Jag Mohan @ Mohar Singh vs Commissioner Of Police And Ors. ...
2006 Latest Caselaw 2174 Del

JUDGMENT

Manju Goel, J.

1. These are three writ petitions challenging FIR No. 521/05 dated 13.9.2005 P.S. Connaught Place, New Delhi. The first writ petition, W.P. (Crl.) No. 45/06, is filed by Jag Mohan @ Mohar Singh seeking a writ of habeas corpus challenging his detention under Maharashtra Control of Organized Crime Act, 1999 (`MCOCA' for short) as extended to Delhi on several grounds. The other writ petitions seek writ of certiorari for quashing the proceedings initiated against them under MCOCA and for quashing the order dated 6.12.2005, issuing NBWs against the petitioners and order dated 24.12.2005 initiating proceedings under Section 82 Cr.P.C. passed by the learned Special Judge, MCOCA, New Delhi.

2. During the pendency of the petitions, charge-sheet has been presented against Jag Mohan @ Mohar Singh as well as his four brothers. At the end of the charge-sheet, however, it is contended that the investigation against Jag Mohan @ Mohar Singh and his crime syndicate would continue and a charge-sheet would be filed under Section 173 Cr.P.C. at the end of the investigation.

3. The writ of habeas corpus and the two writ petitions filed by the four brothers of Jag Mohan @ Mohar Singh raise the same issues of law and were actually heard together and are, therefore, being disposed of by this common judgment.

4. FIR No. 521/2005 dated 13.9.2005 was registered at police station Connaught Place under Sections 186/353/411 of Indian Penal Code (in short 'IPC') and Sections 25/27 of Arms Act, 1959 on the basis of a raid near Hanuman Mandir at around 4.00 p.m. in which the vehicle Qualis bearing No. HR-55-A-3776 was stopped and the petitioner in W.P.(Crl.) No. 45/2006, Mohar Singh, who was on the driver's seat was arrested. The version of the police is that a secret information had been received that Mohar Singh, a criminal and declared offender of police station Darya Ganj who was required in a case at police station Connaught Place, was coming that way and if a raid was organized he could be apprehended with an illegal weapon which he was using to extort money in his area. As the vehicle was stopped, Mohar Singh allegedly took out a pistol from his left dub and pointed towards the police sub-inspector. A constable immediately snatched the pistol from his hand. The pistol had four live cartages of 7.65 bore loaded in the magazine. The pistol was taken in possession. Mohar Singh on being questioned could not produce any paper or proof regarding his ownership of the vehicle. On examining the vehicle it was found that the vehicle was wanted in case FIR No. 168/2003 under Sections 420/406 IPC of police station Connaught Place being stolen property. The vehicle was taken in possession under Section 302 of Cr.P.C. The FIR was registered on the basis of a rukka with the information as above. Mohar Singh was remanded to judicial custody.

5. On 15.9.2005, the proposal for invoking of MCOCA was placed before the Addl. Commissioner of Police, Crime, Delhi. The Addl. Commissioner of Police approved the invocation of MCOCA and accordingly further investigation into offence under Sections 3(2) & 3(4) of MCOCA was undertaken.

6. On 21.9.2005 Assistant Commissioner of Police (in short `ACP'), Special Team, Crime Branch, moved a petition in the court of A.K. Garg, ASJ, Special Court, MCOCA, Patiala House, Delhi seeking production warrant against the petitioner - Mohar Singh as he was required to be taken in the police custody remand for recoveries under MCOCA. This application says that it has been found that the petitioner-Mohar Singh is a bad character of police station Darya Ganj, that he is involved in dubious trade of extortion, murder, attempt to murder, criminal intimidation, broad daylight killing of witnesses who deposed against him with the sole intention of creating panic in public so as to enable him to resort to extortion and that he has been operating in the form of organized crime syndicate for pecuniary gains. It is further mentioned in this application that the Additional Commissioner of Police, Crime Branch, has ordered that the accused be taken on police custody remand. In this application along with the Sections of IPC and Arms Act mentioned in the FIR, Sections 3(2) & 3(4) MCOCA have also been mentioned. Special Judge directed production of the petitioner-Mohar Singh in court on 22.9.2005. An application for police custody for 17 days was moved by the ACP, Special Team, Crime Branch, Delhi giving therein details of recoveries required to be made and the need to reinterrogate him in respect of the organized crime syndicate being run by him. Police remand for four days was granted. On 26.9.2005 he was again remanded to police custody till 28.9.2005 and thereafter he was remanded to judicial custody. On 9.12.2005 an application for extension of time for filing the charge-sheet was made under Section 21(2)(b) of MCOCA which authorised the Special Court of MCOCA, in case it was not possible to complete the investigation within a period of 90 days, to extend the period of detention under Section 167 Cr.P.C., up to 180 days on a report of the public prosecutor indicating the progress of the investigation and the specific reasons for detention of the accused beyond the period of 90 days. The period for filing the charge-sheet was extended by 30 days ending 11.1.2006.

