Delhi High Court
Digvijay Saroha vs State on 23 September, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on: 29.08.2019
% Order delivered on: 23.09.2019
+ BAIL APPLN. 1638/2019
DIGVIJAY SAROHA ..... Petitioner
Through: Mr. Akhand Pratap Singh,
Advocate
versus
STATE ..... Respondent
Through: Mr. G. M. Farooqui, APP for
State with Inspector Sanjay
Gupta from PS-Spl. Cell.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
ORDER
BRIJESH SETHI, J.
1. The Petitioner herein, Digvijay Saroha has preferred the
present bail application seeking regular bail under section 439 of
the Code of Criminal Procedure (Cr.P.C) read with Section 12 &
21(4) of Maharashtra Control of Organised Crime Act, 1999
(MCOCA) in case FIR No. 252/2018, P.S. Alipur under sections
3 & 4 of MCOCA titled State v. Digvijay Saroha & Ors. pending
adjudication before Ld. ASJ-03, Patiala House Courts, New Delhi.
Bail Appl. No. 1638/2019 Page no.1
2. Ld. Counsel for the petitioner has prayed for bail on the
ground that the petitioner who is facing trial under section 3 and 4
of MCOC Act and has been in judicial custody since 24.06.2018.
He had filed an application seeking bail before Ld. Trial Court and
vide order dated 07.06.2019, the Ld. Trial Court has dismissed the
bail application. Learned counsel for the petitioner has submitted
that allegations against the petitioner are totally false and frivolous.
He is shown to be a member of the Jitender @ Gogi Syndicate.
Whereas he is an accused only in one FIR bearing no. 401/14, u/s.
307/34 IPC, PS Alipur and on the basis of the said FIR, the
prosecution is claiming him to be a member of the Jitender @ Gogi
syndicate. Minimum two FIRs are required to have been registered
against the petitioner to invoke MCOCA. Ld. Trial Court has failed
to appreciate the fact that essential ingredients of Sec. 2(d) of
MCOCA are not made out. It is further argued that even
requirement of Section 23 (1) (a) of the MCOC Act was not
complied with as no document was sent to the Competent
Authority while seeking approval under the said Act.
Bail Appl. No. 1638/2019 Page no.2
4. It is further submitted that Ld. Trial Court has failed to
appreciate that prosecution in its proposal had not placed any copy
of the chargesheet which they are alleging to be that of a crime
syndicate. At the time when the proposal was sent, there was no
evidence with the investigating officer to show that there were
some proceeds of crime from the offences committed by the
petitioner. There was no evidence before Sanctioning Authority to
come to the conclusion that petitioner is a member of crime
syndicate.
5. It is further submitted by Ld. Counsel that on the date of
commission of offence, the ingredients of Section 3 of MCOCA
were not made out. The petitioner is not involved in continuing
unlawful activity and as per Section 2 (d) of MCOCA, more than
one chargesheet should have been filed against the petitioner
within the preceding period of 10 years. Whereas, only one
chargesheet is pending against him. Thus, prima facie there was no
justification to invoke the provisions of MCOCA.
6. It is lastly submitted by Ld. Counsel that Ld. Trial Court has
failed to appreciate that statement of Ms. Nikita Dahiya recorded
Bail Appl. No. 1638/2019 Page no.3
u/s. 161 CrPC was not placed before the sanctioning authority and
in view of irregularities and infirmities in the prosecution version,
the petitioner be released on bail, in the interest of justice.
7. In support of his argument, learned counsel for petitioner
has relied upon the following judgments;
i. State v. Satya Prakash [Crl. M. C. No. 2138 of 2010 of Delhi
High Court].
ii. Altaf Ismail v. State [2005(1) Bombay C.R. (Crl) 833].
iii. Maharashtra v. Lalit Somdatta Nagpal [2007] 2 SCC (cri)
241].
iv. Pankaj Jagshi Gangar v. State of Maharashtra, Cr.W.P. No.
4639/2018.
v. Chenna Boyanna Krishna Yadav v. State of Maharashtra &
anr.
vi. Mahipal Singh v. CBI (2014) 11 SCC 282.
