TaxTMI 
TaxTMI 
2024 (4) TMI 1410
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...."IPC"), Sections 3/4 of MCOCA and Section 66D of the Information Technology Act, registered at P.S. Special Cell. Background 2. The case of the prosecution is as under: i. The present FIR was registered on basis of a complaint of Ms. Aditi S. Singh alleging that on 15.06.2020, she received a call from one landline number on her mobile phone and the caller introduced himself as a senior officer in the Ministry of Law. It is alleged that the said caller proposed to help her in securing bail for her husband, who was in judicial custody in the cases relating to M/s Religare Enterprises Ltd. It is alleged that the said person demanded Rs. 20 Crores for getting the work done and conveyed the modalities regarding delivery of the money. It is further alleged that subsequently, the said caller, through his associates, extorted money from her on multiple occasions. ii. With the help of the technical surveillance of the mobile phone used by the said caller, it was revealed that the caller was one Sukash V. Chander Shekhar (hereinafter referred to as "SCS"), who was lodged in Rohini Jail for various cases. It alleged that the complainant was to deliver Rs. 1 C....
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.... SCS by providing facilities in Cell No. 204 to carry out is criminal activities. vii. It is the case of the prosecution that accused SCS continued to extort money and receive funds, with the help of several conspirators, each of whom played a different role by helping him in running an organized crime syndicate from inside the prison. viii. The case of the prosecution is that the present applicant was Superintendent, Jail No. 10, Rohini from 31.12.2019 to 11.12.2020. It is the case of the prosecution that the present applicant was actively involved with the aforesaid organized crime syndicate led by accused SCS. It is alleged that he knowingly assisted accused SCS in running the organized crime syndicate inside the jail premises, in lieu of hefty shares of the crime proceeds which he received regularly every month. It is the case of the prosecution that without active involvement of the present applicant, the above organized crime syndicate could not have sustained its activities. ix. During interrogation, it is alleged that the present applicant could not give any justification for allotting an entire barrack to accused SCS and also allowing p....
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....based on the aforesaid confessional statements of the co-accused persons, which have not been corroborated by any other evidence. It is submitted that the crux of the prosecution case is that the present applicant provided a separate barrack to accused SCS in order to keep him single so that he can continue with the activities of the crime syndicate by making calls to persons for the purpose of extortion. The case of the prosecution is that the said act was in violation of Jail Manual/rules and in particular against mandate of order dated 07.07.2020, which is as under: "The Competent Authority has directed to transfer below mentioned inmate to the jail mentioned against his name, as under: The inmate shall be lodged as under: S. No. NAME & PARENTAGE FROM (JAIL) TO (JAIL) 1. Sukesh Chandrashekhar S/o Vijayan Chandrashekhar CJ-3 (HSW) CJ-10 (General Ward) The above said UTP be kept under close surveillance. The complete record of prisoners to be shifted such as Custody warrant/conviction warrant, Medical record, Punishment record, PP account, Smart Card Amount, should be sent along with the inmates without any delay. ....
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....itted that he is still kept in a single cell. 7. It is submitted that the allegation with respect to covering of CCTV vision of the barrack where accused SCS was lodged is also unfounded as in the statement of Neeraj Mann relied upon by the prosecution, he does not state anything against the present applicant. In fact, it is pointed out that the said witnesses noticed the blocked vision of the CCTV during the period when accused Sunder Bora was the Superintendent and not the present applicant. It is stated that the said witnesses, in his statement under Section 164 of the Cr.P.C. has mentioned that he had informed the co-accused Sunder Bora, who was Superintendent at that time with regard to the blocked vision of CCTV cameras. It is further stated that all the relevant entries made by the said witnesses with regard to blocked vision of CCTV cameras are of July 2021, when the present applicant was not Superintendent. 8. The allegation with respect to continuous deployment of the other coaccused persons who are officials in Rohini Jail in order to facilitate SCS is again based on confessional and disclosure statements of the said accused persons. It is pointed out that on an an....
