v The
Maharashtra Control of Organized Crime Act, 1999 (Complete Notes)
1. Legislative History,
Object and Scope of the Act
1)
Introduction
The Maharashtra Control of Organized Crime Act (MCOCA),
1999, is a special law enacted by the state of Maharashtra in India to combat
organized crime and criminal syndicates. Here's an overview of its legislative
history, objectives, and scope:
2)
Legislative History:
The Maharashtra Control of Organized Crime Act, often
referred to as MCOCA, was enacted by the Maharashtra state legislature in 1999.
It was introduced as a response to the growing menace of organized crime and
criminal syndicates operating in the state. The law aimed to provide law
enforcement agencies with more potent tools to combat and effectively dismantle
organized criminal activities, including activities related to extortion,
contract killing, narcotics trafficking, and more.
3)
Objectives of the Act:
(1)
Combat Organized Crime: The primary
objective of MCOCA is to combat and suppress organized crime, including
activities carried out by organized crime syndicates, criminal gangs, and
associations involved in activities like extortion, smuggling, drug
trafficking, and acts of violence.
(2)
Deterrence: MCOCA aims to act as a strong
deterrent against individuals and groups engaged in organized criminal
activities by providing for stringent punishment and preventive detention.
(3)
Confiscation of Property: The act
empowers authorities to confiscate and forfeit the property and assets acquired
or earned through organized criminal activities.
(4)
Effective Prosecution: MCOCA provides law
enforcement agencies with enhanced powers and procedures to effectively
investigate, prosecute, and bring to justice individuals involved in organized
crime.
4)
Scope:
(1)
Organized Crime: MCOCA primarily deals
with offenses related to organized crime. It includes activities such as
smuggling, bootlegging, extortion, narcotics trafficking, arms smuggling, and
acts of terrorism carried out by organized criminal groups and syndicates.
(2)
Criminal Syndicates: The act targets not
only individual offenders but also criminal syndicates, gangs, and associations
that operate with a hierarchical structure and engage in organized criminal
activities.
(3)
Preventive Detention: MCOCA allows for
the preventive detention of individuals suspected of being involved in
organized crime. This provision empowers authorities to detain suspects without
trial for a specified period to prevent them from engaging in criminal
activities.
(4)
Confiscation of Property: The act includes
provisions for the confiscation and forfeiture of property and assets acquired
through organized crime. This is intended to deprive criminals of the financial
gains from their illicit activities.
(5)
Enhanced Investigative Powers: Law enforcement
agencies are granted enhanced powers for surveillance, interception of
communications, and the admissibility of confessions in court, making it easier
to investigate and prosecute organized crime cases.
(6)
Special Courts: MCOCA establishes special
courts for the speedy trial of cases related to organized crime. These courts
are designed to expedite the legal process and ensure timely justice.
(7)
Human Rights Safeguards: While providing
for stringent measures, the act also incorporates safeguards to protect the
human rights of individuals. The admissibility of confessions, preventive
detention, and other provisions are subject to judicial review and scrutiny.
(8)
Amendments: Over the years, MCOCA has
been amended to address legal challenges and concerns related to its
application, ensuring that it remains effective in combating organized crime
while safeguarding individual rights.
2. Organized Crime :
Definition and Scope, Punishments
1)
Definition of Organized Crime:
Organized crime refers to criminal activities that are
carried out by structured and hierarchical groups, often referred to as
criminal organizations or syndicates. These groups are characterized by a
well-defined leadership structure, division of labor, and a systematic approach
to illegal activities.
The primary objectives of organized crime are typically
financial gain, power, and influence. Organized crime groups engage in a wide
range of illegal activities, including but not limited to:
(1)
Drug Trafficking: Organized crime groups
are involved in the production, transportation, and distribution of illegal
drugs, such as narcotics and controlled substances.
(2)
Extortion: They engage in activities like
extortion, where they coerce individuals or businesses into paying protection
money or other forms of tribute to avoid harm or damage.
(3)
Human Trafficking: Some criminal
organizations are involved in human trafficking, including smuggling people
across borders, forced labor, and sex trafficking.
