TaxTMI 
TaxTMI 
2026 (6) TMI 697
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....ling of the chargesheet, Sections 3 and 4 of the Maharashtra Control of Organised Crime Act, 1999 ["MCOCA"], were also invoked. 2. This is the second bail application filed by the petitioner before this Court. Her first bail application [BAIL APPLN. 3706/2022] was dismissed by a judgment of this Court dated 11.07.2023 [hereinafter, "the 2023 judgment"]. Against the 2023 judgment, the petitioner approached the Supreme Court by way of a special leave petition [SLP (CRL.) No. 13605/2023], which was withdrawn on 30.10.2023, with liberty to the petitioner to approach the Special Court afresh in view of some co-accused having been granted bail in the interregnum. Pursuant to this liberty, the petitioner applied for bail before the Special Court for the second time. The Special Court rejected her application vide order dated 09.04.2024, which has brought her back to this Court. 3. I have heard Mr. Anant Singh Malik, learned counsel for the petitioner, and Mr. Sanjay Jain, learned Senior Counsel for the respondent - State. The prosecution has handed up a status report, which is taken on record. A. PROSECUTION CASE: 4. The prosecution case, as it emerges from the FIR and status ....
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.... investigation, it was found that Sukesh was involved in multiple cases, including attempt to murder, criminal intimidation, cheating, and extortion, often by impersonating high-ranking officials. J. The investigation revealed that Sukesh, alongwith the petitioner herein, had allegedly been operating an organized crime syndicate since 2013 with the objective of unlawful financial gain through cheating and extortion. Four criminal cases had been registered against the petitioner, in all of which Sukesh was also a co-accused. Details of the said cases are as follows: i. FIR No. 186/2017, lodged at Police Station Crime Branch, Delhi, under Sections 201/120B of IPC and Sections 7/12/13 of the Prevention of Corruption Act, 1988. ii. Crime No. 24/2013, registered at Central Crime Branch Police, Chennai, under Sections 406/409/420/34 of IPC and Section 66D of the IT Act. iii. Crime No. 33/2015, registered at Economic Offences Wing, Mumbai, under Sections 420/120B of IPC and Sections 3/4 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 [The petitioner was not chargesheeted in Crime No. 33/2015, registered at Economic Offences Wing, Mu....
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....rrested in this case. During her interrogation, she disclosed that since Sukesh was lodged in jail, she handled disposal of the money obtained through cheating and extortion, with the assistance of B. Mohan Raj, Kamlesh Kothari, Arun Muthu, Sudhir, and Joel Daniel Jose. She further admitted that she utilized funds sent to her by Sukesh through hawala channels. She also disclosed that on 09.08.2021, upon learning about Sukesh's arrest in the extortion case, she contacted Arun Muthu via WhatsApp and instructed him to move and park 7-8 luxury vehicles at his premises. P. During the investigation, several other accused persons involved in the crime syndicate, being the petitioner, Arun Muthu, B. Mohan Raj, Joel Daniel Jose, Kamlesh Kothari, and Sukesh, were arrested. Q. Disclosure statements of multiple accused persons, including Arun Muthu, B. Mohan Raj, Joel Daniel Jose, Kamlesh Kothari, and Sukesh, were recorded, wherein all have attributed active roles to Sukesh and the petitioner, as the leaders of the organised crime syndicate. R. Additionally, confessional statements under Section 18 of the MCOCA were made by Sukesh, B. Mohan Raj, and Dharam Singh Meen....
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....6E/2014/BSFC u/s on the recipient's telephone. 406,409,420, 120B IPC & 13(2) r/w 13(1)(d) of PC Act, 1988 Chennai. ● Recharge of Silent Calling APP & mobile number 9311910260 (Sukash) from her account. ● Recovery of 26 high end cars, Benami property papers (purchased in the name of Jitender Kothari, cousin of Kamlesh Kothari), details of other costly items worth in crores. ● Cash amount in A/Cs of her two firms, i.e. Super Car Artistry and Nail Artistry as well as her personal bank accounts. ● Money spent in opening of three salons (at Chennai, Bangalore, and Cochin) received through hawala channels and used debit/credits cards of various persons who swapping purpose for escalating the fake sale in the saloons during even Corona/Pandemic period. ● Statements u/s 18(1) MCOC Act of Sukash, B. Mohan Raj and D.S. Meena. ● 9311910260 - This number belongs to Sukash & recovered from him. Recharge of this number was done through Leena by using a/c of one Noufal. ● Statement u/s 161 Cr. P.C. of Naufal, Surender Panwar, Sarvan Priyan, Shiva Subramanium, T. Macheil, Jitender Kothari, Bhar....
