CRL.M.C./4393/2016 of VIJAY SOOD @ BILLU Vs STATE NCT OF DELHI & ANR

IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 4393/2016 & CRL.M.A.18333/2016VIJAY SOOD @ BILLU..... PetitionerThrough:Mr.Bahar U Barqi, Adv. withMr.Ritesh Bahari, Mr.Kaustubh andMs.Deepti Gupta, Advs.VIJAY SOOD @ BILLU..... PetitionerThrough:Mr.Bahar U Barqi, Adv. withMr.Ritesh Bahari, Mr.Kaustubh andMs.Deepti Gupta, Advs.

versus

STATE NCT OF DELHI & ANR

..... Respondents

Through:Mr.Sanjay Jain, ASG with Ms.RajulJain, Ms.Kanika Singh andMs.Aastha, Advs.Jain, Ms.Kanika Singh andMs.Aastha, Advs.

Ms.Kusum Dhalla, APP for State.Mr.Sachin Sharma, ACP/GokalpuriSI Vivek Sharma, PS-GokalpuriMr.Sachin Sharma, ACP/GokalpuriSI Vivek Sharma, PS-Gokalpuri

CORAM:

HON'BLE MR. JUSTICE I.S.MEHTA

O R R21.12.2016

Counsel for the petitioner has submitted that the petitioner isapprehending arrest from Police Station-Bhajanpur in case FIR No.1227dated 27[th]November, 2015 in which invocation of the MCOCA is like totake effect. Counsel for the petitioner has further submitted that as perSection 2 (d), (e) and (f), the MCOCA Act is to be applied in at least morethan two FIRs registered but qua against the present petitioner in the instantcase it is not the case so. Learned counsel for the petitioner has furthersubmitted that the Investigating Officer of the case is adamant to invoke thepresent petitioner in the aforesaid MCOCA case which as per law should notdo it as the life and liberty under Article 21 of the Constitution of Indiacomes in the way and relied upon the flowing judgments.

1. Ranjit Singh Bharamjit Singh Sharma versus State of Maharashtra

& Anr. reported as 2005 5 SCC 294

2. State of Maharashtra & Ors versus Lalit Somdatta Nagpal & Anr.reported as 2007 2 SCR 473reported as 2007 2 SCR 473

3. Mahipal Singh versus CBI reported as AIR 2014 SC 2660

4. Prasad Shrikant Purohit versus State of Maharashtra reported asAIR 2015 SC 2514AIR 2015 SC 2514

5. Vikas versus State of Rajasthan reported as 2014 CRL.L.J. 183

On the other hand Mr.Sanjay Jain, learned ASG has submitted that theimpugned order in challenge is dated 13[th]October, 2016. He hassubmitted that the source so as to reach to pass the order dated 13[th]October, 2016 is nothing but disclosure statement made by one of theco-accused who has already been arrested in MCOCA and on thedisclosure statement of the co-accused, the Investigating Officer issuednotice under Section 160 Cr.P.C to the petitioner on 17[th]July, 2016 andthereafter again the Investigating Officer issued notice under Section 160Cr.P.C to the petitioner on 22[nd]August, 2016. Learned ASG furthersubmitted that the Investigating Officer further interrogated another co-accused and he also disclosed the involvement of the present petitioner.He has further submitted that despite issuance of notice, the petitioner didnot make himself available for interrogation and subsequently on 8[th]September, 2016 the Investigation Officer tried to locate the petitionerbut his house was found locked. Thereafter, the Investigating Officerinformed the Court of the non-availability of the petitioner and the Courtbelow proceeded with issuing NBW against the petitioner on 9[th]September, 2016. Learned ASG has further submitted that the petitionerwas searched on 12[th]September, 2016, 24[th]September, 2016, 10[th]October, 2016 and 12[th]October, 2016 but again his house was foundlocked. He has further submitted that on 13[th]October, 2016, the Courtbelow found no other alternative except to proceed with the matter byissuance of process under Section 82 Cr.P.C read with Section 20 of theMCOC Act. Learned ASG further submitted that after order was passedon 20[th]October, 2016 for issuance of process under Section 82 Cr.P.C,letters were issued for publication of proclamation in the local newspaperPioneer and Dainik Jagran and the same were published on 27[th]October,2016 and thereafter on 17[th]November, 2016, the Investigating Officeronce again visited the residence of the petitioner where the wife of thepetitionerSmt.SangitaSoodwasfoundwhichshowsthattheInvestigating Officer was serving the petitioner at the correct address anddespite taking best efforts, the petitioner has been evading the judicialprocess and the instant petition filed by the present petitioner is nothingbut abuse of process of law. Learned ASG has further submitted that allthe aforesaid dates and the Investigating Officer’s best effort to arrest thepetitioner shows nothing but the present petitioner is evading the processof law which cannot be permitted and all the action taken by theInvestigating Officer shows that the action taken by the InvestigatingOfficer is bonafide as per law and the present petition be dismissed.

