MCOCA - Explained

Introduction –

Every nation aims to be terror-free state, and it was a pressing concern for India in the late 90s and early 2000s when the terror rate was booming high and the police and officials were unable to keep it under control. Before this Act was enacted, all sorts of organized crime moved freely throughout Maharashtra, thus the respective act was enforced in 1999 with the primary objective to counter terrorism in appropriate manner and to regulate the upsurge in organized crime and terrorism as it was evident that there was existence of organized crime in Mumbai by looking into certain criminal activities such as murders of business tycoons and people from film industry, extortion of money from businessmen, abduction and many more. These activities were not just limited to Mumbai but did extend to the whole of Maharashtra and hence, Maharashtra Control of Organized Crime Act, 1999 was enacted.

The jurisdiction of the Act was expanded in 2002 to the NCT Delhi comprising of one weird feature apart from its power to intercept wires, electronic or oral communication means, admissibility of confessions before senior official, there is no provision for anticipatory bail to the accused within period of 6 months from date of commission of offence etc. With the increase in use of technology, even in such organized crimes and terror related activities, the current legislation needed upgradation in order to cope up with this new tech-means. Thus, the governor of Maharashtra promulgated an ordinance for the same purpose as both the houses were not in session.

The ordinance was named as “Maharashtra Control of Organized Crimes Ordinance 1999” which was passed on 24^th February 1999. The section 1 of the Act further specified that the Act shall have a retrospective effect and it is deemed to be in force from the date of ordinance itself. Further, the Act got its final assent from President on 23^rd April 1999 and was published in the Maharashtra Government Gazette on 24^th April 1999.

Objective of the Act

The main purpose behind enactment of this Act was to combat terrorism in the right way and enhance the security forces of the state in order to maintain peace and order. Even the statement of object and the Preamble of the Act clearly mention the motto of enactment of the Act which is-

To make special provision for preventing, controlling and coping with, the criminal activity by organized crime syndicate or gang
It was required and pragmatic to replace the Ordinance by an Act for better implementation and proper judgment of the offences recognized by the Act
It should be noted that as organized crimes have no boundaries and are funded with illegal and black money gained by contract killings, smugglings, illegal trade in narcotics, extortion, collection of protection money and money laundering etc, thus it was necessary to make legislation which specifically deals with such wrongful practices
It was possible that the organized crime was being operated within the State by people who were promoting narco-terrorism and even funding these gangs with their unaccounted and black money, it called for an immediate State action to control such illegal offences by enforcing a legislation.

Salient Features of MCOCA

There are some of the significant features of the Maharashtra Control of Organized Crime Act 1999 which focus on some full proof methods to regulate these offences throughout the State. They are-

The Act ensures establishment of Special Courts for better and effective adjudication of cases concerning with organized crime and terrorism
The Act also provides for appointment of competent authority for the purpose of interception of wires, medium of electronic and oral communication to keep track on these crimes (section 13-14)
The Act mentions the constitution of Review Committee for reviewing the order passed by Competent Authority appointed for authorization of interception (Section 15)
Special rules for evidence shall apply for the cases that are tried by the Special Court under MCOCA and application of CrPC and Evidence Act is restricted in these areas (Section 17)
There are special provisions for security of witnesses of the offences under the Act (Section 19)
There are specific provisions for forfeiture and attachment of property of the accused and it can be specified in the order by the Special Court (Section 20)
Any confession of accused, co-accused, abettor or conspirator or any such person shall not be recorded by a police officer who is below the rank of Superintendent of Police or it shall not be admissible in the trial procedure (Section 18)
Every offence committed under this Act shall be a cognizable offence (Section 21)
The High Court and State government have been given special powers to make rules under section 28 and 29 of the Act.
The provision for securing bail for any of these offences is extremely complicated and difficult.

Read – Dishonour of Cheque – Legal Resort

Important Definitions under the Act

The Act comprises of 30 sections in total and there are some of the important terms which are used repetitively within the Act, which need to understood in the same way as given in their definition. Some of the common definitions of the Act are-

Organized Crime is defined under section 2(e) which means “any continuing unlawful activity by an individual, singly or jointly, either as member of the organized crime syndicate or on behalf of syndicate, by use of violence or threat of violence or intimidation or coercion, or any other unlawful means with aim of gaining pecuniary benefits, or obtaining undue economic or any other advantage for himself or other person or promoting insurgency;”

Organized Crime Syndicate is defined under section 2(f) which states, “a group of two or more persons who, acting either singly or collectively, as syndicate or gang indulge in activities of organized crime.”

