Need for MCOCA

The commission of crimes like contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. by organized crime syndicates was on the rise. To prevent such organized crime, an immediate need was felt to promulgate a stringent legislation. The Government realized that organized crime syndicates have connections with terrorist gangs and were fostering narcotic terrorism beyond the national boundaries. MCOCA was promulgated with the object of arresting organised crime which was posing a serious threat to the society .

Act Title and its applicability
MCOCA that is Maharashtra control of organised crime Act, 1999 is an Act introduced to tackle organised crime activities in Maharashtra , from the title of the act it appears that the applicability of the Act is limited only to state of Maharashtra but it is not true, the applicability of the act is However extended to state of NCT of Delhi by Home ministry of Government of India, by a notification dated 2 January 2002. Therefore, AT present the Act is applicable to state of Maharashtra and Delhi.

The provision of the Act shall have affect, Notwithstanding anything contained in any other law for the time being in force.

Definition, what is organized crime and organized crime syndicate
To understand the applicability of the Act First One need to understand the definition given under section 2, clause (d), (e), (f) which is given under:
(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;

(e) organised crime 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;

(f) organized crime syndicate 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;

After summing up all these three definition
An organised crime activities means activities undertaken by member of a gang or syndicate jointly or severally ,for pecuniary or other advantages, which is a cognizable offence punishable with imprisonment of three years or more , either as member or on behalf of such syndicate or gang in respect of which more than one charge- sheets have been filed in preceding ten years before competent court and such court has taken cognizance on it

Authorization of interception of communication
Interception means stoppage and catching of something by someone other person other than intended recipient and Interception of communication means listening or recording of communication of communicators without their approval.

S.14 of the Act provide that any police officer not below the rank of superintendent of police may submit an application before competent authority (that is any officer, not below the rank of secretary to the government , In home department of state, as appointed by state government) for approval of interception of communication and the application should mention the particular mentioned in section 14 of the Act.

Special features of MCOCA:

1. Every offence under the ACT is a cognizable offence.
2. Section 167 CR.P.C is applicable subject to the modification that in sub section (2) of section 167 of CR.P.C the reference to fifteen days and sixteen days wherever they appearing in that sub section shall be construed as thirty and nineteen days respectively.
3. Nothwithstanding , anything contained in section 167 CR.P.C , the period of filing charge-sheet can be extended Upto 180 days by special court on special reason being shown for detention of Accused beyond ninety days and on report by public prosecutor showing progress of investigation.
4. No anticipatory bail is Allowed, for a person accused of an offence punishable under the ACT.
5. NO bail is allowed if noticed by the court that on the Date of offence under this ACT , Accused was on bail for an offence punishable under this ACT , or under any other law.
6. Police officer before obtaining custody of any person for interrogation need to file a written statement giving his reason for so applying for such custody.
7. Nothwithstanding, anything in CR.P.C. , the court shall not grant bail unless the public prosecutor has given an opportunity to oppose the bail application and where it is opposed by the public prosecutor unless the court is satisfied that he is not guilty of offence and he will not commit any offence while being released on bail.
8. Notwithstanding, anything contained in evidence Act or any other law, any confession given to a police officer not below the rank of superintendents of police is admissible as evidence in a proceeding under this Act.

Section 21 of MCOCA has seriously prejudiced Accused under the ACT by extending period of filing charge sheet from 90 to 180 days on recording of special reason thereby defeating his right of default bail given in section 173 of CR.P.C.

Secondly, Provision of Anticipatory bail given by section 438 CR.P.C is seriously prejudiced by abolishing grant of anticipatory bail for an offence under the Act.
Third, by deeming every offence as cognizable offence ample power of arrest Is given to police.

There are few others strict provision of MCOCA that has made grant of bail to the Accused very difficult, and further other penal provision given under the Act provides minimum amount of punishment and also the fines under The Act is also heavy.

Special provision to avoid misuse of power under the Act.

1. for recording information of an offence under the Act prior approval of a police officer not below the rank of director general of police required.
2. Offence Under the Act can be Investigate by an officer who is not below the rank of DSP.
3. No special court can take cognizance of offence without the prior approval of police officer not below the rank of Additional Director general of police.
4. whosoever, being a public servant support in commission of offence under the Act or failed to do anything what he is required by law to do shall be punishable for imprisonment which may extend to three years or fine.

Jurisdiction of courts under MCOCA
Every offence punishable under this Act shall be triable only by special courts constituted under the Act. When trying an offence under this Act special court may also try any other offence , with which the accused may, under the code be charged at same trial, if the offence is connected with such other offence and may also Punish such person for the punishment mentioned in such other law.

The special court may transfer the case to other court if after taking cognizance under this act it appears to it that the no offence under this act is committed.

Appeal
Every Appeal against any judgement, order, sentence given under this Act shall Lie before High court of the concerned state and any such appeal shall be preferred with thirty days from the date of such judgement, order and sentence.

Important judgements Under MCOCA

1. In, State Of NCT Of Delhi V. Brijesh Singh , it was held by the supreme court that charge-sheets filed in other state than Delhi can be taken into account to determine continuing unlawful activity for the purpose of prosecution Under MCOCA at Delhi. The court held that expression Competent Court In section 2(1)(D) includes court situated outside Delhi.
2. In, the above case the court also held that commission of offence in Delhi is sine qua non for initiation of Proceeding Under MCOCA At Delhi.
3. In, state of Maharashtra V. Vishwanath , SC held that satisfaction of court contemplated in section 21(4)(b) means satisfaction based on reasonable grounds the expression reasonable ground means something more than prima facie grounds.
4. In, state of Maharashtra V. Lalit Somdatta N held that sanction requiring under S. 23(1)(a) should not be given mechanically and without application of mind

Written By: Deepak Sharma
Email: [email protected], Ph no:8383947263