Delhi District Court
State vs Satneder @ Baba And Others on 4 April, 2024
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri
DLNE010022012019
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT
KARKARDOOMA COURTS: DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
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 6-13
5 Plea of accused under Section 313 Cr.P.C. 13
6 Arguments of Prosecution & Defence 13-18
7 Appreciation of Law, Facts & Evidence 18-31
9 Conclusion and Decision 31
Digitally signed
by PULASTYA
PULASTYA PRAMACHALA
Page 1 of 31 (Pulastya Pramachala)
PRAMACHALA Date: 2024.04.04
ASJ-03, North-East District,
12:13:31 +0530
Karkardooma Courts, Delhi
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri
Sessions Case No. : 166/2019
Under Section : 3(1) (i), 3(2) & 3(4) MCOC Act
Police Station : Gokalpuri
FIR No. : 334/2018
CNR No. : DLNE01-002201-2019
In the matter of: -
STATE
VERSUS
1. SATENDER @ BABA
S/o. Late Lakhi Ram,
R/o. H.No. C-155, Gali No. 20,
Village Gokal Pur, Delhi.
2. AJEET @ BITTOO
S/o. Om Prakash,
R/o. Khasra No. 104/7, G-116/4,
Block-B, Sant Nagar, Burari, Delhi.
3. RAHUL @ AMIT @ SONU
S/o. Ashok Kumar,
R/o. H.No. C-149, Gali No. 20,
Village Gokal Pur, Delhi-110094.
...Accused Persons
Date of Institution : 27.05.2019
Date of reserving judgment : 15.03.2024
Date of pronouncement : 04.04.2024
Decision : Acquitted.
(Section 437-A Cr.P.C. complied with by all accused persons.)
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) MCOC Act.
2. Present case was registered on the basis of approval granted under Section 23(1)(a) of MCOC Act by Joint CP, Eastern Range.Digitally signed Page 2 of 31 (Pulastya Pramachala) by PULASTYA
PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.04.04 Karkardooma Courts, Delhi 12:13:43 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri
3. As per the case of prosecution, an inquiry into the antecedents of accused Satender @ Baba revealed that he along with his associates including accused Ajeet @ Bittu and Rahul @ Amit @ Sonu, was running a crime syndicate in organized manner. He was found involved in a number of cases and was having dedicated team of his associates. The gang was found to be involved in commission of heinous crimes like attempt to murder, dacoity, robbery, criminal intimidation, possession of illegal arms etc. On account of continuous involvement of accused Satender @ Baba in several crimes, it was realized that that his mere presence in the society was detrimental to the peace and tranquility of the locality. Accused Satender @ Baba along with his gang members had been spending lavishly and leading a lavish lifestyle, despite the fact that neither he nor his gang member had any legitimate source of income. On verification of the antecedents and credentials of the said accused, he turned out to be an active Bad Character "Bundle-A" of PS Gokalpuri.
4. As per allegations, accused Satender @ Baba along with his associates built a syndicate, which worked in an organized manner by collecting intelligence and conveying threats and if required, using violence as well for collection of money. They were stated to have established such a notorious image in the area that a common person got terrified only on hearing either name of Baba or the name of his associates. Accused Satender @ Baba was the head of this organized crime syndicate and was popularly known as "Baba" in the area. The terrifying image of this accused Satender @ Baba and the threats extended by him, led a Page 3 of 31 (Pulastya Pramachala) Digitally signed by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.04.04 Karkardooma12:13:54 Courts,+0530 Delhi CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri common person to surrender to his demands and in case any person did not pay any heed to his threats, he or his associates did not hesitate to use fire arm or in adopting any other extreme measures to suppress that person.
5. As per prosecution, accused Satender @ Baba was the head and he distributed the task amongst the syndicate members. Accused Ajeet @ Bittu used to extort money and collect illegal arms. Accused Rahul @ Amit @ Sonu used to collect extortion money and distribute the stolen property. After committing the crime, accused Satender @ Baba used to sell the ornaments and valuable articles and used to distribute the money amongst his associates.
6. After collecting sufficient material about the criminal activities of the gang and the manner in which they used to indulge into those criminal activities, a proposal was moved by the then ACP, Gokalpuri for invoking the provisions of MCOCA against the accused Satender @ Baba. The proposal was laid before the then Joint Commissioner of Police, Eastern Range, Delhi, who, after being satisfied with the proposal, granted the requisite sanction u/s 23 (1) of MCOCA for registration of the FIR against the said accused. Accordingly, this FIR No. 334/18 of PS Gokalpuri was registered on 09.07.2018 u/s 3/4 of MCOCA.
7. Thereafter, the investigation was conducted. Later on, it was revealed that accused Satender @ Baba had been arrested in case FIR No. 513/18, PS Bhajanpura and accordingly, production warrants were got issued against him. He was then arrested in this case on 30.11.2018. Thereafter, search of the other members of syndicate was continued.
