectively define commission of offence of organized crime and prescribe punishment.
(vii) Approval for recording information under Section 23 of MCOC Act would not restrict the scope of investigation and would not exclude filing of chargesheets in respect of incidents or involvement of persons disclosed in course of investigation.
(viii) There would have to be some act or omission which amounts to Digitally signed by PULASTYA Page 19 of 29 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA ASJ-03, Date:North-East 2024.10.21District, Karkardooma Courts, Delhi 13:32:06 +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura organized crime after the Act came into force, in respect of which the accused is sought to be tried to the first time, in the Special Court (i.e. has not been or is not being tried elsewhere)."
38. Hon'ble Supreme Court dealt with the ambit of the term 'other advantage' as used in the definition of 'organized crime'. In that process, in the case of Abhishek v. State of Maharashtra, 2022 SCC OnLine SC 678, hon'ble Supreme Court held that: -
"We have no hesitation in endorsing the views of Full Bench decision of Bombay High Court in the case of Jagan Gagansingh Nepali @ Jagya (supra). Looking to the object and purpose of this enactment, the expression 'other advantage' cannot be read in a restrictive manner and is required to be given its full effect. The High Court has rightly said that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself. As noticed above, the purpose of this enactment is to be kept in view while interpreting any expression therein and in the name of strict construction, its spirit and object cannot be whittled down."
39. In respect of the ambit of the term 'unlawful means' as used in the definition of 'organized crime', Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, observed as under: -
"24. The Statement of Objects and Reasons clearly states as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression "any unlawful means" must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Penal Code, 1860 and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA."
40. It is commission of organised crime, which is punishable u/s 3(1) of the Act. This is so apparent from the language used in Section 3(1) of the Act itself. 'Organised Crime' is defined separately Digitally signed by PULASTYA PULASTYA PRAMACHALA Page 20 of 29 PRAMACHALA(Pulastya Pramachala) Date: 2024.10.21 ASJ-03, North-East District, 13:32:20 +0530 Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura from 'continuing unlawful activity', and definition of latter makes it much clear that law makers qualified this term to incorporate the requisites of organised crime. Hence, for the purpose of S. 3(1) of the Act, one has to look into fulfillment of requisites of 'organised crime', and mere reference to 'some continuing unlawful activity' cannot be sufficient. To refer to the ambit of 'organised crime', I would quote some relevant observations made by Supreme Court in the case of Prasad Shrikant Purohit v. State of Maharashtra , (2015) 7 SCC 440, which are as follows: -
"43. Before getting into the nuances of the said definition of "continuing unlawful activity", it will be worthwhile to get a broad idea of the definition of "organised crime" under Section 2(1)(e) and "organised crime syndicate" under Section 2(1)(f). An "organised crime" should be any "continuing unlawful activity" either by an individual singly or jointly, either as a member of an "organised crime syndicate" or on behalf of such syndicate. The main ingredient of the said definition is that such "continuing unlawful activity" should have been indulged in by use of violence or threat of violence or intimidation or coercion or other unlawful means. Further, such violence and other activity should have been indulged in with an objective of gaining pecuniary benefits or gaining undue economic or other advantage for himself or for any other person or for promoting insurgency. Therefore, an "organised crime" by nature of violent action indulged in by an individual singly or jointly either as a member of an "organised crime syndicate" or on behalf of such syndicate should have been either with an object of making pecuniary gains or undue economic or other advantage or for promoting insurgency. If the object was for making pecuniary gains it can be either for himself or for any other person. But we notice for promoting insurgency, there is no such requirement of any personal interest or the interest of any other person or body. The mere indulgence in a violent activity, etc. either for pecuniary gain or other advantage or for promoting insurgency as an individual, either singly or jointly as a member of "organised crime syndicate" or on behalf of a such syndicate would be sufficient for bringing the said activity within the four corners of the definition of "organised crime"."
