Kamlesh Kothari vs State Of Nct Delhi

$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 07.07.2026
+ BAIL APPLN. 1881/2025
KAMLESH KOTHARI .....Petitioner
versus
STATE OF NCT DELHI .....Respondent
Appearance:-
Mr. Naveen Malhotra and Mr. Ritvik Malhotra, Advocates for Petitioner.
Mr. Sanjay Jain, Sr. Advocate with Mr. Akhand Pratap Singh, SPP, Mr.
Nishank Tripathi, Ms. Harshita Sukhija, Ms. Rishika Agarwal, Mr.
Shreyan Srivastav, Ms. Samridhi Dobhal, Ms. Krishna Mohan Chandel,
Mr. Hritwik Maurya, Ms. Lisa Pagwal, Ms. Apoorv Paliya, Mr. Utkarsh
Singh, Advocates for State with ACP Virender Kadyan, Insp. Pradeep
Rai.
CORAM:
HON’BLE MR. JUSTICE PRATEEK JALAN
J U D G M E N T
PRATEEK JALAN, J. (ORAL)
1. By way of the present application under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”] (corresponding to
Section 439 of the Code of Criminal Procedure, 1973 [“CrPC”]), the
petitioner seeks regular bail in connection with FIR No. 208/2021, dated
07.08.2021, registered at Police Station Special Cell, Delhi, under
Sections 170/384/385/388/419/420/506/120B of the Indian Penal Code,
1860 [“IPC”], and Section 66D of the Information Technology Act, 2000
[“IT Act”]. At the time of filing of the chargesheet, Sections 3 and 4 of
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the Maharashtra Control of Organised Crime Act, 1999 [“MCOCA”],
were also invoked.
2. This is the second bail application filed by the petitioner before this
1
Court. His first bail application was dismissed by a judgment of this
2
Court dated 11.07.2023 [hereinafter, “the 2023 judgment”] .
3. I have heard Mr. Naveen Malhotra, learned counsel for the
petitioner, and Mr. Sanjay Jain, learned Senior Counsel for the State. The
State has also filed a status report, which is on record.
4. At the outset, it may be mentioned that I have recently decided
three bail applications arising out of the same proceedings, filed by co-
accused Leena Paulose [hereinafter, “Leena”], Deepak Ramnani
[hereinafter, “Deepak”], and Pradeep Ramdanee [hereinafter,
3
“Pradeep”].The application filed by Leena was dismissed, whereas the
4 5
applications filed by Deepak and Pradeep were allowed.
I. P ROSECUTION C ASE :
5. The prosecution case, as it appears from the material on record, is
as follows:
a. FIR No. 208/2021, dated 07.08.2021, lodged at Police Station
Special Cell, Delhi, under Sections
170/384/385/388/419/420/506/120B of the IPC and Section 66D of
the IT Act, was registered at the instance of one Ms. Aditi Singh.
1
BAIL APPLN. 4262/2021.
2
It appears from the website of the Supreme Court that the petitioner had filed a Special Leave Petition
[Diary No. 41706/2023] against the 2023 judgment, which was dismissed by order dated 09.07.2024,
on account of being a defective matter not re-filed after 90 days.
3
BAIL APPLN. 1802/2024, decided on 05.05.2026 [hereinafter, “ Leena Paulose ”]. An earlier
application for bail filed by Leena in the State proceedings [BAIL APPLN. 3706/2022] was also
rejected by the 2023 judgment.
4
BAIL APPLN. 4286/2024, decided on 05.06.2026 [hereinafter, “ Deepak Ramnani ”].
5
BAIL APPLN. 4441/2024, decided on 05.06.2026.
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b. According to the complaint, on 15.06.2020, the complainant
received a call on her mobile phone from a landline number. The
caller introduced himself as a senior officer in the Ministry of Law
and offered assistance in securing bail for her husband, who was in
judicial custody in cases related to M/s Religare Enterprises
Limited.
c. It is alleged that the caller demanded Rs. 50 crores in exchange for
facilitating the bail and explained the method of delivering the
money.
d. Subsequently, through his associates, the caller allegedly extorted
money from the complainant on multiple occasions between June
2020 and August 2021, amounting to Rs. 217 crores. There are
further allegations with regard to impersonation of senior officials,
including the Home Secretary, Government of India, and
misrepresenting the involvement of other government
functionaries, including the Home Minister.
