Ishwar @ Pandit Vs State Govt. Of Nct Of Delhi

Sanjeev Narula, J

1. This application under Sections 483 read with 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 “BNSS”  seeks regular bail in proceedings emanating from FIR No. 55/2016 dated 19th April, 2016, registered at P.S. Crime Branch, under Sections 3/4 of the Maharashtra Control of Organized Crime Act, 1999 “MCOCA”. Subsequently, by chargesheet dated 7th December, 2017, the Applicant has been implicated under Sections 3(1)/ 3(4)/3(5) of MCOCA.

CASE OF PROSECUTION:

2. The factual background leading to the filing of the present application is summarised as follows:

2.1. The aforementioned FIR was registered against one Manoj @ Morkheri and his associates, part of a structured and well-organised criminal syndicate, operating primarily in Delhi NCR and adjoining states. The syndicate is stated to be involved in a series of grave offences, including murder, kidnapping for ransom, extortion, robbery, and attempt to murder, which are committed through acts of violence, intimidation, and other unlawful means. It is alleged that these offences were carried out with the objective of deriving pecuniary benefit and securing undue economic advantage. The sustained course of criminal activity is stated to have generated a climate of fear in the region. The members of this syndicate, acting either individually or in concert, are alleged to function as part of, or on behalf of, an organised crime network.

2.2. The FIR was registered pursuant to a proposal seeking prior approval under Section 23(1)(a) of the Maharashtra Control of Organised Crime Act, 1999, in view of the sustained and continuing criminal activities attributed to the syndicate. It is alleged that Manoj @ Morkheri, acting in concert with his associates, has been engaged in “organised crime” within the meaning of Section 2(1)(e) of MCOCA, primarily for pecuniary gain. The group is further stated to constitute an “organised crime syndicate” as defined in Section 2(1)(f) of the Act, functioning through a coordinated network and exerting influence by a continued pattern of grave criminal conduct.

2.3. The Applicant is alleged to be an active gang member of the crime syndicate, and is involved in serious crimes, such as murder, attempt to murder, kidnapping for ransom, and extending threats, across different jurisdictions. He has been convicted in several cases, including FIR No. 112/2003, registered at P.S. Civil Lines, Hisar, Haryana for the offences under Sections 302, 149 and 307 of the IPC, where he is presently serving life sentence. He has also been named and arrested along with co-accused Manoj Morkheri in FIR No. 497/2011 at P.S. Prashant Vihar under Sections 364A/120B IPC. Accordingly, it is alleged that the Applicant is a habitual offender, involved in a number of serious crimes, and should not be released on bail.

ARGUMENTS ADVANCED BY THE APPLICANT:

3. Mr. Sumeet Singh Shokeen, Counsel for the Applicant, advances the following submissions seeking grant of regular bail:

3.1. Long Period of Custody and Delay in Trial:  The Applicant  was arrested on 9th May, 2016 and has remained in custody for over 9 years. Out of the 140 prosecution witnesses cited, only 88 have been examined thus far. The protracted nature of the trial, which cannot be attributed to any delay on the part of the Applicant, ought to weigh in favour of granting him bail. The Supreme Court has consistently held that even in cases involving special statutes like MCOCA, stringent bail conditions can be relaxed when the accused has undergone long periods of incarceration. In Mohd. Enamul Haque v. Enforcement Directorate, 2024 SCC OnLine SC 4069 the Supreme Court held that prolonged incarceration will inure to the benefit of the accused for bail when delay in trial is not attributable to him. In Mohd. Muslim v. State (NCT of Delhi), (2023) 18 SCC 166 the Court affirmed that bail can be granted if there is an undue delay in the trial, even under the stringent provisions of special statutes like the NDPS Act. Reliance is also placed on the judgement in Union of India v. K.A. Najeeb (2021) 3 SCC 713.