8. The Bail Application is vehemently opposed by the State.
The learned Additional Public Prosecutor Mr. G. M. Farooqi,
submitted that offences alleged against the accused are serious in
nature. He further submitted that complete material was present
before the approving authority while taking approval u/s. 23(1) &
23(2) of the MCOCA. Ld. APP has further submitted that there is
sufficient material on record to show that petitioner Digvijay
Saroha was member of crime syndicate of Jitender @ Gogi and
petitioner has committed organized crime. It is further submitted
Bail Appl. No. 1638/2019 Page no.4
that there is rivalry of supremacy between Jitender @ Gogi and
Sunil @ Tillu gang. Both the gang leaders belong to outer Delhi.
Due to their rivalry, more than 10 murders have taken place. On
18th June 2018, in the area of Sant Nagar, Burari, two innocent
persons were killed by Gogi gang besides killing of one gang
member each from both the groups. In March 2016, Jitender @
Gogi was arrested by the police but on 31.07.2016, his armed
associates got him forcefully released from police custody while he
was being taken to court in Haryana. Since then he has been
continuously involved in illegal activities and committing heinous
crimes and eliminating the members of rival gang.
9. It is further submitted by Ld. APP that gang members of
Jitender @ Gogi are committing unlawful activities continuously
for gaining some pecuniary benefits for themselves, their family
members & members of their organized crime syndicate and for
other advantages as well. The criminal history indicates that
Jitender @ Gogi and the other members of his organized crime
syndicate singly or jointly have used violence by beating or firing
and threatening the complainants/ victims of those cases which are
Bail Appl. No. 1638/2019 Page no.5
registered against the organized crime syndicate with the objective
of gaining unlawful pecuniary benefits, or gaining undue economic
or other advantages for himself or other members of his gang. The
following cases have been registered against Jitender @ Gogi and
his gang members;
SN FIR No. Police Station Under Section
1 61/10 Alipur, Delhi 341/323/427/506/34 IPC
2 95/10 Alipur, Delhi 307/34 IPC & 25/27/54/59 Arms
Act.
3 773/11 Jhajhhar, Haryana 380/454 IPC
4 123/12 Crime & Rly, Delhi 25/54/59 Arms Act
5 303/13 Gohana, Sonipat 125-B IPC & 25/54/59 Arms
Act
6 320/13 Gannaur, Sonipat 48/149/323/506/34 IPC
7 401/14 Alipur, Delhi 307/34 IPC & 27/54/59 Arms
Act.
8 60/15 Mahindra Park, 302/34 IPC & 25/27/54/59 Arms
Delhi Act.
9 43/15 Narwana, Sadar, 302/148/149/120-B/216 IPC &
Haryana 25/54/59 Arms Act.
10 838/15 Alipur, Delhi 307/34 IPC
11 897/15 Alipur, Delhi 302/34 IPC & 25/27/54/59 Arms
Act.
12 1124/15 Alipur, Delhi 392/397/34 IPC
13 173/16 Alipur, Delhi 392/397/411/34 IPC
14 102/16 Samalkha, Panipat 297/336/186/353/307/34 IPC
15 150/16 Narwana, Sadar, 174-A IPC
Haryana
16 380/16 Sadar Bahadurgarh 341/332/353/186/224/225/223/3
Jhajjar, Haryana 95/397/120-B IPC and 25/54/59
Arms Act.
17 62/17 Alipur, Delhi 307 IPC and 25/27 Arms Act.
18 257/17 Israna, Panipat 302/34 IPC
Haryana
19 340/17 Sawroop Nagar, 302/34 IPC & 25/27/54/59 Arms
Delhi Act
Bail Appl. No. 1638/2019 Page no.6
20 38/18 Prashant Vihar, 302/307/34 IPC & 25/27/54/59
Rohini Arms Act
21 288/18 Burari, Delhi 302/307/34 IPC
22 502/18 Gannaur, Sonipat 307/34 IPC & 25 Arms Act.
23 132/18 Moohana, Sonipath 120-B/115 IPC r/w. 25 Arms
Act.
24 18/19 Israna, Panipat 307/341/34 IPC 25/27 Arms Act
25 62/19 Gurugram, 25 Arms Act.