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....tage for himself or any other person or promoting insurgency; (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 3: Punishment for organized crime. (1) Whoever commits an offence of organised crime shall,- xxx xxx xxx (ii) in any other case, be punishable 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 a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs. xxx xxx xxx (4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less than ....
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.... (2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him. (3) The police officer shall, before recording any confession under sub-section (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....
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....hapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true." [Emphasis supplied] C. JUDGMENT DATED 11.07.2023: 6. As noted above, an earlier bail application filed by the present petitioner before this Court, was dismissed by the 2023 judgment. It was Mr. Malik's submission that the Court must re-consider the question of the petitioner's entitlement to bail, in light of lapse of two and half years since then. However, he rightly accepted that this Court is bound by the factual and legal findings contained in the said judgment. It is therefore necessary to enumerate the following prima facie factual findings and legal conclusions recorded in the 2023 judgment: A. After noticing the case of the prosecution and the contents....
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....rtherance of organized crime and disposal of crime proceeds. She procured bank entries from various entities/persons to whom she provided cash received from Sukesh through hawala transactions, and invested thereafter in high-end cars, properties, and her business firms. She is also stated to have made the payment for the "Silent Calling App" used by Sukesh to allegedly commit the foundational crime of extortion [2023 judgment, paragraphs 56-57]. I. These conclusions are supported by various statements recorded under Sections 161 and 164 of the CrPC [2023 judgment, paragraphs 58-59]. J. During the period of offence [June 2020 to August 2021], a sum of Rs. 21 crores was deposited into the bank accounts in the name of the petitioner or her proprietorship concerns, namely M/S Nail Artistry, M/S Super Car Artistry, and M/S News Express Post [2023 judgment, paragraphs 60-62]. K. Although a mini trial is not called for at this stage, the present petitioner was involved in the organized crime syndicate, and cannot be found to have accepted such large sums of money from her husband, only in the context of the matrimonial relationship [2023 judgment, paragraph 76].....
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....ich is five years. Although the sentence can extend to life imprisonment, he submitted that the allegations in the present case are not at all commensurate with such a sentence and that the petitioner, being a woman, would in any event be entitled to release after seven years. 11. Mr. Malik also drew my attention to several judgments and orders of the Supreme Court and this Court, in which bail has been granted on this ground even in cases under MCOCA, to which I shall refer at the appropriate stage. ii. Re: Parity with co-accused 12. Mr. Malik, in support of the argument on parity with other co-accused, pointed out that four co-accused have been granted bail - Joel Daniel by the Special Court [Order dated 21.11.2022 in SC 308/2021], and Avtar Singh Kochhar [Avtar Singh Kocchar v. State of NCT of Delhi; BAIL APPLN 1811/2023, decided on 29.11.2023], Pinky Irani [Pinky Irani v. Govt. of NCT of Delhi; BAIL APPLN 1127/2023, decided on 20.10.2023] and Sunil Kumar [Sunil Kumar v. State of NCT of Delhi; BAIL APPLN. 1130/2023, decided on 02.04.2024] by this Court. He submitted that the role attributed to the petitioner in the commission of the offence is no graver than that attrib....