For better understanding of meaning of organized crime, one should learn the meaning of “continuing unlawful activity” accordingly as described in the Act. Section 2(d) defines “continuing unlawful activity” which means “an activity prohibited by law for the time being in force, which is cognizable offence punishable with imprisonment of three years or more, undertake singly or jointly as member of the organized crime syndicate or on behalf of the syndicate in which more than one charge-sheets have been filed before a competent court within the preceding period of 10 years and that Court has taken cognizance for such offence.”

These are some of the important definitions which need to be referred while dealing with such offences and cases.

Punishments under the Act

The sections mentioning the punishment of such organized crimes and terrorism are-

Section 3 of the Act describes punishment for organized crimes–

wherein if the commission of the crime results in the death of a person, then it is punishable with death penalty or life imprisonment with fine of minimum Rs 1 lakh. If the organized crime didn’t lead to the death of the person, then the person shall be imprisoned for not less than 5 years upto life imprisonment and fine of Rs minimum 5 lakh

If the person colludes or attempts to commit or advocates, abets or knowingly enables the commission of the organized crime or any act in preparation to the organized crime, then the person shall be punished with imprisonment of not less than 5 years extending upto life imprisonment and fine of Rs 5 lakh minimum.

If anyone is found attempting to harbour or conceal any member of the crime syndicate then he shall be punished with imprisonment of 5 years extending to life imprisonment and fine of Rs 5 lakh minimum

Person who is the member of organized crime syndicate, he shall be punished with same imprisonment of not less than 5 years which might extend to life imprisonment and fine of Rs 5 lakh minimum

Person who holds the property derived or obtained from commission of an organized crime or has been bought with the funds acquired from organized crime, then he shall be punished with imprisonment of not less than 3 years extending upto life imprisonment along with fine of Rs 2 lakh minimum.

Section 4 describes Punishment for possessing unaccountable wealth on behalf of member of organized crime syndicate– If any person who is in possession of movable or immovable property on behalf of a member of an organized crime syndicate at any time for which he cannot present the account for satisfactorily, then the person shall be imprisoned for not less than 3 years extending upto 10 years and fine of Rs 3 lakh. The property recovered shall be attached and forfeited as per section 20 of the Act.

Section 16 talks about Interception and disclosure of wire, electronic or oral communications is prohibited– if any police officer who intentionally or with wrongful intentions has intercepted or disclosed wired or oral communication shall be punished with imprisonment for term extending upto 1 year along with fine of Rs. 50, 000.

Section 24 describes Punishment for public servants failing to discharge their duties– If a public servant is rendering any help or support in any manner to the commission of organized crime as defined under section 2(e), either before or after the commission of offence by any member of the crime syndicate or is abstaining from taking lawful measures under this Act or fails to carry out the instructions of Court or of superior police officer with this respect, then he shall be liable for punishment of imprisonment extending upto 3 years along with fine.

Provision for Special Court

The Act mentioned certain special courts under the MCOCA 1999 to deal with such organized offences separately. Special Court has also been defined under section 2(g) of the Act stating that Special Court has been mentioned under Section 5 of the Act and thus one should rely on Section 5 of the Act to get broader view of the working, jurisdiction and powers of Special Court.

Section 5 of the Act states that, the State Government shall give notification in the official gazette to constitute one or more special courts for specific area/ areas and for such cases/ group of cases which the gazette itself notifies. The special Court shall be presided by a Judge who is to be appointed by the State government in agreement with the Chief Justice of Bombay High Court. Further the State government has the power to appoint additional judges to exercise the power of the Special Court, but that should also be with the consensus of Chief Justice of Bombay High Court. However, the jurisdiction of Special Court is decided by the State government and is deemed to be final.

The State government also has the power to appoint the public prosecutor and Additional Public Prosecutor for each and every special court, but the Advocate should have been practising for a period of not less than 10 years as mentioned under section 8 of the Act.

Qualifications to preside as Judge of Special Court (Section 5(4))- the Judge shall be Judge of Sessions Court or an Additional Sessions Judge to be appointed as Judge for Special court.
Jurisdiction of Special Court (section 6)- the special court is authorised to try all the offences specified under this Act which has been committed within its jurisdiction or as the case is framed by the Special Court for trying such offence under Section 5(1).
Procedure for taking cognizance- the Courts can carry an investigation and cognizance for the offences as mentioned under MCOCA in the following ways:

Section 23 states that a compulsory action of taking authorization of police officer who is not below the rank of Deputy Inspector General of Police is needed for recording the information by the police officer of the commission of offence under MCOCA and it also states that no investigation of the offence shall be carried by a police officer who is below the rank of Deputy Superintendent of Police.
Moreover, section 23 also states that the Special Court cannot take the cognizance without the prior approval of the police officer who shall not be below the post of Additional Director General of Police