Digitally signed by PULASTYA Page 4 of 31 (Pulastya Pramachala) PULASTYA PRAMACHALA
ASJ-03, North-East
PRAMACHALA District,
Date:
2024.04.04
Karkardooma Courts, Delhi
12:14:04 +0530
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri
8. Accused Ajeet @ Bittu was arrested on 21.02.2019 from Karkardooma Court Complex. IO came to know that on 25.04.2019 that accused Rahul @ Amit @ Sonu was running in JC in case FIR No. 46/19, PS Patparganj, Industrial Area. Production warrants were got issued against him. Accordingly, he was arrested in this case on 27.04.2018 after obtaining due permission from the concerned Court. He was stated to have been identified by the victims of the syndicate.
9. All the three accused made their confessional statements u/s 18 of MCOCA, which were recorded by DCP of different districts. The statements of material witnesses including those of the protected witnesses 'A' and 'B' were recorded, who described in detail the criminal activities undertaken by the syndicate.
10. After completion of investigation, sanction was accorded by Joint C.P. (Eastern range) and on 27.05.2019 a charge sheet was filed against accused Satender @ Baba and Ajeet @ Bittu, for offences punishable under Section 3(1)(i), 3(2) & 3(4) MCOC Act. This chargesheet was filed before the then ld. Predecessor Judge of this court and he took cognizance of aforesaid offences. On 24.10.2019, first supplementary chargesheet was filed against additional accused namely Rahul @ Amit @ Sonu, before my ld. Predecessor.
CHARGES: -
11. On 02.05.2022, charges were framed against accused Satender @ Baba, Ajeet @ Bittu and Rahul @ Amit @ Sonu, for offences punishable under Section 3(1)(i), 3(2) & 3(4) MCOC Act, to which they pleaded not guilty and claimed trial. The charges were framed in following terms: -Page 5 of 31 (Pulastya Pramachala) Digitally signed
by PULASTYA ASJ-03, North-East PULASTYADistrict,PRAMACHALA PRAMACHALA Karkardooma Courts, DelhiDate: 2024.04.04 12:14:17 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri "That you accused Satender @ Baba started criminal activities in the year 1998 and thereafter 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 2008 and thereafter continuously and due to such activities you all committed various cognizable offences including murder, attempt to murder, robbery, robbery with a deadly weapon, Arms Act etc. as mentioned in detail in he charge-sheet punishable with imprisonment for more than three years and in many cases/more than one case competent court has taken cognizance and thereby you all have committed above mentioned unlawful crime activities/ organized individually and/or being a member of organized crime syndicate by use of violence, threat and also found in possession of unlawful arms with the objective of gaining pecuniary benefits and thus you all have committed offence of organized crime punishable u/s 3 (1) (i) of MCOCA and within my cognizance.
Secondly, you all during the above said period while committing the above mentioned continuing unlawful activities individually and/or being the members of organized crime syndicate conspired, abetted or knowingly facilitated or prepared, harbored or concealed the commission of organized crime or its members, with the objective of gaining pecuniary benefits and thereby you all have committed offence punishable u/s 3 (2), 3(4) of MCOCA and within my cognizance."
DESCRIPTION OF PROSECUTION EVIDENCE: -
12. Several witnesses were dropped on the basis of admission of documents under Section 294 Cr.P.C. and prosecution examined 13 witnesses in support of its case, as per following description: -
Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties PW1, PW1/Kaushal was running factory for PW2, manufacturing of pharmaceutical PW3, equipments since the year 2016-17 at PW9 and property in Khasra no.299, Gokalpuri PW10 Village, Delhi. However, he did not know any of the accused persons nor they ever threatened him.
PW2/Protected Witness-B knew
accused Satender @ Baba and he had
also heard names of Ajeet @ Bittoo and
Rahul @ Sonu. He met Satender in
Tihar Jail in the year 2016 and had
Page 6 of 31 (Pulastya Pramachala)
Digitally signed by
ASJ-03, North-East
PULASTYA District,
PULASTYA
PRAMACHALA
Karkardooma
PRAMACHALA Courts,
Date: Delhi
2024.04.04
12:14:27 +0530
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties become friendly to him. However, accused Satender had not asked him to pay any money for any reason. Accused Satender had not given him any threat. Satender had not given any threat to his family also. This witness had given false statement before Judge in Karkardooma Court in the past regarding such facts, because police had asked him to do so.
PW3/Protected Witness-A knew accused Satender, but he did not know his profession or anything else about him.
PW9/Anoop Pandit was running tea stall in Gokalpuri, but he did not pay any monthly amount out of extortion to anyone. He did not know any of the accused persons.
PW10/Protected Witness-C was robbed in the area of Gokalpuri in July 2019, but he did not identify any of the accused as robber.
All aforesaid witnesses were declared hostile by prosecution.
