Kamlesh Kothari v. State of NCT of Delhi

9. In his confessional statement petitioner B.Mohanraj stated that while he was handling the case of Sukash and Leena he found that they were working as a group and obtaining lots of money from their activities and he got into managing their funds. Petitioner B. Mohanraj stated that co-accused Sukash and Leena gave him lots of commissions and over the time, he became integral part of their group. Petitioner B.Mohanraj specifically stated that though overtly he was managing their legal affairs, but covertly he was managing their funds obtained from their illegal activities. In the disclosure statement petitioner B.Mohanraj submitted that he was continuously in touch with Sukash and Leena since 2015 when they were arrested by EOW Mubbai for running a Ponzi Scheme.

10. It also came in the disclosure statement that petitioner B.Mohanraj had introduced his friend Kamlesh Kothari, a high-end car dealer in T Nagar to Leena from whom Leena bought 3 cars, Range Rover Sport, Bentley and Fortuner. It was stated that the cars were bought in cash on paper and payments were made by others. Petitioner B.Mohanraj stated that he and Kamlesh arranged all this and got huge commission. It has also come in the disclosure statement of Petitioner B.Mohanraj that Sukash called him on Telegram and asked him to buy a house for Leena in some other person‟s name during August 2020 which he discussed with Kamlesh Kothari and finalized the deal. Petitioner B.Mohanraj stated that Sukash sent cash Rs.7.75 Crores through Sudheer and Joel and handed over the money to Kamlesh Kothari at his office at T. Nagar in his presence.

11. It came in the disclosure statement of B.Mohanraj that Leena occupied the said house and did the renovation work. It was also came in the statement that a rental agreement for this house was entered between Leena and Jitendra Kothari for Rs 2.[5] lakhs, from January 2021 and Leena used to send the monthly rent through RTGS to Jitendra Kothari and he in turn used to deduct the tax amount and return the balance amount to Kamlesh Kothari and he used to get that amount and hand it over to Leena. In confessional statement under Section 18 MCOCA of Sukesh Chandrashekhar he also indicated the role of petitioner B.Mohan raj. It came in his disclosure statement that the cash was delivered to B. Mohan Raj and he further delivered to Kamlesh Kothari and Arun Muthu. Sukash also stated in his confessional statement that petitioner B. Mohan Raj arranged some entity for purchasing house also and petitioner Mohan Raj and Kamlesh connected them to Jitender Kothari and brought house at 12/13, Kannnathur Village, opp Mayajaal Cinemas, ECR, Chennai in name of Jitender Kothari in August 2020.

SUBMISSIONS OF BEHALF PETITIONER B.MOHAN RAJ

12. Mr.Anand Grover, learned senior counsel for Mr.B.Mohanraj has submitted that the prosecution has failed to show any reasonable ground for believing that petitioner B.Mohanraj has committed the alleged offence and there are no allegations in the chargesheet of committing under IPC or IT Act. It has been submitted that the case of the prosecution against the petitioner is that he helped main accused Sukesh Chandrashekar, and his wife Leena in conduiting money for the Main accused and in facilitating the purchase of properties and cars. It was submitted that even if this allegation is taken at face value as contended by the Respondent, prima facie the petitioner has not committed any offence u/s 170 / 384 /386 /419 /420 /406 /409 /468 /471 /186 /353 / 506 /120B IPC & 66-D IT Act. Learned senior counsel submitted that the perusal of the charge sheet would not reveal any act which may constitute an „organised crime‟ as defined under Section 3 (1) of the MCOCA. It has been submitted that „organized crime‟ requires ‘continuing unlawful activity’ by an individual, singly or jointly, as a member of an organised crime syndicate. Learned senior counsel submitted that in order to constitute ‘Continuing unlawful activity’ it is necessary that: a) The accused has engaged in activity prohibited by law, cognizable and punishable with imprisonment of three years or more; b) The accused has undertaken that activity as a member of an organized crime syndicate or on behalf of such syndicate; c) In respect of the accused more than one charge-sheet has been filed and cognizance is taken by the competent Court in the last 10 years.Learned senior counsel submittedthat there is no allegation that the Applicant has engaged in continuing unlawful activity. Learned senior counsel submitted that the list of previous cases of criminal conspiracy and other offences as stated in the charge-sheet only reflect on the activities of other co-accused regarding their impersonation as government officers and such acts cannot be attributed to the applicant in any of the cases. It has been submitted that therefore no offence under Section 3(1) \(i) of the Act. Learned senior counsel has submitted that prosecution has alleged that that the Applicant was in possession of unaccountable wealth in terms of land and monies however, the investigation could not substantiate the allegation. It has also been submitted that there is no allegation in the chargesheet qua the applicant before the alleged commission of extortion or during the course of extortion. It has been submitted that even as per case of the prosecution, the role of the applicant started after extortion was over on the ground that he allegedly facilitated the buying of properties for Leena Paulose, wife of the main accused Sukesh Chandrashekar. Learned senior counsel submitted that admittedly Petitioner had been the lawyer for the main accused in many matters and he was acting in his capacity as the lawyer and therefore there is nothing on record to suggest that petitioner B.Mohanraj was member in any organised crime syndicate or had any connection, link or nexus. Reliance has been placed upon Ranjitsing Brahmajeetsing v. State of Maharashtra