e. Acting on the said information, on 07.08.2021, the police laid a
trap and apprehended Pradeep, while he was receiving the extorted
amount. He was arrested on the same day. During interrogation, he
disclosed that he was acting on the instructions of his brother,
Deepak, who was subsequently arrested on 08.08.2021.
f. Using technical surveillance of the mobile phone used for making
the calls, and the statements of co-accused, the caller was identified
as one Sukesh Chandra Shekhar @ Sukash Chandra Shekhar
[hereinafter, “Sukesh”].
g. At this time, Sukesh was already lodged in Tihar Jail as an
undertrial prisoner in a separate case, involving allegations of
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collecting money from a political leader on the pretext of helping
him retain a particular election symbol. He was later shifted to
Rohini Jail.
h. A raid was conducted on the intervening night of 07/08.08.2021 by
the Special Cell, during which two mobile phones were recovered
from Sukesh, while he was in custody, and he was formally
arrested in connection with the present FIR. His interrogation led to
the identification and arrest of other associates and co-conspirators.
The petitioner was arrested on 05.09.2021.
i. During investigation, it was found that Sukesh was involved in
multiple cases, including attempt to murder, criminal intimidation,
cheating, and extortion, often by impersonating high-ranking
officials.
j. Part of the extorted amount was allegedly transmitted by Sukesh,
through hawala channels, to his wife, Leena, in Chennai.
k. Two criminal cases had been registered against the petitioner
previously. Details of the said cases are as follows:
i. FIR No. 1319/2017, lodged at Police Station
Soundarapandiyanar Angadi, District T. Nagar, Tamil Nadu
under Sections 294(b)/341/342/363/506(1)/149 of the IPC.
ii. FIR No. 470/2012, lodged at Police Station
Soundarapandiyanar Angadi, District T. Nagar, Tamil Nadu,
under Section 75 of the Tamil Nadu Town and Country
Planning Act, 1971 [“TNTCP Act”].
l. As far as the present petitioner is concerned, his role in the
aforesaid offences is summarised in the chargesheet as follows:
“ 8. Accused Kamlesh Kothari
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
He is Car Dealer in Chennai. He knew Mohan Raj through
Common Friend since 2018.
 He met Leena through Mohan Raj. Thereafter, he helped Leena
&Sukash in purchasing High end luxury cars and property.
 He helped Leena in purchasing two cars in July-2020, by
introducing his friend Surender Panwar (Financial Broker) to
transfer the amount of Rs five Crores in the account of car
owners. He got Rs 10 Lakh as commission.
 He with help of Mohan Raj purchased property of ECR in name
of his relative Jitender Kothari in Aug 2020 for total
consideration of Rs 7 Crores. The white amount of property i.e.
Rs five Crores was paid from the account of Jitender Kothari,
M/s Jai Jinender Construction to the owner of ECR house. He
got Rs13.5 Lakh as commission.
 Statement U/s 18 (1) MCOCA of Sukash and B.Mohan Raj . ”
m. The State relied upon confessional statements, under Section 18 of
MCOCA, made by co-accused Sukesh and B. Mohanraj
[hereinafter, “Mohanraj”]. In the status report filed on behalf of the
State, the statements of Sukesh and Mohanraj, insofar as they are
relevant in respect of the present petitioner, have been summarised
as follows:
“ Confessional statements u/s 18 MCOC Act of accused Sukash
Chander Shekhar:
In the confessional statements got recorded U/s 18 MCOC Act by
accused person namely Sukash V. Chandrashekhar. The accused
Sukash Chander Shekhar confessed that “I told her to brief each of
our aid. The said cash was received at sow carpet Chennai and
collected by Sudheer and Joel. Cash was delivered to Mohanraj and
further delivered to Kamlesh Kothari and Arun Muthu. Arun Muthu
deals in providing bank entries and Kamlesh Kothari deals in high
end cars and house.”
Confessional Statement u/s 18 MCOC Act of accused B. Mohanraj:
The accused B. Mohanraj confessed that (“In June 2020, I got a
call from Sukash Chander Shekhar on Telegram app on my mobile
phone and Sukash Chander Shekhar asked me to buy cars for Leena
Paulose. I introduced my friend Kamlesh Kothari to Leena Paulose.