PW4/Sh. On 28.02.19, he was posted as DCP, Ex.PW4/A Jasmeet District East, Delhi. On this day, IO of (forwarding Singh this case ACP Anuj Kumar produced letter);
accused Ajeet @ Bittu before him in his Ex.PW4/B
chamber. PW4 asked about (colly 3
voluntariness of accused Ajeet, to make pages)
statement before him. Accused Ajeet (statement u/s
answered in affirmative regarding 18 of MCOC
voluntariness to make statement. Act, dated
PW4 recorded statement u/s. 18 of 28.02.2019 of
MCOC Act of accused Ajeet @ Bittu accused Ajeet
and appended his certificate to aforesaid @ Bittu as
statement. The statement along with recorded by
certificate and covering/forwarding Page 7 of 31 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA Karkardooma PRAMACHALA Courts, Delhi Date: 2024.04.04 12:14:36 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties letter for CMM Sh. Devender Kumar PW4); Garg, was kept in an envelope and Ex.PW4/C sealed with his seal i.e. 'JS'. Thereafter (Certificate of custody of accused Ajeet was handed PW4). over to IO and aforesaid sealed envelope was sent to ld. CMM.
PW4 correctly identified accused Ajeet @ Bittu before the court.
PW5/SI On 30.11.2018, he along with ACP Ex.PW5/A Amit Anuj Kumar, went to Karkardooma (arrest memo Verma Court, where accused Satender @ Baba of accused was produced on production warrant. Satender @ On this day, PW5 witnessed formal Baba);
arrest of accused Satender @ Baba by Ex.PW5/B
IO at Karkardooma Court. and
On 21.02.2019, PW5 along with Ex.PW5/C
IO/ACP Anuj came to court no.71, (arrest memo
Karkardooma and IO applied for and personal
extension of judicial remand of accused search memo
Satender @ Baba. On this day, outside of accused
that court room, they found accused Ajeet @ Bittu)
Ajeet @ Bittu. PW5 witnessed arrest
and personal search of accused Ajeet @ Bittu in the present case.
PW5 correctly identified accused Ajeet @ Bittu and Satender @ Baba, before the court.
PW6/ He was witness to arrest and personal Ex.PW6/A Insp. search of accused Ajeet @ Bittu on (arrest memo Shailender 21.02.2019 as well as formal arrest of of accused Kumar accused Rahul on 27.04.2019, at Rahul) Singh Karkardooma Courts.
PW6 correctly identified accused Ajeet @ Bittu, Satender @ Baba and Rahul. PW7/ In the month of March 2018, he prepared and sent a Retd. ACP proposal for registration of FIR in this case. This Mahender proposal was sent to Joint CP (Eastern range) along with Kumar copy of FIRs in 12 cases against accused Satender @ Page 8 of 31 (Pulastya Pramachala) Digitally signed ASJ-03, North-EastbyDistrict, PULASTYA PULASTYA Karkardooma Courts, Delhi PRAMACHALA PRAMACHALA Date: 2024.04.04 12:14:44 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Baba, his record of being bad character and brief history of criminal record of accused Satender @ Baba. PW7 received sanction from Joint CP (Eastern range) on 09.07.2018 for registration of FIR in this case, which is Ex.A-1 and accordingly, FIR in this case was registered and investigation was entrusted to PW7.
PW8/Sh. On 09.07.2018, he was posted as Joint Ex.PW8/A Rajesh CP, Eastern Range, Delhi. On this day, (colly 2 Khurana on receipt of proposal made by the then pages) ACP, Gokalpuri Sh.Mahender Kumar (sanction Meena, he went through the said order proposal and annexed documents. PW8 accorded by checked existence of continuous PW8) unlawful crime from the documents and the chargesheets in other criminal cases during last 10 years. PW8 on being satisfied, accorded sanction for registration of FIR in this case.
PW11/Sh. On 20.05.2019, he was posted as Jt. Ex.PW11/A Alok Commissioner, Eastern Range, Delhi. (sanction Kumar On receipt of request letter from order dated DCP/NE, he went through the annexed 20.05.2019; & documents and record. PW11 on being Ex.PW11/B satisfied, accorded sanction for (sanction prosecution of accused Satender @ order dated Baba and Ajeet @ Bittu. PW11 also 23.10.2019) accorded sanction for prosecution of accused Rahul.
PW12/Ms. On 04.12.2018, she was posted as DCP, Ex.PW12/A Meghna Shahdara, Delhi. On this day, after (colly 3 Yadav, receiving instructions from Joint CP, sheets) DIG she asked about voluntariness of (statement u/s.