13. It has further been submitted that the prosecution has only brought on record the statements of the Accused and the co-accused that the petitioner was requested by Sukash to buy properties for his wife Leena, in the form of cars and houses. It has been submitted that this alone does not constitute any offence. It has further been submitted that the prosecution is duty bound to bring legally admissible evidence against the petitioner and the role attributed to others cannot be attributed to the petitioner. Learned senior counsel submitted that the confession as recorded under Section 18 of MCOCA cannot be used against the petitioner. It has been submitted that the statement of the petitioner was taken forcibly under coercion. The petitioner was harassed physically and mentally. In any case, It has been submitted that the petitioner retracted the statement. Learned senior counsel submitted that the procedure prescribed under Section 18 of MCOCA was not complied with, therefore the confessional statement cannot be read against the accused. It has further been submitted that the cooling off period as provided in MCOCA Maharshtra Rules has not been complied with in this case.

14. Learned senior counsel submitted that even the disclosure statement of the petitioner establish that the petitioner was not a member of organised crime syndicate and that he was the lawyer for the Main Accused, Sukesh Chandrashekhar and his wife, Leena. Learned senior counsel took the court through the statement of the petitioner B.Mohanraj to emphasise that he had no role to play in the organised crime syndicate. Learned senior counsel further submitted that the disclosure statements by other co-accused co-conspirator namely, Leena Paulose, Arun Muthu, Kamlesh Kothari, Joel Daniel Jose were forcibly taken and are not in compliance the sec 18 of MCOCA. It has been submitted that in any case the confession of co-accused do not constitute substantive evidence. The reliance has been placed upon Kashmira Singh v State of HP Cr.MP(M) No.1741 of 2020; Hari Charan Kurmi v State of Bihar (1964) 6 SCR 623; Param Hans Yadav v State of Bihar (1987) 2 SCC 197; Kalpnath Rai v State (1997) 8 SCC 732; Jayendra Saraswathi v State of Tamil Nadu (2005) 2 SCC 13; Mahabir Viswas v State of West Bengal.

15. Learned senior counsel has also submitted that the case of the prosecution is based on statement/confession recorded under Section 18(3) of MCOCA which requires that a certificate of the police officer recording the statement must be there at the bottom of the confession after the statement is recorded. It has been submitted that in all the statements that are recorded under Section 18 (3) of the Act, there is no certificate of the officers and therefore statements which do not comply with the mandate of Section 18 (3) of the Act cannot be relied upon. Learned senior counsel further emphasized that the disclosure statement by co-accused/co-conspirators are not voluntary.

16. Learned senior counsel further submitted that the Facts stated or acts done after the conspiracy is over are not admissible. It has been submitted that in the present case, the conspiracy was to extort money from the Complainant and even as per the Prosecution, it is long after the alleged extortion that the role of the Applicant allegedly crops up. Learned senior counsel further submitted that the material against the Applicant shows that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Learned senior counsel has also assailed the sanction order and stated that it is not valid and even cognizance could not have been taken. Learned senior counsel submitted that while granting sanction, authority has to examine the individual role of the accused. It has further been submitted that the sanction Order merely stated that the main accused Sukesh and Leena formed an organized crime syndicate with assistance from arrested members of the syndicate and even the names of the members of the crime syndicate were not indicated. Learned senior counsel submitted that the validity of the sanction is required to be seen even at the stage of bail. Learned senior counsel further submitted that petitioner was arrested on 05.09.2021. The investigation is complete. The charge-sheet has been filed and charges are yet to be framed. It has further been submitted that the prosecution has cited 203 witnesses and it will be a very lengthy trial, therefore, the petitioner may be released on bail. It has been submitted that the petitioner is a lawyer and has roots in the society and has no criminal antecedents. It has further been submitted that the petitioner is married and has a small child and old sick father. It has been submitted that there is no flight risk.

17. Learned senior counsel has also assailed the arguments of the prosecution that mobile number of the petitioner B.Mohanraj 9884477669 was found in the data provided by Hushed App. It was submitted that the plea of the prosecution that Sukesh used virtual number 44753105176 and +16692594162 to contact complainant of the present case and both the virtual numbers were subscribed with Hushed App. is a new case set up by the prosecution only to defeat the right of the petitioner. In support of his contention, learned senior counsel has placed reliance upon UOI vs. KA Najeeb 2021 SCC OnLine SC 50, Junaid vs. State of GujaratSLP Crl. No.11608/2022, Raju Ram vs. state of Bihar SLP Crl. No.307/2023, Dhiraj Kumar Shukla vs. State of UP SLP Crl. No.6690/2022, Jitendera Jain vs. NCB & Anr. SLP Crl.No.8900/2022 and AbulHossain Mondal vs. state of WB SLP Crl. 3400/2022.