41. In the same case Supreme Court explained that "44.An "organised crime syndicate" is a group of two or more persons who by acting singly or collectively as a syndicate or gang Digitally signed by PULASTYA Page 21 of 29 PULASTYA (Pulastya Pramachala) PRAMACHALA PRAMACHALA Date: 2024.10.21 ASJ-03, North-East 13:32:29 District, +0530 Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura indulge in activities of "organised crime"."
42. It must be further appreciated that Section 3 (1) of MCOCA provides for different punishment for different kind of offences. If the offence resulted into death of someone, punishment provided is that of death or life imprisonment under clause 3(1)
(i). For other kind of consequences of the offence committed by the accused persons, they are liable for minimum sentence of 5 years extendable to life imprisonment. Thus, the distinct sentence provided for distinct consequence of the offence, show that such punishment is in respect of some new crime/offence rather than past offence. This provision thus, makes it amply clear that there has to be a latest commission of an offence as part of continued unlawful activity and falling into the category of organized crime, so as to trigger the prosecution of accused under MCOCA. The observations of higher courts have been consistent on this aspect. In the case of Madan (supra), when the court mentioned about requirement of filing of more than one chargesheets within preceding 10 years, it used the expression "in respect of similar activities (in the past)". This makes out a clear-cut requirement of a distinct activity from the past cases, to make out a case under MCOCA.
43. In order to illustrate this legal position, I would refer to some other observations made by the higher courts, touching upon the same issue. In the case of Darasing & Ors. v. State of Maharashtra, AIR Online 2021 BOM 2585, High Court of Bombay observed as under: -
"The upshot of the above discussion is that the appellants were merely charged and tried for the offence punishable under Section 3(1)(ii) and 3(4) without any substantive crime. Merely being involved in several Digitally signed Page 22 of 29 by PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma 13:32:39Courts, +0530Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura crimes without being involved in any other crime to elevate the continuing unlawful activity to the case of organized crime as defined under Section 2(1)(e) would not be sufficient. Therefore, the appellants could not have been convicted and sentenced only for the offence punishable under Section 3(1)(ii) and 3(4) in the absence of any substantive crime so as to constitute an organized crime. The learned Judge of the Special Court has not considered all these aspects and has convicted and sentenced the appellants merely for being involved in continuing unlawful activity which in itself is not an offence which is made punishable under the MCOC Act."
44. In the case of Prafulla v. State of Maharasthra, 2009 ALL MR(Cri.) 870, High Court of Bombay observed as under: -
"47. A look at provisions of the punishment, Section 3 of the MCOCA would fortify this conclusion. Clauses (i) and (ii) of Sub- section (1) would show that "if such offence has resulted in death of any person", the offence of organised crime would attract death sentence or life imprisonment with a fine of Rs. One Lakh. Now, if only old charge sheets should be held as enough, a person acquitted of a murder charge in the past would be liable to be sent for a life term, in spite of acquittal, simply because a chargesheet had been filed in the past. Had this been contemplated, the learned Judge, Special Court, would have charged Accused No.1/I Shiva of offence punishable under Section 3(1)(i) of MCOCA and not one punishable under Section 3(1)(ii) of the MCOCA, since Shiva had been charged once of murder (Sr. No. 9 in the chart) and acquitted. Same would hold good about the other gangsters. Advocate Tiwari, the learned counsel for Mehmood and others relying on judgment of the Supreme Court in Dilip Singh v. State of Punjab, reported at 1997(3) Current Criminal Journal 223, (submitted) that charge sheets cannot be made the basis of guilt or innocence of an accused. Therefore, it is clear that the offences referred to in various charge sheets are not "such offence(s)" and consequently an offence, punishable under Section 3 of the MCOCA has to be different from those for which such accused had been charge sheeted in the past. Past criminal activity only aggravates the continued activity amounting to an offence and attracts provisions of MCOCA.
48. In view of this, since the appellants are not shown to have indulged in any crime which can be said to be continuation of past criminal activity provisions of Section 3(1) of the MCOCA are not attracted. It cannot be said that the appellants have committed the offence of organised crime."