In rebuttal, learned counsel for the petitioner has submitted that all thedocuments relied upon by the respondent-State brought to the notice ofthis Court is fabricated and opposed the same.

In rebuttal, learned ASG has pointed out that the aforesaid documentcan be conveyed only to the Court and not to the opposite party as thesame pertains to the ongoing investigation and the documents have been

shown from case diary and the same cannot be informed to the oppositeparty.

From the perusal of the record it shows that the petitioner is wantedfor investigation in the instant case on the disclosure of the co-accusedpersons. However, to attract the provisions of MCOCA it has to meet therequirements as per the law laid down in the following judgments:

(i)State of Maharashtra versus Jagan Gagansingh Nepali @Jagya & Anr. reported as 2011 AIIMR (Cri) 2961 where it has beenobserved that “......From the perusal of section 2(e), it can be seen thatthe following ingredients will be necessary to make out the case of anorganised crime: (i) that there has to be continuing unlawful activities;(ii) that such an activity will have to be by an individual, singly orjointly; (iii) that such an activity is either by member of an organisedcrime syndicate or on behalf of such syndicate; (iv) that there has to beuse of violence or threat of violence or intimidation or coercion or otherunlawful means; (v) that such an activity has to be with an objective ofgaining pecuniary benefits or gaining undue economic or otheradvantage for the person who undertakes such an activity or any otherperson or promoting insurgency. The ingredients of continuing unlawfulactivities would be: (i) that such an activity should be prohibited by lawfor the time being in force; (ii) that such an activity is cognizableoffence punishable with imprisonment of three years or more (iii) thatsuch an activity is undertaken either singly or jointly, as member of anorganised crime syndicate or on behalf of such syndicate; (iv) that inrespect of such an activity more than one charge-sheet must have beenfiled before competent Court; and (v) that the charge-sheets must have

been filed within preceding period of ten years; and (vi) that the Courtshave taken cognizance of such offences.......”

(ii)State of Maharashtra & Ors. versus Lalit Samdatta Nagpal &

Anr. reported as 2007 2 SCR 473 where it has been observed that “......to apply the provisions of MCOCA something more in the nature ofcoercive acts and violence is required to be spelt out so as to bring theunlawful activity complained of within the definition of “organizedcrime” in Section 2 (a) of MCOCA......”

(iii)Prasad Shrikant Purohit versus State of Maharashtra & Anr.

reported as AIR 2015 SC 2514 wherein it has been observed that “.......Astrict interpretation of Section 2(1)(d) would definitely mean thefulfillment of such requirement since the definition specifically reads tothe effect 'undertaken either singly or jointly as member of anorganized crime syndicate or on behalf of such syndicate'. Therefore,even if the earlier offences were not initiated under the provisions ofMCOCA such initiations should have been capable of being broughtwithin the provisions of MCOCA, namely, as part of an activity of anorganized crime syndicate either by its own members either singly orjointly or though not as member but such participation should havebeen on behalf of an 'organized crime syndicate'. As far as filing of thecharge-sheet is concerned what all it refers to is such filing before aCompetent Court and that Court should have taken cognizance of suchoffence......”.

Since the petitioner has not joined and avoided the investigationand the process under Section 82 Cr.P.C has already been initiated, it isappropriate for the petitioner to surrender either before the concerned

Court or before the Investigating Officer forthwith and the concernedCourt below is directed to proceed with the matter while attracting theMCOCA in the instant case as per the law laid down in State ofMaharashtra & Ors. versus Lalit Samdatta Nagpal & Anr. reported as2007 2 SCR 473,State of Maharashtra versus Jagan GagansinghNepali @ Jagya & Anr. reported as 2011 AIIMR (Cri) 2961 and PrasadShrikant Purohit versus State of Maharashtra & Anr. reported as AIR2015 SC 2514.

The present petition is dismissed. All pending application(s) (if any)also stand disposed of. Trial Court Record be sent back forthwithalongwith copy of this order.

Copy of this order be given dasti, as prayed.

DECEMBER 21, 2016/radhika

I.S.MEHTA, J