(4)
Money Laundering: Organized crime often
uses sophisticated methods to launder money earned from illegal activities,
making it appear as if it comes from legitimate sources.
(5)
Arms Smuggling: These groups may be
involved in the illegal trade of firearms and ammunition, contributing to
increased violence and crime.
(6)
Racketeering: Racketeering involves
engaging in a pattern of criminal activities, such as gambling, prostitution,
and illegal gambling, for financial gain.
(7)
Cybercrime: With advancements in
technology, organized crime has expanded into cybercrime, including hacking,
identity theft, and online fraud.
(8)
Violence and Terrorism: Some criminal
organizations resort to violence and acts of terrorism to achieve their
objectives or maintain control over territories.
2)
Scope of Organized Crime:
The scope of organized crime can be extensive and is not
limited to a particular geographical area or type of illegal activity. It may
encompass the following aspects:
(1)
Global Reach: Many organized crime
syndicates operate across national borders, engaging in transnational criminal activities.
This global reach makes it challenging for law enforcement agencies to combat
them effectively.
(2)
Multiple Illegal Activities: Organized
crime groups often diversify their activities to minimize risks and maximize
profits. They may simultaneously engage in drug trafficking, money laundering,
and other illegal ventures.
(3)
Corruption: Organized crime often seeks
to corrupt public officials, law enforcement personnel, and other key figures
to protect their interests and avoid prosecution.
(4)
Economic Impact: The economic impact of
organized crime can be significant, affecting legitimate businesses, economies,
and communities. Extortion, money laundering, and infiltration into the legal
economy can harm economic stability.
(5)
Social Consequences: Organized crime
activities can have devastating social consequences, including addiction and
violence in communities, human rights abuses, and the erosion of the rule of
law.
3)
Offences & Punishments-
|
Section |
Offense |
Punishment |
|
Section 3(1) (i) |
Offense Resulting in Death |
Death penalty /Life imprisonment & Fine - at
least 1 lakh rupees. |
|
Section 3(1) (ii) |
Offense Not Resulting in Death |
Imprisonment 5 years to life imprisonment & Fine
- at least 5 lakh rupees. |
|
Section 3 (2) |
Conspiracy, Abetment, or Facilitation |
Imprisonment 5 years to life imprisonment & Fine
- at least 5 lakh rupees. |
|
Section 3 (3) |
Harboring or Concealing |
Imprisonment 5 years to life imprisonment & Fine
- at least 5 lakh rupees. |
|
Section 3 (4) |
Membership in Organized Crime Syndicate |
Imprisonment 5 years to life imprisonment & Fine
- at least 5 lakh rupees. |
|
Section 3 (5) |
Holding Property from Organized Crime |
Imprisonment 3 years to life imprisonment & Fine
- at least 2 lakh rupees. |
|
Section 4 |
Possession of Unaccountable Wealth |
Imprisonment 3 to 10 years & Fine
- at least 1 lakh rupees. |
|
- |
Property Forfeiture and Attachment |
Property acquired through organized crime can be
subjected to attachment and forfeiture, as per Section 20 of the Act. |
3. Courts and Public
Prosecutor (Sections 5-12)
Section 5 - Establishment of Special Courts:
(1)
The State
Government can create Special Courts through official notifications.
(2)
Jurisdiction
questions regarding Special Courts will be decided by the State Government, and
their decision will be final.
(3)
Appointment of Judges: Special Courts
will have judges appointed by the State Government in consultation with the
Chief Justice of the Bombay High Court. Additional judges may also be appointed
in these Special Courts, subject to the Chief Justice's agreement.
(4)
Qualification for Judges: To become a
judge or additional judge in a Special Court, a person must hold the position
of a sessions judge or an additional sessions judge before their appointment.
(5)
If there are
additional judges in a Special Court, the main judge can issue written orders
to distribute cases and manage urgent matters in their absence or the absence
of additional judges.
Section 6 - Exclusive
Jurisdiction of Special Court:
All offenses covered by this Act must be tried exclusively by the
Special Court located in the area where the offense occurred. Alternatively, a
Special Court established for that specific offense under Section 5(1) of this
Act can conduct the trial.