Haryana
26 328/19 Bawana, Delhi 387/34 IPC
27 333/19 Bawana, Delhi 336 IPC & 25/27 Arms Act
10. It is further submitted by Ld. APP that in the present case,
accused Digvijay Saroha and five more accused persons have been
arrested. Accused Digvijay was arrested in this case on 24.06.2018
as he is an active member of 'Organised Crime Syndicate' led by
notorious criminal Jitender @ Gogi. Ld. APP for the State further
submitted that petitioner/ accused Digvijay Saroha was previously
arrested with accused Jitender @ Gogi, in case FIR No. 401/2014,
dated 27.04.2014, u/s. 307/34 IPC, PS Alipur, Delhi. Ld. APP has
further submitted that sufficient material was placed before the
Sanctioning Authority while seeking approval u/s. 23(1) (a) of
MCOC Act. Sanction was also granted by Sanctioning Authority
after application of mind. He further submitted that during
investigation, one witness namely Ms. Nikita Dahiya has deposed
that this 'Orgainised Crime Syndicate' used to collect extortion
Bail Appl. No. 1638/2019 Page no.7
money from her and accused Digvijay Saroha is one of the
associates of this gang, who used to collect protection money from
her. It is further submitted that statements of two accused persons
namely Dinesh and Yogesh were recorded on 10.08.2018 u/s. 18
MCOC Act and these statements were duly vetted by the Ld.
ACMM, Patiala House Court. Accused Yogesh has admitted that
Digvijay Saroha is a member of Jitender @ Gogi gang.
11. Ld. APP for the state has further argued that it is wrong to
assert that minimum requirement to invoke MCOCA against any
individual is requirement of two FIRs against the said person. Ld.
APP has submitted that the facts appearing on record establish that
the petitioner accused has had a clear role in facilitating and
abetting the commission of the organized crime by Jitender @ Gogi
and his associates in the crime syndicate and he accordingly prayed
for dismissal of the present bail application.
12. I have heard the learned counsel for the petitioner and the
learned APP for the State and am of the opinion that there is no
merit in the bail application as there is sufficient material available
on record to, prima facie, indicate the involvement of the petitioner
Bail Appl. No. 1638/2019 Page no.8
in abetting, conspiring and knowingly facilitating the commission
of organized crime alleged to have been carried out by Jitender @
Gogi and his associates. The judgments cited by Ld. Counsel for the
petitioner on sanction are not relevant for the reason that
prosecution has categorically submitted that all relevant material
was placed before Sanctioning Authority before grant of sanction
and moreover at the stage of bail, the Court is not supported to go
into the facts in detail and give a finding that sanction is in
accordance with law or not. This issue will be decided by the Ld.
Trial Court at appropriate stage during the trial. So far as contention
of Ld. Counsel that since two chargesheets were not in existence
against the petitioner at the time of invocation of provisions of
MCOCA and, therefore, requirement of Sec. 2(d) of the MCOC Act
is not fulfilled, is concerned, there are two judgments to refute the
said submission. One is that of Bombay High Court and another one
is of Hon‟ble Supreme Court. The Hon‟ble Division Bench of
Bombay High Court in a case titled 'Govind Sakharam Ubhe v.
State of Maharashtra, 2009 SCC OnLine Bom 770', has
interpreted the words "in respect of which more than one charge-
Bail Appl. No. 1638/2019 Page no.9
sheet have been filed" used in section 2(d) of the Act and has held
as follows:
"35. It is now necessary to go to the definition
of `continuing unlawful activity'. Section
2(1)(d) defines `continuing unlawful activity'
to mean 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 chargesheet
have been filed before a competent court
within the preceding ten years and that court
have taken cognizance of such offence. Thus,
for an activity to be a `continuing unlawful
activity' -
a) the activity must be prohibited by law;
b) it must be a cognizable offence punishable
with imprisonment of three years or more;
c) it must be undertaken singly or jointly;
d) it must be undertaken as a member of an
organized crime syndicate or on behalf of such
syndicate
e) in respect of which more than one charge-
sheet have been filed before a competent court.
36. The words 'in respect of which more than
one charge-sheet have been filed' cannot go
with the words 'a member of a crime syndicate'
because in that case, these words would have
read as 'in respect of whom more than one
charge-sheet have been filed'.
37. A person may be a part of the module
which jointly undertakes an organized crime or
he may singly as a member of the organized
crime syndicate or on behalf of such syndicate
undertake an organized crime. In both the
situations, the MCOCA can be applied. It is
the membership of organized crime syndicate
which makes a person liable under the
MCOCA. This is evident from section 3(4) of
Bail Appl. No. 1638/2019 Page no.10
the MCOCA which states that any person who
is a member of an organized crime syndicate
shall be punished with imprisonment for a
term which shall not be less than five years but
which may extend to imprisonment for life and
shall also be liable to fine, subject to a
minimum of fine of Rs.5 lakhs. The charge
under the MCOCA ropes in a person who as a
member of the organized crime syndicate
commits organized crime i.e. acts of extortion
by giving threats, etc. to gain economic
advantage or supremacy, as a member of the
crime syndicate singly or jointly. Charge is in
respect of unlawful activities of the organized
crime syndicate.