SUBMISSIONS ON BEHALF OF PETITIONER KAMLESH KOTHARI

18. Mr.Vikas Pahwa, learned senior counsel for the petitioner Kamlesh Kothari submitted that there is no evidence to establish any nexus whatsoever between the Petitioner and the offences as alleged in the FIR. It has been submitted that the petitioner is a law-abiding citizen who has been wrongfully and maliciously dragged into criminal proceedings arising out of the FIR. It has been submitted that even if facts of the allegations as asserted in the FIR are taken to be true, the offences in the FIR are not made out as provisions of MCOCA, 1999 are not applicable to the petitioner. Learned senior counsel submitted that the applicant is not an accused in any of the charge-sheet filed against the accused persons. It has been submitted that in order to invoke the provisions of MCOCA,1999 against a person alleging him to be involved in the commission of any „organized crime‟ by acting as a member of an „organised crime syndicate‟ or on its behalf, it is necessary for the prosecution to demonstrate that two chargesheets filed against the accused in question in the preceding 10 years from the crime in consideration, wherein he/ she has been co-accused with at least one of the other co-accused persons. Learned senior counsel submitted that there is neither a single registered crime nor a chargesheet which has been filed or cognizance has been taken by any court wherein the present petitioner Kamlesh Kothari is co-accused. It has further been submitted that theSanction Order dated 31st October 2021 (or 1st November 2021) is illegal and unsustainable. Learned senior counsel further submitted that the essential ingredients of the offence u/s 3 of the MCOCA are not made out against the applicant as the provision requires the applicant to have abetted the commission of extortion and not the alleged illegal purchase of cars. Learned senior counsel submitted that the necessary ingredient to attribute Section 3 (2) of MCOCA is „knowingly‟. It has been submitted that therefore it is necessary for the prosecution to establish that petitioner had the knowledge of the crime alleged.

19. Learned senior counsel submitted that the allegations against the petitioner is limited to arranging/facilitating sale of car and real property to Leena Paulose, for which he has allegedly received commission. However, there is no material on record to substantiate this allegation. Learned senior counsel submitted that even otherwise selling a car or arranging buyer for such cars for a monetary commission is not an activity prohibited in law and as such does not attract the charges levied against the Petitioner. Learned senior counsel submitted that the roleof the petitioner as per the chargesheet is only limited to the sale and purchase of luxury cars by Leena Paulose and a real estate property in Chennai. It has been submitted that there is no material whatsoever to indicate any connection between the Petitioner and the principal accused, Sukash or any role of the Petitioner in the crime of extortion which took place in Delhi in June-July 2020. It has been submitted that further there is not even a shred of evidence to show that the Petitioner was the beneficiary of the monies extorted from the complainant. Learned senior counsel submitted that there is no allegation that the petitioner had the knowledge, intent or mens rea. Learned senior counsel further submitted that the petitioner Kamlesh Kothari was approached by co-accused B.Mohanrajon behalf, Leena Paulose (proprietor of M/s Nail Artistry and M/s Supercar Artistry), who wanted to purchase luxury cars on finance for the family. It has been submitted that the petitioner‟s family has only financed cars forM/s Nail Artistry under legitimate hire purchase agreements and further bought cars from M/s Supercar Artistry, which in the course of their usual business, where they deal and transact with multiple customers. Learned senior counsel submitted that even as per chargesheet the petitioner has only received a sum of Rs.23,50,000/- as commission on sale of cars and not the extortion amount of Rs. 200 Cr. It has been submitted that there is not even an iota of evidence to show the nexus of the petitioner with the extortion activity alleged to be committed against the complainant. It has been submitted that even as per fact the complainant received the first call from the main accused on 15th June 2020 whereas the first payment of extortion was made by complainant in July 2020. It has further been submitted that petitioner had sold the first car to Nail Artistry under hire purchase agreement dated 15th June 2020 i.e. before the first payment made in the present crime of extortion. Learned senior counsel submitted that the same reflects that the Petitioner was merely transacting with the co-Accused Leena Paulose‟s firms in the regular course of his business.

20. Learned senior counsel submitted that the only evidence sought to be relied against the petitioner are the Disclosure Statementu/s 18 of MCOCA of co- accused persons, Sukash and B.Mohan Raj. Learned senior counsel submitted that even these disclosure statements do not indicate the Petitioner to be involved in the crimes or having knowledge of the same that the money being used for purchasing cars were the proceeds the crime arising from alleged crimes against the complainant.