Section 7 - Consolidation
of Offenses in Special Court Trials:
(1) Joinder of Offenses
- A
Special Court, when trying an offense under this Act, can also handle other
related offenses under the Criminal Procedure Code (the "Code") at
the same trial.
(2) Additional Offense Discovery
- If, during the trial, it's found that the accused has
committed another offense under this Act or any other law, the Special Court
can convict the person for that additional offense and apply the appropriate
punishment authorized by the law.
Section 8 - Appointment of
Public Prosecutors:
(1) Appointment
: The State Government is responsible for appointing
a person to serve as the Public Prosecutor for each Special Court. The State
Government may also appoint one or more Additional Public Prosecutors.
Additionally, for specific cases or groups of cases, the State Government can
appoint a Special Public Prosecutor.
(2)
Qualification Requirement: To be eligible for appointment as a Public
Prosecutor, Additional Public Prosecutor, or Special Public Prosecutor, a
person must have at least ten years of experience as an Advocate in
legal practice.
(3) Legal
Status: Anyone appointed as a Public Prosecutor,
Additional Public Prosecutor, or Special Public Prosecutor under this section
will be considered a Public Prosecutor under the Code of Criminal Procedure.
The provisions of the Code will apply to them accordingly.
Section 9 - Procedure and
Powers of Special Court:
(1) Cognizance
of Offense: A Special Court can initiate proceedings for any
offense without the accused being sent there for trial. This can be done based on either a complaint that
presents the facts of the offense or a police report containing those facts.
(2) Summary
Trial Option:
(a)
If an offense
triable by a Special Court is punishable with a prison term of up to three
years, a fine, or both, the Special Court can conduct a summary trial. This
trial follows a simplified procedure as outlined in the Code of Criminal
Procedure. Certain specific sections (263 to 265) of the Code will apply to
this summary trial.
(b)
However, if the
Special Court finds that the nature of the case is unsuitable for a summary
trial, it can recall witnesses and proceed with a regular trial as per the
provisions of the Code.
(c)
In case of
conviction in a summary trial, the Special Court can impose a prison sentence
of up to two years.
(3) Pardon for
Evidence: A Special Court can grant a pardon to someone involved in
a crime, as long as they tell the complete truth about everything they know
regarding the crime and the roles of others. This is done to collect evidence.
(4) Powers of
Special Court: A Special Court has the same powers as a Court of
Session for the purpose of trying any offense. It conducts trials as if it were
a Court of Session, following the procedures outlined in the Code of Criminal
Procedure, with some necessary adjustments.
Section 10 - Precedence of
Special Court Trials:
When a Special Court is
conducting the trial of an offense under this Act, that trial takes priority
over any other case involving the same accused in a regular court (not a
Special Court). The trial in the Special Court should be completed before the
trials of other cases involving the same accused, and those other cases will be
temporarily put on hold.
Section 11 - Transfer of
Cases to Appropriate Court:
If a Special Court, after
taking cognizance of an offense, believes that it does not have the authority
to try that offense, it will
transfer the case to a court
that does have jurisdiction under the Criminal Procedure Code. The court to
which the case is transferred will then proceed with the trial of the offense
as if it had originally taken cognizance of the offense.
Section 12 - Appeals to
the High Court:
(1) Right to Appeal: Regardless
of what is stated in the Criminal Procedure Code, individuals have the right to
appeal against any judgment, sentence, or order issued by a Special Court to
the High Court. However, this appeal cannot be against interlocutory (interim)
orders.
(2) Time Limit
for Appeals: Any appeal under this section must be filed within
thirty days from the date when the judgment, sentence, or order was
issued.
4. Interception of Wire,
Electronic or Oral Communication (Sections 13-16)
Section 13 - Appointment
of Competent Authority:
The State Government has the
authority to appoint one of its officers from the Home Department, specifically
someone not lower in rank than the position of Secretary to the Government, to
serve as the Competent Authority for the purposes mentioned in Section 14.