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....e ground of parity, Mr. Jain submitted that the roles of the co-accused who have been enlarged on bail were materially different. The petitioner is the leader of the syndicate and played a central role in the foundational offence of extortion. She made payments for the "Silent Calling App," which Sukesh allegedly used from jail to carry out the foundational crime of extortion, and remained in constant contact with Sukesh through mobile phones illegally used by him while in jail, as well as actively facilitated the handling and disposal of the proceeds of crime. In contrast, the roles of the other co-accused were limited and distinct - Avtaar Singh Kochhar acted as a hawala operator, Joel Daniel was a salaried employee, Sunil Kumar was a jail official, and Pinky Irani was involved in arranging meetings with celebrities. F. ANALYSIS i. Re: Prolonged incarceration and delay in completion of trial a) Statement of Objects and Reasons of MCOCA 18. In order to appreciate the statutory scheme of MCOCA in its proper context, reference may be made to the Statement of Objects and Reasons of the statute, which is re-produced hereinbelow: "Statement of Objects and Reasons ....
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....re turning to the judgments cited on both sides, as several of them are under UAPA, it may be noted that the bail provision under the two statutes (reproduced above) are not identical. It has been held that Section 21(4) of MCOCA provides for a stricter regime, than Section 43D(5) of UAPA. Both in National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1, paragraph 23] and Kekhriesatuo Tep & Ors. v. National Investigation Agency [(2023) 6 SCC 58, paragraph 13], the Supreme Court has indicated that the test under MCOCA requires a much stronger degree of satisfaction, than the corresponding stipulation in UAPA. The key distinction, as analysed by the Court, lies in the difference in the formulation of the test: in UAPA, the Court must be satisfied that "there are reasonable grounds for believing that the accusation against such person is prima facie true", whereas under MCOCA, the satisfaction required is that "there are reasonable grounds for believing that he is not guilty of such offence". 20. The Division Bench of this Court in Neelam Ranolia v. State of NCT of Delhi [2025 SCC OnLine Del 5742, paragraphs 15-16] has also followed the aforesaid decisions. KA Naje....
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....that the accused was alleged to have received sale proceeds arising out of MCOCA offence for her own use, but held that the question of utilization of proceeds of crime would be examined at trial. The Supreme Court released the accused on bail, principally on the ground of parity with other co-accused. 23. Coordinate Benches of this Court in Arun v. State (Government of NCT of Delhi) [BAIL APPLN. 3348/2023, dated 07.04.2025], Ashish @ Deva v. State (NCT of Delhi) [BAIL APPLN. 1618/2024, dated 29.04.2025], Rajesh Kumar v. State (Government of NCT of Delhi) [BAIL APPLN. 2986/2023, dated 08.05.2025], and Jitender Dixit @ Bantu v. The State (Government of NCT of Delhi) [BAIL APPLN. 3831/2023, dated 19.05.2025] have also inter alia, adopted the yardstick of prolonged incarceration, without likelihood of completion of proceedings, to grant bail to petitioners accused of offences under MCOCA. 24. While these decisions clearly establish that grounds under Article 21 are indeed relevant, even while considering bail applications of persons accused under MCOCA, Mr. Jain has cited the following judgments of the Supreme Court and this Court which, according to him, suggest that Section....
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....udgments, which arose out of the same proceedings under the UAPA. Gulfisha Fatima v. State (Govt. of NCT of Delhi) [2026 SCC OnLine SC 10 [hereinafter, "Gulfisha Fatima"]] and Tasleem Ahmed v. State Govt. of NCT of Delhi [2025 SCC OnLine Del 5754 [hereinafter, "Tasleem Ahmed"]], were rendered by the Supreme Court and a Division Bench of this Court, respectively. He submitted that these judgments require an analysis of the factual allegations and seriousness of the offence, in addition to the ground urged under Article 21 of the Constitution. As these judgments were rendered in the context of the bail provision under UAPA, Mr. Jain submitted that they would fortiori apply to the more stringent provision of MCOCA. 26. In Gulfisha Fatima, delivered on 05.01.2026, the Supreme Court has dealt with the interplay between Article 21 of the Constitution and Section 43D(5) of UAPA, referring to KA Najeeb and other authorities. As this is the very issue at the heart of the present matter, albeit in the context of MCOCA, it is appropriate to extract the relevant observations at some length: "29. We may at the outset clarify the limited compass of the present discussion. This Cou....