3.2. Lack of Evidence to satisfy twin conditions under MCOCA: To invoke Sections 3 and 4 of MCOCA, the Prosecution must establish two essential elements: (i) continuing unlawful activity, and (ii) the involvement of the accused in an organised crime syndicate for pecuniary gain ‘Prasad Shrikant Purohit v. State of Maharashtra and Ors., MANU/SC/0449/2015’. Neither of these elements is made out in the present case against the Applicant.

3.3. Absence of evidence to establish Continuing Unlawful Activity and membership in an Organized Crime Syndicate: To establish continuing unlawful activity and membership in an organized crime syndicate, it is imperative that there be multiple chargesheets in which the competent court has taken cognizance. In the present case, as per the proposal for invoking MCOCA, the Applicant’s alleged association with the organised crime syndicate rests primarily on his implication in FIR No. 497/2011 registered at P.S. Prashant Vihar, Delhi. Pertinently, the Applicant has been acquitted in the said case vide order dated 29th May, 2025 passed by the ASJ-04, Rohini Courts, Delhi. In any event, even if this FIR were to be considered against the Applicant, there are no other offences committed by the Applicant that could demonstrate his involvement in continuing unlawful activity. As regards the other cases referenced by the Prosecution in the status report, the Applicant has been acquitted/ undergone his sentence in the majority of those matters.

3.4. FIR No. 112/2003, P.S. Civil Lines, Hisar: The only potentially incriminating circumstance presented by the Prosecution is the involvement of the Applicant in FIR No. 112/2003, under Sections 302/147/148/120-B IPC, registered at P.S. Civil Lines, Hisar, Haryana. However, the Prosecution did not consider this FIR as part of the continuing unlawful activity under the provisions of MCOCA, and it was not relied upon in the chargesheet. Consequently, this FIR cannot be regarded as an incriminating factor against the Applicant in the context of MCOCA. Furthermore, the Applicant has already been convicted in relation to this FIR and is currently serving a sentence of life imprisonment; however, his application for parole in the said case was declined, inter alia, on account of his custody in the present case. Therefore, the Applicant will only be able to avail parole only if he is released on bail in the present case.

3.5. Absence of Pecuniary Gain: The chargesheet is silent on the pecuniary advantage gained by the Applicant. As such, the essential ingredients of MCOCA have not been satisfied in this case, and no evidence has been shown to establish that the Applicant profited from any criminal activity.

3.6. Parity with Co-Accused Granted Bail: The Applicant is entitled to bail on the principle of parity. Two co-accused persons, namely Sumit @ Sam and Anil Kumar @ Ganja, have already been granted bail by the Sessions Court. Three other co-accused, namely Arun, Jitender Dixit @ Bantu and Naresh Kumar @ Pahelwan, have also been granted regular bail by this Court.

3.7. Lack of incriminating deposition against the Applicant: The Prosecution’s case, insofar as it concerns the Applicant, rests substantially on the testimony of one public witness, Mr. Rishu Mittal. The said witness has already been examined before the Trial Court as PW-8 and has not deposed anything incriminating against the Applicant. Likewise, prosecution witnesses PW-1 to PW-34, who have already been examined, have also not attributed any incriminating role to the Applicant.

ARGUMENTS ADVANCED BY THE STATE:

4. Mr. Amit Ahlawat, APP for the State, strongly opposes the application and advances the following submissions:

4.1. Grave Criminal Antecedents and Invocation of MCOCA: The present case is being investigated under MCOCA, which is a special legislation aimed at curbing organised criminal syndicates. The proposal for invoking MCOCA under Section 23(1)(a) was approved by the competent authority on the basis of multiple FIRs involving the Applicant and his associates, dating back to 2011. These cases reflect a pattern of organised criminal activity committed for pecuniary gain through means such as violence and intimidation. The proposal specifically highlighted that courts of competent jurisdiction had, over time, taken cognizance of more than one chargesheet against members of the alleged crime syndicate. A summary of these cases is set out in the chargesheet.