21. It has further been submitted that even B. Mohanraj in his confessional statement revealed that the Petitioner had rejected the offer for taking cash of 1 crore and transmitting funds for purchase of vehicle for M/s Supercar Artistry of Leena. Learned senior counsel submitted that if the Petitioner was a part of the alleged crime syndicate acting on instructions of syndicate leaders, then there would been no reason or occasion for the Petitioner to decline the instruction/ offer extended by Sukash Chander Shekahr to take 1 crore rupees. It has further been submitted that even otherwise such disclosure statements are inadmissible and cannot be relied upon as proper procedure under Section 18 of MCOCA was not followed by the investigating authority. It has further been submitted that even otherwise co-accused Sukash and B.Mohanraj have retracted the statements.

22. Learned senior counsel further submitted that learned trial court granted the bail to Joel Daniel Jose whereby rejecting the disclosure statements given bySukash Chandrashekar and B.Mohan Raj. Learned senior counsel submitted that the confessional statements can only be acted upon if it has been corroborated by independent evidence. Reliance has been placed upon Tofan Singh v State of Tamil Nadu (2021) 4 SCC 1. Learned senior counsel submitted that compliance to Section 18 of MCOCA has not been followed while recording the confessional statements and granting the sanction. Learned senior counsel submitted that that petitioner completely fulfils the triple test. It has further been submitted that since the trial will take a long time, the petitioner is entitled to be admitted to bail.

23. Learned senior counsel has placed reliance upon Mohd.Muslim vs. State of NCT of Delhi, 2023 SCC OnLine 352, where it has been inter alia held that if the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty, bail should be granted to the accused. Learned senior counsel has also placed reliance upon Mohamad Iliyas Mohamad Bilal Kapadia v The State of Gujrat, SLP (Crl) No. 1815 of 2022 decided on 30th May 2022 to buttress his contention that minimum two charge sheets are required where applicant/accused has been previously accused with other members of the alleged crime synidicate to establish unlawful activity which is an essential requirement for invoking the crime under Section 3 of MOCOCA in relation to the applicant/accused. Learned senior counsel also placed reliance upon State of Maharastra v Lalit Somdatta Nagpal, (2007) 4 SCC 171 in which it was inter alia held that if the material is not available to show that accused has been involved in any continuing unlawful activity the MOCOCA should not be invoked. In this regard reference has also been made to Mahipal Singh v Central Bureau of Investigation & Anr, (2014) 11 SCC 282. Learned senior counsel has also placed reliance upon State of Maharastra v Rahul Ramchandra Taru, Criminal Appeal No. 239 of 2011 decided on 6th May 2011 wherein it wasinter-alia held thatone or more chargesheets, containing allegations that the alleged offence was committed either singly or jointly as a member of the organized crime syndicate or on behalf of such syndicate, is sine qua non for invoking stringent provisions of MCOCA. It was further held that mere filing of more than one chargesheets within the preceding period of ten years, alleging commission of cognizable offence punishable with imprisonment of three years or more, is not enough.

24. Learned senior counsel also submitted that the reliance of the prosecution on Kavitha Lankesh v State of Karnataka 2022 12 SCC 753; 2021 OnLine SC 956 is not applicable as the issue under consideration before the Hon‟ble Supreme Court was regarding the quashing of prior approval under Section 21 (4) of MCOCA. It was submitted that in this case it was inter alia held that on the facts of the aforementioned case the FIR was registered against unknown persons and observations were made in the context of initial stage of investigation and it did not pertain to the question of grant of bail, therefore it did not involve any consideration as regards the essential requirement of establishment of continuing unlawful activity i.e. presence of two chargesheets for invocation of MCOCA against the accused as was the case in the aforesaid judgment.

25. Learned senior counsel further submitted that reliance of prosecution on Zakir Abdul Mirajkar vs. State of Maharashtra 2022 SCC OnLIne 1092 is also not applicable as the aforesaid judgment does not consider that Section 23 (1) (a) of the Act is applicable when case is at initial stage and not when detailed and roving enquiry has already been made. Learned senior counsel further submitted that the statement under Section 18 of MCOCA and statement made under Section 164 and 161 cannot be relied upon to deny bail to the petitioner.

SUBMISSIONS ON BEHALF OF THE PETITIONER LEENA PAULOSE

26. Mr. Wills Mathews, learned counsel for the petitioner Leena Paulose submitted that the petitioner was falsely arrested in this case on 20.09.2021. It has been submitted that the petitioner is a Dentist Doctor / Model, Actor, successful Business Women, with strong roots in society, and belongs to a respectable and educated family. It has been submitted that the petitioner in good faith and as a dutiful wife, complied with many of the suggestions/ demands of her accused husband in good faith, without understanding various alleged issues and consequences involved. It has been submitted that the petitioner was made to understand that, the amount credited in her Bank account are all loans taken/arranged by her husband for business and there was nothing to disbelieve her husband and the applicant was paying the EMI for the Loan as is generally done.