accused Satender @ Baba, to make 18 of MCOC statement before her. Accused Satender Act of @ Baba answered in affirmative accused regarding voluntariness to make Satender);
statement. PW12 recorded statement Ex.PW12/B
u/s. 18 of MCOC Act of accused (certificate of
Satender @ Baba in Hindi and PW12); &
Page 9 of 31 (Pulastya Pramachala)
Digitally signed
ASJ-03, North-East District,
by PULASTYA
PULASTYA
Karkardooma
PRAMACHALACourts, Delhi
PRAMACHALA
Date: 2024.04.04
12:14:53 +0530
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties thereafter she prepared her certificate in Ex.PW12/C respect of the same. Thereafter, she (forwarding prepared a forwarding letter. On her letter of instructions, her SO sealed the envelope PW12); containing statement, certificate and Ex.PW12/D forwarding letter and the same was sent (colly 3 to CMM/NE. sheets) On 02.05.2019, she was still working as (statement u/s. DCP, Shahdara, Delhi. On this day 18 of MCOC again, after receiving instructions from Act of Joint CP, she asked about voluntariness accused of accused Rahul, to make statement Rahul); before her. Accused Rahul answered in Ex.PW12/E affirmative regarding voluntariness to (certificate of make statement. She recorded statement PW12 in u/s. 18 of MCOC Act of accused Rahul respect of in Hindi and thereafter prepared her Ex.PW12/D); certificate in respect of recording & statement. Thereafter, she prepared a forwarding letter. Ex.PW12/F (forwarding On her instructions, her SO sealed the letter of envelope containing statement, PW12). certificate and forwarding letter and the same was sent to CMM/NE.
She correctly identified accused Satender @ Baba and Rahul, before the court.
PW13/Sh. On 22.10.2018, he was posted as ACP, Ex.PW13/A Anuj Gokalpuri. After receiving the case file (request Kumar from previous IO/Sh. Mahender Kumar application (IPS) Meena, ACP Gokalpuri, he had perused seeking the case file and documents annexed. permission to PW13 moved application for interrogate production of accused Satender @ accused Baba. On 30.11.2018, after obtaining Satender @ permission from the court, he Baba);
interrogated and arrested accused Ex.PW13/B Satender @ Baba in this case. (application Thereafter, PW13 moved an application seeking police Digitally signed Page 10 of 31 (Pulastya Pramachala) by PULASTYA PULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.04.04 Karkardooma Courts, Delhi 12:15:03 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties seeking police remand of accused remand of Satender @ Baba for 7 days. accused On 04.12.2018, accused Satender @ Satender);
Baba was produced before DCP Shahdara/Ms. Meghna Yadav.
Thereafter PW13 was handed over statement of accused Satender @ Baba in a sealed envelope. PW13 produced that sealed envelope before CMM and he made request through application for endorsement on the confessional statement of accused, which was done by CMM. PW13 was also supplied copy of that confessional statement. PW13 recorded statement of protected witness 'A' & 'B' u/s 161 Cr.P.C. On 21.02.2019, accused Ajeet @ Bittu were produced before the court on an application moved by PW13 for production before the court and after obtaining permission from the court, he arrested accused Ajeet @ Bittu in this case. PW13 identified his signature on arrest memo & personal search memo of accused Ajeet, which are Ex.PW5/B and Ex.PW5/C. Thereafter on 28.02.2019, his confessional statement was recorded by Sh. Jasmeet Singh, DCP/East and he was handed over his statement in a sealed envelope. On same day, PW13 produced accused Ajeet @ Bittu before CMM in Karkardooma Courts, with his statement in sealed envelope, copy of which was supplied to him.
In April 2019, accused Rahul was also formally arrested and PW13 identified his signature on the arrest memo of accused Rahul, which is Ex.PW6/A. PW13 produced him before Ms. Page 11 of 31 (Pulastya Pramachala) Digitally signed ASJ-03, by PULASTYA North-East District, PULASTYA PRAMACHALA Karkardooma PRAMACHALACourts, Delhi Date: 2024.04.04 12:15:12 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties Meghna Yadav, DCP/Shahdara, to record statement u/s 18 of MCOC Act, which was so recorded on 02.05.2019.
Statement of accused Rahul was handed over in sealed envelope to him.
Thereafter, PW13 produced accused Rahul before CMM in Karkardooma Courts, with statement in sealed envelope, copy of which was supplied to him.
On 20.05.2019, sanction for prosecution of accused Satender @ Baba and Ajeet @ Bittu, as required u/s 23(2) of MCOC Act, before Jt.C.P. (Eastern Range), Delhi, was received. PW13 prepared charge-sheet against accused Satender @ Baba and Ajeet @ Bittu and filed the same before the court in the last week of May, 2019. PW13 examined another protected witness 'C' in July 2019 u/s 161 Cr.P.C. In October 2019, sanction u/s 23(2) of MCOC Act qua accused Rahul, was received and charge-sheet was prepared against accused Rahul.
He correctly identified all accused persons before the court.
