The Author, Harshit Sharma, is a 5th Year student of Amity Law School, Delhi. He is currently interning with LatestLaws.com.

  1. INTRODUCTION

This act was brought in the year of 1999 with the main purpose to regulate and control the increase in organised crime & terrorism which has seen an upsurge in the economic capital of India by providing a special framework to combat criminal activities like murders of tycoons related to film industry as well by builders, extortion of money from businessmen, abduction etc. which clearly purported the existence of organised gangs in Mumbai, as well as in entire State of Maharashtra.

The extended jurisdiction to the National Capital Territory of Delhi in 2002 of this Act, constitutes one of the peculiar features apart from the power to intercept wires, electronic or oral communication means, admissibility of confessions before senior officials, no provision for anticipatory bail within 6 months to the accused from the date of commission of offence etc.

Thus, to strengthen the existing legal framework and to cope with the increasing use of technology for committing organised crime, in the eyes of Governor of Maharashtra it was necessary to promulgate an ordinance to this effect, which was passed on 24th February, 1999 with the title as ‘Maharashtra Control of Organised Crimes Ordinance 1999’, as both the houses of State Legislature were not in session.

Question 1) What was the main object and purpose of enacting the Maharashtra Control of Organised Crimes Act 1999 (hereinafter referred as ‘MCOCA 1999’)?

The statement of object and preamble of the Act, makes it clear that the Act was enacted to achieve the following purpose:

  • To make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang;
  • It was necessary and expedient to replace the 1999 Ordinance by an Act of the State Legislature for effective implementation and proper adjudication of the offences thereby;
  • As Organised Crimes knows no national boundaries and is fueled by illegal wealth generated by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc which required a special law to deal with such increasing mal practices;
  • The possibility of organised crime being operating in the State which was fostering narco terrorism and aiding the terrorist gangs by illegal funding of wealth and black money, required immediate State action for which the Ordinance to this effect which was replaced by the full-fledged Act was needed.

Question 2) When did MCOCA came into effect and to what territories of India did its jurisdiction extends?

The Act was already in force by virtue of the Ordinance promulgated to the effect from 24th February 1999 and Section- 1 of the Act clearly specifies that it shall have retrospective effect and deemed to have come into force from such date itself. Moreover, the Act got the assent of the President on 23rd April 1999 and was first published in Maharashtra Government Gazette on 24th April 1999.

The Act extends to the whole State of Maharashtra and by virtue of 2002 order of Union Ministry of Home Affairs, it also extends to the National Capital Territory of Delhi.

 

Question 3) What is ‘Organised Crime’, ‘Organised Crime Syndicate’ and ‘Continuing unlawful activity’ according to MCOCA 1999?

The interpretation or definition clause of the Act u/s, 2 defines these terms which are as follows:

  • Section 2(e) defines ‘Organised Crime’ which means “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”;
  • Section 2(f) defines ‘Organised Crime Syndicate’ which means “a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime

To fully understand the meaning of Organised Crime, it is necessary to study the definition of ‘continuing unlawful activity’ which is defined as follows in the Act, so as to have clear interpretation of the former term:

  • Section 2(d) ‘continuing unlawful activity’ means “an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence”.

Question 4) Why MCOCA 1999 has an overriding effect on other State and Central Acts, and what brings this Act at par with a Central Legislation?

There are two reasons why MCOCA is seen at par with the Central Legislation and in some cases have an overriding effect on State as well as Central Acts:

  • Firstly, that being a State Act it has received the assent of the President of India; and
  • Secondly, by virtue of Section-25 of the Act which unequivocally quotes while initiating with Non-obstante clause that, anything contained in this Act or any rule or any order made under such rule shall have effect over anything inconsistent therewith contained in any other law for the time being in force and any instrument which is having force of law.

Question 5) What are the punishments for the Commission of Organised Crimes under MCOCA 1999?

Sr. No.

Particular of Crime

Punishment Prescribed

Section-3: Punishment for Organised Crimes

1.

(a) If commission of organised crime results in death of any person

Punishable with Death or Life Imprisonment and fine (min. of ₹1lakh)

 

(b) If commission of organised crime doesn’t result in death of any person

Imprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)

2.

Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime

Imprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)

3.

Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate

Imprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)

4.

Any person who is a member of an organised crime syndicate

Imprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)

5.

Whoever holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds

Imprisonment with may extend to LI but not less than 3 years and fine (min. of ₹2lakhs)

Section 4- Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate

6.

If any person on behalf of a member of an organised crime syndicate is, or, at any time has been, in possession of movable or immovable property which he cannot satisfactorily account for

Imprisonment with may extend to 10 years but not less than 3 years and fine (min. of ₹1lakh) and the property shall be liable for attachment & forfeiture per the procedure of Section 20 of MCOCA 1999.

Section 16- Interception and disclosure of wire, electronic or oral communications prohibited

7.

Any Police Officer who intentionally or with malafide intention intercepts & disclosed wired or oral communication shall be punished

Imprisonment for a term which may extend to one year and with fine up to ₹50 thousand

Section 24- Punishment for public servants failing in the discharge of their duties

8.

A Public Servant who renders any help or support in any manner in the commission of organised crime as defined in clause (e) of section 2, whether before or after the commission of any offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act or intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect

Imprisonment of either description which may extend to 3 years and also with fine.

 

Question 6) What is the provision of the special courts constituted under MCOCA 1999 and its jurisdiction & qualification to preside over them as a judge?

Literally, Special Court as defined u/s. 2(g) of the Act states as follows: “Special Court” means the Special Court constituted under section 5. Thus, specific reliance is to be made to Section 5 of the Act for elaborative sphere of Special Court.

Section-5 of the Act provides that the State Government, by notification in the official gazette, constitute one or more special courts for such area/areas and for such cases/group of cases which it notifies in the gazette itself.

The special court shall preside over by a judge who is to be appointed by the State Government in concurrence with the Chief Justice of Bombay High Court and State Govt. can also appoint such additional judges to exercise the power of the Special Court, only with the concurrence of the Chief Justice of Bombay High Court. Moreover, the decision of the State Govt. is final as to the jurisdiction exercised by the Special Court.

Further, the State Govt shall also appoint Public Prosecutor & Additional Public Prosecutor for every Special Court who has been practising as an Advocate for not less than 10 years. (Section-8)

Qualification as to preside over the judge of Special Court:

  • Immediately before his appointment as the judge of Special Court, he shall be a Sessions Judge or an Additional Sessions Judge. [Section 5(4)]

Jurisdiction of the Special Court:

  • The Special Court shall try all the offences under this Act which has been committed within its jurisdiction or as the case maybe by the Special Court constituted for trying such offence under sub-section (1) of section 5. [Section 6]

Question 7) What are the power and procedure exercised by the special court under MCOCA 1999?

The Special Courts have following powers as has been conferred on it by the Act:

  • While trying an offence under this Act, the Special court my also try any other offence committed by the accused under this Act or under any other Act, if it is related to that offence and may sentence the same accordingly. [Section 7]
  • Special Court may take cognizance of offence under this Act against any person, even if it has not been committed to it, either on receiving the compliant or police report, as the case maybe. [Section 9(1)]
  • When an offence is triable by a Special Court under this Act not exceeding the prescribed punishment beyond 3 years of imprisonment or fine or both, he can summarily try the case in accordance with the procedure prescribed in the Code of Criminal Procedure, 1973 (hereinafter referred as ‘CrPC’) u/s. 263 to 265.

If the Special Court is of the opinion that it is undesirable to try a case in summary way, then he may dispense with such summary procedure and rehear the case, as if he is the magistrate to try that case in a trial and abide by the provisions of CrPC. [Section 9(2)]

Moreover, while summarily trying a case, Special Court may sentence an imprisonment for a term not exceeding 2 years.

  • The Special Court in view of obtaining evidence has power to the following:
    • Tender a pardon to the person directly or indirectly connected with the case on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned;
  • Under Section 11, the Special Court has power to transfer the case to other special court on want of jurisdiction and also to any other regular court.
  • The Special Court shall have all the powers of that of a Sessions Court, as has been conferred on it by the CrPC.
  • The trial of Special Court shall have precedence over the trial of any other case against the accused and the trial before the Special Court should be concluded in preference of trial of such other cases. [Section 10].