Leena Paulose bought three cars and cars were bought in cash on
paper and payments were made to others. I and Kamlesh Kothari
arranged all this and got huge commission. Last year i.e. 2020,
Sukash Chander Shekhar called me on telegram and asked me to buy
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a house for Leena Paulose in some other’s name. I discussed it with
Kamlesh Kothari. The cash amount of Rs 7.75 Cr through Sudheer
and Joel was handed over to Kamlesh Kothari at his office in T
Nagar in my presence.”).
”
II. J UDGMENT DATED 11.07.2023:
6. As noted above, an earlier bail application filed by the present
petitioner before this Court, was dismissed by the 2023 judgment. It was
Mr. Malhotra’s submission that the Court must re-consider the question of
the petitioner’s entitlement to bail, in light of lapse of nearly three years
since then. Mr. Malhotra placed reliance upon the judgment of the
6
Supreme Court in Babu Singh and Ors. v. State of Uttar Pradesh , which
holds that rejection of an earlier application for bail, does not preclude
further consideration, in the light of “ more materials, further
developments and different considerations ”.
7. As the petitioner’s contentions have been considered in the 2023
judgment, it is necessary to enumerate the following prima facie factual
findings and legal conclusions recorded therein:
a. After noticing the case of the prosecution and the contents of
various statements recorded in the course of investigation, the
Court considered the submissions made on behalf of the present
petitioner, including as to the petitioner’s limited role, and money
received as commission in normal course of his business.
b. In order to satisfy the ingredients of Sections 2(1)(d) of MCOCA,
it is not necessary that the chargesheet should be against an
individual, but a chargesheet against the syndicate as a whole,
7
would also suffice .
6
(1978) 1 SCC 579.
7
2023 judgment, paragraph 45.
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c. Individual members of the syndicate may have different roles in the
commission of the crime. Channelising the money obtained
through the foundational crime of extortion is, in fact, sufficient to
8
make out an offence under MCOCA .
d. Membership of the syndicate itself constitutes an offence under
9
Sections 2(1)(d) and 2(1)(e) of MCOCA .
e. The Court rejected the petitioner’s contention that the provisions of
MCOCA could not be invoked against him in the absence of more
10
than one chargesheet having been filed against him .
f. The question of whether confessional statements recorded under
Section 18 of MCOCA can be read into evidence in the absence of
11
independent corroboration is a matter of trial . Confessional
12
statement may also be attributable to the co-accused .
g. Objections with regard to validity of the sanction under Sections
23(1)(a) and 23(2) of MCOCA can only be examined at trial,
except when they touch upon inherent lack of jurisdiction, which
13
was not argued in this case .
h. The twin conditions for grant of bail incorporated in Section 21(4)
of MCOCA require the Court to be satisfied that there are
“ reasonable grounds for believing that the accused is not guilty of
such offence ”, which is “ something more than prima facie
14
grounds ” .
8
2023 judgment, paragraph 46.
9
2023 judgment, paragraph 47.
10
2023 judgment, paragraph 48.
11
2023 judgment, paragraph 49.
12
2023 judgment, paragraph 50.
13
2023 judgment, paragraph 54.
14
2023 judgment, paragraph 55.
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i. The present petitioner assisted Sukesh and Leena in purchasing
luxury cars out of the extorted funds, including a Lamborghini
Urus [TN04BE0006] with the help of one Surender Pawar
[hereinafter, “Surender”], who was a financial broker. The said car
was purchased in the name of Surender for Rs. 3.5 crores, but was
used by Sukesh and Leena through a rental agreement in the name
of M/s Nail Artistry in return for a monthly rent of Rs. 2.42 lakhs
per month. It was found that the said amount was immediately
withdrawn by Surender and handed over to the petitioner after
deducting tax. The petitioner would thereafter deliver the said
amount to Mohanraj or Leena. The aforesaid car was recovered
from Leena’s possession. The purchase of the aforesaid car through
hawala channel showed involvement of the petitioner as an active
member of the Organised Crime Syndicate [hereinafter, “OCS”] in
15
disposal of the extorted amount from the complainant .
j. Another vehicle, being a Bentley, was allegedly purchased in the
name of M/s Priyanka Arcade using approximately Rs. 1.5 crores
of the alleged extorted funds. It is alleged that the funds were
routed through the petitioner, but the vehicle was ultimately used
by Leena and Sukesh. The petitioner had allegedly stated that he
handed the money to the owner of M/s Priyanka Arcade, although
the owner later stated that payments had been received partly from
the petitioner and partly from other persons. The vehicle was
recovered from Leena’s possession.
k. The petitioner’s brother, Manish Kothari, allegedly executed hire-
purchase agreements with M/s Nail Artistry for three vehicles,
15
2023 judgment, paragraph 63.