Power of Special Courts

There are certain powers granted to the Special Court through this Act, which can be exercised by them under the given conditions or case as specified. The powers of Special Courts conferred to it via the Act are-

Section 7 describes that while trying a case under this Act, the Special Court has the power to try another offence committed by the accused under this or any other Act, only if the other offence is related to this offence and can give the same sentence accordingly.
Section 9(1) of the Act talks about how the Special Court can take cognizance of the offence under this Act against any person, on receiving the complaint or police report depending upon the case, even if the crime is not committed by the accused.
For the offences which are tried by Special Court, don’t exceed the punishment beyond 3 years of imprisonment or fine or both, then the person can be tried summarily as per the procedures mentioned in the CrPC, 1973 u/s 263-265. But if the Special Court objects to try the case summarily then it has the power to dispense the summary procedure and hear the case again, as if he is magistrate to try the particular case in trial and adhere to all the provisions of CrPC. (Section 9(2))
However, it shall be noted that while trying the case summarily the Special Court cannot grant the accused of imprisonment for term more than 2 years.
The Special Court has the power with respect to obtaining evidence also, which is as follows-

The Special Court can pardon the accused person directly or indirectly who is connected with the case on the condition that he/she is making full disclosure of the entire circumstances within his knowledge regarding the offence committed and every other person who was involved in the concerned offence.

As per section 11, the Special Court also has the power to transfer the case to other special court on its want of jurisdiction or even to any regular court as.
The special court shall have all powers same as the powers of Sessions Court, as has been conferred to it under the CrPC.
Section 10 of the Act states that the trial of Special Court shall have precedence over the trial of any other case that is ongoing against the accused and even the trials of Special Court should be determined and concluded on priority before the trial of such other cases.

Landmark Judgments

There are certain prominent judgments by the Courts which mark as the precedent for dealing with such organized crimes and terrorism. Some of the known cases are-

In the case of State of NCT of Delhi v. Brijesh Singh SC 2017, it was held by the Apex Court that organized crime is not an activity that is limited to particular state which can be known by the analysis of the State of Objects and Reasons. In case a restrictive reading of the words ‘Competent Court” as mentioned under section 2(1)(d) of MCOCA shall nullify the aim of this Act and thus charge-sheets can be filed in other states also in accordance with this Act.
In the case of Saquib Abdul Hamid Nachan v. Superintendent, Central Jail Bom 738 2017, it was held by the Bombay High Court that undertrial detention under MCOCA cannot be set-off against the sentence that has been imposed against the accused under Prevention of Terrorism Act 2002. Both the detention shall be dealt of separately.
In a significant case, the Delhi High Court acquitted 8 accused persons who were involved in a murder case by the Additional Sessions Judge Gautam Manna, by describing that police is not authorised to invoke MCOCA unless they have strict proof of the accused persons to be working as members of an organized crime syndicate and not merely because they were involved in some criminal activities prior to this case.
In the case of Prafulla v. State of Maharashtra 2009, the accused persons were tried in the Special Criminal case no.1/2001 as they are allegedly gangsters led by the one Shiva (1^st accused) and those who are in Special Criminal Case no.2/2001 they allegedly belong to the enemy gang that is led by Mahmood Khan Pathan. Initially, it was notified that both the accused belonged to the same gang but later, they were split into 2 gangs and their strategy was to clash over with each other and use it as a means to extort money. As both of them were involved in extortion and other criminal activities in the industrial town of Khaparkheda which is in the boundary of Nagpur city. The Apex Court passed the order that conviction of the appellants shall be upheld on the basis the filing of charge sheets in the past.

Conclusion

Thus, from the above we can get an overview of the essential provisions of Maharashtra Control of Organized Crime Act 1999 and the main purpose behind promulgating the ordinance and replacing it with Act was to ensure that terror-related crimes and organized crimes are well regulated and controlled by the police especially in the State of Maharashtra where the crime rate was increasing rapidly, thus a stringent act was needed which gave more power to the police officers as well as instil fear in the minds of these mafia men and criminals.

This Act is nothing like common law, as it has stern and preventive provisions that include some exclusive power in the hands of police as well as special courts like interception of wire, electronic or oral communication to administer organized crime. All the crimes such as criminal groupings, mafia organizations promoting illegal trade of weapons and narcotics, collection of protection money come under the category of cognizable offence with heavy punishments. This Act was initially applicable in the state of Maharashtra only, but later as mentioned in the above judgement of NCT Delhi v. Brijesh Singh, it was stated that it can be applied in other states also to safeguard the interests of that state.

REFER – MCOCA Act

-This Article has been authored by Rhea Banerjee Pursuing B.A.LL.B from Indore Institute of Law.