What factors the court should consider while deciding bail application of accused for an organized crime under BNS?

• The accused must be a member of an organized crime syndicate or acting on behalf of such syndicate

• The accused should have been charge sheeted more than once before a competent court within the preceding period of ten years for a cognizable offence punishable with imprisonment for three years or more

• The crime must involve continuing unlawful activity committed through violence, intimidation, threat, coercion or other unlawful means

• The offences listed in Section 111 must have been actually committed

Judicial Scrutiny of Section 111 Invocation

Courts have emphasized the need for careful examination before invoking Section 111. Key considerations include:

• Whether the Investigating Officer has sufficient material to justify invoking organized crime provisions

• Courts should be cautious before passing necessary orders to invoke Section 111 of BNS

• The court must consider the material produced by IO along with application/requisition before allowing invocation of Section 111

Criminal Antecedents and Continuing Activity

The absence of prior criminal record is a significant factor. Courts have held that if no charge sheet has been filed against the accused in the preceding period of last ten years, it may not satisfy the mandate of ‘continuing unlawful activity’. In such cases, prima facie an offence under Section 111(1) is not attracted.

General Bail Factors for Serious Offences

For organized crime cases, courts also consider:

• Nature and gravity of the offense – organized crime being a serious offense makes courts more cautious

• Prima facie case against the accused and strength of supporting evidence

• Character of the accused and potential for evidence tampering or witness intimidation

• Risk of absconding and ensuring presence during trial

• Larger interests of the state or public

Statutory Bail Considerations

Courts must also consider statutory bail rights. If the charge sheet is not filed within the prescribed period (60 days for regular offenses, 90 days for offenses under Section 111 punishable with life imprisonment), the accused may be entitled to statutory bail under Section 187(3) of BNSS.

Burden of Proof

In organized crime cases, there are often twin conditions where the accused must satisfy the court that they are not guilty of the offense and will not commit any crime if bail is granted. The accused bears the burden of proving their innocence for securing bail in such specialized cases.

The courts have consistently emphasized that organized crime provisions should only be invoked when there is adequate material evidence and proper judicial application of mind to prevent misuse of these stringent provisions.