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....nacted by Parliament to address offences of a special category. 34. The constitutional inquiry into delay is not an inquiry into guilt. It is an inquiry into whether continued detention remains constitutionally permissible in the circumstances of the case. That inquiry is necessarily contextual. Context includes the nature of the allegation, the statutory field, the stage of the proceedings, the realistic trajectory of the trial, the causes contributing to delay, and the risks attendant upon release. Delay cannot be detached from these considerations and treated as a solitary determinant. 35. The proper constitutional question, therefore, is not whether Article 21 is superior to Section 43D(5). The proper question is how Article 21 is to be applied where Parliament has expressly conditioned the grant of bail in relation to offences alleged to implicate national security. The law does not contemplate an either-or approach. Nor does it contemplate an unstructured blending of statutory and constitutional considerations. What is required is disciplined judicial scrutiny that gives due regard to both. 36. The appellants have urged that their continued incarcer....
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.... the limited threshold contemplated by Section 43D(5). At this stage, the Court does not weigh evidence, test defences, or conduct a mini trial. Yet, the constitutional inquiry cannot proceed as if all allegations are identically situated. Whether the prosecution material, taken at its highest, discloses a prima facie nexus between the accused and the statutory ingredients is a circumstance that informs the assessment of continued detention. 49. Consideration must also be given to the integrity of the trial process and the risks associated with release. Depending on the nature of the case, these may include the possibility of influencing witnesses, tampering with evidence, or undermining the fairness of the proceedings. In prosecutions alleging organised activity, the assessment of such risks may differ from that in ordinary criminal cases. This is not to presume guilt, but to recognise that bail decisions are necessarily forward-looking in terms of ensuring an effective trial. 50. The Court must also bear in mind that it is not confined to a binary choice between continued custody and unconditional release. Where delay becomes a matter of constitutional concern, ....
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....egrity, and security of the State would stand effectively neutralised by the mere passage of time, even at a pre-trial stage. Such an outcome cannot be countenanced in constitutional adjudication. Accordingly, the finding in Najeeb (supra) is properly situated as a constitutional safeguard to be invoked in appropriate cases, and not as a mathematical formula of universal application. xxx xxx xxx 101. It is well recognised that Article 21 rights, though not absolute, require the State and the Court to justify continued custody with reference to the specific individual before it. Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances. The constitutional mandate demands a differentiated inquiry: where prolonged custody disproportionately burdens those whose roles are limited, the balance between individual liberty and collective security may call for conditional release, while the same balance may tilt differently for those alleged to have orchestrated the offence. 102. The statutory restrictions under special enactments do not preclude the Cour....
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....guidance on the approach to be adopted while adjudicating bail application under MCOCA also. Section 21(4) of MCOCA being on a "higher pedestal" than Section 43D(5) of UAPA, I agree with Mr. Jain that, at the very least, the same principles would govern the interplay between Section 21(4) of MCOCA and the Article 21 rights of an accused. The apparently distinct lines of authority cited above can, in my view, be reconciled, by applying the ratio of Gulfisha Fatima. 30. The position which emerges therefrom is that statutory restrictions on grant of bail cannot preclude constitutionally protected claims, referrable to Article 21 of the Constitution. The ground of prolonged pretrial incarceration without likelihood of culmination of proceedings must therefore be considered, even in cases involving special statutes. However, these are not stand-alone considerations, but require to be analysed alongwith the nature of the offence and the prima facie material on record. Conversely, while adjudicating the satisfaction required in terms of the statutory conditions, the material must be assessed through the lens of the right under Article 21 of the Constitution. In order to adjudicate such....
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....ecord that none of the defence counsel came forward for arguments on several dates, and that many opportunities were given to the accused to complete arguments on charge. 36. In Gulfisha Fatima [Paragraphs 37-44], the Supreme Court has analysed the question of responsibility of delay in trial inter alia in the following terms: "37. The present prosecution arises out of FIR No. 59 of 2020 and involves multiple accused persons, voluminous documentary and electronic evidence, and allegations of a structured and continuing conspiracy. The record reflects that compliance under Section 207 of the Code of Criminal Procedure was completed only on 05.08.2023, after which the Trial Court directed that arguments on charge would commence on a day-to-day basis from 11.09.2023 onwards. The nature of the prosecution, the number of accused, and the breadth of material necessarily render the proceedings complex and time consuming. The mere passage of time, therefore, cannot be viewed in isolation. 38. What assumes significance is that the procedural history and order sheets do not support the assertion that the delay is attributable to prosecutorial inaction or judicial inactio....