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being a Bentley, a Range Rover, and a Toyota Fortuner, with
financing of Rs. 40 lakhs, Rs. 30 lakhs, and Rs. 30 lakhs
respectively. These vehicles were allegedly financed by Manish
16
Kothari and the petitioner, and used by Leena and Sukesh .
l. The petitioner also introduced his relative, Jitender Kothari, to
Mohanraj to facilitate the purchase of a house for Leena at
Kannatur Village for approximately Rs. 7 crores. Out of this
amount, Rs. 5 crores were routed through sham transactions, after
being received in cash through hawala channels, while the
remaining Rs. 2 crores were allegedly paid in cash to the property’s
owner through the petitioner and Mohanraj. A lease agreement was
then allegedly executed between Jitender Kothari and Leena for
monthly rent of Rs. 2.5 lakhs. As with the Lamborghini car
transaction, the rental payments were withdrawn and cycled back
through the petitioner and Mohanraj to Leena. During a raid by the
Enforcement Directorate, the house was found in Leena’s
possession, and was allegedly furnished with interiors worth
17
several crores of rupees .
m. The petitioner is alleged to have received Rs. 10 lakhs as
commission in relation to the vehicle transactions and Rs. 15 lakhs
18
as commission in relation to the house transaction .
n. The investigation further alleges that Sukesh, assisted by Sudheer
Abu and Joel, delivered money to Mohanraj, the petitioner, and
19
others as part of the alleged laundering of the extorted funds .
16
2023 judgment, paragraph 63.
17
Ibid.
18
Ibid.
19
2023 judgment, paragraph 64.
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o. The prosecution relies on the alleged confessional statements under
Section 18 of MCOCA of Sukesh and Mohanraj, as well as the
20
disclosure statement of the petitioner .
p. It is a matter of record that the petitioner had two previous
involvements, being FIR No. 1319/2017, lodged at Police Station
Soundarapandiyanar Angadi, District T. Nagar, Tamil Nadu under
Sections 294(b)/341/342/363/506(1)/149 of IPC and FIR No.
470/2012, lodged at Police Station Soundarapandiyanar Angadi,
District T. Nagar, Tamil Nadu, under Section 75 of the TNTCP
21
Act .
UBMISSIONS BY EARNED OUNSEL FOR THE ARTIES
III. S L C P :
8. Mr. Malhotra’s principal submission concerned prolonged
incarceration and likely delay in completion of trial. He submitted that the
petitioner was arrested on 05.09.2021, and has thus remained in custody
for a period of almost 4 years and 10 months. Charges have recently been
framed, by an order of the Special Court dated 03.06.2026. However, the
State has cited 403 witnesses, and the chargesheets collectively exceed
10,000 pages. Further, one of the co-accused, Navas KI, has been arrested
recently, and it is likely that a supplementary chargesheet will have to be
filed in relation to his case. Considering the aforesaid factors, Mr.
Malhotra submitted that the petitioner’s right to a speedy trial, guaranteed
under Article 21 of the Constitution, has been defeated, and his continued
custody pending trial is constitutionally unjustifiable.
9. With regard to the statutory restrictions on grant of bail, under
Section 21(4) of MCOCA, Mr. Malhotra referred to several judgments
20
2023 judgment, paragraph 65.
21
2023 judgment, paragraph 66.
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22 23
and orders of Supreme Court as well as this Court , in which bail has
nonetheless been granted to MCOCA accused on ground of prolonged
incarceration. Additionally, he referred to the judgment in Ranjitsingh
24
Brahmajeetsing Sharma v. State of Maharashtra and Anr. , wherein the
Supreme Court held that such statutory restrictions should not be “ pushed
too far ”. He also relied upon the judgment in Suhail Ahmad Thokar v.
25
National Investigation Agency , which arose under the Unlawful
Activities (Prevention) Act, 1967 [“UAPA”], to submit that, even
recently, the Supreme Court has granted bail in a UAPA case, on the
basis of period spent in custody, likelihood of prolonged trial, and parity
with other co-accused, all of which are applicable to the present case also.