45. In the case of Prasad Shrikant Purohit (supra), Supreme Court observed as under: -
"66. ............In this respect, we will have to bear in mind that the implication of MCOCA would come into play only after the third occurrence takes place and only after that it will have to be seen whether Digitally signed Page 23 of 29 PULASTYA (Pulastya Pramachala) by PULASTYA ASJ-03,PRAMACHALA PRAMACHALA North-East District, Date: 2024.10.21 Karkardooma Courts, Delhi 13:32:51 +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura on the earlier two such occasions involvement of someone jointly or singly, either as a member of an "organised crime syndicate" or on its behalf, indulged in a crime in respect of which a charge-sheet has already been filed before the competent court which court had taken cognizance of such offence."
PERIOD OF PRECEDING 10 YEARS & NATURE OF PAST CASES
46. Supreme Court in the case of Prasad Shrikant Purohit (Supra), also held as follows: -
"54.The submission of the learned counsel for the appellants was that under Section 2(1)(d), in order to constitute a "continuing unlawful activity" two earlier charge-sheets in the preceding 10 years should exist and that such charge-sheets should have been taken cognizance by the competent court within the said period of 10 years and it must have been accomplished. It was also contended that for ascertaining the said position, the date of the third occurrence should be the relevant date for counting the preceding 10 years. In so far as that claim is concerned, it can be straightaway accepted that since Section 2(1)(d) uses the expression "an activity" in the very opening set of expressions, which is prohibited by law, the date of such activity, namely, the third one can be taken as the relevant date for the purpose of finding out the two earlier charge-sheets in the preceding 10 years, in which event in the present case, the preceding 10 years will have to be counted from 29-9-2008 which was the date when the third occurrence of Malegaon bomb blast took place."
47. In the same case it was further held that "45.By conspectus reading of the above three definitions, if in the preceding 10 years from the date of third continuing unlawful activity if more than one charge-sheet has been filed before a competent court which had taken cognizance of such offence which would result in imposition of a punishment of three years or more, undertaken by a person individually or jointly either as a member of an "organised crime syndicate" or on its behalf, such crime if falls within the definition of "organised crime", the invocation of MCOCA would be the resultant position."
48. Thus, it also becomes apparent that the two cases of the past, should also be falling into the category of organised crime.
Digitally signed Page 24 of 29 by PULASTYA PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma Courts, 13:33:00 Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc.
SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura Meaning thereby, reference to any other kind of case, against one or more than one accused person, would not serve the purpose for invocation of the Act.
EFFECT OF DECISION IN PAST CASES
49. As pointed out by the courts, and also as per mandate of law, neither an accused can be prosecuted for same acts more than once in two different trials, nor can he be punished for same acts more than once. Similarly, for a particular crime there has to be one decision from the court. Once, acquitted or convicted by a court for such criminal activity, that accused cannot be held guilty for same activity by another court in a different trial.
50. In the case of Abhishek v. State of Maharashtra, (2022) 8 SCC 282, Supreme Court while dealing with the issue of effect of decision in the past cases (last 10 years) held as follows: -
"58.The submissions about taking irrelevant factors into account with reference to the said two cases resulting in acquittal and discharge must fail for the simple reason that for the purpose of clause (d) of Section 2(1) of Mcoca, the result of a particular matter is not decisive of the question as to whether the activity in question answers to the description of "continuing unlawful activity" or not. These had not been offences committed single-handedly by the appellant and charge- sheets were indeed filed therein. The matter of settlement because of cross-cases or a matter of acquittal because of the witnesses not turning up, could hardly be of any relevance so far as clause (d) of Section 2(1) of Mcoca is concerned. Therefore, it cannot be said that any irrelevant matter has been taken into consideration by the sanctioning authority."
51. For such reason itself, evidence involved in the past cases, have no relevance in the trial of case of MCOCA. THIRD INSTANCE OF ORGANISED CRIME
52. In view of afore-said discussion on requisite legal conditions, it is to be seen if there was third instance of crime, which was also fulfilling the above-mentioned requisites of organised crime, so as to provide a cause of action to invoke MCOC Act?