Section 14 - Authorization
of Communication Interception:
(1) Application
for Authorization: A police officer of at least the rank of
Superintendent of Police, who is overseeing an investigation related to organized
crime under this Act, can submit a written application to the Competent
Authority. This application requests the authorization or approval to intercept
wire, electronic, or oral communications when such interception could provide
evidence of an offense involving organized crime.
(2) Contents of
Application:
Each
application must include specific information, such as:
(1)
Identity of the
applicant and the department authorizing the application.
(2)
Details about
the organized crime offense.
(3)
Description of the
communication facilities and their location.
(4)
Type of
communication to be intercepted.
(5)
Identity of the
person involved in the organized crime offense.
(6)
Explanation of
why other investigation methods are not suitable.
(7)
Duration for
which interception is needed.
(3) Additional
Evidence: The Competent Authority can ask the applicant to
provide more evidence, either verbally or through documents, to support the
application.
(4)
Authorization Criteria: The Competent Authority can reject the application
or issue an order authorizing or approving the interception. The Competent
Authority will do this based on several factors, including:
(1)
Belief that a
specific organized crime offense is being or will be committed.
(2)
Belief that
intercepting communication will provide evidence related to the offense.
(3)
Efforts to use
other investigation methods.
(4)
Belief that the
communication facilities are linked to the offense.
(5) Specifics
in Authorization Order: The authorization order will specify various
details, including the identity of the person whose communication will be
intercepted, the location, type of communication, identity of the agency
authorized to intercept, and the authorized duration.
(6) Submission
to Review Committee: The Competent Authority must send a copy of the
order to the Review Committee, along with all relevant documents, within seven
days of issuing the order for their consideration and approval.
(7) Cooperation
Requirement: The order can also direct providers of
communication services, landlords, custodians, or others to cooperate in
providing information and assistance for the interception.
(8) Time Limit: The
interception cannot last longer than necessary, with a maximum period of sixty
days. Extensions may be granted but require a new application and meet the
necessary criteria.
(9) Progress
Reports: Reports on the progress of the interception must
be made to the Competent Authority.
(10) Emergency
Situations: In emergency situations involving immediate danger
or serious offenses, an officer of at least the rank of Additional Director
General of Police can authorize interception, provided an application for
approval is submitted within 48 hours.
(11)
Termination and Violations: Interception must cease when the objective is
achieved or if the application for approval is rejected. Violations may lead to
the evidence being considered as obtained illegally.
(12) Recording
and Retention: Intercepted communication must be recorded and
kept for ten years.
(13)
Admissibility of Evidence: Evidence obtained through interception can be used
in court but must be disclosed to all parties, and a ten-day notice period is
usually required.
Section 15 - Review
Committee for Authorization Orders:
There will be a Review Committee responsible for
reviewing every order issued by the Competent Authority under Section 14.
(1)
Composition of the Review Committee:
The Review
Committee will consist of the following members:
(a) Chief Secretary to the Government (Chairman)
(b) Additional Chief Secretary or the most senior
Principal Secretary in the Home Department (Member)
(c) Principal Secretary or Secretary and Remembrancer
of Legal Affairs from the Law and Judiciary Department (Member)
(2)
Review Process: The Review Committee must consider each order passed
by the Competent Authority under Section 14 within ten days of receiving it.
Their task is to determine if the order, which authorizes or approves
interception, was necessary, reasonable, and justified. They also review orders
disapproving interception made under emergency situations.
(3)
Committee's Decision: After reviewing the entire record and conducting any
necessary inquiries, the Review Committee can issue a written order either
approving the Competent Authority's order or disapproving it. If they
disapprove the order, any ongoing interception must be immediately stopped.
Intercepted communication, in the form of tapes, wires, or other devices, is
not admissible as evidence and must be destroyed upon disapproval by the Review
Committee.
Section 16 - Interception and
Disclosure of Communications Prohibited:
This section outlines
actions that are prohibited regarding the interception and disclosure of wire,
electronic, or oral communications. If a police officer intentionally engages
in any of the following activities, they can face penalties:
(a) Intercepting
Communication: A police
officer intentionally intercepts, tries to intercept, or encourages someone
else to intercept any wire, electronic, or oral communication.