38. In order to substantiate our construction of
Section 2(1)(d) of the MCOCA, we will take
hypothetical example of accused 1(A), accused
2(B), accused 3(C) and accused 4(D), who are
members of the organized crime syndicate and
who have committed crimes within preceding
ten years. Insofar as accused A is concerned, it
is alleged that he has committed an offence
resulting in the death of any person which is
punishable with death or imprisonment for life
as described in Section 3(1) of the MCOCA.
Accordingly, one charge-sheet is filed against
him. Insofar as accused B is concerned, it is
alleged that he has committed an offence
resulting in the death of any person which is
punishable with death or imprisonment for life
as described in Section 3(2) of the MCOCA.
Accordingly, one charge-sheet is filed against
him. Likewise, insofar as accused C is
concerned, it is alleged that he has committed
an offence resulting in the death of any person
which is punishable with death or
imprisonment for life as described in Section
3(3) of the MCOCA. Accordingly, one charge-
sheet is filed against him. Finally, it is alleged
that accused D is a member of organized crime
syndicate as described in Section 3(4) of the
MCOCA and as such has indulged in
Bail Appl. No. 1638/2019 Page no.11
organized crime and against whom also one
charge-sheet is filed.
39. The submission on behalf of the appellant
is that even though all the four accused
namely, A, B, C and D may be members of the
organized crime syndicate since against each
of the accused not more than one chargesheet
is filed, it cannot be held that they are engaged
in continuing unlawful activity as
contemplated under Section 2(1)(d) of the
MCOCA. Apart from the reasons which we
have given hereinabove as to why such a
construction is not possible, having regard to
the object with which the MCOCA was
enacted, namely to make special provisions for
prevention and control of organized crime
syndicate and for coping with criminal activity
by organized crime syndicate, in our opinion,
Section 2(1)(d) cannot be so construed. Such a
construction will defeat the object of the
MCOCA. What is contemplated under Section
2(1)(d) of the MCOCA is that activities
prohibited by law for the time being in force
which are punishable as described therein have
been undertaken either singly or jointly as a
member of organized crime syndicate and in
respect of which more than one charge-sheets
have been filed. Stress is on the unlawful
activities committed by the organized crime
syndicate. Requirement of one or more charge-
sheet is qua the unlawful activities of the
organized crime syndicate." (Emphasis
supplied)
15. The Hon‟ble Supreme Court in a judgment titled 'Prasad
Shrikant Purohit v. State of Maharashtra, 2015 Supreme Court
Cases 440, has also observed in Para 66 as follows:
"In this respect, we will have to bear in mind
that the implication of MCOCA would come
into play only after the third occurrence takes
Bail Appl. No. 1638/2019 Page no.12
place and only after that it will have to be seen
whether on the earlier two such occasions
involvement of someone jointly or singly,
either as a member of an 'organized crime
syndicate' or on its behalf indulged in a crime
in respect of which a charge-sheet has already
been filed before the Competent Court which
Court had taken cognizance of such offence."
16. Similarly Hon‟ble Supreme Court in another judgment
'Brijesh Singh @ Arun Kumar And Anr., (2017) 10 Supreme
Court Cases 779 has also held as under;
„25. Organised crime which is an offence
punishable under Section 3 of MCOCA means
a continuing unlawful activity committed by
the use of force or violence for economic gain.
One relevant pre-condition which has to be
satisfied before any activity can be considered
as a continuing unlawful activity is that there
should be at least two charge sheets filed
against the members of an organised crime
syndicate within the previous 10 years and a
competent Court has taken cognizance of such
charge sheets‟.
17. Perusal of the above judgments reveal that the requirement of
one or more chargesheet relates to unlawful activities of the
organized crime syndicate and does not pertain to a particular
member of the crime syndicate accused. The contention of Ld.
Counsel for the petitioner that in the absence of two chargesheet
against the petitioner, he could not have been charged with
Bail Appl. No. 1638/2019 Page no.13
MCOCA and he be released on bail is, therefore, not in consonance
with law.