10. Mr. Malhotra further submitted that the legal position with regard
to prolonged incarceration, vis-à-vis the restrictions on grant of bail under
Section 21(4) of MCOCA, has been considered at length in the judgments
in Leena Paulose and Deepak Ramnani . Applying the same yardstick to
the present case, he submitted that the Court is required to examine the
role attributed to the petitioner and the prima facie material supporting
the allegations against him, to adjudicate whether his further custody is
warranted. In this context, Mr. Malhotra argued that the petitioner’s role
22
RockysinghJalindersingh Kalyani v. State of Maharashtra [Criminal Appeal No. 176/2022, decided
on 03.02.2022]; Ranjana TanajiWanve v. State of Maharashtra [SLP (Crl.) No. 12740/2024, decided
on 22.10.2024]; Siddhant v. State of Maharashtra [2024 SCC OnLine SC 3798]; Vinod v. State of
Maharashtra [SLP (Crl.) No. 14166/2024, decided on 08.01.2025]; Vivek @ Vicky Janak Paneri v.
State of Maharashtra [SLP (Crl.) No. 2677-2678/2025, decided on 15.04.2025]; Kailash Ramchandani
v. State of Maharashtra & Anr. [SLP (Crl.) No. 4276/2025, decided on 06.01.2026]; Jagruti Dhanesh
Thorat v. State of Maharashtra [SLP (Crl.) No. 17295/2025, decided on 13.01.2026].
23
Arun v. State (Government of NCT of Delhi) , BAIL APPLN. 3348/2023, decided on 07.04.2025;
Ashish @ Deva v. State (NCT of Delhi ), BAIL APPLN. 1618/2024, decided on 29.04.2025; Rajesh
Kumar v. State (Government of NCT of Delhi) , BAIL APPLN. 2986/2023, decided on 08.05.2025;
Jitender Dixit @ Bantu v. The State (Government of NCT of Delhi) , BAIL APPLN. 3831/2023, decided
on 19.05.2025.
24
(2005) 5 SCC 294, paragraph 38.
25
SLP (CRL.) No. 83/2024, decided on 22.05.2026.
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was limited to handling the allegedly extorted funds. He played no role in
the planning or execution of the foundational offence of extortion, but
only in management of the funds sent by Sukesh to Leena in Chennai. To
this extent, he submitted that the petitioner’s role is at the highest,
comparable to that of Deepak, who was granted bail by judgment of this
Court dated 05.06.2026. In fact, Mr. Malhotra submitted that the principal
allegation against the petitioner was that he actively participated in the
disposal of proceeds of crime, specifically by facilitating investments in
luxury vehicles and immovable properties for Sukesh and Leena, and
receiving a commission. According to Mr. Malhotra, the petitioner was
not in contact with the main accused, i.e. Sukesh, and the alleged money
trail also does not show that any part of the extorted funds were in the
petitioner’s hand at any time.
11. Mr. Malhotra also submitted, without prejudice to the aforesaid
contentions, that the offences alleged against the petitioner are not made
out at all, even on the prosecution’s own showing, as the petitioner had
no knowledge or reason to believe that any of the activities in which he
participated were connected with a criminal offence. In the absence of
such mens rea , learned counsel submitted that the offences of assistance
and abetment in a MCOCA offence cannot be established. For this
purpose, he relied upon the judgments of the Madras High Court in
26
Kumar Ganesaperumal v. Directorate of Enforcement and VMT
27
Spinning Mills India Pvt. Ltd. v. Directorate of Enforcement . Mr.
Malhotra also submitted that the petitioner has no prior criminal
involvements involving Sukesh/Leena, and the allegation of “ continuing
26
2021 SCC OnLine Mad 8689.
27
2022 SCC OnLine Mad 9267.
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unlawful activity ” under Section 2(1)(d) of MCOCA cannot be made out
against him.
12. With regard to the two earlier alleged criminal proceedings against
the petitioner, referred to in the 2023 judgment, Mr. Malhotra submitted
that proceedings arising out of FIR No. 1319/2017 were quashed, as
28
against the petitioner by judgment of the Madras High Court . He also
submitted that FIR No. 470/2012 was closed without any further
proceedings against the petitioner. He further stated that in the connected
29
proceedings under the Prevention of Money Laundering Act, 2002
30
[hereinafter, “PMLA”], the petitioner has already been granted bail .