(b) Using Devices for
Interception: A police officer
intentionally uses, tries to use, or encourages someone else to use electronic,
mechanical, or other devices to intercept oral communication when:
(1)
The device is
connected to a wire, cable, or similar connection used in wire communication.
(2)
The device transmits
communications by radio or interferes with such communication.
(c) Disclosure of
Intercepted Information: A police
officer intentionally discloses or tries to disclose the contents of any wire,
electronic, or oral communication to another person, knowing or having reason
to know that the information was obtained through illegal interception.
(d) Use of Intercepted
Information: A police
officer intentionally uses or tries to use the contents of any wire,
electronic, or oral communication, knowing or having reason to know that the
information was obtained through illegal interception.
(e) Disclosure to Obstruct
Investigation: A police
officer intentionally discloses or tries to disclose the contents of any wire,
electronic, or oral communication intercepted using the authorization under
Section 14 in connection with a criminal investigation under this Act, with the
intent to improperly obstruct, impede, or interfere with a duly authorized
criminal investigation.
(f) Continuing
Unauthorized Interception: A police
officer continues to intercept wire, electronic, or oral communication after
the Review Committee has issued an order of disapproval under Section 15(4).
Penalty:
Violating any of these provisions can lead to
imprisonment for up to one year and a fine of up to fifty thousand rupees.
5. Special Procedure : Change
in Rules of Evidence and Criminal Procedure (Sections 17- 23)
Section 17 - Special Rules
of Evidence:
(1) In trials
related to this Act or similar offenses, the court can consider certain things
as evidence, even if regular rules say otherwise.
(2) These things
include whether the accused was:
(a) Bound by
certain legal orders before.
(b) Detained under
preventive laws.
(c) Previously
prosecuted in the Special Court under this Act.
(3) If someone
involved in organized crime has property they can't explain, the court will assume
it's from illegal activities unless proven otherwise.
(4) If the accused
kidnaps someone, the court will assume it's for ransom.
Section 18 - Certain
Confessions Made to Police Officer:
This section deals with the admissibility of confessions
made to police officers and sets out the rules for their recording and use as
evidence:
(1)
Confession Admissibility: A confession
made to a police officer of at least the rank of Superintendent of Police can
be used as evidence in a trial, but there's a condition. It can only be used if
the co-accused, abettor, or conspirator is also charged and tried in the same
case along with the accused who made the confession.
(2)
Language and Atmosphere: The confession
should be recorded in a relaxed atmosphere and in the same language in which
the person is speaking.
(3)
Voluntary Nature: Before recording the
confession, the police officer must inform the person that they don't have to
confess, and if they do, it can be used against them. The officer can only
record the confession if they are satisfied that it's being made voluntarily.
They must certify this in writing along with the date and time.
(4)
Forwarding the Confession: The confession
must be sent immediately to the Chief Metropolitan Magistrate or Chief Judicial
Magistrate in the area where it was recorded. They will then send it to the
Special Court that can handle the case.
(5)
Producing the Accused: The person who
confessed must also be brought before the Chief Metropolitan Magistrate or
Chief Judicial Magistrate along with the original confession statement without
any unreasonable delay.
(6)
Recording Statements and Medical Examination:
The Magistrate should carefully note any statements made by the accused when
they are brought in. If there are complaints of torture, the person should be
directed to undergo a medical examination by a qualified Medical Officer.
Section 19 - Protection of
Witness :
(1)
Closed Proceedings: The Special Court can
decide to hold the proceedings in private (in-camera) if it thinks it's
necessary.
(2)
Witness Protection: The Special Court
can, upon request by a witness, the Public Prosecutor, or on its own, take
steps to keep a witness's identity and address secret.
(3)
Protective Measures: These steps might
include holding proceedings at a specific location, not mentioning witness
names or addresses in public records, issuing directions to protect witness
identity, or ordering that the proceedings should not be made public.
(4)
Punishment for Violation: Anyone who
disobeys these protective directions can be punished with up to one year in
prison and a fine of up to one thousand rupees.