7. The state has challenged the very maintainability of the petition for habeas corpus on the ground that the petitioner Jag Mohan has been detained under a judicial order and not under an executive order. According to the state the petitioner Jag Mohan should be advised to proceed against the judicial order of detention in appeal or revision or seek quashment of the FIR rather than applying under habeas corpus. On behalf of the petitioner Jag Mohan, it is submitted that since the very basis of recording of the FIR is challenged, the detention from the very beginning is impugned and habeas corpus will lie. During arguments the petitioner Jag Mohan has even challenged individual instances of extension of remand as saying that they are without application of judicial mind and, therefore, bad. We do not think it necessary to go into this point for the present because the brothers of Jag Mohan @ Mohar Singh are also before this Court asking for the quashing of the FIR. Even the present habeas corpus petition can be converted into a petition under Section 482 Cr.P.C. or into a petition for writ of certiorari and the relief prayed for granted. What is material for this Court is to see whether the FIR under MCOCA has been validly recorded and whether on the basis of the allegations against the petitioners the offence under Section 3 of MCOCA is made out.

8. Before proceeding to the grounds for challenge, it will be worthwhile to consider the relevant provisions of MCOCA as extended to the National Capital Territory of Delhi with effect from 2.1.2002. The Act makes organized crime an offence. Conspiring or attempting to commit or to abet an organized crime, harbouring a member of an organized crime syndicate, being a member of the organized crime syndicate and holding property obtained through organized crime punishable with imprisonment for life and fine. Organized crime is described in Section 2(e) as under:

2(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

9. Continuing unlawful activity is defined in Clause (d) of Section 2 of MCOCA as under:

2(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-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence

10. Organized crime syndicate is defined under Section 2(f) of MCOCA as under:

2(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

11. Special court to deal with the organized crime is created by Section 5 of the Act. As a stringent measure to control organized crime, the act has provisions that make confessions recorded to a police officer not below the rank of Deputy Commissioner of Police admissible in trial and extension of period of detention under Section 167 Cr.P.C. as mentioned earlier.

12. In the application under Section 21 of MCOCA, the police/investigation states, inter alia, the following facts:

The petitioner Jag Mohan @ Mohar Singh is running a crime syndicate along with his four brothers and have involved themselves in offences of criminal intimidation, broad day light killing of witnesses, forceful dispossession of properties etc. for monetary gains. During the police remand of four days, various documents were recovered and seized. These documents revealed that the petitioner was owner of several properties and vehicles. One such property is House No. F-230 Mangal Bazar, Laxmi Nagar. Prabhu Dayal, the person residing in that property lodged an FIR (No. 350/96) alleging criminal intimidation with the help of a firearm to force him to vacate the house. His statement under Section 161 Cr.P.C. has since been recorded. The petitioner and his brothers illegally grabbed part of property No. 3814, David Street and dispossessed the owner Bobby Kapoor and the tenant Surender Mohan who have also made their statements under Section 161 Cr.P.C. The petitioner and his brothers also attempted to grab property No. 3828, David Street, Darya Ganj and to dispossess the owner Sanjay Bhandari. It has also been discovered that the petitioner and his brothers threatened Rajiv Sun, owner of property No. S-82, Greater Kailash, Part-I. The petitioner and Ms.Thala, another person claiming ownership of the same property, were arrested in a murder case in 1996 P.S. Kotwali. Rajiv Sun had already made his statement under Section 161 Cr.P.C. The application also disclosed what other evidence was expected to be obtained during further investigation. The special court extended the judicial remand till 11.1.2006 only after examining the statements under Section 161 Cr.P.C. of the aforesaid victims. In another application arrest warrants were requested against the brothers of the petitioner viz. Jai Chand @ Munna, Brij Mohan @ Pappu, Khoob Singh and Sher Singh and the special court passed orders on 6.12.2005 for NBWs as prayed for.

