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TMI Blog2023 (10) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... d '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 herein before, 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 provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA.'. It is a well settled proposition that these conditions are cumulative and not alternative. It was reiterated in Sandeep Omprakash Gupta [2022 (12) TMI 1103 - SUPREME COURT] that the satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds and the expression "reasonable grounds" means something more than prime facie grounds. It was further inter alia held that it contemplates substantial provable causes for believing that the accused is not guilty of the alleged offence. In the present case, as per the prosecution, the evidence against the petitioner is that she was roped in by Sukesh Chandra Shekhar to facilitate him to get in touch with var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeking bail in case FIR No. 208/2021 dated 07.08.2021 registered under Sections 170/384/386/388/419/420/506/186/353/463/471/120-B of IPC, 66-D Information Technology Act, Section 3 & 4 of MCOC Act, 1999 registered at PS Special Cell. 2. Briefly stated that the case of the prosecution is that on 15.06.2020 complainant Ms. Aditi S. Singh received a call from a landline number on her mobile phone in which the caller introduced himself as a senior officer in the Ministry of Law and proposed to help her in resolving the legal matters related to her husband and her companies. The person demanded a sum of Rs. 20 Crores for getting the work done and conveyed the modalities regarding the delivery of money. Thereafter, allegedly, the caller through his associates extorted money from her on multiple occasions. It has been alleged that the accused persons hatched a conspiracy by impersonating as Government Officers of the highest ranks and extorted money from the complainant to the tune of Rs. 217 Crores on multiple occasions. 3. Further, the complainant alleged that she received a call to deliver Rs. 1 Crore on 07.08.2021. On the information provided by the complainant, a trap was laid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the applicant. The Ld. Trial Court inter-alia held that prima facie, conditions u/s 21(4) of the MCOC Act have not been fulfilled. Moreover, in the ED matter grant of bail to the accused/applicant was on account of her taking benefit of the proviso attached to Section 45 of the PML Act, whereas no such exempting proviso is attached to Section 21 (4) of the MCOC Act. It was further, inter-alia held that PMLA was a case of limited purpose only to money laundering whereas in the present case, the prosecution had put forth different evidence not only for the offence under MCOC Act but also for other offenses under IPC. Hence the present bail application has been filed for release on bail. 6. Sh. R.K. Handoo Learned counsel for the applicant submitted that the allegation of the applicant facilitating Sukesh Chandrasekhar (A-I) to get in touch with Bollywood celebrities is disjoint in time and period as the period of the offence started from15.06.2020. Thus, the alleged facilitating of meetings of Bollywood celebrities in Tihar jail in the year 2018 cannot be pressed into service against applicant Pinky Irani, for an offence committed after June 2020. 7. Further, it was submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation, intimidation, coercion, etc., for gaining pecuniary benefits. The allegation against the Applicant does not refer to or relate to any of the unlawful means. The word 'unlawful means' has been properly explained by the Hon'ble Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (Supra), as such acts, which has 'direct nexus with the commission of a crime, which MCOCOA seeks to prevent or control'. Thus, the acts alleged against Applicant Pinky Irani do not form part of organized crime. 11. Furthermore, it is submitted by the learned counsel that evidence to show the nexus of acts of the applicant with the prohibited activity of the syndicate, towards achieving the objective of the syndicate/gang as envisaged under section 2(e) of MCOCA, viz; to make pecuniary benefits or advantage for self or any other person. Therefore, only such acts which are committed towards the commission of the offence of the syndicate or gang, even if singly by its member, would make another person the gang liable. It is also submitted that it is an admitted case that the applicant was nowhere in the generation of proceeds of crime or commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the MCOC Act was introduced in order to curb the continuing unlawful activity [S. 2(1)(d)] carried out either singly or jointly with the objective of gaining pecuniary benefits to constitute it to be an organized crime [S. 2(1)(e)], which when having been carried out in a planned manner in a group is an organized crime carried out by an organized crime syndicate [S. 2(1) (9]. Ld. Senior advocate also submitted that the distinguishing feature of MCOCA, as distinct from a standalone act of crime, stems from the continuity factor attached to unlawful activity, as would be evident from the definitions quoted hereafter. 17. Further, the learned senior counsel submitted that the role of an individual as a member of an organized crime syndicate is to be evaluated from the point of view of her association/nexus with the organized crime syndicate (such syndicate being engaged in a continuing unlawful activity) against whom, at the given point in time, more than one charge-sheets stand filed, in relation to a cognizable offence punishable with imprisonment of three years or more, within last preceding ten years. It was also submitted that the requirement of more than one charge sheet i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that one member of the syndicate need not necessarily have the same or similar role as another member of the syndicate concerned. Different members may have different roles, not necessarily overlapping and not necessarily full length or for the entire period of commission of the crime, and may or may not have a role same or similar to the head "mastermind" of the syndicate. 22. Furthermore, Learned SPP submitted that the role of the Applicant here was distinct from other members of the Syndicate, since, the Applicant herself had stated that she has known the mastermind of the Syndicate for the past 12 years, which is evident from the conversation between the applicant and Jacqueline Fernandes. Further, in the statement of the applicant recorded u/s. 18 of the MCOCA, it has been admitted by the applicant that she was associated with the mastermind of the syndicate since 2017, after which she visited Tihar Jail, several times along with various female models/actresses, concealing the true identity of Sukesh Chandra Shekhar. 23. Learned Sr. SPP for the state further submitted that the it was the applicant who projected Sukesh Chander Shekhar to be a high-ranking and immensely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce can be placed upon State of Maharashtra v. Vishwanath Maranna Shetty (2012) 10 SCC 561. 28. Further, it was submitted by Sh. Sanjay Jain Senior Advocate that the offences under MCOCA are neither overlapping nor are akin to offences under PMLA. The argument sought to be canvassed by the applicant is that Section 71 of PMLA provides that PMLA would have an overriding effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force is misplaced. The occasion to apply Section 71 of the PMLA, particularly the expression 'notwithstanding anything inconsistent therewith would arise only if there is an overlap between the two enactments. 