Section 20 - Forfeiture and Attachment of Property:
This
section deals with the forfeiture and attachment of property in cases related
to offenses under this Act:
(1)
Forfeiture of Property upon Conviction:
If someone is found guilty of an offense under this Act, the Special Court can
order that specific properties they own will be taken by the government. These
properties will no longer have any legal claims or debts against them.
(2)
Attachment of Property during Trial: If a
person is accused of an offense under this Act and is on trial, the Special
Court can order their property to be temporarily held. If they are convicted,
this property will be permanently taken by the government.
(3) Proclamation for Absconding Accused:
(a) If a person accused of an offense under this Act
is hiding to avoid arrest, the Special Court can issue a notice requiring them
to appear at a specific place and time. This notice must be made public.
(b) The Special Court can also order the attachment of
any property owned by the accused at any time. This attachment process follows
certain rules in the Code of Criminal Procedure (sections 83 to 85).
(c) If the accused shows up within six months and can
prove they didn't hide on purpose and didn't receive the notice in time, their
property or the money earned from selling their property (if already sold) will
be given back to them, minus any costs incurred.
Section 21 – Modified application
of certain provisions of the Code.
(1)
Cognizable Offense: Any offense punishable under this Act is deemed to be
a "cognizable offense," as defined in the Code of Criminal Procedure,
section 2(c).
(2)
Time Limits for Detention:
Section
167 of the Code applies to cases under this Act. For cases under this Act:
(a)
Police custody
can last up to "thirty days."
(b)
Judicial custody
can last up to "ninety days."
An extension up to "one
hundred and eighty days" is allowed by the Special Court if the
investigation cannot be completed within ninety days.
(3) No Anticipatory Bail: Section 438 of the Code (related to anticipatory
bail) does not apply to cases involving the arrest of a person accused of an
offense under this Act.
(4) Strict Bail
Conditions: Accused persons
cannot be granted bail if they are currently on bail for an offense under this
Act or any other law, unless:
(a)
The Public
Prosecutor has a chance to oppose the bail application.
(b)
The Court is
satisfied that the accused is likely not guilty of the offense and will not
commit another offense while on bail.
(5) Additional Bail
Restrictions: These
limitations on bail are in addition to any existing limitations under the Code
or other laws.
(6) Police Custody
Explanation: If the police
officer seeks custody of an accused person for pre-indictment or pre-trial
interrogation from judicial custody, they must provide a written statement
explaining the reasons for seeking such custody and any delays in making the
request.
Section 22 - Presumptions
in Prosecutions for Organized Crime:
This section outlines
presumptions that apply in prosecutions for organized crime offenses:
(1)
Offense Under Section 3 - Unlawful Arms and
Fingerprints:
If it is proven that
unlawful arms, documents, papers, or other materials were found in the
possession of the accused, and there is reason to believe these items were used
in the commission of the organized crime offense (as specified in section 3) The
Special Court will presume, unless proved otherwise, that the accused committed
the offense.
(2)
Offense Under Section 3(2) - Financial Assistance:
If it is proven that the
accused provided financial assistance to a person accused of or reasonably
suspected of an organized crime offense The Special Court will presume, unless
proved otherwise, that such person has committed the offense under section
3(2).
Section 23 - Special
Provisions Regarding Investigations and Sanctions:
This section introduces
special provisions related to the investigation and prosecution of organized
crime offenses:
(1) Recording Offense
Information:
(a)
Before a police
officer can record information about an organized crime offense under this Act
Approval from a police officer of at least the rank of Deputy Inspector General
of Police is required.
(b)
For
investigating such offenses Only police officers at or above the rank of Deputy
Superintendent of Police can conduct the investigation.
(2) Cognizance by
Special Court : A Special
Court cannot take action on any offense under this Act unless It has received
prior approval from a police officer of the rank of Additional Director General
of Police.
Written
By : Harshavardhan
Prakash Deshmukh,
B.A.LL.B. =
Modern Law College, Pune
Dabangg
Lawyer (65K+ Followers) -
https://www.instagram.com/dabangglawyer/
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