13. The grounds for challenge as available in the writ petition of Jag Mohan @ Mohar Singh can be briefly listed as under:

(i) The provisions of MCOCA are not applicable to the case of the petitioners for the following reasons:

(a) Out of eight cases listed against the petitioner Mohar Singh, six have resulted in acquittal after full-fledged trial while the other two, one under Wild Life Protection Act and the other under Arms Act, are pending trial in which the petitioners would again be found innocent. The acquittals have become final. These cases cannot be taken into consideration for invoking MCOCA.

(b) The offences in none of these cases had any objective of gaining any pecuniary benefit or undue economic or other advantages for himself or for any other person.

(c) For long years between 1996 to 1999 & August, 2000 to August 2001, the petitioner was detained under the National Security Act and since 2001 to September, 2005 no case of any substantive offence was registered against the petitioner Mohar Singh and, therefore, there is no question of continuity of any criminal activity of any organized crime or of organized crime syndicate.

(ii) The brothers of the petitioner Jag Mohan, i.e., the petitioners in W.P. (Crl.) Nos.159-160/06 & W.P. (Crl.) Nos.161-62/06, also remained in custody for long periods and they were also acquitted after full-fledged trial in various cases and from 1991 till date no case of any substantive offence has been registered against them and accordingly they have also not been involved in any continuing unlawful activity. Hence there could be no organized crime or any organized crime syndicate involving the petitioners.

(iii) The arrest of the petitioner-Mohar Singh is mala fide and motivated to demoralise the petitioner and to destroy his increasing popularity amongst the Valmiki Samaj and to destroy the property of the petitioner-Mohar Singh and his brothers.

14. The main thrust of the argument on behalf of Mohar Singh has been that MCOCA has been wrongly applied. In most of the cases registered against Jag Mohan a verdict of acquittal was returned. If these cases are excluded from consideration it will be difficult to bring the case under MCOCA. Now as the definition of continuing unlawful activity goes under Section 2(d) of MCOCA, the requirement is that the activity is undertaken as a member of an organized crime syndicate in respect of which more than one charge-sheet has been filed within the preceding period of ten years. The definition does not carve out any distinction between charge-sheets which end in acquittal and those which end in conviction. It is contended that since the petitioner was acquitted in all the cases punishable with imprisonment for three years or more if those cases are taken into consideration the petitioner would be put to double jeopardy which is not permissible under Article 20 of the Constitution of India. At the same time it is submitted that Section 2(d) having used the words charge-sheets have been filed and court has taken cognizance which would mean that those charge-sheets are still pending. In other words, the contention is that if the decided cases were to be taken into consideration the language used would have been "charge-sheets had been filed" and "court had taken cognizance of such offenes".

15. Learned Counsel for the petitioner is categorical that he is not challenging the vires of the Act. If Section 2(d) is not ultra vires it has to be given the effect to in the same sense in which it has been framed. In our opinion, the language of the section cannot be interpreted in this manner. It cannot be said that simply because the language used is "charge-sheets have been filed" and "court has taken cognizance" the section has to be interpreted as only referring to charge-sheets pending. The language of the section clearly indicates that all such offences in respect of which charge-sheets have been filed and courts have taken cognizance have to be considered. When a case is decided there is either acquittal or conviction. There is no dispute that if the cases end in conviction they would indicate that an accused had been involved in the past 10 years in unlawful activity. However, if the interpretation of the petitioner's counsel is accepted, even those cases in which a conviction have been secured, would have to be excluded from consideration. This is not at all the intent of the legislature. The purpose of the Act is to control organized crime and hence if a person is convicted and hence proved to be a criminal, his further criminal activity is what comes under scrutiny by virtue of this Act.

16. So far as the objection to taking into account the cases in which an acquittal has taken place in view of bar of Article 20 of the Constitution of India is concerned one has to keep in mind that the accused/petitioner is not being asked to stand trial for those cases. Those cases are cited only to say that he has been accused in the past.

17. In fact the very definition shows that before a case under MCOCA is registered there should be previous charge-sheets and cognizance taken thereon. In case, petitioners interpretation of Article 20 being applicable is accepted, entire definition of the offence would be hit by Article 20 and, therefore, should be struck down. Although, the petitioner's counsel is categorical that he is not challenging the constitutionality of the Act but he wants to protect his client under Article 20. The Bombay High Court dealt with the question of vires of the Act in the light of the fundamental rights of the citizens and in that connection also came to examine whether the result of the previous prosecutions had any effect on the current FIR or prosecution. The Bombay High Court came to the same conclusion that the result of the previous charge-sheet is not material for our present purpose. While holding the definition of Section 2(1)(d) to be constitutionally valid High Court of Bombay in the case of Bharat Shantilal Shah and Ors. v. The State of Maharashtra Criminal Writ Petition No. 27/2003, observed as under:

27. We also do not find substance in the challenge that the equality clause in the Constitution is violated because the definition ropes in anyone charged more than once, irrespective of whether the charge resulted in an acquittal or conviction. The circumstances that followed the charge are not material. The provision only defines what is continued unlawful activities and refers to whether a person has been charged over a period of ten years for the purpose of seeing whether the person is charged for the first time or has been charged often. The circumstance of conviction or acquittal that followed the charge are not material. The limited purpose is to see antecedents of the person. Not to convict.