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....ction 207 of Cr.P.C. and charges are yet to be framed. It is further pointed out that accused no. 7, Joel Daniel Joes has been granted bail by learned Trial Court itself and two other co-accused persons, i.e., accused no. 21, namely, Pinki Irani and accused no. 11, namely, Avatar Singh Kocchar @ Dolly have been granted bail by a Coordinate bench of this Court vide order dated 20.10.2023 and 29.11.2023 respectively. It is pointed out that the case of the case of the applicant is on a better footing then the aforesaid co-accused persons as they had allegedly confessed under Section 18 of MCOCA, whereas there is no confessional statement of the present applicant. 13. It is finally submitted that the applicant was the Jail Superintendent of Central Jail-10, Rohini from 31.12.2019 to 10.12.2020 and accused SCS was admitted in said Jail on 08.07.2020. It is pointed out that during said period accused SCS was on custody parole for 49 days. It is further submitted that the present applicant had been released on interim bail for 15 days and did not misuse the liberty granted to him. 14. Learned counsel for the applicant relies upon the following judgments: Proposition Case Law ....
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.... 545 Submissions on behalf of the State 15. Learned Senior Counsel appearing on behalf of the State submits that the scheme of MCOCA differs substantially from ordinary procedure prescribed in law. Attention of this Court was drawn to the following provisions of MCOCA: Section 2(1)(e) - Definition of "Organised Crime": "(e) "organised crime" means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency." Section 2(1)(f) - Definition of "Organised Crime Syndicate": "(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 ;" Section 2(1)(d) - Definition of "Continuing Unlawful Activity": "(d) "continuing unlawful activity" means an activity prohibited by law for the ti....
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....ccountable wealth on behalf of member of organised crime syndicate: "4. If any person on behalf of a member of an organised crime syndicate is, or, at any time has been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also be liable for attachment and forfeiture, as provided by section 20." 16. Learned Senior Counsel submits that a direct nexus is not a sine qua non for a member of an organized crime syndicate. It is submitted that provisions of MCOCA may be invoked against any individual if he or she is acting singly or jointly and is found to be engaged/involved in any of the activities covered under Sections 2(1)(a), 2(1)(d), 2(1)(e), 3(2), 3(4) or 3(5) of MCOCA, as a member of an organized crime syndicate, comprising of a group of two or more persons, irrespective of whether the participation is active or passive, its frequency or intensity. It is submitted that these would be non-issues/irrelevant ....
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....any other person, whose pecuniary benefit or economic advantage, may be of interest for such person, i.e., the person engaged / involved / found to be playing the role, direct or that of abetment, facilitation or preparatory in any of the acts summarised above. 21. Lastly, it is submitted that the requirement of more than one chargesheets, in respect of which cognizance has been taken by the Court of competent jurisdiction, where the maximum gap between the two chargesheets not being more than 10 years as provided in Section 2(1)(d) of the Act is not centric to every individual, who may be involved as a member of an Organised Crime Syndicate or who is acting on behalf of an Organised Crime Syndicate, but the same is primarily in relation to the continuing unlawful activities of that Organised Crime Syndicate. In other words, the requirement of more than one chargesheets is centric to the Organised Crime Syndicate and not to the individual members of the Syndicate, though in view of the requirement of the Syndicate being of two or more members and further requirement of continuing unlawful activity, inevitably at least two members of the Syndicate would be common. Reliance is pla....
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....5 SCC 294 22 Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 SCC 440 85 Twin Conditions under Section 21(4) of MCOCA are Mandatory State of Maharashtra v. Vishwanath Maranna Shetty, (2012) 10 SCC 561 - Gokul Bhagaji Patil v. State of Maharashtra and Anr., (2007) 2 SCC 475 - Application of Mind by the Approving/Sanctioning Authority for Sections 23(1)(a) and 23(2) of MCOCA Farman Imran Shah v. State of Maharashtra, 2014 SCC OnLine Bom 408 17 and 19 Parveen Bazard v. State (NCT of Delhi), 2021 SCC OnLine Del 3831 47 Retracted Confession Ganesh Nivrutti Marne v. State of Maharashtra, 2010 SCC OnLine Bom 716 15 Digvijay Saroha v. State, 2019 SCC OnLine Del 10324 14 Requirement of Two Chargesheets Govind Sakharam Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770 36 and 37 Mujahid s/o Ibrahim v. State of Maharashtra, 2014 SCC OnLine Bom 4048 10 No Requirement to be Charged Jointly with other Co-Accused in the Previous Involvements Prem s/o Chunnilal Yadav (Gwalwanshi) v. The State of Maharashtra, Judgment dated 09.12.2021 passed by the Hon'ble High Court of Judicature at Bombay, Nagpur Bench in Crimi....