27. It has further been submitted that the petitioner was earning well as reflected from the Income Tax Return filed for the assessment year 2020 -2021 showing an income of Rs.43,69,050.00. Learned counsel submitted that the allegations are baseless and petitioner has been implicated only because she is the wife of the main accused. Learned counsel submitted that there is no case of unjust, dishonest or malafide intentions attributed to the petitioner and the petitioner is innocent. It has further been submitted that the continuous detention of the petitioner is in violation of the Article 21 of the Constitution of India as she was denied the life with dignity. It has further been submitted that the petitioner who is 41 years of age and still does not have a child as she had suffered miscarriage in the past. It has been submitted that it is her right to conceive and have child and any order denying that right would be in violation of the fundamental rights as enshrined in the Constitution of India. Learned counsel for the petitioner submitted that the petitioner is not threat to the society and her release is necessary for the proper conduct of the case. Learned counsel for the petitioner submitted that the petitioner is not a beneficiary of the crime receipts.

28. It has been submitted that the petitioner has already been granted bail in (i) case No 33/201 5 u/s 420, 120B IPC &3,[4] Price Chits &Money Circulation Act, EOW, Mumbai (ii) FIR No 186 / 2017 U/s 7/12/13 POC Act &120B IPC, (iii) Cr No 24/20 13 U/s 406, 409,420 r/w 34 IPC &under section 66 0 of Information Technology Act, (iv) in Crime No 64/20 1, RC 63/E/20 14 /BSFC u/s 406,409,420, 120B IPC &13 (2) r/w 13 (1) (d) of PC Act, 1988, Chennai. It has been submitted that in this case even the applicant was not charge sheeted and was dropped from the case. It has further been submitted that the petitioner is a sick woman suffering from depression, with no previous conviction, is entitled to be admitted to bail. It has been submitted that the petitioner has always joined the investigation and now since charge sheet has been filed there would be no purpose of keeping the petitioner in custody. It has been submitted that the petitioner had employed 40 persons and their future is also uncertain because of the petitioner‟s continuous detention.

29. Learned counsel for the petitioner submitted that all the transactions of the applicant were through Banking channels in the most transparent manner, bonafidely and there is no recovery of any cash/proceeds of crime from the petitioner. Learned counsel submitted that therefore the petitioner is entitled to be admitted to bail.

SUBMISSIONS ON BEHALF OF RESPONDENTS

30. Mr.Sanjay Jain, learned ASG for the State has submitted that the allegations against the petitioners are very serious in nature and they are not entitled to be admitted to bail. Learned ASG submitted that the learned special judge has rightly rejected the bail application of the petitioners vide a detailed and reasoned order and there is no ground to interfere in the same. Learned ASG submitted that the all the petitioners have been active member of the organized crime syndicate being run by Sukash Chander Shekhar for carrying out an organized crime. Learned ASG submitted that the requirement of filing of more than one chargesheets as specified under Section 2 (1) (d) of MCOCA is not individual centric but is syndicate centric and this aspect is already settled by the Hon‟ble Supreme Court in Kavitha Lankesh v. State of Karnataka and Others; (2022) 12 SCC 753. Reliance has also been placed upon Zakir Abdul Mirajkar (supra). Learned ASG submitted that in MCOCA a person can be prosecuted even if his role is of a facilitator or of an abettor as referred to in Sections 3 (2), 3 (3), 3 (4) or 3 (5) of MCOCA. Learned ASG submitted that in the present case the provisions of MCOCA were added in a pre-existing FIR bearing No.: 208 of 2021, registered by Special Cell, Delhi Police, u/s.: 170, 186, 384, 386, 388, 419, 420, 353, 506 and 120-B of IPC r/w. Section 66-D of Information and Technology Act, 2000. Learned ASG submitted that to attribute MCOCA, it is not mandatory that each member of the syndicate should have a direct role to play in the foundational crime. Learned ASG submitted that if any individual abets (as defined u/s. 2(1)(a)(i) and (iii) of the MCOCA as distinct from the definition of the said expression under IPC in the commission of crime while the same is being committed the organised crime syndicate or in other words facilitates the continuing commission of the crime by or on behalf of the syndicate, such an individual will attract all the trappings of being a member of the organised crime syndicate and can be charged under the provisions of the MCOCA as part of the syndicate. Learned ASG submitted that one member of the syndicate need not necessarily have the same or similar role as another member of the syndicate concerned. Reliance has been placed upon Ranjitsing Brahmajeetsing (supra). Learned ASG submitted that it is a settled proposition that mere membership/nexus with the organised crime syndicate is sufficient to prosecute under MCOCA. Reliance has been placed upon Sachin Bansilal Ghaiwal v. State of Maharashtra; (2014) SCC OnLine Bom 725.

31. Learned ASG submitted that confession recorded under Section 18 of MCOCA is admissible against the person making it as well as against the co-accused. It is submitted that legal position as regards the confession u/s. 18 of the MCOCA is that the factors such as voluntary nature of the confession, the procedural requirements of recording of the statements and the other aspects including retraction can be gone into only at the stage of the trial and not before. It has further been submitted that MCOCA Rules 1999 have not been made applicable in Delhi.

