TaxTMI 
TaxTMI 
2024 (5) TMI 1703
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....iates after taking requisite sanction from the Competent Authority as provided under Section 23(1)(a) of the MCOCA. 3. It is stated that Vikas Gulia @ Vikas Langarpuria is involved in as many as 18 criminal cases ranging from murder, attempt to murder, extortion, robbery, house trespass, and criminal intimidation, amongst others, registered at various Police Stations across Delhi and Haryana, thereby making him a hardcore criminal. It is stated that Vikas Gulia @ Vikas Langarpuria is attempting to establish his supremacy in the area and is the leader of the 'Vikas Langarpuria Gang'. It is stated that Vikas Gulia @ Vikas Langarpuria, along with his associates, runs an organized crime syndicate and in furtherance of their common object, undertakes activities that are terrorizing the society at large. 4. It is alleged that Vikas Gulia @ Vikas Langarpuria along with his other associates, including the applicant/accused herein, have, on multiple occasions, shot dead, injured, and intimidated individuals so as to gain pecuniary benefits, through which he has amassed assets running into crores in Delhi and Haryana. It is stated that the Courts of various jurisdictions have taken cog....
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....Indian Penal Code, 1860 (in short, 'IPC') and Sections 25/27/54/59 of the Arms Act, 1959 (in short, 'Arms Act') at Police Station: Chhawla, Delhi. It is stated that Priyawarat @ Preet further stated that a sum of rupees thirty-two lacs was handed over to Satte, father of the applicant/accused, by his Uncle- Krishnan. 9. It is also stated that the financial interests of the applicant/accused are looked after by one Vinit @ Johny, and he was also in touch with the applicant while the applicant was lodged in Bhondsi Jail. 10. It is stated that the applicant while being lodged in Bhondsi Jail, was involved in three cases of using a mobile phone from Bhondsi Jail. He is stated to have used two mobile numbers to make demands of extortion in relation to the above-mentioned FIR No. 212/2015. It is further alleged that the applicant was visited frequently by one lady namely, Sonia, who also spoke to him through mobile phone. It is stated that the Call Data Records (in short, 'CDR') show that this number was used in multiple bank transactions. It is alleged that upon further investigation, it was revealed that she had multiple accounts, two with Axis Bank, one with ICICI Bank, and anot....
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.... complainant and his family. 15. It is stated that similar instances of extortion were uncovered during the investigation of FIR No. 227/2015 registered at Police Station: Baba Haridas Nagar, Delhi for the offence under Sections 323/387/452/34/120B of the IPC. It is stated that in the said FIR, it was revealed that complainant Narender @ Bhalle received a call on his mobile from the accused Vikas Gulia @ Vikas Langarpuria which mobile number was being used by the real brother of the applicant herein, that is, Sunil @ Kheri. It is stated that other associates of the applicant and Vikas Gulia @ Vikas Langarpuria have also been found to be involved in cases in relation to crimes of serious nature. 16. After the completion of investigation, a chargesheet under Sections 3 and 4 of the MCOCA was filed, wherein the prosecution has cited 86 witnesses. In the said proceedings, the learned Additional Sessions Judge-03 (Special Judge - Companies Act), Dwarka Courts, South-West district, New Delhi (hereinafter referred to as the 'Trial Court') was pleased to frame charges against the accused vide order dated 02.07.2016 for offence under Sections 3 and 4 of the MCOCA. 17. It is stated ....
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....in the last ten years; and the Offence is alleged to be committed by the syndicate as a whole, or by any member acting on behalf of the syndicate, with a view to gain the pecuniary benefit or gaining undue economic or other advantage; and at least two members of the alleged syndicate are facing trial together. He places reliance on the judgment of the Supreme Court in Md. Iliyas Mohamad Bilal Kapadiya v. State of Gujarat., (2022) 13 SCC 817. He submits that in order to show that more than one chargesheet is pending, the prosecution cannot use cases where the accused is facing trial alone or with persons who are not members of the alleged syndicate. This would not satisfy the conditions of Section 2(1)(d) and 2(1)(e) of the MCOCA. 24. By placing reliance on the judgment of the Supreme Court in State (NCT of Delhi) v. Brijesh Singh @ Arun Kumar and Anr., (2017) 10 SCC 779, he submits that another requirement to initiate such proceedings would be that at least one such case which is pending against two persons of the alleged syndicate, should be registered in Delhi. He submits that in the present case, the prosecution relies upon FIR No. 153/2014 registered at Police Station: Najaf....
