Delhi High Court
State vs Satya Parkash on 3 November, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No. 2138/2010
% Judgment reserved on :28.09.2011
Judgment delivered on:03.11.2011
STATE ..... Petitioner
Through:Ms.Rajdipa Behura, APP for State
versus
SATYA PARKASH ..... Respondent
Through : Mr.Hari Har Guin & Mr.Ashutosh
Bhardwaj, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
SURESH KAIT, J.
1. The State has filed the instant petition, while
challenging the order dated 15.05.2010 passed by learned
Additional Sessions Judge whereby the respondent has been
admitted to regular bail.
2. The brief facts of the case are that on 10.01.2009, a
case under Section 3 (2) (4) of the Maharashtra Control of
Organized Crime Act, 1999 (hereinafter referred as to „MCOC
Act‟) was registered at the police station Nand Ngari, Delhi
vide FIR No.9/2009, against respondent after obtaining
sanction from the Joint Commissioner of Police vide its order
dated 09.01.2009, pursuant to the proposal sent by
Inspector Satish Kumar, SHO police station Nand Nagari
dated 05.12.2008. In the said proposal, six FIRs were
referred to, starting from the year 2007 to 2008 against the
respondent for obtaining the approval from the Joint
Commissioner of police. The particulars of the six FIRs are as
follows:-
a) u/S 25 of Arms Act registered at PS Nand Nagari vide
FIR No.144/2007.
b) u/S 307/506/34 IPC r/w Section 25 of Arms Act at
registered at PS Nand Nagari, vide FIR No.686/2007.
c) u/S 25 of Arms Act registered at PS Seema Puri vide FIR
No.507/2007.
Another three cases are registered at police station
Sahibabad District Ghaziabad, UP as under:-
d) u/S 395/397/412/34 IPC registered at PS Sahibabad
vide FIR No.20/1998.
e) u/S 307/34 IPC registered at PS Sahibabad vide FIR
No.129/2006.
f) u/S 25 Arms Act read with Section 21 NDPS Act.
3. The case of the prosecution is that the respondent
started his criminal activity in the year 1998 and in the
earlier period of his criminal life, several cases of snatching
and robbery were registered against him. Respondent also
formed his own gang with Dinesh Giri and Khurvesh as its
members and stated indulging in serious cases like robbery,
attempt to murder, Arms Act and NDPS Act. Due to some
differences arose among the gang members, he continued
his criminal activities with new members of his gang namely
Meete, Parvez, Bal Kishan, Raj Kumar and other young
ruffians of the area and started operating the gang in an
organized way.
4. Further alleged that the respondent was convicted in a
case under Section 392/397/34 IPC registered at police
station Dilshad Garden, Delhi vide FIR No.14/2003. In
addition to that on 10.08.2007, respondent alongwith his
associates opened gun fire on one Afsar Ali. On 05.01.2008,
he robbed one jewellery shop at Shyam Park Extension,
Sahibabad, District Ghaziabad, UP alongwith his seven
associates. Further alleged that on 04.02.2008, respondent
alongwith his associates opened fire at Mohan Shiva Petrol
Pump, Defence Colony, Sahibabad, District Ghaziabad, UP
thereby causing serious injuries to the salesman of the petrol
pump. On 30.04.2008, respondent alongwith three other
associates were apprehended by the UP police of police
station Sahibabad, District Ghaziabad, UP and one country
made pistol, two live cartridges, 100 Grams heroine and
looted property were recovered from his possession and his
associates.
5. Keeping in view the aforesaid cases and other cases
mentioned in the charge-sheet it has become apparent that
respondent is continuing with the criminal activities and
accumulating wealth and has created a terror in the society.
6. It is further alleged that in furtherance of his activities,
the respondent alongwith his associates committed heinous
crimes in the area of UP with intention to gain pecuniary
benefits and on these allegations the aforesaid FIRs under
the provisions of MCOC Act was registered.
7. During investigation his father Shri Raja Ram was
examined. PW Shri Pawan Kumar s/o Shri Bijender Kumar
also examined; wherein it was revealed that the father of the
respondent had purchased a TATA Indica car bearing
registration No.DL-1Y-A-9787 from Pawan Kumar on
15.11.2007 after making payment of ` 2.00 lacs and
remaining amount was agreed to payable in 24 monthly
instalment of ` 8,150/- i.e. in lieu of remaining instalments
to be paid by Shri Pawan Kumar and has also verified from
the officials of M/s.TATA Motors Finance Limited. It was
further revealed that an amount of ` 3.95 lacs were paid by
Shri Raja Ram, father of the respondent. Letter dated
19.11.2009 duly signed and verified by M/s.Tata Motors
Finance Limited proves the same.
8. Shri Raja Ram, father of the respondent during
investigation revealed that he had sold the aforesaid vehicle
to Laxmi Narain s/o Shri Balbir Singh, House No.604, Mandoli
Extension, Delhi on 25.05.2009 for ` 1.75 lacs. Out of which,
`1.00 lacs was paid to Pawan Kumar, earlier owner of the
vehicle which was adjusted against the amount of ` 3.75
lacs. In view of the aforesaid facts it has been brought on
the record that the amount of ` 2.95 lacs were arranged and
paid by Shri Raja Ram, father of respondent to Pawan
Kumar, during the period from November 2007 to April 2009,
for which no satisfactory explanation was given by the
respondent or his father.
