Delhi High Court: An application was filed seeking bail in a case registered under Sections 170, 384, 386, 388, 419, 420, 506, 186, 353, 463, 471 and 120-B of Penal Code, 1860 (IPC), 66-D Information Technology Act, Section 3 & 4 of Maharashtra Control of Organised Crime Act, 1999 (‘MCOC’ Act) registered at PS Special Cell. Dinesh Kumar Sharma, J., granted bail to the applicant based on prima facie view taken in view of evidence on record and totality of other facts and circumstances.
The complainant received a call from a landline number 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 thereby demanding a sum of Rs. 20 Crores. 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. 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 an accused was caught red-handed while receiving the amount of Rs. 1 crore from the complainant. The accused said that he collected the money on the instructions of the accused.
The interrogation further led to the alleged mastermind Sukesh Chander Sekhar, who had allegedly roped them in to collect the payment from the complainant. Sukesh Chander Shekhar was lodged in Rohini Jail in the case of allegedly taking money from AIADMK leader T.T.V. Dinakaran on the pretext of helping him to retain the “two leaves” symbol for his party. A raid was carried out by Special Cell in Rohini Jail, and two mobile phones were recovered from the possession of Sukesh Chander Sekhar. Further, the interrogations of the accused led to the identification of their associates and co-conspirators, and in total, 20 persons were arrested in the present case. During the investigation, allegedly it transpired that accused Sukesh Chandra Shekhar diverted part of the crime proceeds to the Bollywood celebrities in the shape of gifts. The investigation also revealed that accused Sukesh Chandra Shekhar roped in the present applicant who is based in Mumbai to facilitate him to get in touch with various Bollywood celebrities. As per the prosecution case, total of Rs.217 crores were extorted on different occasions and the accused received an amount of Rs.74,60,000 in her bank accounts from various bank accounts at the instance of the accused Sukesh Chandra Shekhar which allegedly are proceeds of crime.
The accused was already granted bail in the ED matter vide order dated 15-02-2022 by the Trial court. The Trial Court vide order dated 04-03-2023 dismissed the bail application of the applicant. The 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 was filed for release on bail.
The Court noted that each offence cannot be brought within the purview of the MCOC and 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. 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.
The Court further noted that 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 various bollywood celebrities and the petitioner was always in the knowledge of the fact that Sukesh Chandra Shekhar is running organized crime syndicate in Tihar Jail. The prosecution has further relied upon the confessional statement of Pinki Irani recorded under Section 18 of MCOCA, wherein she has confessed all the material facts about her being aware of the existence/running of the crime syndicate and her own association in the crime syndicate. As per counsel of State, the applicant had known Sukesh Chandra Sekhar for approximately 12 years, and she had absolute knowledge about the existence of an organized crime syndicate and intentionally receiving pecuniary gains from Sukesh Chandra Sekhar. Thus, the evidence points towards that she was the main conduit between Sukesh Chandra Sekhar and Bollywood celebrities and has been working for him for the last 4-5 years.
The Court remarked that the prosecution alleged that the petitioner helped Sukesh Chandra Sekhar in maintaining 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. 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.
The question for consideration is whether such acts would fall within the definition of “continuing unlawful activity”, “Organized Crime” or “Organised Crime Syndicate”, for the purpose of “Organized Crime”, there must be the existence of “continuing unlawful activity”. It is not necessary that the charge sheet should have been filed against the petitioner. If the charge sheets have been filed against the organized crime syndicate that would suffice the purpose.
The Court concluded that it is only required to evaluate and examine the case on the basis of broad probabilities. Regarding the offence to be committed in the future, the antecedents of the offender must be seen. It is a settled proposition that at the stage of bail, the Court cannot meticulously examine the evidence and conduct a mini trial. The findings at this stage are tentative in nature and do not affect the merits of the case. Taking a prima facie view, even the rigors of section 21(4) of MCOCA does not completely oust the jurisdiction to grant bail, if the broad probability is in favor of the petitioner.
Thus, the Court granted bail subject to the following conditions
a) The Applicant shall furnish a personal bail bond in the sum of Rs.5,00,000/- with two sureties of the like amount subject to the satisfaction of the Trial Court/CMM/Duty MM.
b) The Applicant shall appear before the court every month as fixed by the concerned court personally or through VC and, as and when directed by the court during inquiry and trial.
c) The Applicant shall under no circumstances leave India without prior permission of the Court concerned.
d) The Applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case.
e) The Applicant shall provide her mobile number(s) to the concerned police officer at PS Special Cell. and
f) In case of a change of residential address and/or mobile number, the Petitioner shall intimate the same to the Investigating Officer/ Court concerned by way of an affidavit.
[Pinky Irani v GNCTD, 2023 SCC OnLine Del 6722, decided on 20-10-2023]
Advocates who appeared in this case :
Mr. R.K. Handoo with Mr. Yoginder Handoo, Mr. Aditya Chaudhary, Mr. Ashwin Kataria, Mr. Garvit Solanki, Advocates for petitioner
Mr. Sanjay Jain, Sr. Adv. with Ms. Nandita Rao, ASC with Mr. Akhand Pratap Singh, SPP, Mr. Yuvraj Sharma, Mr. Nishank Tripathi, Ms. Harshita Sukhija, Mr. Amit Peshwani, Mr. Jasraj Chhabra, Advs. for State and ACP Virender Kadyan, PS EOW with Inspector Shikhar Chaudhary, Advocates for State
Buy Penal Code, 1860 HERE