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....m the judgment of acquittal. He submits that in State (NCT of Delhi) v. Khalil Ahmed, 2012 SCC OnLine Del 6375, this Court discharged an accused under the MCOCA by noting that the prosecution failed to prove that the offence alleged were being carried out on behalf of an organised crime syndicate. 28. He submits that, therefore, no offence is made out against the applicant under Sections 3 and 4 of the MCOCA. 29. The learned counsel for the applicant submits that under Section 436A of the Cr.P.C., an accused can be granted bail if he/she has already undergone half of the maximum sentence for an offence for which the accused is facing trial. He places reliance on the judgment of the Supreme Court in Hussain & Anr. v. Union of India, (2017) 5 SCC 702. He submits that the applicant has undergone almost 8 years in custody, after removing the period in which he jumped interim bail. He places reliance on the Order dated 13.09.2018 of this Court passed in CRL.A.837/2018 titled Rafiq v. State; and the Order dated 13.09.2018 passed in CRL.A.678/2018 titled Baldev @ Billu v. State, to submit that generally, the sentence awarded for the Offence under the MCOCA is nine years of imprisonm....
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....bmits that while granting bail, the role of the accused in the case in hand and the chances of him fleeing from the jurisdiction of the Court has to be seen, and not his previous involvements. 35. Further, placing reliance on the judgment of the Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr., (2005) 5 SCC 294, he submits that the requirement of satisfying that no offence will be committed if granted bail, is with regard to the same Act and not any offence. He submits that there is no allegation of the accused having committed any offence under the MCOCA while being out on interim bail. 36. He submits that in State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, the Supreme Court has held that the requirement that the accused should not be on bail in any other case previously, to be granted bail in the MCOCA, has been struck down as unconstitutional. He submits that the law requires that the accused should not have been on bail in a case under the MCOCA before being arrested in the case in hand under the MCOCA. He submits that the applicant is not on bail in any previous case under the MCOCA. Submissions by the learned APP: 37....
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.... of the trial in previous case(s). 41. He submits that for Section 2(1)(d) of the MCOCA to be invoked, the chargesheet has to be against the syndicate and not against each member of the same. He places reliance on the judgment of the Supreme Court in Zakir Abdul Mirajkar v. State of Maharashtra and Ors., 2022 SCC OnLine SC 1092. 42. He submits that the discharge of the applicant or his acquittal can have no effect on his prosecution, as the applicant has been convicted in FIR No. 60/2014, and in FIR No.153/2014, the witnesses failed to identify the applicant and the co-accused because they were being threatened by the accused persons. He places reliance on the judgment of the Supreme Court in Paramjeet Singh @ Pamma v. State of Uttarakhand, (2010) 10 SCC 439, to submit that conviction even on the basis of statements recorded under Section 161 of the Cr. P.C. is sustainable. 43. The learned APP further submits, that the working of the applicant was mostly in the outskirts of NCT of Delhi and, therefore, most FIRs came to be registered in Haryana. By placing reliance on the judgment of Vijay Maan @ Kapil v. State, 2020 SCC OnLine Del 1632, he submits that it is not necessary....
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....e present case, as the Trial Court dealing with a later case is to see if the same forms part of the earlier transaction or if the facts are similar. Further, the same is a discretionary power available at the stage of awarding sentence, and cannot be applied at this stage. He places reliance on the judgement of the Kerala High Court in Mushthafa P.K. v. State of Kerala, 2014 SCC OnLine Ker 8482. 50. He further submits that the conduct of the applicant and the co-accused does not inspire much confidence. He submits that, admittedly, the co-accused was released on interim bail, but instead of surrendering on time, he escaped to the United Arab Emirates and had to be deported from there and was arrested in FIR No. 190/2019. The applicant herein was also released on interim bail by the learned Trial Court on 18.08.2021 for his wife's treatment, however, he jumped the interim bail. He submits that the Court proceeded to issue NBWs against him, and on 28.04.2022, the applicant was arrested in another FIR No. 93/2022 under Section 25 of the Arms Act, being in possession of an illegal pistol and 2 live cartridges. He submits, that the applicant is a habitual offender and would commit f....
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....es that were registered against him in Delhi and were being relied upon by the prosecution for bringing home the charge under the MCOCA. 57. In Zakir Abdul Mirajkar (Supra), the Supreme Court highlighted the purpose and object of the MCOCA, as under: "17. The Maharashtra Control of Organized Crime Act 1999, as its long title indicates, is "an Act to make special provisions for the prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang and for matters connected therewith or incidental thereto". The statement of objects and reasons contains the reasons which constituted the foundation for the legislature to step in: Firstly, organized crime which is in existence for some years poses a serious threat to society; Secondly, organized crime is not confined by national boundaries; Thirdly, organized crime is fuelled by illegal wealth generated by contract killing, extortion, smuggling and contraband, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, and other activities; Fourthly, the illegal wealth and black money generated by organized cri....