4.2. Risk of Absconding/ Witness Intimidation: The Applicant’s previous criminal record clearly establishes that he is a hardcore criminal. Considering the serious nature of the allegations and the Applicant’s past conduct, there is a reasonable apprehension that he may commit further offences or attempt to influence witnesses, thereby justifying his continued detention.

4.3. Misplaced Reliance on Parity: The Applicant’s claim for bail on the ground of parity with the co-accused is wholly untenable. Given the number of antecedents and convictions reported against him, the Applicant stands on a completely different and more serious footing compared to the other co-accused persons who have been released on bail.

ANALYSIS:

5. The Court has carefully considered the submissions advanced by the parties as well as perused the record. Section 21(4) of MCOCA imposes stringent conditions for granting bail, stipulating as follows:

(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless—

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) where the Public Prosecutor opposes the application, the Court is satisfied 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.

6. The thrust of the Applicant’s plea rests on two planks: first, the prolonged period of incarceration and the consequent delay in conclusion of the trial; and second, the claim of parity with co-accused who have already been enlarged on bail. In addition, the Applicant relies on the fact that he is presently undergoing life sentence in FIR No. 112/2003, P.S. Civil Lines, Hisar, and asserts that his right to seek parole in that case can be effectively exercised only if he is released on bail in the present proceedings.

7. Indeed, the right to a speedy trial, now firmly entrenched in our constitutional jurisprudence under Article 21 of the Constitution of India, is not an abstract or illusory safeguard. It is a vital facet of the right to personal liberty and cannot be whittled down merely because the case arises under a special statute such as MCOCA.

8. The Supreme Court has repeatedly recognised that where undertrials remain incarcerated for long periods and the trial shows no realistic prospect of conclusion, constitutional courts may relax even stringent statutory limitations on bail under special enactments. In fact, the more rigorous the provisions of the legislation, the more expeditious the adjudication must be. ‘Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51’ In other words, where enactments stipulate strict conditions for granting bail, it is the unequivocal responsibility of the State to ensure that such trials are prioritized and concluded within a reasonable timeframe. Therefore, the stringent conditions prescribed under Section 21(4) of MCOCA for grant of bail must be balanced with the fundamental right to personal liberty of the accused, the presumption of innocence, and the societal interest in ensuring the right to a speedy trial. Vijay Madanlal Chaudhary v. Union of India, 2022 SCC Online SC 929

9. In this context, the observations in Mohd. Muslim, are directly relevant. While examining Section 37 of the NDPS Act, which is pari material with Section 21(4) of MCOCA, the Supreme Court held that prolonged incarceration of an undertrial, even in cases involving grave offences, must weigh in favour of the grant of bail, particularly where the delay in conclusion of trial is not attributable to the accused. The Court emphasised that statutory rigours on bail cannot be interpreted to sanction indefinite pre-trial detention, and that the constitutional guarantee of a speedy trial under Article 21 obliges courts to step in where the passage of time itself renders continued custody unjust. The relevant observations are excerpted below:

“12. This court has to, therefore, consider the appellant’s claim for bail, within the framework of the NDPS Act, especially Section 37. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, this court made certain crucial observations, which have a bearing on the present case while dealing with denial of bail to those accused of offences under the NDPS Act:

“On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.”

13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest – as observed in Vaman Narain Ghiya v. State of Rajasthan (“the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal….”). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab made observations to this effect. In Shaheen Welfare Association v. Union of India again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly.”

[Emphasis Supplied]

10. This view was reaffirmed in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 where the Supreme Court undertook a comprehensive analysis of earlier decisions dealing with prolonged incarceration and delay in trials. The Court clarified that the mandate under Section 436A of the Cr.P.C., requiring release of an undertrial on bail if the trial is not concluded within a stipulated period, applies equally to prosecutions under special statutes, notwithstanding the rigours they impose. The Court observed as follows:

“We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.”