Digitally signed by PULASTYA PULASTYA PRAMACHALA
Page 25 of 29 PRAMACHALA Date:Pramachala)
(Pulastya
ASJ-03, North-East
2024.10.21 District,
Karkardooma Courts,
13:33:09 Delhi
+0530
CNR No. DLNE01-004577-2016
State v. Ishwar @ Nareshwar @ Kanchi etc.
SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
53. I have already mentioned the relevant portion from the proposal for seeking approval for registration of the FIR. Now, I shall quote the relevant part of the chargesheets, in order to show the stand taken by the prosecution. In the main chargesheet, it was mentioned that: -
"There are witnesses who have deposed about the lavish lifestyle of the accused Ishwar and his associates. He used to spend about Rs 3-4 thousand daily and used to party, regularly, with his friends and associates in different hotels. The bare perusal of the FIRS, wherein, the accused Ishwar and his associates are accused, reveal that the accused and his associates do their home work well before extorting money from a person. The persons from whom the money has been extorted includes hotel/restaurant owner, businessmen etc. There is a witness 'Y' whose statement corroborates that the victim are generally Doctors, businessmen, property dealers etc. The witness 'Y' also revealed that the co accused Nonu and Gaurav @ Golu used to collect the money from the victims. He further revealed that the business partner of accused Ishwar, namely, Majid is also an associate of the accused. The accused Ishwar and his associates are so desperate and organized that they can harm themselves to implicate the persons who take stand against them. For instance we have a case FIR No.252/16 u/s 307 IPC & 25/27 Arms Act was registered at PS Krishna Nagar, on the statement of accused Nonu Arora, wherein, he alleged that one Aakash Napa fired at him and injured him. On investigating the case, It was revealed otherwise and the IO filed a charge sheet u/s 182/194/120B/34 IPC against the accused Ishwar, Nonu, Gaurav @ Golu and Tarun. The accused persons hatched a plan to implicate Aakash Naapa as his father had got an FIR registered against the accused persons. This is clear indication that the accused persons perform their activities in an organized manner. They scheme things and hatch plans to execute their illegal deeds.
Conclusion:
From the investigation conducted so far, it is very much clear that the accused Ishwar @ Nareshwar @ Kanchi has kept himself occupied with the illegal activities for more than 10 years. He is involved in more than 01 case which are punishable for more than 03 years within the last 10 years and the Courts of Law have taken cognizance of those cases.
Thus, the criteria of section 2(d) of MCOC Act is fulfilled. The contents of the above mentioned FIRs reveal that the accused person is involved in continuing unlawful activities as member of an organized crime syndicate, by unlawful means, with the objective of gaining pecuniary benefits or other advantages. This fulfills the contents of section 2(e) of MCOC Act."
Digitally signed by PULASTYAPULASTYA PRAMACHALA Page 26 of 29 PRAMACHALA(Pulastya Pramachala) ASJ-03,Date: 2024.10.21 North-East 13:33:18 District, +0530 Karkardooma Courts, Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura
54. Similarly in the 1st supplementary chargesheet, it was mentioned that: -
"From the investigation conducted so far, it is very much clear that the accused Sukhmeet Singh @ Nonu has kept himself occupied with the illegal activities. He is involved in more than 01 case which are punishable for more than 03 years within 10 preceding years and the Courts of Law have taken cognizance of those cases. Thus, the criteria of section 2(d) of MCOC Act is fulfilled. The contents of the above mentioned FIRs reveal that the accused person is involved in continuing unlawful activities as member of an organized crime syndicate, by use of violence or intimidation or coercion or other unlawful means, with the objective of gaining pecuniary benefits or other advantages. This fulfills the contents of section 2(e) of MCOC Act."