Admitted documents under Section 294 Cr.P.C. Proceedings made before CMM/NE/Delhi in respect of accused Satender @ Baba as Ex.A-1; statement of accused Satender @ Baba as Ex.A-2; statement of IO ACP Anuj Kumar as Ex.A-3; request letter moved by IO to endorse statement of you Satender @ Baba as Ex.A- 4; request letter moved by IO to provide copy of statement of you Satender @ Baba as Ex.A-5; request letter moved by IO ACP Anuj Kumar to endorse statement of accused Rahul @ Amit as Ex.A-6; request letter moved by IO to provide copy of statement of accused Rahul @ Amit as Ex.A-7; proceedings made before CMM/NE/Delhi in respect of accused Rahul @ Amit as Ex.A-8; statement of accused Rahul @ Amit as Ex.A-9; statement of IO ACP Anuj Kumar as Ex.A-
Page 12 of 31 (PulastyaDigitally signed
Pramachala)
by PULASTYA
ASJ-03, North-East
PULASTYA District,
PRAMACHALA
PRAMACHALA
KarkardoomaDate:
Courts, Delhi
2024.04.04
12:15:21 +0530
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri Sl. No. & Role of witness & Description of Proved Name of documents documents/ Witness case properties 10; and copy of FIR Nos. 573/14 (PS Karawal Nagar), 314/10 (PS Gokalpuri), 340/10 (PS Gokalpuri), 251/2009 (PS Gokalpuri), 242/2009 (PS Gokalpuri), 44/10 (PS Khajuri Khas), FIR registered on DD No.28-A dated 02.07.2007 (PS Hari Nagar), 703/98 (PS Gokalpuri), 606/98 (PS Gokalpuri), 341/98 (PS Gokalpuri), 574/17 (PS Gokalpuri), 1076/14 (PS Nand Nagri), 30/10 (PS Gokalpuri), 130/10 (PS Gokalpuri), 314/20 (PS Gokalpuri), 190/14 (PS Gokalpuri), 286/14 (PS Gokalpuri), 55/14 (PS Jafrabad), 559/17 (PS Jafrabad), 101/14 (PS Welcome Colony), 118/14 (PS Welcome Colony), 124/14 (PS Welcome Colony), 433/14 (PS Welcome), 1076/14 (PS Nand Nagri), 624/14 (PS Mansarovar Park), 688/14 (PS Shahdara), 66/19 (PS Mandawli Fazal Pur), 46/19 (Patparganj Industrial Area), 340/18 (PS Welcome), 302/18 (PS Jyoti Nagar) and E-FIR 34261/18 (E-PS Jyoti Nagar) as Ex.A-11 to Ex.A-41.
PLEA OF ACCUSED PERSONS U/S. 313 CR.P.C.
13. All three accused persons denied all the allegations, taking plea that sanction was accorded without application of mind. They further took plea that they had not given any confessional statement and their signatures were obtained on blank papers. They further took plea that witnesses have deposed falsely against them. They further took plea that they have been falsely implicated in the present case by the investigating agency. They further took plea that they were acquitted in maximum other cases and the cases which are still pending, were falsely lodged against them. They further took plea that they are innocent and they were not part of any crime syndicate. Accused persons did not opt to lead any evidence in their defence. ARGUMENTS OF PROSECUTION & DEFENCE
14. I heard ld. Special PP as well as ld. counsel for accused persons. I have perused the entire material on the record.
Digitally signed Page 13 of 31 (Pulastya Pramachala) by PULASTYAPULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Karkardooma Courts, Delhi Date: 2024.04.04 12:15:29 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri
15. Sh. G.S. Singh and Ms. Priyanka, ld. counsels for all three accused persons filed written submissions. In the written submissions, it was submitted that cognizance taken by the higher authorities against accused persons, u/s. 23(1) and 23(2), are wrong and baseless. It was further submitted that neither is there any electronic evidence, nor mobile calls, nor any joint bank account, nor any movable or immovable properties of accused persons, on the record to link them with this case. It was further submitted that there was very major lacuna in this case that all the police officials made a violation of Section 300 of Cr.P.C. and therefore, investigation conducted by IO/ACP Anuj Kumar is doubtful. It was further submitted that at the time of recording statement u/s. 18 of MCOCA of accused persons by concerned DCP, no opportunity was given to them under Articles 20(1)(2)(3) of Constitution of India, which was contrary to law. It was further submitted that as per Article 20(3) of Constitution of India "No person shall be compelled in any criminal cases to be a witness against himself." It was further submitted that the deadly weapon would not come in the ambit of MCOCA. It was further submitted that sanction order u/s. 23(1) and 23(2) dated 09.07.2018, was not accorded against accused Ajeet @ Bitu and Rahul @ Sonu @ Amit.
16. It was further submitted that accused persons did not indulge in any illegal activity or any crime syndicate singly or jointly as mentioned under Section 3/4 of MCOCA in any manner. It was further submitted that proposal of PW7/ Retd. ACP Mahender Kumar for registration of case against Satender @ Baba, which was sent to Joint CP, Eastern Range for his permission, was not Digitally signed Page 14 of 31 (Pulastya by Pramachala) PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date:
Karkardooma 2024.04.04
Courts, Delhi
12:15:35 +0530
CNR No. DLNE01-002201-2019
State v. Satender @ Baba etc.
SC No.166/19, FIR No. 334/18, PS Gokalpuri found placed on judicial file. It was further submitted that PW1, PW2, PW3 and PW10 have not supported the case of prosecution.