18. The definition of the offence, i.e., continuing unlawful activity and organized crime under Section 2(d) & (e) of MCOCA, pre-supposes an earlier trial with filing of the charge-sheet and cognizance being taken by the Court. The acquittal or conviction is not determinative of commission of the offence. Rather, the filing of the charge-sheets and cognizance by the Court are regarded as demonstrative of indulging in and having propensity in unlawful activity or organized crime, which is actionable under the Act.

19. Learned Counsel for the petitioners had laid considerable emphasis in urging that the facts of the cases in which petitioners have been acquitted cannot be taken into account for the purposes of invocation of MCOCA. As noted earlier, the conviction is not a sine qua non for invocation of the offence under Section 2(d) & (e) of MCOCA. The ingredients of the offence to be satisfied are filing of more than one charge-sheet before the Competent Court against a member of the organized crime syndicate and taking of cognizance. The requirement of conviction has understandably not been made one of the ingredients of the offence considering the object sought to be achieved. Respondents have sought to demonstrate the chain and sequence of events, where acquittals have followed witnesses turning hostile or the non-availability of witnesses. Understandably, petitioners cannot be permitted to take advantage of these acquittals, especially which have followed witnesses turning hostile or evidence being obliterated.

20. The petitioner's counsel claim that only the offences registered after the promulgation of MCOCA in Delhi can be taken into consideration for booking a person under MCOCA. He has cited authorities to show that the penal law applicable to an offence is the one that was in force at the time of commission of the offence. According to him since the earlier alleged offences were committed before coming into force of MCOCA in Delhi, those cannot be taken into account for invoking MCOCA. Again as stated earlier, the petitioner is not being prosecuted for whatever he did in the past. He is being prosecuted for continuing with the unlawful activity. Certainly if a person commits no unlawful activity and is not arrested in any case after the invocation of MCOCA, he cannot be arrested under this Act on account of the offence committed by him before coming into operation of MCOCA even if he had been found guilty in them. In case, however, he continues with his unlawful activity and is arrested after the promulgation of the Act, the Act will come into play and he can be arrested and challaned for the act.

21. One of the important points raised by the petitioners is that the FIRs and the charge-sheets recorded against the petitioners prior to the coming into operation of this Act of MCOCA in Delhi cannot be considered as the law has only prospective effect. It is submitted by the counsel for the petitioners that the offences committed prior to 2nd January, 2002 could not be termed as organized crime and the petitioners could not have been termed as organized crime syndicate because at that time the Act was not in force and the offence of the petitioners, if any, could not be either "organized crime" or "continuing unlawful activity". In case the argument of the learned Counsel for the petitioners has to be accepted the first case under this Act can be registered only after two cases of the nature described in the Act had been registered against a person or against an organized crime syndicate after 2nd January, 2002. As the definition shows for making a crime punishable under Sections 3 & 4 of MCOCA, there has to be more than one case registered or in other words it is the third case which can be registered for an offence under Sections 3 & 4 of MCOCA. Such an interpretation will come directly in conflict with the very purpose of the Act. The object of the Act as stated in the extended title of the Act is, "The Act to make special provisions for prevention and control of and for coping with criminal activity by organized crime syndicate or gang and for matters connected with and incidental thereto." If such an interpretation is accepted then the state will have to wait and helplessly watch organized crime taking place till it is the third time a person or a syndicate is found involved in the offence after the Act came into operation in Delhi. It is further to be noticed that "continuing unlawful activity" could have taken place ten years prior to the registration of the new case. Obviously the intention of the legislature could not have been other than giving immediate effect to the Act by taking note of all the offences or charge-sheets registered within ten years prior to the commencement of the Act.