9. Further, it was revealed that the father of the
respondent is a leprosy patient & has been getting ` 1,000/-
per month stipend from the Government. He has been
allotted a dwelling unit No.220, by „Hope Foundation‟ in the
year 1995 at Jai Hind Kushth Ashram, Tahirpur, Nand Nagri,
Delhi. The area of said dwelling unit was approximately 25
square yards, which had been extended by constructing
additional rooms and now it has been extended upto the
area that five rooms have been existence at the ground floor
and five rooms at the first floor. Out of these rooms, some
rooms have been let out to the tenants, due to which, father
of the respondent is earning ` 5,000/- per month as rent. It
is also revealed that costs of construction of these rooms
had been partially met out by respondent from time to time.
It is also revealed that respondent/ father of respondent has
been running a small grocery shop at the said address.
10. Keeping in view the aforesaid facts, it has allegedly
been presumed by the investigating authority that
respondent was being financed by some unknown sources.
During further investigation it was revealed that the father of
the respondent had been allotted permanent account
number PAN ANZPR7620K, but no return has been processed
against this PAN number.
11. Respondent was arrested on 27.05.2009 and his
confessional statement was recorded on 29.05.2007 by
Sh.Surender Singh Yadav, DCP/NE District, as provided under
Section 18(4) MCOC Act.
12. During investigation, I.O. has collected the certified
copy of the charge-sheets filed by police and the cognizance
taken by the Courts and the judgments, wherein respondent
alongwith his associates were involved. In the said challan
under Section 173 Cr. P. C. IO referred the involvement of
the respondent in 12 cases from the year 2001 to 2009.
13. In the confessional statement, respondent disclosed
about the purchase of five countrymade pistols which were
seized by Inspector Yogesh Malhotra of police station Hauz
Khas in FIR No.24/2009 under Section 307/186/323/353/34
IPC and Section 25/27 Arms Act. The house of the
respondent owned by his father Raja Ram bearing No.220,
„Jai Hind Kushth Ashram‟, Tahir Pur, Nand Nagri, Delhi was
also got inspected and evaluated through the authorised
valuer of the immovable property. Sh.O. P. Bhatia,
Authorised Valuer of the immovable property furnished his
report dated 30.10.2009, whereby the actual costs of the
property owned by father of respondent is worth `4,14,000/-.
It is further alleged that despite efforts, no account was
found maintained except a joint account bearing
No.10028223240 in the name of the parents of the
respondent in State Bank of India, Seema Puri Branch, Delhi
wherein the Branch Manager vide its letter dated 13.11.2009
has informed that as on 20.02.2009 the balance was to the
tune of `1,06,988/-.
14. On the other hand, learned counsel for the respondent
argued that there was no material before the sanctioning
authority for invoking the provisions of MCOC Act against the
respondent. After registration of the FIR, there was no
application of mind by the sanctioning authority to grant the
permission to file the charge-sheet. Out of the six cases,
three cases are under Section 25 Arms Act registered at
different police stations in Delhi and three cases are
registered in police stations in UP, under different provisions
of IPC and in the absence of any material of pecuniary gain,
while committing the aforesaid offences, cannot be taken
into consideration for invocation of MCOC Act.
15. Further argued that before invoking provisions of MCOC
Act, the Statement of Object and Reasons for its enactment
had to be considered. On perusal of the material on record,
no ingredients of any pecuniary benefit of undue economic
gain or advantage by the respondent or any other person of
his family are brought on the record. Therefore, the
provisions of MCOC Act were wrongly and arbitrarily invoked.
16. Learned counsel for the respondent placed reliance on
the decision in Altaf Ismail Vs. State 2005(1) Bombay
C.R. (Crl) 833 wherein it has been held as under:-
"The Section 23 of the MCOC Act which
opens with non-obstante clause and further
clothed with negative words clearly
discloses the mandate of the legislature
that the cognizance of the offences under
the MCOC Act should not be in routine
course, but only upon the facts disclosing
the applicability thereof and satisfaction of
the officer of the high rank, the minimum
being of the rank of Deputy Inspector
General of Police in that regard. In fact, the
officer of such high rank is required to
decide about the approval even for
recording of FIR in relation to any offence
under the MCOC Act. This obviously
discloses that the approving authority has
to apply its mind about the applicability of
the provisions of the MCOC Act to the facts
disclosed in a matter before allowing the
recording of FIR and for that purpose, he
must be, prima facie, satisfied about the
commission of offence of organized crime
under the MCOC Act by the person or
persons against whom the FIR is to be
recorded. Obviously, for prima facie
satisfaction regarding the commission of
the offence of organized crime or of
participation therein in whatever manner,
the approving authority must have some
materials before it disclosing the activities
of the person or the persons to be of the
nature of offence under the MCOC Act and
having committed such activities on or
after 24th February, 1999. In other words,
the activities of a person to be termed as
the offence under the MCOC Act, the same
should inevitably disclose to have been
committed on or after 24th February, 1999.
If the activity of the person is relating to
the period prior to 24th February, 1999,
obviously, it cannot be said to be an
offence under MCOC Act, even though the
activity may be an offence under THE
provisions of some other statute in force at
the relevant time. For the same reason,
when the approval is granted for recording
of FIR and the FIR is recorded, then such
FIR should apparently disclose the activities
constituting offence under the MCOC Act
having been committed on or after 24th
February, 1999. When the FIR does not
disclose on the face of it that the offence
was committed on or after 24th February,
1999, obviously, the concerned authority
must be able to establish the said fact, at
least, by referring to the records which
were available and placed before the
concerned authority before granting
approval and before recording FIR.