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....the term 'organized crime syndicate' as under: "(f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;" 63. A reading of the above would show that for bringing home the charge under Section 3 of the MCOCA, the accused must be shown to have singly or jointly, as a member of an organized crimes syndicate or on behalf of such syndicate, committed a cognizable offence punishable with imprisonment of three years or more by use of violence or threat of violence or intimidation or coercion or other unlawful means, with the objective of, inter alia, gaining pecuniary benefits or gaining undue economic or other advantages for himself or any other person or promoting insurgency, and for which more than one chargesheets have been filed before the competent Court within the preceding period of ten years and the said Court has taken cognizance of such offence. 64. In the present case, the prosecution, in the chargesheet filed upon completion of investigation in the subject FIR No.531/2015, inter alia, alleges that Vikas Gulia @ Vikas Langarpuria was a hardcore....
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....chargesheets filed outside Delhi. 68. In Shiva @ Shivaji Ramaji Sonawane & Ors., (Supra) the Supreme Court while considering an appeal against an order of acquittal of the accused under the MCOCA by the Bombay High Court, upheld the acquittal by observing that Section 3 of the MCOCA could not be invoked only on the basis of the chargesheets filed prior to the promulgation of the MCOCA; for Section 3 would come into play only if the accused were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantages after the promulgation of the MCOCA. 69. At the same time, while considering a challenge to the sanction granted by the Competent Authority under Section 23 (2) of the MCOCA, the Supreme Court in Abhishek (Supra) held that though there is no doubt that the MCOCA has been promulgated for making special provisions for dealing with the menace of organized crime causing serious threat to the society and makes stringent provisions with several extraordinary measures, at the same time, it needs to be strictly construed for application of such provisions. However, the rule of strict construction cannot be applied in such a manner so as ....
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....hat there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself. As noticed above, the purpose of this enactment is to be kept in view while interpreting any expression therein and in the name of strict construction, its spirit and object cannot be whittled down. xxxx 54. The threshold requirement in terms of clause (d) of Section 2(1) MCOCA is that of the activity /activities undertaken by the accused persons either singly or jointly, as a member of an organized crime syndicate, which involves a cognizable offence punishable with imprisonment of 3 years or more and in respect of which, more than one charge-sheets have been filed before the competent Court within 10 years and cognizance had been Taken. xxxx 58. The submissions about taking irrelevant factors into account with reference to the said two cases resulting in acquittal and discharge must fail for the simple reason that for the purpose of clause (d) of Section 2(1) of MCOCA, the result of a particular matter is not decisive of the qu....
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....ischarged from the said case by the Court trying the case having found not even a prima facie case being made out against the accused/applicant, at the same time, the mere acquittal of the applicant in the case arising out of the FIR No.153/2014, at least at this stage, where the Court is only to consider the grant of bail to the applicant, may not be relevant. The Court trying the case under the MCOCA would have to see the reasons why the applicant was acquitted in that case and whether it was because the witnesses turned hostile due to the threat extended by the applicant and his alleged gang, or for other genuine reasons. In case it finds that the witnesses had turned hostile because of the threat(s) extended by the applicant or on his behalf, it would, in fact, fortify the charge under MCOCA against him. 72. A reading of the order dated 29.04.2023 passed by the learned Additional Sessions Judge: Fast Track Court, South-West District, Dwarka Courts, New Delhi in SC No.20/2014 (909/2018) would show that the alleged victim and the witnesses had turned hostile and refused to identify the applicant. The reason thereof may have to be gathered by the learned Trial Court in the tria....
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....The applicant has been charged, including under Section 3 of the MCOCA, which states that if such an Offence has resulted in the death of any person, the accused shall be punished with death or imprisonment for life, while in other cases, shall be punishable with imprisonment for a term which shall not be less than five years but which may be extended to imprisonment for life. 78. Merely because in some cases the High Court or the Supreme Court have found it fit to impose a sentence of imprisonment of 9 years, it does not mean that the rule is that only such punishment shall be imposed on the applicant if convicted or that the applicant cannot be awarded more than nine years of imprisonment if found guilty in the subject case. 79. Section 436A of the Cr. P.C. reads as under: "436A. Maximum period for which an under trial prisoner can be detained.-Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law not being an offence for which the punishment of death has been specified as BAIL APPLN. 593/2024 Page 31 of 33 one of the punishments under that law undergone detention for a period extending up to one-half o....