22. Mr. D.C. Mathur, Senior Advocate, referred to certain authorities on the prospectivity of criminal law. K. Subramaniam and Ors. v. State, through Inspector of Police 1988 (3) CRIMES 633 is a case in which prosecution under Section 498A of Indian Penal Code was quashed because the commission of the offence was prior to the coming into operation of Section 498A of IPC. In State of Maharashtra v. Kaliar Koil Subramaniam Ramaswamy 1977 SCC (Cri) 528 the accused charged under Section 5(1)(e) of Prevention of Corruption Act was acquitted as the charge-sheet against him was of being in possession of assets which were disproportionate to his income but on the date of the search/raid the provisions of Section 5(1)(e) which was inserted by Act 40 of 1964 was not in existence. Similar is the circumstance in Soni Devrajbhai Babubhai v. State of Gujarat and Ors. in which it was held that Section 304B of IPC could not be invoked if the death of the victim was caused prior to the section having come into force. None of these cases come near the facts of the present case. As held above, the MCOCA allows taking into consideration FIRs and charge-sheets registered prior to the coming into operation of the Act. The question of prospective operation is connected with such interpretation. The case law cited does not come to the assistance of the petitioners.

23. The respondent/State has given the details of unlawful activity of the petitioner Mohar Singh in the reply affidavit. On 4.11.1995, an FIR was registered being No. 435/95 at P.S. Darya Ganj in which Jag Mohan and Madan as well as Brij Mohan @ Pappu were accused of stabbing and injuring one Raju. Raju had been working at a Dhaba of Gulshan Gulati at Darya Ganj. The injured had asked the accused to pay their outstanding bill of Rs. 70,000/- for food they had consumed at the Dhaba over a long period of time. The second case is of murdering one person doing `pairivi' in the first case. The allegation in this case is that Pawan Gulati, Omkar Gulati, Charanjeet Gulati and Rajkumar Gulati were doing parivi in the case and in order to prevent them from doing parivi the accused sprayed bullets at them killing Pawan Gulati and injuring Charanjeet Gulati and Omkar Gulati. The FIR registered over the incident is No. 853/96 dated 19.8.1996 under Section 302/307/34 IPC at P.S. Kotwali. The third case is intimidating a witness. Witness in the case Omkar Gulati was beaten up at the Tis Hazari Courts, Central Hall and over this incident an FIR against the petitioners, Jag Mohan and his brothers was registered being FIR No. 30/98 dated 23.1.1998 under Sections 323/506/34 IPC at P.S. Subzi Mandi. Omkar Gulati was a witness to the two previous cases against Mohar Singh and his brothers. The witness Omkar Gulati was eventually killed. It is not known whether any FIR over his killing is registered. Mohar Singh was acquitted in the case of murder of Raju. The State alleges that the acquittal could be secured because the witness above named Rajkumar Gulati and Charanjeet Gulati turned hostile on account the threats of Mohar Singh.

24. The fourth case, viz., the FIR No. 350/96 dated 19.8.1996 under Section 506 IPC was registered against the petitioner Mohar Singh and his brothers for having threatened Prabhu Dayal, a tenant in House No. F-230, Mangal Bazar, Laxmi Nagar, New Delhi, purchased by Mohar Singh. The case, however, ended in acquittal as the witness turned hostile. The fifth case, FIR No. 853/96 (over murder of Pawan Gulati) also ended in acquittal on 28.4.1998 on account of witnesses turning hostile.

25. The sixth case, FIR No. 427/96 dated 29.8.1996 under Sections 392/397 was registered against Jag Mohan for having robbed Shri Ramesh Kumar of his Maruti car at gun point. This offence incidentally was committed on the same day on which Pawan Gulati was murdered. This case also ended in acquittal as witnesses including the complainant turned hostile. The FIR No. 30/98 (assaulting witnesses) mentioned above also ended in acquittal for similar reasons.

26. The seventh case in which petitioner Jag Mohan was an accused in case FIR No. 366/98 dated 20.5.1998 under Section 302 for murder of one Satish Kohli, who had dared to depose against him in an earlier FIR being FIR No. 64/94 dated 3.3.1994 under Sections 452/506/323/34 IPC at P.S. Darya Ganj. This case also similarly ended in acquittal on account of witnesses turning hostile. Incidentally Satish Kohli had already got the FIR No. 198/98 dated 25.5.1998 under Sections 506/34 IPC registered alleging threats from Mohar Singh. This case met the same fate as the others mentioned above.