It should not be understood that the power
vested in the authority under Section 23(1)
of the MCOC Act can be exercised either as
automaton or as autocrat. The power
should be exercised on application of mind
to the facts of the case and with necessary
prudence and circumspection."
17. Further agreed, that all the cases were registered after
extension of the provisions of MCOC Act in Delhi i.e. after
02.01.2002.
18. It is submitted, on perusal of the nature of cases i.e.
one case was registered vide FIR No.686/2007 under Section
25 Arms Act read with Section 307/506/34 IPC, on the basis
of statement of witness Shri Afsar Ali. However, the so
called eye witness, neither been made a witness in the
instant case nor his statement under Section 161 Cr. P. C.
appears to have been recorded.
19. Further submitted, rest of the cases are under Arms
Act. Admittedly, three cases are registered within the
jurisdiction of Delhi and rest three cases are within the
jurisdiction of police station Sahibabad, District Ghaziabad,
UP and the provisions of MCOC Act are not applicable in the
state of UP. The offences which have been committed within
the jurisdiction of State of UP, therefore, cognizance of those
offences could not have been taken by the Courts in Delhi. In
the absence of cognizance taken in the Court of Delhi
jurisdiction, provision of MCOC Act in such nature of cases,
cannot be invoked.
20. Learned counsel for the respondent has pointed out
that on perusal of the disclosure statement made before
Deputy Commissioner of Police by virtue of Section 18 of
MCOC Act, it transpires that the questions were drafted by
the investigating agency with the sole aim to bring the crime
under Section 3(5) of MCOC Act and also to invoke the
definition of organised crime.
21. Further submitted the sole object of Act was to prevent
and control criminal activity by organised syndicate or gangs
and statement object and enactment are that:-
"Organised crime has for quite some years
now come up as a very serious threat to
our society. It knows no national
boundaries and is fuelled by illegal wealth
generated by contract killings, extortion,
smuggling in contrabands, illegal trade in
narcotics, kidnapping for ransom, collection
of protection money and money laundering
etc the illegal wealth and black money
generated by the organised crime is very
huge and has serious adverse effect on
economy."
22. Learned Additional Public Prosecutor argued that the
respondent is hardened criminal and several criminal cases
are pending against him in Delhi and also involved in may
heinous crimes in state of UP.
23. Further argued that once the sanction was accorded by
police officer, there is a presumption that sanctioning
authority had applied its mind. In the instant case, the
confessional statement of respondent was also recorded by
Deputy Commissioner of Police, which is rebuttable
presumption in favour of the prosecution and against the
respondent. No satisfactory explanation with regard to the
accumulation of moveable or immovable property, brought
on record was given by respondent and ingredient of Section
2(d), 2(e) and 2(f) are fully brought on record. Statement of
public witnesses under Section 161 Cr. P. C. namely Surya
Kant Verma s/o Shri Gautam, Deepak Goel s/o Shri Prem
Chand Goel, Pawan Kumar s/o Shri Bijender and Laxmi
Narain s/o Shri Balbir Singh further corroborates the invoking
of provisions of MCOC Act against the respondent.
24. Learned APP also placed reliance on sub Section (4) of
Section 21 of MCOC Act by virtue of which, law relating to
the grant of bail for offence made punishable under
provisions of MCOC Act has been made stringent wherein it
is provided that a person accused of an offence punishable
under MCOC Act should not be granted bail unless, the Court
is satisfied that there are reasonable grounds for believing
that he is not guilty of such offence.
25. Learned Sessions Judge has referred Section 3(1) 2(d)
(f) of MCOC Act and has also discussed the case of Ranjit
Sing Brahmajet Sing (supra) wherein import and scope of
Section 21 (4) of MCOC Act was considered and observed as
under:-
"We are furthermore of the opinion that the
restrictions on the power of the Court to
grant bail should not be pushed too far. If
the Court, having regard to the materials
brought on record, is satisfied that in all
probability he may not be ultimately
convicted, an order granting bail may be
passed. The satisfaction of the Court as
regards his likelihood of not committing an
offence while on bail must be construed to
mean an offence under the Act and not any
offence whatsoever be it a minor or major
offence."
"The wording of Section 21(4), in our
opinion, does not lead to the conclusion
that the Court must arrive at a positive
finding that the applicant for bail has not
committed an offence under the Act. If
such a construction is placed, the court
intending to grant bail must arrive at a
finding that the applicant has not
committed such an offence. In such an
event, it will be impossible for the
prosecution to obtain a judgment of
conviction of the applicant. Such cannot be
the intention of the Legislature. Section
21(4) of MCOCA, therefore, must be
construed reasonably. It must be so
construed that the Court is able to maintain
a delicate balance between a judgment of
acquittal and conviction and an order
granting bail much before commencement
of trial. Similarly, the Court will be required
to record a finding as to the possibility of
his committing a crime after grant of bail.
However, such an offence in futuro must be
an offence under the Act and not any other
offence. Since it is difficult to predict the
future conduct of an accused, the court
must necessarily consider this aspect of the
matter having regard to the antecedents of
the accused, his propensities and the
nature and manner in which he is alleged
to have committed the offence."
26. Learned Trial Court has recorded in the impugned order
that at the time of deciding the bail application, the Court
must bear in mind the purpose of enacting MCOC Act. This
Act was enacted in the year 1999 and extended to NCT of
Delhi on 02.01.2002. It was felt by the legislature that the
existing legal frame was inadequate for controlling the
menace of organised crime. The sole object of the Act was to
prevent and control the criminal activities of organised
syndicate or gangs and for matters connected therewith or
incidental thereto.
27. Keeping in view the object of the enactment of this Act
and before considering the facts and circumstances and
material gathered by the investigating officer, in the present
case, the Trial Court has analysed the material placed on
record by IO with the definition of organized crime as
stipulated in Section 2(e) of MCOC Act which reads as
under:-
"Organised 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."
28. Learned Trial Court has relied upon the observations
made in Ranjit Sing Brahmjeet Sing (surpa) as under:-
"31.Interpretation clauses contained in
Sections 2(d), 2(e) and 2(f) are inter-
related. An „organised crime syndicate‟
refers to an „organized crime‟ which in turn
refers to „continuing unlawful activity‟."
29. The MCOC Act provides for modified application for
certain provisions of the Cr. P. C. It neither modifies Section
300 Cr. P. C. nor makes it inapplicable to trial against MCOC
Act. The settled law that the provisions of MCOC Act are to
be strictly construed. Thus, Section 300 Cr. P. C. cannot be
violated in the absence of any expression provision in MCOC
Act.
30. Learned Trial Court has also relied upon the
observation in Appa @ Prakash Haibhau Londhe Vs.
State of Maharashtra 2006 ALL M.R. (Cri) 2804 as
under:-
"Crimes having been committed prior to
coming into force of the MCOC Act can only
provide a background and cannot in
themselves constitute organized crime."
31. Learned Trial Court has granted bail on following
grounds:-
"1) That the sanction dated 16.01.2009 was
given only on the basis of six cases; out of
which three cases are under Section 25
Arms Act registered in the various police
stations in the territory of Delhi and
remaining three cases are registered in the
State of UP on other provisions of IPC read
with Arms Act etc.
2) In most of the cases shown in the
charge-sheet either the respondent is
acquitted or convicted or is being tried
separately.
3) No proof of pecuniary benefit, pecuniary
gain or pecuniary advantages or any
unlawful advantages are brought on record
by the prosecution due to the direct effect
of the cases allegedly registered against
the respondent."
32. In addition, learned Sessions Judge has also opined
that, "it cannot be said that respondent has no reasonable or
probable defence. He is not likely to commit any offence, in
case he may be released on bail."
33. Learned Trial Court has put the following conditions
upon respondent while granting the bail as under:-
"i) He will not leave Delhi without the
permission of the Court.
ii) He will not make any attempt to tamper
with evidence in any manner.
iii) He will file an affidavit in court on the
above referred points within two days of his
release from jail."
34. Ms.Rajdipa Behura, learned APP for State submits that
learned Sessions Court has wrongly recorded that the
sanction dated 06.01.2009 was given only on the basis of six
cases, out of which three cases are under Section 25 Arms
Act registered at various police stations falling in territory of
Delhi and remaining three cases are registered in State of UP
and other provisions of IPC read with Arms Act etc.
35. Further it is recorded that no proof of pecuniary benefit
being gained or pecuniary advantage or any family member
are brought on the record by the prosecution due to direct
affect of the cases allegedly registered against the
respondent. Learned Trial Court has wrongly recorded that
the respondent has reasonable or probable defence and he
is not likely to commit any offence in case he is released on
bail.
36. She further argued that at the time of taking sanction
from the Joint Commissioner of Police, list of 42 cases were
supplied, wherein the full details were given only of six
cases. The respondent is involved in heinous crimes and is
part of the organised gang. He has committed crime in the
society for pecuniary gain. The proof of the same is that his
father namely Shri Raja Ram had been allotted only 25
square yards of plot with two room house, wherein he further
extended and expanded and made five rooms at ground
floor and five rooms at first floor. Apart, TATA Indica Car
bearing No.DL-1Y-A-9787 has also been purchased by the
father of the respondent. Further agreed while admitting,
the father of the respondent is staying in a „Kusth Ashram‟
and getting `1,000/- per month stipend from the
Government. However, by making said property, he is
getting ` 5,000/- per month rental income. It shows that the
respondent is earning money and the aforesaid assets in the
name of the father is accumulated by him only.
37. Learned APP further submits that the Joint
Commissioner of Police has accorded sanction on 09.01.2009
and passed the following order:-
"I, have perused the proposal submitted by
Inspector Satish Kumar, SHO/PS Nand
Nagri, through DCP/North-East District
containing details of an organized criminal
syndicate being operated by one Satya
Prakash @ Satya @ Satyadev s/o Raja Ram
r/o H. No.20, Kodhi Colony, Nand Nagri,
Delhi. He has operated his gang with
various associates and presently his
associates are Meete, Prevez, Balkishan,
Raj Kumar and some other unknown
persons, who are yet to be identified.
Satya Prkash is the kingpin of this
gang and he operates his crime syndicate
in Delhi, Uttar Pradesh and the surrounding
area. Perusal of list of offences committed
by this gang reveals that these persons are
desperate criminals. Who are habitual of
carrying and using illegal arms. They have
on various occasions used fire arms for
murderous assault on several persons.
Similarly, this gang has committed several
daring dacoties and robberies on gun point
for pecuniary gain.
Form the facts on record in the
proposal which contains the involvements
of Satya Prakash @ Sattee and his
associates Meete, Parvesh, Bal Kishan, Raj
Kumar & some other unidentified persons,
it is revealed that they are running an
organised crime syndicate and are involved
in rampant unlawful activities.
I am further satisfied that these
activities constitute an organized crime by
the members of an organised crime
syndicate as defined in Section 2 of MCOC
Act, 1999, as extended to NCT Delhi and
accused persons are running an organized
crime syndicate. As per the proposal and
documents on record more than one
charge sheets have been filed before the
Court in the last years and the court has
taken cognizance of such offence.
They have been committed organised
crime with the objective of gaining
pecuniary benefits and other advantages
for them and the member of their
organised crime syndicate by unlawful
means.
Therefore, I Dharmendra Kumar, Joint
Commissioner of Police, New Delhi Range,
Delhi in exercise of the power conferred
upon me under Section 23 (I) (a) of the
Maharashtra Control of Organized Crime
Act, 1999 as extended to NCT of Delhi do
hereby grant approval to apply section 3(2)
and 3(4) of Maharashtra Control of
Organized Crime Act, 1999 (as extended to
NCT of Delhi). Sh.Rajesh Deo, ACP, Seema
Puri, shall investigate the case."
38. She relied upon the decision of this Court in Om
Prakash Shrivastava @ Babloo Shirvastava WP (Crl.)
No.375/2007 decided on 15.10.2009 and has referred
para Nos.29 & 30 thereof which are as under:-
"29. In the aforesaid context it was
submitted that Section 2 (d) of the said Act
has different ingredients and it was a new
offence of continuing unlawful activity. It
was submitted that the provision of the
preceding 10 years under Section 2 (1) (d)
of the said Act become redundant and
"more than one charge sheet" would
suffice was the contention of the petitioner
to be accepted. The first offence will not
bring into force Section 3 of the said Act
even if it is after the Act come into force
but if a second offence is committed then it
would be a continuing unlawful activity
within the definition of Section 2 (1) (d) of
the said Act.
30. Learned counsel also sought to draw
strength from the observations of the
Division Bench of this Court in Jagmohan @
Mohar Singh case (supra) where the
relevant provisions of the said Act were
discussed threadbare. The challenge of the
petitioner revolved around the phrase
"preceding period of ten years" in the
definition of Section 2 (d) of the said Act for
continuing unlawful activity. It was pleaded
on behalf of the petitioner that the
expression be read down as being
applicable with effect from the date when
the Act came into force. The Division Bench
observed as under:
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 virus 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."
39. Further submits that the requirement of Section 2(e) ix
not essential if the requirement of Section 2(d) of MCOC Act
for continuing unlawful activity is proved. In support of this
contention, she placed reliance on The State of
Maharashtra Vs. Rahul Ramchandra Taru Criminal
Appeal No.239 of 2011 decided by Division Bench of
Bombay High Court on 06.05.2011 and refers to para
Nos.11 and 15 thereof which read as under:-
"11. In Prafulla s/o. Uddhav Shende vs.
State of Maharasthra, (2009 ALL MR(Cri.)
870), the learned single Judge of this court
while dealing with the bunch of appeals
arising out of judgments passed by the
Special Court at Nagpur, placed reliance on
the various decisions, mainly, the decision
in Ranjeetsingh Brahmajeetsing Sharma;s
case (supra), also made a reference to the
case of Sherbahadur Akram Khan (Supra)
and observed in paragraphs 29, 43 and 44
that :
"29. Since the definitions, though
intertwined in a cyclic order, are clear
and unambiguous, it would follow that
each ingredient in the definitions, or
the alternative thereof provided by
the definitions themselves, would
have to be proved. Viewed thus, for
charging a person of organised crime
or being a member of organised 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 a congnizable offence
punishable with imprisonment for
three years or more,
(iv)undertaken either singly or jointly,
(v)as a member of organised crime
syndicate i.e. acting as a syndicate or
a gang, or on behalf of such
syndicate.
(vi)(a) in respect of similar activities
(in the past) more than one
chargesheets have been filed in
competent court within the preceding
period of ten years,
(b) and the court has taken
cognizance of such offence.
(vii)the activity is undertaken by :
(a) violence, or
(b) threat of violence, or intimidation
or
(c) coercion or
(d) other unlawful means.
(viii)(a) with the object of gaining
pecuniary benefits or gaining undue
or other advantage or himself or any
other person, or
(b) with the object of promoting
insurgency.
"43. This fortifies the conclusion that mere
proof of filing chargesheets in the past is
not enough. It is only one of the requisites
for constituting offence of organised crime.
If only the past charge-sheets were to be
enough to constitute offence of organised
crime, it could have offended the
requirement of Article 20(1) of the
Constitution and possibly Article 20(2) as
well, (and in any case Section 300, Cr.P.C.).
Had these judgments of the Supreme Court
and Division Benches of this Court been
cited before the learned single Judge
deciding Amarsingh Vs. State (2006 ALL MR
(Cri.)407) the learned Single Judge, without
doubt, would not have held that the matter
was simply one of an arithmetical equation.
The said judgment cannot be reconciled
with the judgments of division benches in
Jaising Vs. State (2003 ALL MR (Cri) 1506
and Bharat Shah vs. State 2003, ALL MR
(Cri) 1061 which I am bound to follow.
44. ................ Therefore, since the previous
criminal history of the applicants denotes
that they had been or are being separately
charged/tried for those offence before
competent courts, there is no question of
such offences constituting offence of
organised crime.".
(emphasis supplied)
15. We propose to clarify that to address
the question which is posed in this appeal,
interpretation of expressions "or other
advantage" and "or other unlawful means",
occurring under section 2(1)(e) of MCOCA,
is not strictly necessary. Even if, both the
terms are given wider meaning, the
prosecution is not absolved of its duty to
prove that within the preceding period of
10 years more than one chargesheets,
alleging commission of cognizable offence
punishable with imprisonment of three
years or more, have been filed and further
to prove that in such chargesheets, it has
been alleged that the accused either singly
or jointly and as a member of organized
crime syndicate or on behalf of such
syndicate committed the unlawful activity.
This follows that merely alleging that more
than one chargesheets in respect of
cognizable offence punishable with
imprisonment of three years or more have
been filed, is not sufficient. This does not
satisfy requirements of law. This is what
precisely held by the Supreme Court in the
case of Ranjeetsingh Brahmajeetsing
Sharma (supra). The unlawful activity
alleged in the previous chargesheets
should have nexus with the commission of
the crime which MCOCA seeks to prevent or
control. An offence falling within the
definition of organized crime and
committed by organized crime syndicate is
the offence contemplated by the Statement
of Objects and Reasons under the MCOCA".
40. She submits that the Joint Commissioner of Police after
considering the total cases against him has accorded
sanction after applying due mind.
41. I have perused the original police file, whereby the
proposal for registration of FIR under provisions of MCOC Act
was sent against the respondent. On the last page of said
proposal, there is a interpolation in the date and it is made
as „9.1.09‟ which creates the doubt that the Inspector Satish
Kumar, SHO police station Nand Nagari, Delhi did not put the
facts before the Joint Commissioner of Police with clean
hands.
42. I also note that in the said proposal, there is no
mentioning of any further list of 26 cases. Neither it is
mentioned as annexure nor details thereof. Therefore, the
sanctioning authority also did not discuss about those cases,
while granting the sanction vide its order dated 09.01.2009.
Therefore, it seems that the police authority has been trying
to mislead the Court by relying on the list of number of cases
against the respondent.
43. The total cases referred before the Joint Commissioner
of Police were six cases in fact and out of them only three
cases are registered in Delhi one case is registered under
Section 307/506/34 IPC and remaining two cases under
Section 25 Arms Act. The remaining three cases are
registered in police station Sahibabad, District Ghaziabad,
UP.
44. The MCOC Act is extended to Delhi on 02.01.2002 and
as per the requirement to initiate the proceedings under the
said Act, at least two cases must have been registered after
the said date and in one of the case, the cognizance have
been taken by the Courts. It is also a requirement that
under Section 2(1) (e) that a person should have pecuniary
gain out of that for himself or for any other person or on
behalf of anyone.
45. In the present case, the police has established that two
story house consisting of five rooms each on ground and first
floors on a plot of 25 square yards and one Indica car is in
the name of father of the respondent. However, father of the
respondent, who is beneficiary, as alleged, has not been
made accused. The police could not establish anything
against the respondent or any pecuniary gain which he
earned from committing the alleged crime. Under Section
2(1) (e) it is mandatory that two cases against the said
person should have been registered under the provisions,
wherein, there is a direct or indirect pecuniary gain out of
the crime. In the absence of that, the provisions of MCOC
Act do not apply. For the convenience, the definition of
Section 2(d) and 2(e) are reproduced 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
sheets have been filed before a competent
Court within the preceding period of ten
years and that court has taken cognizance
of such offence.
(e) Organised 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."
46. On perusal of provision of Section 2(d) & 2(e) and after
perusing the original charge-sheet, which is produced by
learned APP, as per the proposal sent by IO of the case, he
has only forwarded six cases which is apparent from the
order dated 09.01.2009 of the Joint Commissioner of Police.
Out of those, three cases are registered in Delhi. All three
cases are registered under provisions of Arms Act and in one
of the cases, other offences of IPC, however, no such case is
registered which indicates any pecuniary gain out of the
alleged three cases.
47. None of the three cases, no offence of pecuniary gain is
indicated. The requirement of Section 2(e) is also not fulfilled
because it requires the crime with the object of gaining
pecuniary benefits or gaining undue economic advantage for
himself or any other person or permitted insurgency.
48. Learned APP has raised three issues on the order
passed by the learned Additional Sessions Judge vide Order
dated 15.05.2010 while granting bail to the respondent,
which according to the petitioner was not justified and hence
not maintainable, therefore, impugned order deserves to be
set-aside.
49. The three issues are as:-
(i) That the Ld ASJ was erred while making the statement
that the special Act of MCOC is not applicable to state of U.P.
(ii) That the opinion/remarks while writing the judgment
that "....the Respondent is not likely to commit any offence
in case he may be released on bail.."
(iii) That the Ld ASJ erred in considering the fact while
granting sanction dated 16/1/2009 was based on three cases
registered in Delhi and those are of „Arms Act‟ although FIR
No.686/07 was registered under 307/506 Indian Penal Code,
1860 r/w 25 of Arms Act.
50. Hereafter, I will discuss the three issues raised by the
petitioner.
51. (i) issue : Whether the said act of MCOC is
applicable to the state of UP?-the bare perusal of the Act of
MCOC wherein section 1(2) makes it clear that „Act‟ is
extended to the whole of NCT of Delhi. In this context there
is nothing in the bare act/context which speak about UP or
Haryana or Himachal Pradesh or any State. Further the
section 1(3) of the said Act clearly speak about the date of
notification of Lt. Governor of Delhi in Delhi gazette, here
also there is not even an iota of mentioning or indication
about consideration or involvement of any other State or
State of U.P. So by any stretch of imagination we cannot
make this Act applicable in other State when it is not
specified in the Act. It is further submitted that in case the
investigating agency satisfies the ingredients of section
2(1)(d) in NCT of Delhi or more than two cases are registered
in Delhi then other cases anywhere in India can be
considered. Further it is submitted that sanctioning authority
under Section 23(1)(a) while giving approval has failed to
consider the material placed before it. The said relevant
materials/documents comprised of these 6 FIRs among
which 3 were registered in UP and remaining 3 FIRs
registered in Delhi.
52. At this juncture the Ld. ASJ has refused to consider the
three cases registered in UP as relevant cases for invoking
section 23(1)(a) when rest of the 3 cases are of „Arms act‟.
53. It was argued that when sufficient material particulars
are not placed before the sanctioning authority the how
come the approval be given under section 23(1)(a). So
invocation of the section 23(1)(a) was invalid and there was
non-application of mind and no consideration was made and
the sanctioning authority even failed to ask for sufficient
material for consideration.
54. At this stage it is advantageous to advert first to the
contention relating to the validity of the sanction, for, if that
contention deserves approval it renders the entire trial
vitiated and then it would be unnecessary to harp on the
other contention.
55. Taking cognizance is the act which the designated
court has to perform and granting sanction is an act which
the sanctioning authority has to perform.
56. Latter is a condition precedent for the former.
57. Thus, a valid sanction is sine quo non for enabling the
prosecution agency to approach the court in order to enable
the Court to take cognizance of the offences under MCOC
Act.
58. The corollary is that, if there was no valid sanction the
designated Court gets no jurisdiction to try a case against
any person mentioned in the report as to the Court is
forbidden from taking cognizance of the offence without
such sanction.
59. The Supreme Court in Rambhai Nathbhai Gadvi &
Ors Vs. State of Gujarat, 1997 (7) SCC 744 and Adnan
Bilal Mulla Vs. State of Maharashtra 2010 All M.R.
(Cri) 1212.
60. (ii) Issue : Whether the opinion/remarks while writing
the judgment that ".... the Respondent is not likely to
commit any offence in case he may be released on bail ....."
is maintainable or justified? It is submitted that it is not
necessary that the learned Additional Sessions Judge must
have the same or similar opinion that of the prosecution.
Even the opinion of two judges may also differ on the same
issue. But the opinion may by learned Additional Sessions
Judge was based upon the then situation and circumstances
of the respondent and his family. The considered view was
taken on the basis of the "leper - handicapped of the father
of the respondent, the ailing mother suffering from „cancer‟
(now admitted and undergoing treatment in Guru Teg
Bahadur Medical College in East Delhi) and the new born
first child of respondent who is suffering from lungs disorder
whose proper care was not taken till date. Further when the
learned Additional Sessions Judge came to know about the
application filed by respondent‟s wife before Ms.Anuradha
Shukla against the UP police and the MM was kind enough to
pass an order dated 20.05.2008 in favour of the
respondent‟s wife. Further the erring police official of UP
filed revision before learned Additional Sessions Judge
Sh.Surender Kumar Sharma, who vide order dated
25.08.2009 has rejected the revision petition. The need of
the hour was considered and was taken into account as at
this situation when younger brother and sister and also the
new born child and mother suffering from „cancer‟ needed
their brother, father and son respectively. So, it is obvious
that the respondent cannot ignore the same and hence the
said „opinion‟ was given by learned Additional Sessions
Judge.
61. (iii) Issue : Whether learned Additional Sessions Judge
was erred in considering the FIR No.686/2007 which was
registered under 307/506/34 IPC read with Section 25 Arms
Act calling it or considering it a case under „Arms Act‟? The
Additional Sessions Judge has not ignored the fact that the
FIR was registered under Section 307/506 IPC is clear from
when we read paragraph (2) (ii) on page 2 of the order dated
15.05.2010. Further it is submitted that learned counsel for
the petitioner has remarked that the counsel of the
respondent has argued the same in paragraph 14 in page 8
of the order dated 15.05.2010. But counsel has failed to
observe or ignored paragraph (17) in page No.11 wherein
the reason for calling the FIR No.686/2007 under „Arms Act‟
was explained by learned Additional Sessions Judge. The
Additional Sessions Judge has observed that in the disputed
FIR No.686/2007 the complainant Afsar Ali was neither made
‟witness‟ in the said case nor his statement under Section
161 Cr. P. .C was recorded. Hence, at the end of the trial
obviously, even if the respondent would have been
convicted, then he could have been convicted only under
„Arms Act‟ (The respondent was acquitted in FIR
No.686/2007). Hence, by calling the FIR No.686/2007 under
„Arms Act‟ is not bad in law. Generally, the duty of the
Court at this stage is not to weigh the evidence meticulously,
but to arrive at finding on the basis of broad probabilities.
However, it was observed by the Apex Court that while
dealing with the special statute like MCOC Act having regard
to the provisions contained in sub-section (4) of Section 21 of
the Act, the Court may have to prove into the matter deeper
so as to enable it to arrive at a finding that the materials
collected against the accused during the investigation may
not justified a judgment of conviction.
62. Additionally, law is settled on bail in Prakash Kadam
Vs. Ramprasad Vishwanath Gupta (2011) 6 SCC 189
wherein it has been observed as under:-
"16. The Sessions Court granted bail to the
appellants but that has been cancelled by
the High Court by the impugned judgment.
17. xxx xxx xxx
18. In considering whether to cancel the
bail the court has also to consider the
gravity and nature of the offence, prima
facie case against the accused, the position
and standing of the accused, etc. If there
are very serious allegations against the
accused his bail may be cancelled even if
he has not misused the bail granted to him.
Morevoer, the above principle applies when
the same court which granted bail is
approached for cancelling the bail. It will
not apply when the order granted bail is
appealed against before an appellant/
Revisional Court.
19. In our opinion, there is no absolute
rule that once bail is granted to the
accused then it can only be cancelled if
there is likelihood of misuse of the bail. The
factor, though no doubt important, is not
the only factor. There are several other
factors also which may be seen while
deciding to cancel the bail."
63. In another case of Apex Court, Bhagirathsingh Vs.
State of Gujarat (1984) 1 SCC 284 wherein it has held as
under:-
"In our opinion, the learned Judge appears
to have misdirected himself while
examining the question of directing
cancellation of bail by interfering with a
discretionary order made by the learned
Sessions Judge. One could have
appreciated the anxiety of the learned
Judge of the High Court that in the
circumstances found by him that the victim
attacked was a social and political worker
and therefore the accused should not be,
granted bail but we fail to appreciate how
that circumstance should be considered so
overriding as to permit interference with a
discretionary order of the learned Sessions
Judge granting bail. The High Court
completely overlooked the fact that it was
not for it to decide whether the bail should
be granted but the application before it was
for cancellation of the bail. Very cogent and
overwhelming circumstances all necessary
for an order seeking cancellation of the
bail. And the trend today is towards
granting bail because it is now well-settled
by a catena of decisions of this Court that
the power to grant bail is not to be
exercised as if the punishment before trial
is being imposed. The only material
considerations in such a situation are
whether the accused would be readily
available for his trial and whether he is
likely to abuse the discretion granted ill his
favour by tampering with evidence. The
order made by the High Court is
conspicuous by its silence on these two
relevant considerations. It is for these
reasons that we consider in the interest of
justice a compelling necessity to interfere
with the order made by the High Court."
64. In Dolat Ram & Ors Vs. State of Haryana:(1995) 1
SCC 349 it has been observed as under:-
"Rejection of bail in a non-bailable case at
the initial stage and the cancellation of bail
so granted, have to be considered and
delay with on different basis. Very cogent
and overwhelming circumstances are
necessary for an order directing the
cancellation of the bail, already granted.
Generally speaking the grounds of
cancellation of bail, broadly (illustrative and
not exhaustive) are: interference or
attempt to interfere with the due course of
administration of justice or evasion or
attempt to evade the due course of justice
or abuse of the concession granted to the
accused in any manner. The satisfaction of
the Court, on the basis of material placed
on the record of the possibility of the
accused absconding is yet another reason
justifying the cancellation of bail. However,
bail once granted should not be cancelled
in a mechanical manner without
considering whether any supervening
circumstances have rendered it no longer
conducive to a fair trial to allow the
accused to retain his freedom by enjoying
the concession of bail during the trial.
These principles, it appears, were lost sight
of by the High Court when it decided to
cancel the bail, already granted. The High
Court it appears to us overlooked the
distinction of the factors relevant for
rejecting bail in a non-bailable case in the
first instance and the cancellation of bail
already granted".
65. Giving any opinion on the facts of the case at this stage
would prejudice the trial as the matter is still in its infancy.
However, it is well settled that once bail is granted the same
should not be cancelled in a mechanical manner, without
considering whether any supervening circumstances have
rendered it no longer conducive to a fair trial, to allow the
accused, to retain his freedom by enjoying the concession of
bail during trial.
66. I find there is a interpolation in the proposal sent by the
IO to the Joint Commissioner of Police. Therefore, proposal
itself is doubtful. Consequently, the sanctioning order dated
09.01.2009 have the same fate.
67. I note learned Trial Court has wrongly recorded the fact
that the sanction dated 06.01.2009, whereas the order is
dated 09.01.2009 and has also recorded wrongly that only
on the basis of six cases, out of them three registered in
Delhi and three at police station Sahibabad, District
Ghaziabad, UP. Out of the cases registered in territory of
Delhi, only case FIR No.686/2007 registered under Section
307/506/34 IPC read with Section 25 Arms Act at police
station Nand Nagri, Delhi. This fact does not affect the case
because none of the cases, out of these three cases, is of
pecuniary gain, therefore, requirements of Section 2(e) of
MCOC Act are not fulfilled.
68. For the reasons stated above I am of the considered
view that no ground to interfere with the impugned order
passed by learned Trial Court is made out. The said order is
a well reasoned order and I conquer with the same.
69. It is made clear that the observations made in this
order shall not come in the way during trial proceedings.
70. Consequently, Criminal M.C.No.2138/2010 is hereby
dismissed.
71. Before parting with the present order, it is expected
from the Trial Court to make an endeavour after affording
reasonable opportunity to parties to submit on the point of
charge, to pass an appropriate order on charge at the
earliest, as matter is pending for charge since long. It is also
open for the Trial Court to pass order on charge on the basis
of the material available before it.
72. No order as to costs.
SURESH KAIT, J
November 03rd 2011
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