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.... the Court does not proceed on the assumption that the entire delay can be laid at the door of the accused, nor does it characterise the proceedings as free from institutional or systemic constraints. This is not a casual prosecution, nor one involving a narrow factual canvas. The law has taken its course, albeit at a pace dictated by the complexity of the case, the number of accused, and the nature of issues raised. The constitutional concern arising from prolonged custody is therefore acknowledged, but it does not, on the present record, translate into a finding that continued detention has become punitive or unconscionable solely by reason of delay. 42. The approach of addressing delay-related concerns through calibrated judicial supervision, rather than automatic enlargement on bail, stands reinforced by the decision of this Court in Union of India v. Saleem Khan^4 In that case, despite the accused having remained in custody for over five years and the trial not having commenced, this Court declined to interfere with the rejection of bail qua one accused, while upholding bail granted to another, thereby reiterating that delay-based pleas must necessarily be adjudicated....
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....bution of the accused. The case is also undoubtedly complex, and the pace of trial is impacted by the number of accused and institutional factors, such as change in the Presiding Officer, for which the prosecution cannot be held responsible. 38. Mr. Malik is right in stating that the trial is likely to be prolonged due to multitude of the accused and witnesses. However, the period of sentences for the offences in question is also relevant. In this case, the minimum and maximum sentence for the offence under Section 3 of MCOCA are five years to life imprisonment, alongwith a minimum fine of Rs. 5 lakhs. Mr. Malik submitted that, although the maximum sentence for the offence in question is life imprisonment, the petitioner, being a woman, would be entitled to remission after seven years, under Rule 1254 of the Delhi Prisons Rules, 2018. Such consideration at this stage, is in my view, premature. The best that can be said is that the petitioner may be eligible for consideration for premature release after seven years, but it cannot be said at this stage that the period of custody must be assessed against a possible sentence of only seven years. 39. A further significant consider....
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....ner, I am of the view that the role attributed to her in the syndicate, and involvement in the offence, is such that the grant of bail is unjustified, despite the period of custody undergone. In particular, it prima facie appears, from the material on record, that she is the person controlling the syndicate in the absence of Sukesh [2023 judgment, paragraphs 58 and 59.]. Further, she is alleged to have been recharging the mobile phone used by Sukesh while he was in judicial custody, and also responsible for his use of the "Silent Calling App", which were central to the commission of the offence of extortion. It therefore prima facie appears that she had a pivotal role in the alleged offence, which itself, as noted above, was one which was a grave attempt to undermine the administration of justice at many levels. The entire exercise of extortion, as alleged, was on the promise of subverting criminal justice system to secure bail for an accused, and was committed by Sukesh while he was in judicial custody, with the alleged involvement of jail officials. 41. The allegation with regard to the petitioner's use of the extorted money to sustain a lavish life style, and investments in h....
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.... transfer of the extorted money through hawala channels, and that there was no evidence of any direct interaction between him and Sukesh [Supra (note 21), paragraph 40]. Noting the ingredients of offence, the age of the petitioner [about 69 years], and the fact that he was in poor health, the Court was inclined to grant bail. b. In the case of Pinky Irani, the role ascribed to the accused was that she knew that Sukesh was in judicial custody, but nonetheless helped him in his effort to impersonate influential public figures, and arranged meetings between him and famous celebrities, and buying them gifts, for which she received an amount of Rs. 75 lakhs in her bank account [Supra (note 22), paragraphs 51-52]. c. In the case of Joel Daniel Jose, wherein bail was granted by the Special Court, he was found to be a salaried employee, whose role was confined to handling of the alleged extorted amount. d. The fourth co-accused who has been granted bail is Sunil Kumar. He was the Jail Superintendent of the jail in which Sukesh was an inmate. He was accused of enabling Sukesh to access various illegitimate privileges and to operate his syndicate from within the ja....