27. Case FIR No. 428/00 dated 5.8.2000 was registered at P.S. Darya Ganj under the Wild Life Protection Act against Mohar Singh. He was arrested again on 29.12.2001 from Gulab Vatika for being in possession of a loaded .35 bore country made pistol with one live round. He was arrested in the case in hand, i.e., FIR No. 521/05 P.S. Connaught Place and was thereafter also arrested in case FIR No. 168/03 under Sections 406/420 IPC for being in possession of Toyota Qualis which was the case property which he was driving when the present offence was committed. Two cases more than 10 years old have also been listed by the respondent/state.

28. The case of the state is that the economic advantage which the petitioner sought to gain by his crime is also clear from this narration of the sequence of crime. The first crime in the sequence mentioned above is the murder of Raju which was caused to prevent him from demanding the sum of Rs. 70,000/- which was due to the Dhaba of Pawan Gulati. The arrest of the petitioner in this case led him to commit subsequent offence of intimidating and killing of witnesses. Therefore, these offences also were committed to gain pecuniary advantage. The threatening of a tenant Prabhu Dayal was done with an intention of removing him from the house in which he was lawfully living as a tenant. Therefore, the pecuniary advantage sought from the alleged offence is clear. The offence of robbery committed in 1996 do not call for any analysis in this regard. The aim of the fraud in which the Toyota Qualis was obtained was also to gain pecuniary advantage.

29. The petitioners allege that there is no continuity in the unlawful activity. There is a long gap between the present case and the previous cases registered against them. This argument cannot be accepted in view of the definition of the term "continuing unlawful activity". What is required is more than one case in the preceding period of ten years. Thus if there are two cases in 1996, MCOCA can be invoked in the year 2006. This definition does not require the prosecution to prove that the unlawful activity has continued from day to day. In fact what the prosecution is required to show is not his unlawful acts or offences but that more than one charge-sheets have been filed against the petitioners in the last ten years. The continuing unlawful activity is made out from the above sequence of cases. Apart from the FIR registered in 1995, 1996, 1998 for heinous offences like murder he was also arrested for offence under Section 25 of Arms Act in 2001 and was found involved in a case of fraud in the year 2003. The present case was registered in 2005.

30. On the point of mala fides, it is submitted by the petitioners that the police is intending to damage the increasing popularity of the petitioners, particularly Jag Mohan amongst the Valmiki community. Photographs showing the petitioners, particularly Jag Mohan @ Mohar Singh organizing rallies and receiving important political figures of the country have been placed on the record to show that the petitioners do have some political clout and are well known amongst the people whom they profess to lead. It is further alleged that while the petitioners are politically active and are available in various public functions, non-bailable warrants against them have been obtained with the sole motive to malign them. The petitioners cite this as indicating malafides.

31. What, however, we have to see is whether the investigation/ prosecution is right in registering the offence of MCOCA against the petitioners. At this stage malice or personal vendetta is not at all a factor which is required to be gone into. The Apex Court in M.Narayandas v. State of Karnataka (2003) 11 SCC 251, relied upon the following observation from the case of State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335:

108. No doubt, there was no love lost between Shri Bhajan Lal and Dharam Pal. Based on this strained relationship, it has been then emphatically urged by Mr. K.Parasaran that the entire allegations made in the complaint due to political vendetta are not only scurrilous and scandalous but also tainted with mala fides, vitiating the entire proceedings. As it has been repeatedly pointed out earlier the entire matter is only at a premature stage and the investigation is not yet proceeded with except some preliminary effort taken on the date of the registration of the case, that is on 21-11-1987. The evidence has to be gathered after a thorough investigation and placed before the court on the basis of which alone the court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, we are sure, the investigation will say so. At this stage, when there are only allegations and recriminations but on evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contention that the complaint should be thrown overboard on the mere unsubstantiated plea of mala fides. Even assuming that Dharam Pal has laid the complaint only on account of his person animosity, that, by itself, will not be a ground to discard the complaint containing serious allegations which have to be tested and weighed after the evidence is collected. In this connection, the following view expressed by Bhagwati, C.J. in Sheonandan Paswan v. State of Bihar

It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides and political vendetta of the first informant or the complainant.

32. If the prosecution is able to produce sufficient evidence to prove that the petitioners in the last ten years have been involved in more than one case of the type which is covered by the definition of continuing unlawful activity, their action in having taken action against the petitioners for the offence under Sections 3 & 4 of MCOCA cannot be faulted with.