18. Section 21(4) of the MCOC Act contemplates the factors on
the basis of which accused is entitled to bail and the same runs as
follows;
"(4) Notwithstanding anything contained in the
Code, no person accused of an offence
punishable under this Act shall, if in custody,
be released on bail or on his own bond, unless-
(a) the Public Prosecutor has been given an
opportunity to oppose the application of such
release; and
(b) where the Public Prosecutor opposes the
application, the Court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely
to commit any offence while on bail."
19. The Hon'ble Supreme Court has interpreted the above
provisions in 'State of Maharashtra v. Vishwanath Maranna
Shetty, (2013) 1 SCC (Cri) 105' in Para 29 has held as follows:
"Since the respondent has been charged with
the offence under MCOCA, while dealing with
his application for grant of bail, in addition to
the broad principles to be applied in
prosecution for the offences under IPC, the
relevant provision in the said statute, namely,
sub-section (4) of Section 21 has to be kept in
mind. It is also further made clear that a bare
reading of the non obstante clause in sub-
section (4) of Section 21 of MCOCA that the
power to grant bail to a person accused of
having committed offence under the said Act
Bail Appl. No. 1638/2019 Page no.14
is not only subject to the limitations imposed
under Section 439 of the Code of Criminal
Procedure, 1973 but also subject to the
restrictions placed by clauses (a) and (b) of
sub-section (4) of Section 21. Apart from
giving an opportunity to the prosecutor to
oppose the application for such release, the
other twin conditions viz. (i) the satisfaction of
the court that there are reasonable grounds for
believing that the accused is not guilty of the
alleged offence; and (ii) that he is not likely to
commit any offence while on bail, have to be
satisfied. The satisfaction contemplated in
clauses (a) and (b) of sub-section (4) of
Section 21 regarding the accused being not
guilty, has to be based on "reasonable
grounds". Though the expression "reasonable
grounds" has not been defined in the Act, it is
presumed that it is something more than prima
facie grounds. We reiterate that recording of
satisfaction on both the aspects mentioned in
clauses (a) and (b) of sub-section (4) of
Section 21 is sine qua non for granting bail
under MCOCA."
19. Let us examine the present bail application in view of the
above law laid down by the Hon‟ble Supreme Court. Perusal of the
material brought on record reveals involvement of petitioner
Digvijay Saroha to the effect that he has been a part of organized
crime syndicate and has knowingly facilitated the alleged organized
crime syndicate. The MCOCA does not contemplate that the
petitioner should have direct role to play as regards the commission
of an organised crime. If there is a nexus of the petitioner who is a
member of an „organised crime syndicate‟, or nexus with the
Bail Appl. No. 1638/2019 Page no.15
offence in the nature of an „organised crime‟ is established, the
petitioner will prima facie satisfy the ingredients of Section 3(2) of
MCOCA. In the present case, the petitioner Digvijay Saroha is
alleged to be a member of an organized crime syndicate run by
Jitender @ Gogi. There are approximately 27 cases filed against
this organized crime syndicate. As per reply filed by the
prosecution, there is confessional statement of co-accused Yogesh,
which reveals that petitioner Digvijay Saroha is the member of an
organized crime syndicate being run by Jitender @ Gogi. It has also
come on record that during interrogation petitioner/ accused
Digvijay Saroha has disclosed that he is an active member of
Jitender @ Gogi Gang and used to collect information regarding
members of opposite gang as well suspected targets from whom
money can be extorted. During the investigation one witness
namely Ms. Nikita Dahiya has deposed that this 'Orgainised Crime
Syndicate' used to collect extortion money from her and accused
Digvijay Saroha is one of the associates of this gang, who used to
collect protection money from her. Thus, Prima facie, the
prosecution has established petitioner‟s role in conspiring, assisting
Bail Appl. No. 1638/2019 Page no.16
and managing the crime syndicate. There are no reasonable grounds
to believe that petitioner is not guilty of the offences, he has been
charged with. On the contrary, the material brought on record,
points to his role in the abetment of the offences committed by the
crime syndicate.
21. In view of the above discussion and keeping in mind serious
nature of allegations and the fact that if the petitioner is released on
bail, he may temper with the witnesses and the evidence and may
even commit other offences, no grounds for bail are made out.
22. For all the aforesaid reasons, the present bail application is
dismissed.
BRIJESH SETHI, J
September 23, 2019
Bail Appl. No. 1638/2019 Page no.17