17. In support of their contentions, they relied upon certain case laws, which are as under: -
17.1 The State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya & Anr., 2011 (5) Mh.L.J. 17.2 State Govt. of NCT of Delhi v. Khalil Ahmed, Crl. Rev. P. No. 42/2012, decided on 23.04.2012 by Hon'ble High Court of Delhi. 17.3 Mahipal Singh v. CBI & Anr. (2014) 11 SCC 282. 17.4 State of Maharashtra v. Shiva @ Shivaji Ramaji Sonawane & Ors. 2015 (4) JCC 2373.
17.5 Prasad Shrikant Purohit v. State of Maharashtra & Anr.
(2015) 7 SCC 440.
17.6 Abhishek v. State of Maharashtra, 2022 SCC OnLine SC 678. 17.7 Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr. (2005) 5 SCC 294.
17.8 Union of India v. Prafulla Kumar Samal & Anr. (1979) 3 SCC
4. 17.9 State of Maharashtra & Ors. v. Lalit Somdatta Nagpal & Anr. Special Leave Petition (Crl.) 3320-21 of 2005, decided on 13.02.2007 by Hon'ble Supreme Court of India. 17.10 State of Maharashtra v. Bharat Baburao Gavhane, 2007 CriLJ 552.
17.11 State (NCT of Delhi) v. Brijesh Singh @ Arun Kumar & Anr.
2005 Law Suit (Delhi) 1772.
17.12 Darasing @ Maruti Vakilya & Ors. v. The State of Maharashtra, AIR OnLine 2021 BOM 2585.
18. Reliance was placed on the case of Shiva (supra) and Prasad (supra) to submit that "merely filing of charge-sheet or taking cognizance of some charge sheets is not sufficient in themselves to constitute an offence punishable under the provisions of MCOCA and those charge-sheets must be under the provisions of Digitally signed Page 15 of 31 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.04.04 Karkardooma Courts, 12:15:42 Delhi +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri section 3 and 4 of MCOC Act.
19. Reliance was placed on the case of Brijesh (supra) to submit that in the absence of any connection of accused with organized crime or syndicate, sanction for prosecution is invalid.
20. In the case of Prasad (supra), Hon'ble Supreme Court observed that: -
".........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 any other person or for promoting insurgency. Therefore, an organized crime, by nature of violent action indulged in by an individual singly or jointly either as a member of an organized 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."
21. In the case of Abhishek (supra) dealing with the ambit of the term "other advantage" as used in the definition of organized crime, Hon'ble Supreme Court observed 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."
22. In the case of Ranjitsing (supra), Hon'ble Supreme Court observed that: -
"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 MACOCA seeks to prevent or control. In other words, an offence failing within the definition of organized crime and committed by an organized crime syndicate is the offence contemplated by the statement of objects and Digitally signed Page 16 of 31 (PulastyabyPramachala) PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA PRAMACHALA KarkardoomaDate:
Courts, Delhi 2024.04.04 12:15:52 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri reasons. There are offence 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."
.........
"By the same analogy, if a person commits murder more than one, would not by itself be sufficient to attract the provision of MCOCA. At the cost of repletion, 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 provision of MCOCA."
23. Reliance was placed on the case of Prafulla (supra), wherein Hon'ble Supreme Court enunciated the following principles: -
"(1) That the judge while considering the question of framing the charges under section 227 of the code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however it two views are equally possible and the judge is satisfied that the evidence produced before him while rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the code the judge which under the present code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad, probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the. judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
After considering the scope of section 227, it is observed that the words no sufficient ground for proceeding against the accused' clearly show at the judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or Digitally signed by Page 17 of 31 (Pulastya Pramachala) PULASTYA PULASTYA ASJ-03,PRAMACHALA North-East District, PRAMACHALA Date: 2024.04.04 Karkardooma Courts, Delhi 12:16:01 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging there from taken at their face establish establish constituting the said offence."
24. Reliance was placed on the case of Darasing (supra) to submit that "merely being involved in several 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."
25. Per contra, Sh. Gaurav Singh, ld. Addl. PP for State argued that criminal record of accused persons has been proved and cognizance was taken in such cases. These records show continuous criminal activity of accused persons as a gang. Ld. Addl. PP further argued that it was proved on record that the accused persons used to commit crime for their supremacy in the area. Ld. Addl. PP further argued that accused persons also confessed such facts under Section 18 of MCOC Act and result of previous cases is not material fact or relevant in this case. APPRECIATION OF LAW, FACTS AND EVIDENCE
26. In order to appreciate the contentions raised on behalf of both the sides, 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 Page 18 of 31 (Pulastya Pramachala) ASJ-03, North-East District, Digitally signed by PULASTYA PULASTYA Karkardooma Courts, Delhi PRAMACHALA PRAMACHALA Date: 2024.04.04 12:16:20 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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;"
25. 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."
26. Section 4 of MCOCA provides for punishment for possessing unaccountable wealth on behalf of member of organized crime syndicate, in following terms: -
"If any person on behalf of a member of an organized crime syndicate is, or, at any time has been, in possession of movable or Digitally signed Page 19 of 31 (Pulastya Pramachala) by PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date:Delhi Karkardooma Courts, 2024.04.04 12:16:30 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri immovable property, which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine, subject to a minimum fine of Rupees One lac and such property shall also liable for attachment and forfeiture, as provided by Section 20."
