The main objective for which this act came into existence is to combat crime and terrorism. This act was passed by the assent of the President in 1999 when both the houses were not in session and Governor was satisfied that there is a need to take an immediate action for the purpose aforesaid. Unlike common law, this law has stringent and deterrent provisions including in some circumstances power to intercept wire, electronic or oral communication to control organized crime. Contradicting to common law, confessions before the place officers are admissible under this act and there is not provision for granting bail for 6 months to the accused.
As the increasing number of gangs, criminal groupings, mafia organizations promoting ill evils like illegal trade of narcotics, kidnapping, collection of protection money in Maharashtra, this act was enacted that gives more power to the police.
The Author, Femina Vinod Janodia is studying at TY/BLS/LLB at Asmita College of Law in University of Mumbai, Maharashtra. She is currently interning with LatestLaws.com.
Q1. When the Maharashtra Control Of Organized Crime Act, 1999 (MCOCA) Act, came in existence?
Ans. The main aim of this Act is to combating organized crime more efficiently. After the Governor of Maharashtra was satisfied that circumstances existed that rendered it necessary to take immediate action, this act was promulgated on the 24th February 1999.
Q2. What are main objectives of Maharashtra Control Of Organized Crime Act, 1999 (MCOCA)?
Ans. This act was enacted to combat organized crime, which was on an increasing verge in our country. It deals with prevention and control of criminal activity by organized crime or gangs in India. The amount of illegal wealth and black money generated from these activities is huge in number and had severe effects on the economy of India. There were large number of organized criminal gangs have been operating and there was an immediate need to restrain their activities. The existing legal framework is inadequate in dealing with this increasing number of crimes. The procedural laws were failing and in order to provide more powers to the police in controlling the non -terror activities, this act came in force. With this view government decided to enact a special law with more stringent and deterrent provisions.
Q3. What is the difference between the definition of “organized crime” and “organized crime syndicate”?
Ans. Under section 2(e) of the act defines ‘organized crime’ means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate by using violence, threat of violence or forcing or any other unlawful means with the objective of gaining pecuniary benefits or economic advantage for himself or any other person or promoting any kind of revolt or uprising.
Under Section 2(f) defines ‘organized crime syndicate’ as a group of two or more persons who acting whom, acting either singly or collectively as a syndicate or gang indulge in activities of organized crime.
Q4. What is the punishment given to commit an organized crime?
Ans. Whoever commits an organized crime that resulted in death of any person is punishable with death or imprisonment for life with fine subject to minimum of 1 lakh. In the case when death has not taken place, the punishment is given for a term, which is not less than five years but can extend to imprisonment for life and also a minimum fine of rupees five lakhs.
Q5 .What are the acts punishable under organised crime of the Act?
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, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a minimum of rupees five lacs.
Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate; shall be punishable, With imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a, fine, subject to a minimum fine of rupees five lacs.
Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less, than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lakhs.
Q6. What is the punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate?
Ans. Any person on behalf of a member of an organised crime syndicate has been in possession of movable or immovable property which he cannot satisfactorily account for shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also liable for attachment and forfeiture, as provided by section 20.
Organised criminals are undoubtedly hard core criminals. They have no derth of most modern weapons. Extorting money by spreading terrorism in society is their aim. They target elite class of society. Naturally, the money they recover is of unusual proportion. The money is not spent on just causes but to derail state economy. It is therefore, essential to provide for strictest punishment. Punishment envisaged in the Act is 3 to 10 years of imprisonment which can be extended to life imprisonment. Death penalty can also be imposed on the criminals kill any one. So also a fine of 3 to 10 lacs can also be imposed.
It will be interesting to compare the criminals under this Act with criminals under recently repealed Tada Act. Criminals under both Acts differ in attitude and approach. Criminals under Tada aim at disruptive activities. They are threat to the sovereignty of Nation. On the contrary criminals under present law are extortionist.
This law also proposes punishment to those who possess any type of property accumulated through illegal means.
Q7. Explain the provision of special courts given under MCOCA?
There are the special courts that may take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts, which constitute such offence, or upon a police report. For every special court the state government may also appoint a person to be public prosecutor. Every offence punishable under this act shall be friable only by the special court within those local jurisdiction it was committed. If it is found that the person has committed some other offence under this act or under any law, the court may convict such person of such person. The court also has the duty to decide whether stringent act can be applied to the matter without taking the cognizance of the matter. It is within the power of special court to tender a pardon to any person directly or indirectly concerned in an offence on the condition that a full and true disclosure will be made on his part. An appeal shall lie from any judgment, sentence or order of a special court to the High Court.
Q8. What are the special powers of investigation given under MCOCA?
It was noticed that organized criminals in carrying out their criminal activities make extensive use of wire and oral communication. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice. Under section 14 it is necessary for a police officer not below the rank of superintendent of police supervising the investigation to submit an application in writing to the competent authority for approving the use of interception of wire, electronic or oral communication when such interception may provide or has provided evidence of any offence is involving an organized crime.
After submission of such application the authority after recording reasons in writing reject the application or issue an order to modify it, authorizing or approving interception of wire, electronic or oral communications. Section 18 provides the permissibility of the confessions made by a person before a police officer not below the rank of the Superintendent of Police either in writing or by any mechanical device like cassettes, tapes or sound tracks.
The confession is recorded in the same language in which the person is examined. It will be explained by the police officer to the person that he is not bound to make the confession but if he does so it can be used against him in the court of law.
Q9. How to decide whether MCOCA has to be applied instead of other laws?
There should be prima facie evidence to believe that there are two or more persons involved in the conspiracy.
It deals with the control and prevention of criminal activities by criminal syndicate or gangs.
It takes into consideration cases from which pecuniary benefits are taken or favours of monetary gains, which could extend up to insurgency.
It punishes promoting insurgency but not insurgency per se. Unlawful activities defined under this act need not to be terrorist attack or insurgency.
Q11. What are the provisions regarding the offence committed by the public officers under this act?
Under section 24 if any public servant renders any help or support in any manner in the commission of organized crime syndicate and abstains from taking lawful measures under this act will be punished with imprisonment of either description for a term, which may extend to 3 years along with fine. Section 26 states that when the act is committed good faith by the officials of state government or any other officer or authority of State government.
Q12. Explain the presumptions as to offences under Section 3 of MCOCA.
Section 3 provides punishment for the commission of organized crime. If it is proved that There are unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime, That the finger prints were found at the site of the offence including unlawful arms, papers and vehicle used in the commission of offence The special court shall presume the person guilty unless the contrary is proved.