29. Learned Sr. SPP further submitted that it is crystal clear that PMLA has its own field of operation and is concerned with the involvement in any process or activity with the proceeds of crime. Hence, the investigation in PMLA is primarily tailored to trace the proceeds of crime, which essentially means property, as defined in Section 2(b) of the said Act. On the other hand, MCOCA is a special Act for the prevention and control of continuing criminal/unlawful activities of an organized crime syndic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32. Before proceeding to analyze the contentions of the parties which have been recorded herein above, it is necessary to refer to the relevant provisions of the MCOC Act. In order to understand the relevant provisions, it is also necessary to look at the statement of object and reasons of the Act. "Organised crime has been for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organised crime being very huge, it has had serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and thus, there was immediate need to curb their activities. It was also noticed that the organized criminals have been making extensive use of wire and oral commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has similar provisions as that in MCOC Act, inter alia held as under: "In understanding the ambit of the enactment, emphasis must be given to three definitions: a. Organised crime (Section 2(1)(e)) b. Organised crime syndicate (Section 2(1)(f)); and c. Continuing unlawful activity (Section 2(1)(c). The expression "organised crime" is defined with reference to a "continuing unlawful activity". The definition is exhaustive since it is prefaced by the word 'means'. The ingredients of an organised crime are: a. The existence of a continuing unlawful activity; b. Engagement in the above activity by an individual; c. The individual may be acting singly or jointly either as a member of an organised crime syndicate or on behalf of such a syndicate; d. The use of violence or its threat or intimidation or coercion or other unlawful means; and e. The object being to gain pecuniary benefits or undue economic or other advantage either for the person undertaking the activity or any other person or for promoting insurgency. The above definition of organised crime, as its elements indicate, incorporates two other concepts namely, a continuing unlawful activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears or more. (iv) undertaken either singly or jointly, (v) as a member of organised crime syndicate i.e. acting as a syndicate or a gang, or on behalf of such syndicate, (vi) (a) in respect of similar activities (in the past) more than one charge-sheets have been filed in competent court within the preceding period of ten years, (b) and the court has taken cognizance of such offence. (vii) the activity is undertaken by: (a) violence, or (b) threat of violence, or intimidation or (c) coercion or (d) other unlawful means (viii) (a) with the object of gaining pecuniary benefits or gaining undue or other advantage or himself or any other person, or (b) with the object of promoting insurgency. 24. A close analysis of the term, 'organised crime' would indicate that there has to be an activity prohibited by law for the time being in force which is a cognizable offence punishable with imprisonment of three years or more, undertaken as singly or jointly as a member of organised crime syndicate or on behalf of such syndicate, in respect of which activity more than one chargesheets have been filed before a competent court within the preceding period of ten yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA." 38. The bare reading of this makes it clear that each and every offence cannot be brought within the purview of the MCOC and in order to penalise a person under the MCOC, the ingredients of Section 2(d), 2(e) and 2(f) must be fulfilled. It is also pertinent to mention, that mens rea is a necessary ingredient for the commission of crime under MCOCA. 39. It is also necessary to understand that the factum of recording of offence of organised crime and not the recording of a crime against an offender as such is required to attribute to the provisions of MCOCA. 40. In State of Gujrat vs. Sandip Omprakash Gupta (Supra) the apex court also enumerated the conditions which normally weigh with the court states in granting bail in non-bailable offences. "26. The considerations which normally weigh with the Court in granting bail in non-bailable offences are: (1) the nature and seriousness of the offences; (2) the character of the evidence; (3) circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nised crime or abetment thereof must be judged objectively. 30 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the m intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining a flamboyant lifestyle to convey a sense of being above the law of the land and this played a measure role in enabling Sukesh Chandra Sekhar to acquire the influence that facilitated his running of syndicate despite being lodged inside prison. 47. The prosecution has also alleged that the petitioner told Shan Muthathil that he would receive a call from the Home Ministry which will prove that Sukesh Chandra Sekhar is an important person and in pursuance of that Shan Muthathil did receive a call. It has been submitted that this is proof that the petitioner was a close associate of Sukesh Chandra Sekhar. The state alleged that the petitioner remained a member of the crime syndicate as she concealed the real identity of the member of the present case and she always knew that Sukesh Chandra Sekhar was running a syndicate from inside the jail. The petitioner allegedly helped Sukesh Chandra Sekhar to create the aura and purchased costly items for the purpose of gifting them to the females whom the applicant had helped in meeting Sukesh Chandra Sekhar. 48. The question to be considered is whether such acts would fall within the definition of "continuing unlawful activity", "Organi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een done singly or jointly as a member of an organized crime syndicate or on behalf of such organized crime syndicate. It is also pertinent to mention that the alleged offence should be relatable to the statement of objects and reasons and the ingredients of "continuing unlawful activity" and "organized crime". This Court considers that the allegations are required to be tested during the trial to meet the requisite of MCOCA. It is also a matter of trial that whether money received by the petitioner was for gaining undue economic advantage, as the case of defence is that this money was transferred for distributing gift to the celebrities. 54. It is a settled proposition that the court at the stage of bail has only to see the prima facie case. Even in the case of MCOCA, the court is not required to arrive at a positive finding that the applicant has not committed such an offence because in such a case it will be impossible for the prosecution to obtain a judgment of conviction of the applicant in case the bail is granted. 55. The court is only required to evaluate and examine the case on the basis of broad probabilities. In regard to the offence to be committed in the future, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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