32. Learned ASG submitted that the challenge to the procedural irregularities, if any, can be gone into only at the stage of trial and not for the purposes of bail. Learned ASG submitted that it is a settled proposition that the confessional statements recorded under Section 18 of MCOCA is applicable to the other co-accused as well. Reliance has been placed upon Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.

33. In regard to the approval under Section 23 (1) (a) and 23 (2) of MCOCA, it has been submitted that in the Approval Order u/s. 23 (1)(a) of MCOCA it is not necessary to include thenames of all the members at the threshold stage. It has been submitted that as the investigation proceeds, revealing the involvement and identity of more and more members, their names can always be added later on. Reliance has been placed upon Vinod G. Asrani v. State of Maharashtra; (2007) 3 SCC 633. It has also been submitted that the approval order under Section 23 (1) (a) of MCOCA is with respect to the offence and not with respect to the offender. Learned ASG submitted that validity for sanction for the prosecution under Section 23 (2) of MCOCA is a matter of trial. Learned ASG submitted that under Section 21 (4) of MCOCA, it is necessary that accused must pass the twin conditions as prescribed under Section 21 (4) of MCOCA for grant of bail.

34. Learned ASG has also placed reliance on the Confessional statement u/s 18 MCOC Act of Dharam Singh Meena, statements under Section 164 Cr.P.C. of Jitendra Kothari and statement of Gaffar Khan under Section 161 Cr.P.C. Reliance has also been placed upon disclosure statement of accused Arun Mutthu indicating the role of petitioner B.Mohan Raj. Learned ASG highlighted the role of the petitioners as revealed during the course of investigation which has been discussed in earlier part of this order, and has not been discussed here to avoid repetition.

FINDINGS AND CONCLUSION

35. The Maharashtra Control of Organised Crime Act, 1999 was enacted to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto.

36. Continuing unlawful activity is defined under Section 2 (d) of MCOCA as under: (d) “continuing unlawful activity” means 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 either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a comptent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

37. Section 2 (e) of MCOCA defines „organised crime‟, which reads as under: (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

38. The MCOCA was made applicable to the National Capital Territory of Delhi by Ministry of Home Affairs by virtue of a order dated 02.01.2002. It is a matter of record that MCOCA Rules, 1999 were not brought in force.

39. The plea on behalf of B.Mohanraj and Kamlesh Kothari is that there is requirement of more than one chargesheets as defined under Section 2 (1) (d) of MCOCA. The reading of Section 2 (1) (d) indicates that 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 either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate is a continuing unlawful activity, if in respect of such offence more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence. However, this question has come up for consideration before the Supreme court in Kavitha Lankesh (supra) wherein it was held that requirement of more than one charge-sheets is in reference to the continuing unlawful activities of the organised crime syndicate and not qua individual member thereof.

40. Similarly, in Zakir Abdul Mirajkar (supra) the Supreme court has inter alia held that it is settled law that that more than one charge sheet is required to be filed in respect of the organized crime syndicate and not in respect of each person who is alleged to be a member of such a syndicate.

41. Similarly in Govind Sakharam Ubhe v. State of Maharashtra; (2009) SCC Online Bom 770, it was inter alia held that if within a period of preceding ten years, one charge-sheet has been filed in respect of organized crime committed by the members of a particular crime syndicate, the said charge-sheet can be taken against a member of the said crime syndicate for the purpose of application of the MCOCA against him even if he is involved in one case.

42. In fact dealing with all these judgments makes it clear that the salient point in the nexus or link with the “organized crime syndicate” is basically the foundation and a person can be prosecuted if the link is established. It is not necessary that the persons who are alleged to be members of organized crime syndicate have more than one chargesheets filed against them in an individual capacity. The prerequisite condition is that chargesheet should have been filed against the syndicate. Thus, second proposition seems to be that the chargesheet in respect to the organized crime syndicate is sufficient to fulfill the conditions under Section 2 (1) (d) of MCOCA. A provisions of MCOCA can be attributed if a person is found to be a facilitator or of an abettor as referred to in Sections 3 (2), 3 (3), 3 (4) or 3 (5) of MCOCA.