13. Mr. Jain, in contrast, submitted that the petitioner had a direct role
in handling of the extorted funds in Chennai, alongwith other accused
persons, with full knowledge of the illegal activities of the OCS. He was
thus not only involved in abetment of the activities of the OCS, but was
also directly involved in the “ continuing unlawful activities ”, within the
meaning of Section 2(1)(d) of MCOCA, which reveals “ membership ” of
the OCS under Section 3(4) of MCOCA. He submitted that the petitioner
and Mohanraj, alongwith other Chennai based co-accused, participated in
planning and execution of the activities related to handling of the extorted
funds sent by Sukesh to Leena.
14. Mr. Jain urged the Court, at the stage of bail adjudication, to have
due regard to Section 21(4) of MCOCA, which places restrictions on the
grant of bail in such offences. According to him, grant of bail in such
cases cannot be determined solely by the length of custody, for which
28
Crl.O.P. No. 5801/2021: Kamlesh Kothari v. The State and Anr. , decided on 27.06.2023.
29
ECIR/54/DLZO-II/2021, dated 08.08.2021, under Sections 3 and 4 of the PMLA.
30
Order of the Special Court dated 14.08.2025.
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31
purpose he reiterated the submissions recorded in Leena Paulose and in
32
Deepak Ramnani . Mr. Jain further urged that in the present case 17
adjournments have been taken by the accused alone, resulting in delay in
framing of charges.
IV. A NALYSIS :
15. As noted above, this Court has, in the 2023 judgment, considered
the petitioner’s application for bail, in the course of which the prosecution
case against the petitioner was discussed in detail. The role ascribed to
the petitioner, as described in the 2023 judgment, has been summarised in
paragraphs 6(i) to 6(n) above. As this Court has already analysed the
material on record, albeit on a prima facie basis, I do not consider it
appropriate to revisit that question at this stage.
16. However, the lapse of a period of three years since the 2023
judgment, raises a question of the interplay between the constitutional
rights of an undertrial, who remains in custody for a prolonged period,
with the statutory restrictions on grant of bail found in several special
33
statutes such as the UAPA , the Narcotic Drugs and Psychotropic
34 35 36
Substances Act, 1985 , MCOCA , and PMLA . I have had the
opportunity to consider the legal position governing this question, both in
Leena Paulose and Deepak Ramnani .
17. In Leena Paulose , upon consideration of the interpretation of the
three-Judge Bench decision of the Supreme Court in Gulfisha Fatima v.
31
Paragraphs 15, 16, 24, and 25.
32
Paragraphs 9(a)-(c), 25, and 26.
33
Section 43-D (5).
34
Section 37.
35
Section 21(4).
36
Section 45.
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37
State (Govt. of NCT of Delhi) , which had interpreted an earlier three-
38
judge bench judgment in Union of India v. K.A. Najeeb , I had proceeded
on the following basis:
“ 29. The decision in Gulfisha Fatima, in my view, provides guidance on
the approach to be adopted while adjudicating bail application under
MCOCA also. Section 21(4) of MCOCA being on a “higher pedestal”
than Section 43D(5) of UAPA, I agree with Mr. Jain that, at the very least,
the same principles would govern the interplay between Section 21(4) of
MCOCA and the Article 21 rights of an accused. Theapparently distinct
lines of authority cited above can, in my view, be reconciled, by applying
the ratio of Gulfisha Fatima.
30. The position which emerges therefrom is that statutory restrictions on
grant of bail cannot preclude constitutionally protected claims,
referrable to Article 21 of the Constitution. The ground of prolonged pre-
trial incarceration without likelihood of culmination of proceedings must
therefore be considered, even in cases involving special statutes. However,
these are not stand-alone considerations, but require to be analysed
alongwith the nature of the offence and the prima facie material on
record. Conversely, while adjudicating the satisfaction required in terms
of the statutory conditions, the material must be assessed through the lens
of the right under Article 21 of the Constitution. In order to adjudicate
such a question, the factors to be borne in mind include the length of
custody already undergone, the possible sentence for the offence, the
possibility of concluding the proceedings within a reasonable time,
whether delay in proceedings is attributable to the prosecution or the
defence, and the nature of the prima facie case made out against the
accused.
