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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. DIAS, J.
ALI AKBAR S/O MOIDEENKUTTY – Petitioner
Versus
STATE OF KERALA – Respondent
Bail Application No. 6281 of 2024
Decided On : 13-08-2024
ORGANIZED CRIME - BAIL APPLICATION - Bharatiya Nyaya Sanhita, 2023 - Section 111 - The court analyzed the definition of organized crime under Section 111 of the Bharatiya Nyaya Sanhita, 2023, emphasizing that to establish an offense, there must be a continuing unlawful activity with multiple charge sheets filed within the last ten years. The court interpreted the necessity of criminal antecedents and the implications of economic offenses, ultimately concluding that the absence of prior charge sheets against the accused negated the applicability of organized crime charges, leading to the decision to grant bail.
Fact of the Case:
The accused was arrested for possession of unaccounted money while allegedly being part of an organized crime syndicate. The prosecution claimed he committed offenses under Sections 111(3) and 111(7) of the Bharatiya Nyaya Sanhita, 2023, but the defense argued that the organized crime charge could not apply due to the absence of prior criminal records.
Finding of the Court:
The court found that the prosecution failed to establish that the accused had any criminal antecedents or that multiple charge sheets had been filed against him within the last ten years, which are necessary to invoke the organized crime provisions under Section 111 of the BNS.
Issues: Whether the offense of organized crime can be attributed to an accused without prior criminal antecedents and without multiple charge sheets filed within the preceding ten years.
Ratio Decidendi: The court held that for an offense under Section 111(1) of the BNS to be applicable, there must be evidence of a continuing unlawful activity and prior charge sheets. The absence of such evidence in the current case led to the conclusion that the organized crime charge was not applicable.
Final Decision: The court granted bail to the accused, subject to certain conditions, as the prosecution did not meet the burden of proof required to establish the organized crime charges.
ORDER :
1. The collateral question that arises for consideration in this bail application is whether an offence of ‘organised crime’ defined under Section 111 (1) of the Bharatiya Nyaya Sanhita, 2023, can be attributed against an accused who has no criminal antecedents.
2. The accused in Crime No. 784/2024 of the Kalpakanchery Police Station, Malappuram, has filed the application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
3. The factual substratum of the prosecution case is that, on 02.07.2024, at about 10:40 hours, the accused, who is part of an organised crime syndicate, was found in possession of unaccounted money of Rs.4,07,200/-. The accused was arrested on the spot. Thus, the accused has committed the offences punishable under Sections 111 (3) and 111 (7) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as 'BNS', for brevity).
4. Heard; Sri.Sarath K.P., the learned counsel appearing for the petitioner and Smt.Seetha.S., the learned Senior Public Prosecutor.
5. The learned Counsel for the petitioner zealously argued that to attract the offence under sub-section (1) of Section 111 of the BNS, it is imperative that there should be more than one charge sheet filed against the accused before a competent Court within the preceding period of ten years, and the Court has taken cognizance of such offence. In the case on hand, the above offence is not attracted because the petitioner does not have criminal antecedents. In any given case, the petitioner was arrested on 17.07.2024, the investigation is complete and recovery has been effected. Hence, the petitioner may be enlarged on bail.
6. The learned Public Prosecutor strenuously opposed the application. She argued that the petitioner has committed a serious economic offence by being found with unaccounted money. Section 111(1) of BNS defines organised crime as any continuing unlawful activity, including economic offences. Explanation (iii) of sub-section (1) of Section 111 specifically defines economic offence, which includes hawala transactions. The act committed by the petitioner squarely falls within the purview of sub-section (1) of Section 111 of the BNS and are punishable under sub-sections (3) and (7) of Section 111 of the BNS. There is no necessity for the accused to have criminal antecedents. If the petitioner is enlarged on bail, he is likely to intimidate the witnesses, tamper with the evidence and flee from justice. Moreover, the investigation is in progress. Nevertheless, she did not dispute the contention that no charge sheet has been filed against the petitioner within the preceding ten years as per the prescription under explanation (ii) of sub-section (1) of Section 111 of the BNS.
7. The prosecution alleges that the petitioner was found with unaccounted money of Rs.4,07,200/-.
8. The sheet anchor of the argument of the learned Counsel for the petitioner is that the offence under Section 111 (1) of the BNS is not attracted against the petitioner primarily because no charge sheet has been filed against him before any competent Court to date.
9. The Bharatiya Nyaya Sanhita Bill 2023, aimed to modernise and transform the criminal justice delivery system in India, was passed by the Parliament and received the assent of the President on 25.12.2023. The provisions of the Bharatiya Nyaya Sanhita (Act 45 of 2023), except sub-section (2) of Section 106, came into force on 1.07.2024. By virtue of Section 358 of the BNS, the Indian Penal Code, 1860, stands repealed. The BNS has introduced new offences, including the offence of organised crime as defined under Section 111 (1).
10. In the above context it is apposite to analyse Section 111 of the BNS, which reads as follows:
(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostit
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