43. In Digvijay Saroha v. State; 2019 SCC Online Del 10324, it has interalia been held as under: “ I have heard the learned counsel for the petitioner and the learned APP for the State and am of the opinion that there is no merit in the bail application as there is sufficient material available on record to, prima facie, indicate the involvement of the petitioner in abetting, conspiring and knowingly facilitating the commission of organized crime alleged to have been carried out by Jitender @ Gogi and his associates. The judgments cited by Ld. Counsel for the petitioner on sanction are not relevant for the reason that prosecution has categorically submitted that all relevant material was placed before Sanctioning Authority before grant of sanction and moreover at the stage of bail, the Court is not required to go into the facts in detail and give a finding that sanction is in accordance with law or not. This issue will be decided by the Ld. Trial Court at appropriate stage during the trial. So far as contention of Ld. Counsel that since two chargesheets were not in existence against the petitioner at the time of invocation of provisions of MCOCA and, therefore, requirement of Sec. 2(d) of the MCOC Act is not fulfilled, is concerned, there are two judgments to refute the said submission. One is that of Bombay High Court and another one is of Hon'ble Supreme Court. The Hon'ble Division Bench of Bombay High Court in a case titled „Govind Sakharam Ubhe v. State of Maharashtra, 2009 SCC OnLine Bom 770‟, has interpreted the words “in respect of which more than one charge-sheet have been filed” used in section 2(d) of the Act and has held as follows: “35. It is now necessary to go to the definition of „continuing unlawful activity‟. Section 2(1)(d) defines „continuing unlawful activity‟ to mean 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 either singly or jointly as a member of an organized crime syndicate or on behalf of such syndicate in respect of which more than one chargesheet have been filed before a competent court within the preceding ten years and that court have taken cognizance of such offence. Thus, for an activity to be a „continuing unlawful activity‟ a) the activity must be prohibited by law; b) it must be a cognizable offence punishable with imprisonment of three years or more; c) it must be undertaken singly or jointly; d) it must be undertaken as a member of an organized crime syndicate or on behalf of such syndicate e) in respect of which more than one charge-sheet have been filed before a competent court.

36. The words „in respect of which more than one charge-sheet have been filed‟ cannot go with the words „a member of a crime syndicate‟ because in that case, these words would have read as „in respect of whom more than one charge-sheet have been filed‟.

37. A person may be a part of the module which jointly undertakes an organized crime or he may singly as a member of the organized crime syndicate or on behalf of such syndicate undertake an organized crime. In both the situations, the MCOCA can be applied. It is the membership of organized crime syndicate which makes a person liable under the MCOCA. This is evident from section 3(4) of the MCOCA which states that any person who is a member of an organized crime syndicate shall be punished 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 fine, subject to a minimum of fine of Rs. 5 lakhs. The charge under the MCOCA ropes in a person who as a member of the organized crime syndicate commits organized crime i.e. acts of extortion by giving threats, etc. to gain economic advantage or supremacy, as a member of the crime syndicate singly or jointly. Charge is in respect of unlawful activities of the organized crime syndicate.

38. In order to substantiate our construction of Section 2(1)(d) of the MCOCA, we will take hypothetical example of accused 1(A), accused 2(B), accused 3(C) and accused 4(D), who are members of the organized crime syndicate and who have committed crimes within preceding ten years. Insofar as accused A is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(1) of the MCOCA. Accordingly, one charge-sheet is filed against him. Insofar as accused B is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(2) of the MCOCA. Accordingly, one charge-sheet is filed against him. Likewise, insofar as accused C is concerned, it is alleged that he has committed an offence resulting in the death of any person which is punishable with death or imprisonment for life as described in Section 3(3) of the MCOCA. Accordingly, one charge-sheet is filed against him. Finally, it is alleged that accused D is a member of organized crime syndicate as described in Section 3(4) of the MCOCA and as such has indulged in organized crime and against whom also one charge-sheet is filed.

39. The submission on behalf of the appellant is that even though all the four accused namely, A, B, C and D may be members of the organized crime syndicate since against each of the accused not more than one chargesheet is filed, it cannot be held that they are engaged in continuing unlawful activity as contemplated under Section 2(1)(d) of the MCOCA. Apart from the reasons which we have given hereinabove as to why such a construction is not possible, having regard to the object with which the MCOCA was enacted, namely to make special provisions for prevention and control of organized crime syndicate and for coping with criminal activity by organized crime syndicate, in our opinion, Section 2(1)(d) cannot be so construed. Such a construction will defeat the object of the MCOCA. What is contemplated under Section 2(1)(d) of the MCOCA is that activities prohibited by law for the time being in force which are punishable as described therein have been undertaken either singly or jointly as a member of organized crime syndicate and in respect of which more than one chargesheets have been filed. Stress is on the unlawful activities committed by the organized crime syndicate. Requirement of one or more charge-sheet is qua the unlawful activities of the organized crime syndicate.” (Emphasis supplied)