[Emphasis Supplied]

11. A similar view was taken in Union of India v. K.A. Najeeb, (2021) 3 SCC 713 where while dealing with a bail application under the Unlawful Activities (Prevention) Act, 1967, the Supreme Court underscored that stringent bail conditions under special enactments, such as the NDPS Act or the Terrorist and Disruptive Activities (Prevention) Act, 1987, must be justified based on the requirement of speedy trials, ensuring that the fundamental rights of accused persons are safeguarded.

12. In Ranjana Tanaji Wanve v. State of Maharashtra, Special Leave to Appeal (Crl.) No. 12740/2024, decided on 22nd October, 2024 the Supreme Court considered a bail plea in a case where the accused had remained in custody for over two years with minimal progress in trial. This case involved Sections 364A, 384, 386, 388, 323, 506(2), 143, and 120B of the IPC, as well as Sections 3(1)(ii), 3(2), and 3(4) of MCOCA. The Court noted that charges had not yet been framed, and a large number of witnesses remained to be examined. The Court concluded that prolonged detention without trial was contrary to the principles of justice, and granted bail to the accused.

13. Likewise, in the case of Siddhant v. State of Maharashtra, 2024 SCC OnLine SC 3798 the Supreme Court considered a bail application under MCOCA, and reiterated that excessive pre-trial incarceration, particularly in the absence of any meaningful progress in the proceedings, infringes the fundamental rights of an accused. Relying on the decision in Manish Sisodia v. Directorate of Enforcement, 2024 SCC OnLine SC 1920 the Court observed that the right to a speedy trial is an essential facet of Articles 19 and 21 of the Constitution. It was held that prolonged incarceration, without trial, amounts to punitive detention prior to adjudication, which cannot be countenanced within our constitutional framework. In Siddhant, where the accused had already spent six years in custody without framing of charges, the Court observed:

“10. The material placed on record would reveal that for a period of the last six years, out of 102 dates, the accused has not been produced before the Court either physically or through virtual mode on most of the dates. On the last date, we had put a query to the learned counsel appearing for the State as to why the charges were not framed as of date in this case. Shri Kilor fairly states that the charges have not been framed in the cases which are registered prior to the registration of the present case. We may say with anguish that this is a very sorry state of affairs. If an accused is incarcerated for a period of approximately five years without even framing of charges, leave aside the right of speedy trial being affected, it would amount to imposing sentence without trial. In our view, such a prolonged delay is also not in the interest of the rights of the victim.”

14. In view of the precedents noted above, this Court is of the considered opinion that while Section 21(4) of MCOCA engrafts stringent statutory conditions on the grant of bail under Section 483 BNSS (corresponding to Section 439 Cr.P.C.), those conditions cannot be construed in a manner that forecloses judicial scrutiny under Article 21 of the Constitution. Where there is a manifest and continuing violation of the right to a speedy trial, constitutional courts are not only empowered, but duty-bound to step in and, where appropriate, relax the rigour of such special statutes so as to prevent indefinite pre-trial incarceration.

15. The Court now turns to the facts of the case at hand. As per the latest

nominal roll, as on 30th October, 2025, the Applicant has already spent 9 years, 5 months, and 22 days in custody. As on date, therefore, he has spent over nine and a half years in custody, and yet the trial is nowhere near completion. Out of 140 prosecution witnesses, only 88 have been examined so far. The prolonged and ongoing deprivation of liberty, in the face of such delay, amounts to a prima facie violation of the Applicant’s fundamental right under Article 21, and his plea for bail on this constitutional ground, therefore, carries substantial weight.