The Procedure for taking cognizance and investigation thereto, under MCOCA is as follows:

  • Section 23 of the Act clearly provides for a mandatory action of taking approval of the police officer not below the rank of the Deputy Inspector General of Police for recording the information by the Police officer of the commission of offence under MCOCA and no investigation shall be undertaken by any police officer below the rank of Deputy Superintendent of Police.
  •  Furthermore, Section 23 also postulates that Special Court shall not take cognizance without the previous sanction of the police officer not below the rank of Additional Director General of Police.

 

Question 8) What are the salient features of Maharashtra Control of Organised Crimes Act 1999?

The following are the salient features of MCOCA:

  1. The Act provides for the establishment of Special Courts for the purpose of effective adjudication of cases pertaining to Organised Crime and Terrorism.
  2. Provides for the appointment of Competent Authority for the purpose of interception of wires, and medium of electronic or oral communication. [Section 13-14]
  3. Constitution of Review Committee to review every order of Competent Authority in relation to authorisation of interception etc. [Section- 15].
  4. Special rules of evidence to apply in the cases tried by Special Court under MCOCA wherein the CrPC and Evidence Act’s applicability is restricted. [Section-17]
  5. Confession recorded by a police officer not below the rank of Superintendent of Police shall be admissible in the trial of such person, co-accused, abettor or conspirator. [Section- 18]
  6. Specified provisions for the protection of witnesses of the offences under this Act. [Section- 19]
  7. Provisions for forfeiture and attachment of property of the accused and which is specified in the order by the Special Court. [Section-20]
  8. Section 438 not to apply under this Act and the words ‘15 days’ and ‘60 days’ shall be construed as ‘30 days’ and ‘90 days’, respectively u/s. 167 CrPC. [Section- 21]
  9. Every Offence committed under this Act shall be a cognizable offence. [Section- 21]
  10. Special powers of High Court and State Government to make rules u/s. 28 and 29 of the Act.
  11. Extreme difficult provisions for securing bail.
  12. Causation of Annual Reports of Interceptions by State Government with the particulars as provided u/s. 27 of MCOCA, etc.

 

Question 9) What are the presumptions as to offences committed under the MCOCA?

Section 22 provides for the presumption as to commission of the offence by the accused person if the following are proved and contrary is not established:

  • That any unlawful arms and other material including documents or papers were recovered from the possession of the accused and there is reason to believe that the same have been used in the commission of the offence;
  • That the evidence of the expert shows that the fingerprint of the accused was found from the crime scene and materials used in commission of the offence under this Act; and
  • That the accused has rendered any financial support or aid to the person accused or any suspect of offence committed under this Act.

Question 10) What are the important cases and arrests made under MCOCA 1999?

Some of the highlighted MCOCA Cases pertains to that of Iqbal Kaskar (relative of Dawood Ibrahim), Chota Shakeel, Ajmal Kasab, Sadhvi Pragya Thakur (Malegaon Blast Case), Abu Salem, Sreesanth (Spot Fixing), Mukhtar Ansari (Mau MLA), DP Yadav (UP Politician for Online Gambling Racket) etc.

Some of the landmark rulings of the Courts on MCOCA:

  1. Hon’ble Supreme Court of India in the case of State of NCT of Delhi v. Brijesh Singh, [2017 SCC OnLine SC 1206] has categorically observed that, ‘“Organised crime is not an activity restricted to a particular State which is apparent from a perusal of the Statement of Objects and Reasons. A restrictive reading of the words “competent Court” appearing in Section 2 (1)(d) of MCOCA will stultify the object of the Act and therefore charge sheets in other states can also be taken into account.”
  2. Bombay High Court in the case of Saquib Abdul Hamid Nachan v. Superintendent, Central Jail, [2017 SCC OnLine Bom 738] has held that, “Undertrial detention under MCOCA cannot be set-off against the sentence imposed in Prevention of Terrorism Act 2002 (POTA).”
  3. Delhi High Court while acquitting 8 accused in a murder case by Additional Sessions Judge Gautam Manna, while stating that “police shall not invoke MCOCA without strict proof of the accused working as members of an organised crime syndicate and not merely on the basis of their previous involvement in criminal cases.”

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Harshit Sharma