27. 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.
28. As per section 2(f) of the MCOCA, to establish existence of an organized crime syndicate, it has to be shown that there was 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 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 and other advantages for himself or for any person or for promoting insurgency. Therefore, for the existence Digitally signed Page 20 of 31 by PULASTYA (PulastyaPRAMACHALA Pramachala) PULASTYA ASJ-03, North-East PRAMACHALA District, Date: 2024.04.04 Karkardooma Courts,+0530 12:16:38 Delhi CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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, and 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 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.
29. 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 Page 21 of 31 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03,PRAMACHALA PULASTYA North-East District, PRAMACHALA Karkardooma Courts, Delhi Date: 2024.04.04 12:16:46 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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."
30. It was further observed in abovesaid 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.
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".
31. 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. Digitally signed Page 22 of 31 (Pulastyaby Pramachala) PULASTYA PULASTYA ASJ-03, North-East PRAMACHALA District, PRAMACHALA Date: 2024.04.04 Karkardooma12:16:56 Courts, +0530 Delhi CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri
(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 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)."
32. 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."
33. In respect of the ambit of the term 'unlawful means' as used in the definition of 'organized crime', Hon'ble Supreme Court in Page 23 of 31 (Pulastya Pramachala) Digitally signed by PULASTYA ASJ-03, North-East PULASTYA District, PRAMACHALA Karkardooma Courts, PRAMACHALA Delhi Date: 2024.04.04 12:17:02 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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."
34. Thus, what has to be seen by the court in this case is, whether there existed a group or gang which indulged into continued unlawful activity and such unlawful activity was fulfilling the parameters of purposes and means of commission of crime as per section 2(e) of the MCOCA and thus, was an activity committed by or on behalf of organized crime syndicate.
35. It must be 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. 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. 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.
Digitally signed by Page 24 of 31 (Pulastya Pramachala) PULASTYAPULASTYA ASJ-03, North-East District, PRAMACHALA PRAMACHALA Date: 2024.04.04 Karkardooma Courts, Delhi 12:17:10 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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.
36. 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 (supra), 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 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 sentence 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."
37. In the case of Prafulla (supra), 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 Digitally signed Page 25 of 31 byPramachala) PULASTYA PULASTYA(Pulastya PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.04.04 Karkardooma Courts,+0530 12:17:19 Delhi CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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."
38. 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 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."
39. In the case of Shiva @ Shivaji Ramaji Sonawane (supra), Supreme Court observed as under: -
"9. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offences punishable under IPC and the Arms Act in Crimes Nos. 37 and 38 of 2001 and once the trial court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes Nos. 1 and 2 of 2002, all that remained incriminating was the filing of charge-sheets against the respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of MCOCA. The filing of charge-sheets or taking of the cognizance in the same did not, declared the High Court, by itself constitute an offence punishable under Section 3 of MCOCA. That is because the involvement of the respondent in previous offences was just about one requirement but by no means the only requirement which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not, more important was the commission of an offence by the respondents that would constitute "continuing unlawful activity". So long as that requirement failed, as was the position in the instant case, there was no question of Page 26 of 31 (Pulastya Pramachala) Digitally signed ASJ-03, PULASTYA North-East by PULASTYADistrict, PRAMACHALA Karkardooma Courts, Delhi PRAMACHALA Date: 2024.04.04 12:17:26 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, suffer from any infirmity.
10. The very fact that more than one charge-sheets had been filed against the respondents alleging offences punishable with more than three years' imprisonment is not enough. As rightly pointed out by the High Court commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA. Registration of cases, filing of charge-sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge-sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act.
11. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes No.37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crime Cases Nos.1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of MCOCA could not be invoked only on the basis of the previous charge-sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court."
40. 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 an offence there has to be one decision from the court. Once, acquitted or convicted by a court for a criminal activity, that accused cannot be held guilty for same activity by another court in a different trial.
41. Perusal of both chargesheets filed in this case would show that all Page 27 of 31 Digitally (Pulastya signed Pramachala) by PULASTYA PULASTYA ASJ-03, North-East PRAMACHALADistrict, PRAMACHALA Karkardooma Courts, Date: Delhi 2024.04.04 12:17:35 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri accused persons are being prosecuted for offences under Section 3 and 4 of MCOCA, only on the basis of chargesheets filed in the past. I would quote from the concluding part of the FIR, which is as follows: -
"This clearly indicates that he has been continuously doing the crime in a planned and organized manner, after forming syndicate and earning money. He has been charge sheeted in the above mentioned cases before the competent courts 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 cases, it would not be possible to reach to the right conclusion."