33. Mr.Mathur vehemently argues that the offence of MCOCA could not have been added to the FIR No. 521/05 as there is no live link between the offence for which FIR No. 521/05 was registered initially and the offence of MCOCA. According to him a new FIR should have been registered as under MCOCA an offence distinct from the one contained in FIR No. 521/05 has come to light. So far as the point that a new FIR should be registered is concerned, we fail to see how the petitioners are prejudiced by mentioning MCOCA in the FIR No. 521/05 itself because whether there was one FIR or two, investigation has to be done in respect of the initial offence, i.e., under Sections 186/353/411 IPC as well as for offence of MCOCA. When the FIR is initially registered only the information provided by the informer or the complainant is available with the police and initially only those offences are registered which are indicated by the report of the informer. This cannot, at all, mean that if during investigation the police discovers evidence disclosing commission or existence of other offences, the said offences cannot be added to the same FIR and, therefore, new FIRs are required to be registered on disclosure of every new offence. No doubt, if the other offences discovered are altogether independent and new, calling for a new set of investigation altogether, separate FIRs and separate investigations are called for. In case all these offences are registered in one FIR at the time of trial these cases can be bifurcated or separated and tried separately. For any such technical defect the entire case cannot fail and the arrest of the accused cannot become nonest. In the present case what has happened is actually discovery of the offence of MCOCA during investigation of the offence in FIR No. 521/05. It cannot be said that there is no live link between the MCOCA and FIR No. 521/05. On the very first day of information, arrest, raid and interrogation it was revealed that the car in the possession of Jag Mohan was a case property in a case of fraud and the firearm was illegal. The informer had already informed that the petitioner Jag Mohan had been extorting money with the help of a firearm. The behavior of the petitioner Jag Mohan showed propensity for a crime of a high magnitude as he obstructed the police officer in discharge of his duty by aiming illegal firearm at him. Investigation into the crime led to investigation into the previous crimes, namely, of obtaining the illegal firearm and of obtaining the vehicle culminating into discovery of the criminal antecedents. The informer had already informed that Mohar Singh was a dreaded criminal. Thus the natural course of investigation would proceed to unearth the previous criminal activities of petitioner Mohar Singh and previous FIRs and charge-sheets against him.

34. In a case like the present one, MCOCA could not have been added at the very initial stage. MCOCA could be added only after the requisite permission is obtained under Section 21 of the Act. As the facts go raid was carried out immediately on getting the information and within a short time the petitioner Jag Mohan was apprehended with the vehicle and the firearm and was arrested for the offence under Sections 186/353/411 as well as under Sections 25/27 of the Arms Act. MCOCA could not have been added because the required sanction was not there. The sanction is obtained a couple of days later on presentation of more facts that had been revealed after the arrest.

35. Whether the facts revealed after the arrest and presented for obtaining the sanction were enough for conviction is not the subject matter of scrutiny at present. Registration of a case precedes investigation. It cannot be said that before the sanction is granted or before the FIR under MCOCA is registered the police should have had all the facts constituting the offence of MCOCA. Even on suspicion a FIR can be registered. After registration of the case, if investigation fails to procure sufficient evidence an accused may have to be discharged by the police or may have to be released from custody. Conviction is not to be pre-supposed at the time of registration of an FIR or at the time of presentation of the charge-sheet. This Court, therefore, need not go into the question as to whether the facts placed before the Additional Commissioner of Police for obtaining his sanction for adding MCOCA for the purpose of embarking upon investigation in that offence was sufficient to prove the offence. All that is required to be seen is whether there was scope to investigate into an offence of MCOCA. When the sanction for invoking MCOCA was prayed for the investigating officer put up the facts.

36. He first narrated how an information was received about the possibility of Jag Mohan @ Mohar Singh arriving at the spot and how Jag Mohan @ Mohar Singh was arrested with the illegaly procured weapon in his hand. The informer stated that Mohar Singh was a notorious extortionists and a bad character of police station Daryaganj. The vehicle turned out to have been received by fraud, cheating, forgery and misappropriation. The report further discloses that immediately on arrest Jag Mohan @ Mohar Singh was interrogated and in such interrogation certain startling facts were disclosed. Apart from his earlier detention under the National Security Act the other facts showing his involvement in the previous cases of murder, attempt to murder, criminal intimidation, etc. as well as involvement of his brothers as his associates in the crime were also disclosed. The continuing unlawful activity is sought to be made out by a chronological list of the cases against Jag Mohan @ Mohar Singh and his brothers. Before actually invoking MCOCA the facts of the different cases were collated to justify the invocation of MCOCA. These facts when read with the facts disclosed in the application for police remand and facts mentioned in paragraph 21 earlier shows that there was enough material to book the four petitioners under MCOCA.