44. In Mujahid S/o Ibrahim v. The State of Maharashtra; (2014) SCC Online Bom 4048, it has inter-alia been held as under: “10. From the above referred fact what is established before this Court is, against the said gang leader more than one charge-sheets are pending and in most of the charge-sheets offences alleged, are punishable with more than three years of imprisonment. It is also required to be taken note of the fact that the offences alleged to have been committed by the gang leader of which present applicants are alleged to be members are for financial gain. It is also required to be taken note of the fact that the investigation in the matter is incomplete and same is under progress. In view of above, the invocation of the provisions of MCOCA, in our opinion, at this stage, prima facie appears to be justified as the requirement of clause (d) of section 2 of MCOCA is very much justified. What is contemplated under said section is a situation where a group of persons as members of organised crimes syndicate indulge in organized crime who use the violent means to gain pecuniary benefit or un-due economic or other advantage for themselves or any other persons. The clause which defines the ‘continuing unlawful act ’which is prohibited by law and must be cognizable offence punishable with imprisonment for three years or more. Such unlawful activity can be undertaken by singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court. The words “in respect of which more than one charge-sheets have been filed”, in our opinion, cannot be stretched to the extent that minimum one charge-sheet is required to be pending against each member of the crime syndicate. A reading of the entire scheme of the Act reflects that pendency of more than one charge-sheets within a period of ten years is enough qualification for invoking the provisions of the MCOCA, provided same is pending against the members of the crime syndicate, who operates as individually or jointly in commission of organised crime. What is required to be taken note of is the very involvement, attachment, nexus or the link of such member/person with the organised crime syndicate while commission of the offence, the very link of such member of the crime syndicate is considered to be the crux of the term “continuing unlawful activity”. It is also required to be taken note of the fact that if the contention of the learned Counsel for the applicants i.e. the requirement of the statute, in their submission, is the pendency of the minimum two charge-sheets for an offence punishable with more than three years imprisonment in the last period of ten years is to be accepted, the same shall take the very object and intention of the statute to illogical end. What is contemplated under section 2(1)(d) of MCOCA is the activities prohibited by the law have been undertaken either singly or jointly, as a member of an organised crime syndicate and as such the requirement of one or more charge-sheets is in relation to the unlawful activity of the unlawful crime syndicate and not of each and every member of such syndicate.

45. Thus, from the discussion made herein above, it is no longer res integra that it is not necessary that such charge-sheet should be against an individual. If the charge sheet is filed against the syndicate that would be sufficient compliance of Section 2 (1) (d) of MCOCA.

46. It is also a settled proposition that it is not necessary that each member of the syndicate should have a similar role. The individual members can have different roles in the commission of the crime. The petitioners herein have argued that there are no allegations which would link them to the foundational allegation of extortion and therefore there is no prima facie case to invoke the provisions of the MCOCA as against them. This court considers that there is no merit in the said contention. The allegations as being made by the investigating agency is that these accused persons were in fact channelizing the illgotten money received through foundational crime of extortion. Their role is in fact facilitating the continuing commission of the crime by or on behalf of the syndicate. The provisions of MCOCA can be attributed to an individual if his role amounts to any assistance to organized crime or organized crime syndicate or to a person involved in either of them.

47. It is settled proposition that mere membership/nexus with the organized crime syndicate is sufficient to prosecute under MCOCA. In Sachin Bansilal Ghaiwal v. State of Maharashtra; (2014) SCC OnLine Bom 725,

48. Therefore, I consider that the arguments of the learned defence counsel that in absence of more than one chargesheet having been filed against Petitioners B. Mohanraj and Kamlesh Kothari the MCOCA could not have been attributed againstthem is liable to be rejected.

49. The next contention raised by the learned counsels for the petitioners are that the confessional statement recorded under Section 18 of MCOCA cannot be read against them in absence of any independent corroboration. The defence has also raised a plea that since the procedural requirement under Section 18 have not been fulfilled therefore the same cannot be read. It has also been submitted that the confessional statement which have been retracted cannot be taken into consideration. I consider that these submissions also cannot be considered at this ground as it is a matter of trial.

50. It is also a settled proposition that the confessional statement can also be attributed to the co-accused in Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641, wherein inter alia has been held as under:

51. The defence has also raised a plea that the sanction granted under Section 23 (1) (a) and 23 (2) of MCOCA are also faulty and cannot be seen into. I consider that argument is also not tenable. The mere reading of Section 23 (1) (a) of MCOCA indicates that it does not require inclusion of all the names of all the members at the threshold stage. It is per natural that as the investigation proceeds the names of the persons would be revealed and their names can always be added later on. In Vijay G. Asrani (supra) it has inter alia been held as under:

52. Similarly, the objection regarding Section 23 (2) of MCOCA also cannot be considered at this stage as it is a matter of trial and can only be seen at the stage of trial. Reliance can be placed upon Abhishek v. State of Maharashtra; (2022) 8 SCC 282 “63. The learned counsel for the State has fairly and rightly indicated, with reference to the decision of this Court in Vinod G. Asrani [Vinod G. Asrani v. State of Maharashtra, (2007) 3 SCC 633: (2007) 2 SCC (Cri) 129], that the validity of sanction could always be determined by the trial court during the course of trial where the sanctioning authority could be examined and the appellant will have sufficient opportunity to contest the same, including that of crossexamining the sanctioning authority. In fact, the High Court has also taken care in its impugned order to make it clear that the observations were only prima facie and nothing in the order would influence or prejudice the trial or pre-empt any legitimate defence of the appellant.”

53. In Farman Imran Shah v. State of Maharashtra; (2014) SCC Online Bom 408, it was inter-alia held as under;