31. Haris Nisar Langoo, in my view, does not depart from the above
principles, but provides an example in which the Court was satisfied that
the petitioner was entitled to bail, even after applying Section 43D(5) of
UAPA. In fact, it may be noted that, even in Gulfisha Fatima, some of the
accused were granted bail, having regard to the specific facts of their
39
cases. ”
18. Soon after the judgment in Leena Paulose was delivered, the
Supreme Court’s decision in Syed Iftikhar Andrabi v. National
40
Investigation Agency expressed reservations, with regard to the
37
2026 SCC OnLine SC 10 [hereinafter, “ Gulfisha Fatima ”].
38
(2021) 3 SCC 713 [hereinafter, “ K.A. Najeeb ”].
39
Emphasis supplied.
40
2026 SCC OnLine SC 881 [hereinafter, “ Andrabi ”].
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correctness of Gulfisha Fatima . This has led to a reference to a larger
bench of the Supreme Court in Tasleem Ahmad v. State Govt. of NCT of
41
Delhi . Pending resolution of the issue by the larger bench, this Court, in
Deepak Ramnani , considered it appropriate to adopt the following
approach:
“ 22. The question that arises before this Court, in light of the aforesaid
decisions, is to determine the approach which must be adopted in
adjudication of the present applications. Needless to say, the differing
approaches expounded by the Supreme Court in Gulfisha Fatima and
Syed Iftikhar Andrabi, are both binding upon this Court. Although the
question has been referred to a larger bench in Tasleem Ahmed 2, the
factum of reference itself does not denude a Supreme Court decision of its
42
binding authority .
23. The possible course of awaiting an authoritative decision by the
larger bench of the Supreme Court does not commend to me, in the
context of these applications for bail, which by their very nature require
expeditious resolution. Instead, having considered the judgments cited by
both sides, which were rendered after Gulfisha Fatima, I am of the view
that a practical approach must be adopted, at least until the reference is
answered by a larger bench. In the present case, such an approach
requires this Court first to adjudicate upon Mr. Malik’s submission that,
even in terms of the interpretation of K.A. Najeeb in Gulfisha Fatima, as
understood by this Court in Leena Palouse-II, the petitioners are entitled
to bail. If this contention is accepted, it is unnecessary to delve further
into the exercise of reconciliation between the views expressed in Gulfisha
Fatima and Syed Iftikhar Andrabi, with regard to the competing
interpretation of K.A. Najeeb.
24. Before embarking upon this exercise, I may only add that this course
is also not, in my view, inconsistent with the interpretation of K.A. Najeeb
in Syed Iftikhar Andrabi. The position of law laid down in Gulfisha
Fatima, as I have understood it in Leena Paulose-II, was that the
ground of prolonged incarceration without likelihood of culmination of
proceedings, must be considered even in cases involving statutory
restrictions on grant of bail. However, these must be analysed,
alongwith the nature of offence, and the prima-facie material available
against the accused. The articulation in Syed Iftikhar Andrabi, is that
the statutory limitation on the grant of bail cannot override rights under
Article 21, but that “of course, in an appropriate case, bail can be
41
SLP (CRL.) No. 3867/2026, dated 22.05.2026 [hereinafter, “ Tasleem Ahmad ”].
42
Harbhajan Singh and Another v. State of Punjab , (2009) 13 SCC 608, paragraph 15; National
Insurance Company Limited v. Pranay Sethi , (2017) 16 SCC 680; Union Territory of Ladakh and Ors.
v. Jammu and Kashmir National Conference and Anr. , (2024) 18 SCC 643, paragraph 35.
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43
denied having regard to the facts of that particular case” . Syed
Iftikhar Andrabi therefore also requires a factual examination, to
determine whether a particular accused is to be granted bail, despite an
argument based upon his/her Article 21 rights. It may be noted that, both
in Gulfisha Fatima and in Syed Iftikhar Andrabi, the Supreme Court
examined the case of accused on merits, in the backdrop of period of
incarceration and the likely length of trial. In Gulfisha Fatima, five of the
seven accused were granted bail, as was the sole accused in Syed Iftikhar
44
Andrabi. ”
19. I propose to adopt the same approach in the present case also. I
45
may also note that, in Khuram Parvez v. National Investigation Agency ,
which was rendered after the aforesaid judgments of the Supreme Court,
including the reference order in Tasleem Ahmad , a Division Bench of this
Court has adopted a similar approach . The case concerned an application
for bail in a UAPA offence. The Court’s approach is indicated by the
following observations:
61. Keeping in view the above, we have proceeded to consider the case of
“
the appellant for releasing him on bail.