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....y him. (3) The police officer shall, before recording any confession under subsection (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same. (4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence. (5) The person from whom a confession has been recorded under subsection (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confess....
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....he culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision. *** *** *** 43. Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to en....
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....the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby." The case of the prosecution in Ranjitsingh Brahmjeetsingh Sharma (supra) was that the appellant therein was a former commissioner of police and his role was alleged to be of providing help and support to an organised crime syndicate by certain acts of omission and commission through coaccused persons, who were subordinate to him in the Maharashtra Police. It was alleged that when the appellant therein was posted as Commissioner of Police, he was well aware of various cases of scam which were pending in Mumbai. The following facts are recorded in Para 11 of the said judgment: "11. Before the High Court, the role of the appellant was sai....
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....ain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime. It is the purpose of this Act to achieve these objects." *** *** *** 22. The interpretation clause as regards the expression "abet" does not refer to the definition of abetment as contained in Section 107 IPC. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under Sections 107 and 108 of the Penal Code, 1860. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or renders assistance in the commission of organised crime. In our considered opinion, any communication or association which has no nexus with the commission of organised crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication, or (b) associat....
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....ed as including any or other unlawful means, having regard to the provisions contained in Sections 400, 401 and 413 IPC relating to commission of offences of cheating or criminal breach of trust, the provisions of the said Act can be applied, which prima facie, does not appear to have been intended by Parliament. 24. The Statement of Objects and Reasons clearly states as to why the said Act had to be enacted. Thus, it will be safe to presume that the expression "any unlawful means" must refer to any such act which has a direct nexus with the commission of a crime which MCOCA seeks to prevent or control. In other words, an offence falling within the definition of organised crime and committed by an organised crime syndicate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Penal Code, 1860 and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisio....
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.... made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation." 27. Relevance of the observations made by Hon'ble Supreme Court hereinabove is that mens rea is a necessary ingredient for bringing the case of a person under the relevant provisions of MCOCA. Evidence against the present applicant as per status report dated 19.05.2023, authored by Mr. Virender Kadyan, Assistant Commissioner of Police, Economic Offences Wing, Mandir Marg, New Delhi, are as under: ● "Confessional Statement of Dharam Singh Meena, Mahender Prasad Sunderiyal, Laxmi Dutt, Deepak Ramnani and Sukash Chander Shekar U / s 18 (1) MCOCA also established that accused Sunil Kumar, Suptd. Jail, with the connivance of other jail officials, fixed the terms and condition for prov....
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.... itself and such conviction is also permissible on the basis of the confessional statement of the co-accused which could be used and relied upon for the purpose of conviction. 85. In State v. Nalini [(1999) 5 SCC 253 : 1999 SCC (Cri) 691] it was held by this Court in the context of Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (now repealed), which is pari materia with Section 18 of MCOCA that the evidence of a co-accused is admissible as a piece of substantive evidence and in view of the non obstante clause, CrPC will not apply. 87. Reiterating the aforesaid position of law, this Court in Devender Pal Singh v. State (NCT of Delhi) [(2002) 5 SCC 234 : 2002 SCC (Cri) 978], observed as follows: (SCC pp. 261-62, para 33) "33. As was noted in Gurdeep Singh case [Gurdeep Singh v. State (Delhi Admn.), (2000) 1 SCC 498 : 2000 SCC (Cri) 449] whenever an accused challenges that his confessional statement is not voluntary, the initial burden is on the prosecution for it has to prove that all requirements under Section 15 of TADA and Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 (hereinafter referred to as....
