Call records alone cannot be pressed into service for framing charges; Court discharges accused of Organized Crime Syndicate under MCOC Act holding CDRs not sufficient evidence

Patiala House Courts (New Delhi): While discharging the accused from alleged offences under Sections 3 and 4 of MCOC Act, Sh. Parveen Singh, J., held that mobile connectivity can only be corroborative evidence and in absence of any substantiated evidence, not much weight can be given to it.

Background

In the instant case, the accused had been charge-sheeted by the prosecution u/s 3/4 of Maharashtra Control of Organised Crimes Act, 1999 (MCOC Act). The prosecution case was that the accused Richhpal Singh is a notorious criminal and an active BC of PS Khankar Burhapur, M.P. The accused had been found involved in more than 10 cases including Arms Act, Explosive Substance Act, murder, attempt to murder and dacoity in M.P, Delhi, Telengana, Maharashtra etc. From the investigation, it had been revealed that the accused Richhpal along with his associates Rajpal Singh, Mani Singh, Yogender Singh and Hari Singh and others had been running a crime syndicate for pecuniary benefits by committing various offences particularly manufacturing and supply of illegal arms weapons, in an organized manner.

During the interrogation, accused Richhpal disclosed that he along with his associates used to manufacture weapons illegally and supplied them through his carriers in various parts of the country for more than 20 years. In the year 2006, he was caught and huge consignments of illegal arms were recovered from him. The call detail record (CDRs) of the phone numbers of accused revealed that they were in touch with each other. Relying on various FIRs registered against the accused persons, the prosecution contended that the gang was operating in an organized crime syndicate and the gang members had been co-accused with each other in those FIRs. Thus, sanction u/s 23 (2) of the MCOC Act was obtained against the accused persons from the competent authority.

Organized Crime Syndicate, Organized Crime and Continuing Unlawful Activity

“There is interdependency between these definitions as the existence of one leads to the establishment of the other and vice versa.”

As per section 2(f) of the MCOC Act, for the establishment of an organized crime syndicate, it has to be shown that there is group of two or more persons who either singly or jointly, indulged in activities of organized crime as a syndicate or a gang. But what is further required is, that crime so committed fulfills the conditions which shall make it an organized crime. This brings us to Section 2(e) according to which an organized crime is any continuing unlawful activity done by a person either singly or jointly but as a member of a crime syndicate or on behalf of such crime syndicate.

A continuing unlawful activity is defined u/s 2(d) of the MCOC Act as an activity which is prohibited by the law for the time being in force and this activity has to be a cognizable offence carrying punishment of three years or more. At the same time, it is further required that this continuing unlawful activity is done/ committed by using violence or threat of violence or intimidation or coercion or other unlawful means and should be done with an objective of gaining pecuniary benefits or gaining undue economic and other advantages for himself or for any person or for promoting insurgency. Opining that the definitions were intertwined and form a loop of continuity, the Bench stated,

“For the existence of an organized crime syndicate, commission of organized crime is a sine qua non and an act alleged as organized crime has to fall within the definition of continuing unlawful activity which is provided u/s 2(d) of the MCOC Act and has to be committed for the purposes and by the means provided in section 2(e) of the MCOC Act.”

Existence of Crime Syndicate

Noticing that for organized crime syndicate in respect of this activity, in preceding period of 10 years, more than one charge-sheet should have been filed before a court of the competent jurisdiction which had taken cognizance of such offences, the Bench assed the various FIRs which had been stated in the charge-sheet to ascertain existence of crime syndicate.

Considering that of the FIRs relied by the prosecution the accused was the sole accused in two and in other two the cognizance was taken upon the charge-sheets post grant of approval for the instant case, the Bench opined that those FIRs could not be considered for the purposes of MCOC Act to find that there exists a crime syndicate. Again, referring to the remaining FIRs the Bench observed that in all of them the accused Richhpal was arrested on the basis of disclosures made by co-accused and he was discharged in all of them due to lack of evidence. Therefore, the Bench opined that so far on the basis of previous involvements of the accused, no grave suspicion could arise that there existed a crime syndicate as there was no commonality of previous involvements of these accused which had stood the scrutiny of the courts.

Admissibility of CDRs

With regard to the contention that the connectivity of the accused persons was reflected from their phone records and their regular contact with each other especially in close proximity to the time when the FIRs were registered against the members of the gang, after having observed the CDRs, the Bench found several discrepancies in the CDR chart prepared by the investigating officer (IO). The Bench remarked,

“As per the chart, there are many calls which are made between the numbers which are attributed to the same person and there is no explanation to these calls.”

Consequently, a clarificatory chart had been prepared by the IO, wherein, of the four numbers, which were stated in the charge-sheet to be suspected to be used by accused Richhpal Singh, three had now been attributed to accused Mani Singh. All these numbers were in the name of one Laxman, who stated that accused Richhpal had obtained his identity during a land deal and he might have used his identity for obtaining these numbers. The Bench stated, it could not be definitively stated that accused Richhpal had obtained those numbers and was using them merely on the basis of a speculation/ opinion. The Bench stated,

“Merely a contact with the mobile phone, which was allegedly used by accused Richhpal, does not establish that the person who was using those mobile numbers was a part of either the conspiracy or of the crime syndicate.”

Furthermore, accused Richhpal and Mani Singh were brothers and therefore, even if he was calling his brother, it could not be said that his brother had any complexity in that crime. The Bench opined,

“It is a well settled law that the CDRs can only be used to corroborate any other evidence on record. Admittedly in that FIR, apart from the disclosure of accused Rajpal Singh, there was no evidence connecting accused Richhpal to that crime. Hence, there was no evidence which could be corroborated by these CDRs.”

Decision

Hence, considering that there was no cogent evidence to support the prosecution case, the Bench was of the view that CDRs alone could not be pressed into service for framing charges against the accused. Since there was no other evidence independently of these FIRs or the alleged connectivity which could prima facie establish the existence of a crime syndicate and as discussed above, the Bench held that FIRs and CDRs were not evidence sufficient to raise a grave suspicion of existence of crime syndicate. Accordingly, the accused persons were discharged. [State v. Richhpal Singh, SC No. 289 of 2018, decided on 16-12-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by

For the State: Advocate Manoj Dixit

For the accused: Akshay Bhandari and Digvijay Singh, Advocates