37. A charge-sheet has now been filed. This Court is not required to go into the question as to whether the offence disclosed in the charge-sheet is sufficient to frame a charge and whether the trial court is justified in refusing bail to the petitioner Mohar Singh. Neither of the two sides have addressed the court on the question of legality or illegality of the petitioner's detention following the filing of the charge-sheet. The scope of the present judgment, therefore, has to be limited to the legality or otherwise of the detention of the petitioner Mohar Singh following inclusion of MCOCA in FIR No. 521/05 and till the charge-sheet is filed. After the charge-sheet is filed the detention is under the general law applicable to all other offences as governed by the provisions of Cr.P.C.

38. The brothers of Jag Mohan @ Mohar Singh, namely, Jai Chand @ Munna, Brij Mohan @ Pappu, Khoob Singh and Sher Singh are the petitioners in W.P. (Crl.) Nos.159-60/2006 & 161-62/2006. The prayer is for quashing the proceedings initiated against them under MCOCA as extended to Delhi vide orders dated 2.1.2002 and for quashing the NBWs against them. At the outset it has to be remembered that quashing of FIR is a relief which is distinct from discharging an accused. An FIR can be quashed if there is any illegality in its registration or if the allegation and information available at the time of registering the FIR does not constitute an offence. In this case after the FIR was registered some investigation has been done and a charge-sheet has been filed. The investigation, however, has not stopped after filing the charge-sheet. The State claims that the investigation is still continuing and that more facts will be submitted when the investigation is completed. For the present this Court only has to see as to whether when the case was registered under MCOCA there was sufficient material against Jagmohan and his four brothers which could constitute such offence. For bringing into play the provisions of MCOCA, it is not necessary that every member of the organized crime syndicate is found present at the scene of crime. If five persons act as a syndicate and if one person commits a crime, the other persons being members of the syndicate will also be liable to be booked. There is enough indication on the record to show that in the past the brothers of accused Jag Mohan @ Mohar Singh had been booked along with him or without him for offences as serious as murder and attempt to murder. The following facts were before the sanctioning authority for their inclusion in the case udner MCOCA:

Jai Chand @ Munna, Khoob Singh and Sher Singh were associates of accused Jag Mohan @ Mohar Singh in FIR No. 64/94 of P.S. Daryaganj. Jai Chand @ Munna, Khoob Singh and Sher Singh along with Jag Mohan @ Mohar Singh were accused in FIR No. 515/95 of P.S. Daryaganj. Brij Mohan was the associate of accused Jag Mohan @ Mohar Singh in FIR No. 435/95 of P.S. Daryaganj. Jai Chand @ Munna and Brij Mohan @ Pappu were jointly accused in FIR No. 853/96. Jai Chand @ Munna, Brij Mohan @ Pappu, Khoob Singh and Sher Singh were all accused in FIR No. 30/98 of P.S. Subzi Mandi. Jai Chand @ Munna, Brij Mohan @ Pappu, Khoob Singh and Sher Singh were all accused in FIR No. 366/98 along with Jag Mohan @ Mohar Singh. All the five brothers were accused in FIR No. 366/98. Jai Chand @ Munna was co-accused with Jag Mohan @ Mohar Singh in case No. 198/95 of P.S. Subzi Mandi.

39. Thus existence of a crime syndicate could be inferred by the Joint Commissioner of Police when he granted sanction for including MCOCA in FIR NO. 525/05. At the time when the sections of MCOCA were included in the FIR, there were allegations of their continuing involvement in crime syndicate particularly in offences of extortion and intimidation. Evidence of the main accused and the brothers having amassed wealth by means of their criminal activities was also being discovered. It is not necessary that every activity of extortion or other offence of violence gets registered in the form of an FIR. Since the allegations are that the brothers are indulging in unlawful criminal activity, even those activities for which no FIR had been registered till then could be taken into account. Thus, the FIR being registered on the basis of available material as discussed above cannot be quashed on the ground that subsequent investigation did not yield any evidence against all the four or against anyone of the four. The sufficiency of the evidence for the purpose of charge can be examined either at the time of summoning of the accused or at the time of framing of charge. When FIR has been rightly registered the police has a right to proceed to arrest the accused. The arrest of the four petitioners, namely, Jai Chand @ Munna, Brij Mohan @ Pappu, Khoob Singh and Sher Singh, have been kept in abeyance and they have been interrogated by the investigation without arrest. The embargo against their arrest is accordingly removed and the State can proceed against them as per law as warranted.

40. All the three writ petitions are accordingly dismissed.