Section 111 BNS Doesn't Attract When Chargesheet Has Never Been Filed Regarding Unlawful Activity, Including Economic Offence In Previous Past: Jammu & Kashmir & Ladakh High Court

The High Court was considering two petitions, one of which challenged an order rejecting the bail application of the petitioners and the other sought bail in a case registered under Section 318(4) of BNS.

The Single Bench of Justice Sanjay Dhar asserted, “In the present case, the basis on which the investigating agency has invoked Section 111 of BNS is that the petitioners have been booked in FIR No.5/2025 of Cyber Police Station, Srinagar. There is nothing on record and not even an allegation emanating from the investigating agency that any chargesheet has ever been filed against the petitioners in respect of any unlawful activity including an economic offence in the previous past nor there is any assertion that any court has taken cognizance of such offence against the petitioners. Therefore, invocation of Section 111 of BNS against the petitioners by the Investigating Agency does not have any basis at all, at least upto the present stage of investigation.”

Advocate Salih Pirzada represented the Petitioners while Government Advocate Waseem Gul represented the Respondent.

Factual Background

An application came to be presented by the complainant alleging that he was approached by the accused/petitioner, who was working as a Bank Probationary Officer, and he lured him to invest in a financial scheme by promising high returns through online trading. The complainant stated that he had shared his Aadhar, PAN and bank account credentials with him, whereafter the accused/petitioner started using his bank account for suspicious financial transactions.

It was further alleged that the accused along with others transferred a huge amount from the complainant’s account. An FIR came to be registered under Section 318(4) of BNS. According to the Investigating Agency, the petitioners lured poor and young people into cyber fraud, promising them double returns, and they had deceived a large number of people. A fake online trading platform @RSN website had been set up by the accused, which was not registered or approved by the Government, and an FIR for offences under Section 66-D IT Act, 3(5), 61(1), 111(2), 319(2) of BNS was registered against the accused/ petitioners.

Reasoning

On a perusal of the facts of the case, the Bench noted that the petitioners had spent around 75 days in custody. The Bench explained,“...the maximum period for which a person accused of an offence under Section 318 of BNS can be detained in custody is sixty days”, it said while also adding, “...if it is shown from the material on record of the Case Diary that the petitioners are not involved in offence under Section 111 of BNS or offence under Section 316(5) of BNS, they can claim default bail in terms of sub-section (3) of Section 187 of BNSS on the ground that they have spent more than sixty days in custody in the present FIR.”

Coming to the provision of Section 111 of BNS, which defines and prescribes punishment for the offence of organized crime, the Bench observed that for bringing an activity of an accused within the definition of ‘organized crime’ it has to be shown that such person has indulged in continuing unlawful activity, which may include an economic offence.

The Bench noted that the invocation of Section 111 of BNS against the petitioners by the Investigating Agency did not have any basis at all. Moreover, there was prima facie material on record to show that the petitioners were involved in the commission of an offence under Section 316(5) of BNS read with Section 61 BNS. The Bench said, “Petitioner Shahnawaz Ahmad Shah, who was working as a Probationary Officer in the J&K Bank, has committed criminal breach of trust reposed on him by complainant Firdous Ahmad Dar who was maintaining a bank account in the bank where petitioner Shahnawaz Ahmad Shah was working by using his account credentials for suspicious financial transactions. Thus, prima facie, petitioner Shahnawaz Ahmad Shah is involved in the commission of offence of criminal breach of trust punishable under Section 316(5) of the BNS and because there are inter se banking transactions between petitioner Shahnawaz Ahmad Shah and the other petitioners, there is material on record to show that all the petitioners were working in concert and were part of the conspiracy.”

Explaining that Section 316 of BNS provides for punishment in respect of offence of criminal breach of trust committed by a public servant or as a banker, the Bench held that there was prima facie material on record to show that the petitioners were involved in the commission of an offence under Section 316(5) of BNS read with Section 61 BNS. Thus, it could not be stated that the Investigating Agency had erroneously invoked the provisions of Section 316(5) read with Section 61 of BNS against the petitioners.

On the aspect of the grant of bail, the Bench found that the investigation of the case was still in progress, but the material on record collected by the Investigating Agency pointed towards a huge financial/cyber fraud that was being perpetrated by the petitioners in concert with others. Thus, finding no merit in the petitions, the Bench dismissed the same.

Cause Title: Aamir Bashir Magray & Ors. v. UT of J&K (Case No.: CRM(M) No.279/2025)

Appearance

Petitioner: Advocates Salih Pirzada, Aabid Hamid, Areeb Kawoosa, Gagan Oswal

Respondent: Government Advocate Waseem Gul

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