62. For the same, we would note that the appellant was taken into custody
in the present case on 22.11.2021, and has, therefore, undergone
prolonged incarceration of almost 4½ years. The stage of the trial is at
the arguments for framing of charge. We are further informed that the
prosecution intends to examine 197 witnesses in case the charge is
framed against the appellant.
63. We shall also conduct a surface evaluation of the case alleged by the
prosecution against the appellant .
xxx xxx xxx
71. We have taken note of the above allegations and the defence of the
appellant, only to highlight that they must be tested against the long
period of incarceration of the appellant and the fact that there is no
likelihood of the trial ending soon as also against the yardstick of bail
being the rule, while denial thereof being an exception. The appellant’s
rights under Article 21 of the Constitution of India need to be balanced
and may even trump the restriction imposed under Section 43D(5) of the
UAPA.
43
Andrabi , paragraph 35.
44
Emphasis supplied.
45
CRL.A. 1234/2024, decided on 10.06.2026.
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72. We are also mindful of the fact that one of the co-accused, namely,
Zafar Abbas (A-4), has been denied bail by this Court and the said order
has been upheld by the Supreme Court, however, we find that the
allegations against the said co-accused were very different from the one
46
against the appellant herein . ”
20. Applying the same benchmark to the present case, it may be noted
that the petitioner is not accused of participation in the alleged acts of
extortion, against the complainant or any other person. Even as per the
prosecution case, as noted in the 2023 judgment, the role attributed to him
concerns planning and management of funds transferred by Sukesh to
Leena, including acquisition of immovable properties and luxury cars in
the names of other individuals or entities, and handling of the said cars.
The alleged confessional statements, of the petitioner and Sukesh, relied
upon by the prosecution, do not prima facie accord any higher role to the
petitioner than this.
21. As against this, the petitioner has already spent approximately 4
years and 10 months in custody as an undertrial. The offence under
Section 3(4) of MCOCA carries a sentence which may extend to
imprisonment of five years to life imprisonment. However, the factors
indicated above, including the number of accused [24], number of
witnesses [403], and the complexity of the case, make expeditious
conclusion of the proceedings unlikely. Having regard to the role ascribed
to the petitioner by the prosecution, I am of the view that his further
incarceration as an undertrial, is inappropriate. Although I have held, in
47
Leena Paulose , that the delay in the present case cannot be attributed to
prosecutorial delays or court inaction alone, I am nonetheless of the view
46
Emphasis supplied.
47
Paragraph 37.
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that the facts of each case have to be examined on their own merits, with
due consideration of the specific roles ascribed to the individual in
question.
22. As I have held that the petitioner is entitled to bail even if the
prosecution case is taken at its highest, I do not consider it necessary to
address the other contentions raised by Mr. Malhotra.
V. C ONCLUSION :
23. For the aforesaid reasons, the application is allowed, and it is
directed that the petitioner be released on bail in connection with FIR No.
208/2021, dated 07.08.2021, registered at Police Station Special Cell,
Delhi, subject to furnishing a personal bond of Rs. 2,50,000/-, alongwith
two sureties in the like amount, to the satisfaction of the concerned
Special Court/Duty Magistrate, and subject to the following further
conditions:
a. The petitioner shall appear before the Special Court on each and
every date of hearing;
b. The petitioner shall surrender his passport before the Special Court,
and shall not leave the country without prior permission of the
concerned Court;
c. The petitioner shall provide his permanent address to the concerned
Court, as also the address where he is residing during the pendency
of the case. The petitioner shall intimate the Investigating Officer
[“IO”], and file an affidavit before the Special Court, regarding any
change in residential address;
d. The petitioner shall provide his mobile number to the concerned
IO/Station House Officer, which shall be kept in working condition
at all times. The mobile number shall not be switched off or
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changed without prior intimation to the IO during the pendency of
the trial;
e. The petitioner shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case or tamper with the evidence of the case, in any
manner whatsoever;
f. The petitioner shall not commit any offence during the period of
his release.
24. The bail application is disposed of in terms of the above.
25. It is clarified that any observations made in the present judgment
are solely for the purpose of deciding the present bail application, and
shall neither influence the trial proceedings, nor be construed as an
expression of opinion on the merits of the case.
26. Copy of the judgment be communicated to the concerned Jail
Superintendent electronically for information and necessary compliance.
PRATEEK JALAN, J
JULY 7, 2026
‘PV’/AD/KA/
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VASHIST
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