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....nfessional statement is made by the accused as repentance for his crime but for achieving such ideal goal, there must be altogether different atmosphere in the society. Hence, unless a foolproof method is evolved by the society or such atmosphere is created, there is no alternative, but to implement the law as it is."" (emphasis in original) 88. In Jameel Ahmed v. State of Rajasthan [(2003) 9 SCC 673 : 2003 SCC (Cri) 1853] this Court summarised the aforesaid legal position as follows: (SCC pp. 689-90, para 35) "35. To sum up our findings in regard to the legal arguments addressed in these appeals, we find: (i) If the confessional statement is properly recorded, satisfying the mandatory provision of Section 15 of the TADA Act and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base a conviction on the maker of the confession. (ii) Whether such confession requires corroboration or not, is a matter for the court considering such confession on facts of each case. (iii) In regard to the use of such confession as against a co-accused, i....
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....en. It is alleged that the list was maintained by the said co-accused for recording calculations of money distributed amongst the jail officials. It is a matter of record that the name of the present applicant finds mention in the said list, however, there is no amount mentioned against his name. It is also a matter of record that the coaccused from whom the said list was recovered, has in his supplementary statement dated 09.10.2021 stated that this list does not relate to the Superintendent/present applicant. The explanation is that since the amount given to the present applicant was on his tips; therefore, there was no need to record the same. 30. As observed hereinabove, the case of the prosecution is that the coaccused SCS was constantly using his mobile phone during the tenure of the present applicant as Superintendent, Jail No. 10. The defence put forth by the learned counsel for the applicant is that the said mobile phone, even as per the case of the prosecution, was obtained by him while he was on custody parole. It was argued that the entry of the applicant in the jail is monitored by a battalion of Tamil Special Police over which the present applicant has no cont....
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....rit petition filed by SCS, the stand of the prison authorities was that by keeping SCS in high security ward /special security ward, it is easier to keep surveillance on him rather than by keeping him in general ward. 37. Reliance was also placed on a RTI reply dated 01.04.2022 received from the Superintendent, Central Jail No. 1, Tihar, New Delhi, wherein it has been stated that co-accused SCS was lodged in a single cell, i.e., to submit that even after the tenure of the applicant, SCS has been kept in a single cell. 38. On the basis of the aforesaid, learned counsel for the applicant had submitted that the factum of usage of the mobile phone during the period of applicant's duty in jail cannot be taken as a presumption in law against him as per Section 17 and 22 of the Act. It was submitted that none of the conditions mentioned in the aforesaid sections exist in the present case, which would raise a presumption against the present applicant. It may be noted here that the case of the prosecution is not of presumption qua the present applicant in terms of Section 17 and 22 of the Act. The inference sought to be drawn by the prosecution with respect to the guilt of the pr....
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....n for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision." 41. At this stage, it is apposite to refer to judgments of a learned coordinate bench of this Court in Pinky Irani v. Govt of NCT of Delhi, 2023:DHC:7743 and Avtar Singh Kocchar @ Dolly v. The State of NCT of Delhi, 2023:DHC:8502, whereby the co-accused persons in the present FIR have been granted bail. In Pinki Irani (supra), while granting bail to the said co-accused, the learned coordinate bench observed and held as under: "53. It is an admitted case that the petitioner was not directly involved in the foundational crime. However, taking into account the fact that the mens rea is a necessary ingredient, this court even at the stage of bail has to examine and evaluate whether the petitioner was a member of the organized crime syndicate or had required mens rea. It is pertinent to mention here that the act alleged to have ....
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....dentiary value of the same has to be seen during the trial. It is also a settled proposition that at this stage it is not necessary or desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the petitioner has committed an offence under Section 3(2) as well as Section 24 of MCOCA Act. At this BAIL APPLN. 1811/2023 Page 26 of 29 stage, the court is only required to see if there is a reasonable ground for believing the petitioner is not guilty of the offence he has been charged with and he is not likely to commit an offence under MCOCA." It is pertinent to note that the aforesaid applicants had also given their confessional statements, unlike the present applicant. 42. As pointed out hereinabove, the present applicant was arrested in the present case on 09.11.2021 and has undergone more than 2 years and 4 months. The trial is still at the stage of Section 207 of the Cr.P.C. and charges have not yet been framed. As per the record, there are total 21 accused and the prosecution has cited 371 prosecution witnesses and in these circumstances the trial is not likely to be completed in near future. Apart from the fact that the applicant has b....