16. At  the  same  time,  since  the  Prosecution  has  placed  considerable emphasis on the Applicant’s alleged involvement in other criminal cases, it is appropriate to briefly examine that aspect as well. For this purpose, the criminal antecedents of the Applicant, along with the present status of the proceedings in each such case, are tabulated below:

17. The Applicant’s criminal record indicates that, save for one case, he has either been acquitted or has already undergone trial in all matters against him. What is of particular significance is that, at the time when sanction under MCOCA was granted, the only case directly implicating him was FIR No. 497/2011, P.S. Prashant Vihar, Delhi, in which he now stands acquitted.

18. Pertinently, the Applicant is presently undergoing a sentence of life imprisonment pursuant to his conviction in FIR No. 112/2003, P.S. Hisar Civil Lines, where he was convicted in 2009. He has thus remained in custody for nearly sixteen years, counting both this case and the Hisar conviction. The record indicates that the District Jail, Rohtak declined his request for parole, inter alia, on the ground that he is not on bail in the present MCOCA case. The pendency of this undertrial proceeding has thus created a collateral bar to even limited conditional liberty by way of parole, which is ordinarily conceived as a structured mechanism to facilitate gradual rehabilitation, maintain family ties, and promote reintegration into society. The delay in concluding the present trial, therefore, not only results in prolonged undertrial incarceration, but also has a direct and adverse bearing on the Applicant’s ability to seek parole in the Hisar matter. Such compounding prejudice is difficult to reconcile with the guarantees of fairness and justice under Article 21 and cannot be allowed to continue indefinitely.

19. The Applicant has also sought to advance his case on merits, arguing that the essential ingredients required for an offence under MCOCA, i.e., continuing unlawful activity and membership in an organized crime syndicate with the intent to gain pecuniary benefits, are not satisfied in this case. At this stage, the Court is not inclined to engage in a detailed examination of the merits of the case or conduct a mini-trial to determine whether the offence against the Applicant is made out. It must, however, be emphasized that the provisions under MCOCA are invoked specifically pursuant to “continuing unlawful activity” committed by the accused. However, apart from FIR No. 497/2011, the Applicant was not directly involved in any of the eight prior FIRs considered by the Prosecution for the registration of the subject FIR.

20. Whether the Applicant’s acquittal in the aforesaid case undermines the foundational basis for invoking MCOCA against him is an issue to be adjudicated at trial. However, for the present purpose of considering bail, the said acquittal, at least prima facie, weighs in favour of the Applicant.

21. In view of the foregoing facts and circumstances, this Court is of the considered view that the Applicant has made out a case for grant of bail. Accordingly, it is directed that the Applicant shall be released on regular bail on furnishing a personal bond in the sum of INR 50,000/- along with one surety of the like amount to the satisfaction of the concerned Trial Court/ Metropolitan Magistrate, subject to the following conditions:

(a) The Applicant will not leave the country without prior permission of the Court.

(b) The Applicant shall provide his permanent address to the Trial Court. The Applicant shall intimate the Court by way of an affidavit and to the IO regarding any change in his residential address.

(c) The Applicant shall appear before the Court as and when the matter is taken up for hearing.

(d) The Applicant shall provide all mobile numbers to the concerned IO, which shall be kept in working condition at all times.

(e) The Applicant shall not switch off his phone or change his mobile number without prior intimation to the concerned IO.

(f) The Applicant will report to the concerned IO on the second and fourth Friday of every month, at 4:00 PM, and will not be kept waiting for more than an hour.

(g) The Applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, or tamper with the evidence of the case.

(h) It is clarified that the Applicant shall not be released on bail till the time he has secured bail in all other cases, as required as per law.

22. It is explicitly clarified that, observations, if any, concerning the merits of the case are solely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of opinion on the merits of the case.

23. In case the Applicant violates any of the aforenoted conditions or is found to be involved in any other or similar offence, the Prosecution shall be at liberty to seek cancellation of the bail granted to the Applicant, uninfluenced by this order.

24. A copy of the order be sent to the Jail Superintendent for information and necessary compliance.

25. With the above directions, the present application is disposed of.