42. Now, I shall quote from the paragraph of conclusion of the chargesheet, which is as follows: -
"The accused persons are found involved in number of cases and the respective Hon'ble Courts have already taken cognizance in the cases. Further, the cases carry punishment for three years or more, and are registered within Delhi State within 10 preceding years. Thus, the criteria of section 2(d) of MCOC Act is fulfilled. The contents of the above-mentioned FIRs reveal that the accused persons are involved in continuing unlawful activities as member of an organized crime syndicate, using unlawful means, with the objective of gaining pecuniary benefits or other advantages for themselves. This fulfills the contents of section 2(e) of MCOC Act."
43. Prosecution in this case did not refer to any immediate cause of action alleging continued unlawful activity by the accused persons. Accused persons were chargesheeted only on the basis of their involvement in the past cases, which was taken as instance of continued unlawful activity. However, above- mentioned legal principles show that the stand taken by prosecution does not satisfy the requisite criteria to invoke MCOCA. The case of prosecution is thus, founded on wrong assumption of law.
44. Even otherwise, as per evidence on the record, except for the evidence in the form of confessional statements of the accused Digitally signed by PULASTYA Page 28 of 31 (Pulastya Pramachala) PULASTYA PRAMACHALA PRAMACHALA ASJ-03, North-East Date:District, 2024.04.04 Karkardooma Courts, Delhi 12:17:42 +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri persons recorded under Section 18 of MCOCA, there is no incriminating evidence against any of the accused persons in respect of their involvement in the unlawful activity. The confessional statements of all accused persons were produced before ld. CMM (North-East) for his endorsement. Ld. CMM (N/E) conducted in chamber proceedings and asked each of the accused persons regarding making of confessional statement before DCP. At that time, each of three accused persons denied making any kind of statement before police or DCP. All of them took plea that they were illiterate persons and police obtained their signature on some documents, but they were not aware of contents of such documents. They signed such documents out of fear because they were threatened by police to be implicated in cases. This scenario shows that all the accused persons literally disowned the claim of police that they had voluntarily made confessional statement before the respective officers of the rank of DCP. The production of these accused persons before ld. CMM took place on same day, after they were produced before respective DCPs to record their confessional statements. It is difficult to presume that a person having volunteered to make a confessional statement about crimes committed by him, would deny having made such statement with passage of some minutes or hours. The voluntariness of such person cannot be so fragile so as to vanish in such short span of time, that too when as per record being in police custody such accused persons did not have access to anyone else except the police officials, who could influence them otherwise. Therefore, the confessional statements as proved on the record, do not appear to be voluntarily made and Digitally signed by PULASTYA Page 29 of 31 (Pulastya PULASTYA Pramachala) PRAMACHALA ASJ-03, North-East PRAMACHALA District, Date: 2024.04.04 Karkardooma Courts, 12:17:49 Delhi +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri hence, they are not credible piece of evidence and cannot be relied upon to say that accused persons were member of crime syndicate and were involved in organized crime.
45. I am conscious of the law that confession made under Section 18 of the Act, is admissible in evidence. However, even in respect of such confessional statement, the courts have held that same can become basis of conviction if same are voluntary, truthful and reliable. (Ref. Mohd. Ayub Dar v. State of J&K, (2010) 9 SCC
312).
46. In the case of K.I. Pavunny v. Asstt. Collector (HQ), Central Excise Collectorate (1997) 3 SCC 721, a full bench of the Supreme Court held that "there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there were any other facts and circumstances to corroborate the retracted confession."
47. In case of extra judicial confession, which is also admissible in evidence, Supreme Court in the case of Suresh v. State of Haryana, (2018) 18 SCC 654, held that same cannot be solely utilized to convict a person, when the surrounding circumstances are improbable and create suspicion.
48. I would again reproduce the last legal principle as summarized in the case of Madan (supra) to conclude this discussion. "There would have to be some act or omission which amounts to organized crime after the Act came into force, in respect of which Digitally signed by Page 30 of 31 PULASTYA (Pulastya Pramachala) PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Date: 2024.04.04 Karkardooma Courts, 12:18:10 Delhi +0530 CNR No. DLNE01-002201-2019 State v. Satender @ Baba etc. SC No.166/19, FIR No. 334/18, PS Gokalpuri 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)."
49. On the basis of evaluation of the facts and legal principles applied by the prosecution, to allege commission of organized crime by the accused persons in this case, I find that the prosecution has wrongly reached to the conclusion that accused persons indulged into committing organized crime. The alleged confessional statements of the accused persons also do not help prosecution to cure above-mentioned defect or to prove the charges against the accused persons.
CONCLUSION & DECISION
50. In view of my foregoing discussions, observations and findings, I find that accused Satender @ Baba, Ajeet @ Bittoo and Rahul @ Amit @ Sonu, are entitled for acquittal in this case and hence, they all are acquitted of the charges levelled against them in the present case. PULASTYA Digitally signed by PULASTYA PRAMACHALA PRAMACHALA Date: 2024.04.04 12:18:18 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 04.04.2024 ASJ-03(North East) (This judgment contains 31 pages) Karkardooma Courts/Delhi Page 31 of 31 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi