Delhi High Court
Sandeep vs State on 19 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :15.09.2014
Judgment delivered on : 19.09.2014
+ CRL.REV.P. 714/2013 & Crl. M.A. No.18769/2013
SANDEEP ..... Petitioner
Through Mr. Sudhir Nandrajog, Sr. Adv.
with Mr.Sumit Chaudhary, Adv.
versus
STATE ..... Respondent
Through Ms. Kusum Dhalla, APP along
with SI Ajay Karan Sharma.
+ BAIL APPLN. 1492/2014
SANDEEP KUMAR ..... Petitioner
Through Mr. Sudhir Nandrajog, Sr. Adv.
with Mr. Sumit Chaudhary, Adv.
versus
STATE ..... Respondent
Through Ms. Kusum Dhalla, APP along
with SI Ajay Karan Sharma.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
CRL.REV.P. 714/2013 & Crl. M.A. No.18769/2013
1 This revision petition is directed against the impugned order dated
27.07.2013 wherein petitioner Sandeep has been charged under Section
3 (2) and Section 3 (4) of the Maharashtra Control of Organized Crime
Act, 1999 (hereinafter referred to as the „MCOCA‟).
2 Record shows that the present petitioner, along with 15 other
persons, has been charge-sheeted under Section 3 of the MCOCA. The
version of the prosecution is that Amit @ Babloo is a contract killer and
takes "supari" (contracts) for killing people. He has an inter-state gang
for the said purpose. Amit @ Babloo was arrested in FIR No.62/2006
dated 22.02.2006 registered under Section 302/34 of the IPC at PS
Bawana along with his associates including the present petitioner.
During the course of investigation of that FIR, it was revealed that the
present petitioner, nephew of deceased Jai Prakash, had inimical terms
with his uncle due to a dispute over a parcel of land in Bawana. Further
investigation revealed that a conspiracy for the murder of Jai Prakash
(uncle of the petitioner) had been hatched for which purpose a sum of
Rs.2 lacs in advance had been paid to Amit @ Babloo and the value of
the contract to kill was set at Rs.10 lacs.
3 The evidence collected against the petitioner was that he had
engaged the services of Amit @ Babloo and his associates for killing his
uncle Jai Prakash with whom he had a dispute and for this purpose, he
had paid an advance sum of Rs.2 lacs. On 19.03.2005, the present
petitioner was arrested in connection with FIR No.261/2010 dated
20.03.2006 under Sections 25/54/59 of the Arms Act for illegal
possession of an arm registered at PS Nangloi.
4 In the charge-sheet filed, the details of three FIRs pending against
the petitioner had been detailed. They are as follow:-
(i) FIR No.142/2000 dated 20.05.2000 registered under Sections
498-A/406 of the IPC, registered at PS Gannaur.
(ii) FIR No.62/2006 dated 22.02.2006 registered under Sections
302/34 of the IPC at PS Bawana for contract killing of Jai Prakash and;
(iii) FIR No.261/2006 dated 20.03.2006 registered under Section 25 of
the Arms Act for having been found in the illegal possession of a
country made pistol.
5 The foremost submission of the learned senior counsel for the
petitioner is that the petitioner had engaged the services of Amit @
Babloo and his gang; he was not a member of the so called organized
crime syndicate being run by Amit @ Babloo. He was in fact a client
who had engaged the services of a professional gang; he thus being
neither a member of the organized crime syndicate and nor acting on
behalf of the said syndicate, does not qualify to be charge-sheeted for
having committed an offence under Section 3 of the MCOCA. To
substantiate his argument, attention has been drawn to the definition of
"continuing unlawful activity" as contained in Section 2 (1)(d) of the
MCOCA. It is pointed out that "organized crime" has been defined
under Section 2 (1)(e) and an "organized crime syndicate" is defined
under Section 2 (1)(f); submission being reiterated that unless and until
the petitioner qualifies either as a member of an organized crime
syndicate or is acting on behalf of such a syndicate, he cannot be
encompassed within the provisions of the MCOCA. Learned senior
counsel for the petitioner points out that the trial Judge also noting the
three cases which were pending against the petitioner had thought it fit
to note that FIR No. 142/2000 registered under Section 498-A/406 of
the IPC was a personal matter; Section 25 of the Arms Act was also
punishable with imprisonment up to three years and both these FIRs
thus would not be relevant for the purposes of deciding whether the
petitioner is guilty of a continuing unlawful activity.
6 Arguments have been refuted. Learned counsel for the State has
pointed out that the present petitioner has a close nexus with the gang of
Amit @ Babloo, who was admittedly the leader of the crime syndicate.
Submission being that even if he was not an active member, the very
fact that he was associated with this gang would prima-facie be
sufficient material for the Court to have framed charges against him;
further submission being that it is an admitted case of the petitioner
himself that he had hired the services of Amit @ Babloo (who was the
leader operating this inter-state gang). Learned counsel for the State has
placed reliance upon a judgment delivered on 01.11.2011 in Bail
Application No.1440/2011 (Narender Kumar Vs. State of Delhi) by a
Bench of this Court to support this argument.
7 Arguments have been heard.
8 A "continuing unlawful activity" as defined in Section 2 (1)(d) is
any activity prohibited by law which is a cognizable offence punishable
with imprisonment of three years or more in respect of which one
charge-sheet has been filed within the preceding 10 years and of which
the Court has taken cognizance. An "organized crime" is such a
continuing unlawful activity undertaken by an individual, singly or
jointly either as a member of an organized crime syndicate or on behalf
of such syndicate.
9 This issue as to whether a person who is not involved in more
than one offence could be covered within the ambit of Section 3 of the
MCOCA had come up for consideration before the Bombay High Court
in MANU/MH/0427/2009 Govind Sakharam Ubhe Vs. State of
Maharashtra and Others wherein it was held that where within the
preceding 10 years, one charge-sheet has been filed in respect of an
organized crime committed by a member of that crime syndicate, that
charge-sheet can be taken into consideration for the application of the
MCOCA even if his involvement is only in that case alone.
10 This Court is in agreement with this proposition. This is
especially so keeping in mind the object for which the MCOCA was
enacted i.e. to make special provisions for prevention and control of
organized crime syndicates and for coping with such activities;
construing Section 2 (1)(d) in a narrower ambit would defeat the object
of the MCOCA. What is contemplated under Section 2 (1)(d) of the said
Act is that the activities prohibited by law for the time being in force
which are punishable as described therein have been undertaken jointly
or singly as a member of an organized crime syndicate and in respect of
which more than one charge-sheet has been filed. Stress and emphasis is
on the unlawful activity committed by the organized crime syndicate.
The requirement of one or more charge-sheet is qua the unlawful
activities by such an organized crime syndicate.
11 In the present case, the petitioner is closely linked with the crime
syndicate which was being run by Amit @ Babloo. The petitioner had
given a contract (supari) to Amit @ Babloo for killing his uncle and
who in fact had been killed. FIR No.62/2006 had been registered on
22.02.2006 under Section 302/34 of the IPC against Amit @ Babloo and
the present petitioner along with other persons. Cognizance has already
been taken in that charge-sheet.
12 This charge-sheet has been filed later in time wherein the
petitioner has been charged under Sections 3 (2) and 3 (4) of the
MCOCA.
13 Section 3 (2) read herein as follows:-
"3. Punishment for organized crime.- (1)xxxxxxx
(2) Whoever conspires of attempts to commit or advocates, abets or knowingly
facilitates the commission of an organized crime or any act preparatory to
organized crime, shall be punishable with imprisonment for a term which shall be
not less than five years but which may extent to imprisonment for life and shall also
be liable to a fine, subject to a minimum fine of Rupees five lacs."
14 The word „abet‟ has been defined in Section 2 (a). It reads as
follows:-
"(a) "abet", with its grammatical variations and cognate expressions, includes --
(i) the communication or association with any person with the actual knowledge
or having reason to believe that such person is engaged in assisting in any manner,
an organized crime syndicate;
(ii) the passing on or publication of, without any lawful authority, any
information likely to assist the organized crime syndicate and the passing on or
publication of or distribution of any document or matter obtained from the
organized crime syndicate; and
(iii) the rendering of any assistance, whether financial or otherwise, to the
organized crime syndicate."
15 As per the admission of the petitioner himself, he was the person
who had hired the services of Amit @ Babloo to kill his uncle. FIR
No.62/2006 registered under Section 302/34 of the IPC is pending qua
that offence. The active participation on the part of the petitioner to
have facilitated the act of murder is writ large in the argument made by
the petitioner himself. As per his own admission, he had rendered
financial assistance to the organized crime syndicate of Amit @ Babloo
to commit the act of murder. This qualifies as an "abetment".
16 Section 3 (4) is the penal provision for being a member of an
organized crime syndicate. The definition of "organized crime
syndicate" as contained in Section 2 (f) of the MCOCA does not speak
of a member. It defines an organized crime syndicate to be a group of
two or more persons, who acting singly or collectively as a gang,
indulge in activities of organized crime. The word „member‟ is
conspicuously absent in the definition of Section 2 (f). What is relevant
is the association and connection of the person with the organized crime
syndicate. The nexus and link of the petitioner with the organized crime
syndicate is prima-facie established; this in fact is the crux of the use of
the words "continuing unlawful activity".
17 On no ground can it be said that the impugned order framing
charge against the petitioner suffers from any infirmity.
18 In 2010 (10) SCC 604 Sansar Chand Vs. State of Rajasthan, the
Apex Court while dealing with an appeal against conviction under the
MCOCA read with Section 51 of the Wildlife (Protection) Act, 1972
had inter-alia noted as under:-
"It must be mentioned that persons like the appellant are the head of a gang of
criminals who do illegal trade in wildlife. They themselves do not do poaching, but
they hire persons to do the actual work of poaching. Thus a person like the appellant
herein remains behind the scene, and for this reasons it is not always possible to get
direct evidence against him."
19 In this case, the hirer i.e. person who had hired the services of
another to carry out the "continuing unlawful activity" was held guilty.
20 This revision petition is without any merit. It is dismissed.
BAIL APPLN. 1492/2014
21 Learned senior counsel for the petitioner has reiterated the same
arguments i.e. those addressed on charge, for the purpose of bail as well.
Petitioner is stated to be in judicial custody since 13.12.2010. This Court
has dismissed the revision petition challenging; the order of framing
charge under Sections 3 (2) and 3 (4) of the MCOCA against the present
petitioner thus stands.
22 These charges against the petitioner are grave and serious. Such
an offence for which the petitioner has been charged is punishable with
imprisonment which may extend to life, with a minimum of five years.
Evidence is yet to be led.
23 No ground is made out for bail at this stage. Dismissed.
SEPTEMBER 19, 2014/A INDERMEET KAUR, J