55. In the 2nd supplementary chargesheet also, it was mentioned that:-
"From the investigation conducted so far, it is very much clear that the accused Gaurav Sharma @ Golu @ Khushi Ram Sharma and Majid Khan @ Kamal have kept themselves occupied with the illegal activities by participating and abetting the organized crime activities of this organized crime syndicate. They are involved in numbers of cases within 10 preceding years, which carry punishment for more than 03 years and the Courts of Law have taken cognizance of those cases. Thus, the criteria of section 2(d) of MCOC Act is fulfilled. The contents of the above mentioned FIRs reveal that the accused person is involved in continuing unlawful activities as member of an organized crime syndicate, by use of violence or intimidation or coercion or other unlawful means, with the objective of gaining pecuniary benefits or other advantages. This fulfills the contents of section 2(e) of MCOC Act. The accused persons are acting collectively, as a syndicate or gang indulge in activities of organized crime. This fulfills the contents of section 2(f) of MCOC Act."
56. The conclusions given in all these chargesheets, show that prosecution did not refer to any specific third instance of organised crime. For such reasons, there is no reference of the point of time from which period of last 10 years was counted. Rather, these conclusions reflect that probably a wrong notion of definition of S.2 (d), 2(e) and 2 (f) was nurtured. That is the reason that the witnesses were examined in general terms rather than pointing out to a third instance of alleged organised crime. As already observed herein above, the evidence relied in respect Digitally signed by PULASTYA Page 27 of 29 PULASTYA (Pulastya Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.10.21 Karkardooma Courts, 13:34:02 Delhi +0530 CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura of allegations made in other past cases, are not relevant in this case. The reference to two past cases involving organised crime, serve a limited purpose only. Therefore, even if it is assumed that those past cases were in the nature of organised crime, in absence of evidence of the latest instance of organised crime, this case remains without a valid foundation. It is also important to note that evidence of a different case, cannot be used or repeated here to prove organised crime. Hence, some allegations made by the witnesses from the incidents of past (which would have been subject matter of a different case), and their testimony based on hearsay and in the nature of general allegations, cannot serve any purpose in this case.
57. As far as offences u/s 3 (2) to 3 (5) of the Act are concerned, it can be seen that organised crime is at the center of all these offences. Without there being a case of organised crime, none of theses offences would sustain. Therefore, I find that this case is based on wrong foundation and notion of law. For this reason, evidence of the prosecution falls short to the category of incriminating evidence.
SANCTION
58. The foregoing discussion and findings in respect of this case, leave no doubt that sanction for registration of FIR in this case, was accorded without caring to see if there were so much informations given in the proposal or otherwise, so as to satisfy the requisite conditions to invoke MCOCA. The proposal was based on wrong notion of law. Thus, apparently this sanction was also accorded, based on incorrect notion of legal requirements. In fact, same is my finding in respect to sanctions accorded for Digitally signed by Page 28 of 29 PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.10.21 Karkardooma Courts, 13:34:16 +0530 Delhi CNR No. DLNE01-004577-2016 State v. Ishwar @ Nareshwar @ Kanchi etc. SC No. 218/2016; FIR No. 406/2016; PS Bhajanpura prosecution of the accused persons, for the same reasons that sanctioning authority did not correctly appreciate requisite legal conditions for invoking MCOCA, before according sanction. Hence, I have no second thoughts to say that all these sanctions were also invalid sanctions.
CONFESSION
59. I am conscious of the law that confession made under Section 18 of the Act, is admissible in evidence. However, when this case was registered on the basis of an invalid proposal and sanction, and when this case is found lacking fulfilling the requisite conditions to invoke MCOCA, then there cannot be any question of a confessional statement recorded in this case to be valid. CONCLUSION & DECISION
60. In view of my foregoing discussions, observations and findings, accused 1. Ishwar @ Nareshwar @ Kanchi, 2. Sukhmeet Singh @ Nonu and 3. Gaurav Sharma @ Golu, are acquitted of all the charges levelled against them in this case.
Digitally signed by PULASTYA PULASTYA PRAMACHALA PRAMACHALA Date: 2024.10.21 13:34:33 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 21.10.2024 ASJ-03(North East)
(This judgment contains 29 pages) Karkardooma Courts/Delhi Page 29 of 29 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi