Decoding MCOCA - Two Decades of Tackling Organised Crime in India

In the life of any country, there are many watershed moments, calling for the departure from the prevalent mechanism to deal with situations and look for new horizons. The enactment of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) was one such step that was taken to deal with Organised Crime in the State of Maharashtra. Soon, it was realised by other States also that Organised crime plagues the entire country and needs to be addressed by other States as well, law and order being the State subject under Article 246 of the Constitution of India. Many State Legislatures enacted laws similar to MCOCA, however, for a variety of reasons, perception based or otherwise, they failed to get Presidential assent. Delhi being the country’s capital, where law and order is under the Union Government, the nodal ministry being the Ministry of Home Affairs, MCOCA came to be adopted in 2002 for the National Capital Territory of Delhi.

Given the objective that MCOCA aims to tackle, it was inevitable that it would contain watertight provisions to be applied in a highly regulated regime, that would conflict with the concerns of liberty, which remains a consideration in the mechanism of ordinary criminal law and in that sense, MCOCA is a sui generis mechanism of substantive as well as procedural law.

Thus, MCOCA can essentially be described as a legislation being in disagreement on many a point with the existing legal framework i.e. the penal and procedural laws and the adjudicatory system, which were found to be rather inadequate to curb or control the menace of organised crime. However, even after two decades, there needs to be more awareness of the key features of MCOCA. The intent behind this article to encapsulate the same in a simple narrative.

ORGANISED CRIME SYNDICATE [2(1)(f)]

A group of two or more persons, who acting singularly or collectively as a syndicate / gang indulging in activities of Organised Crime.

ORGANISED CRIME [2(1)(e)]

Continuing unlawful activity by individual, singly or jointly, as a member of Organised Crime Syndicate

or

on behalf of such Syndicate

by

use of violence, threat of violence, intimidation, coercion or other unlawful means

with the objective of

(i)gaining pecuniary benefits, (ii)gaining undue economic advantages for himself or any other person or (iii)promoting insurgency.

CONTINUING UNLAWFUL ACTIVITY [2(1)(d)]

An activity prohibited by law attracting a provision of cognizable offence punishable with minimum 3 years imprisonment

which is undertaken

by an individual, either singly or jointly,

as

a member of an organised crime syndicate

or

on behalf of such organised crime syndicate,

in respect of which,

more than one chargesheets have been filed in the preceding 10 years with the competent court having taken cognizance.

ACTIVITIES COVERED UNDER SECTIONS 2(1)(a), (d), (e), 3(2), 3(3) and 3(5)

A continuing unlawful activity prohibited by law includes (i) to “abet” [2(1)(a)]; (ii) to conspire or to attempt to commit or knowingly facilitate the commission an organised crime or any act in preparation of organised crime [3(2)]; (iii) to harbour or conceal or to attempt to harbour or conceal [3(3)]; (iv) holding any property derived or obtained from commission of an organised crime or holding any property which has been acquired through the funds of the Organised Crime Syndicate; (v) communication or association with any person with the actual knowledge or reason to believe that such person is assisting a Syndicate in any manner; (vi) passing on or publication of any information without any lawful authority to assist the Syndicate or passing on or publication of or distribution of any document or matter obtained from the Syndicate; and (vii) rendering of any assistance, financial or otherwise, to a Syndicate.

DIRECT NEXUS? NOT A SINE QUA NON FOR MEMBER OF AN ORGANISED CRIME SYNDICATE

Provisions of MCOCA can be invoked against any individual if he/she, acting singly or jointly

1. Is found to be engaged/involved in any of the activities covered under Sections 2(1)(a), (d), (e), 3(2), 3(3) and 3(5), as a member of an Organised Crime Syndicate, comprising of a group of two or more persons, irrespective of whether the participation was active or passive, the frequency, intensity or volume being non-issues/irrelevant factors;
2. Is found to be engaged/involved in any of the activities covered under Sections 2(1)(a), (d), (e), 3(2), 3(3) and 3(5), on behalf of an Organised Crime Syndicate, comprising of a group of two or more persons, irrespective of whether the participation was active or passive, the frequency, intensity or volume being non-issues/irrelevant factors;[i]
3. Engagement/involvement may not be direct and a mere abetment [refer to section 2(1)(a)], with its grammatical variations and cognate expressions, would be sufficient and it is now well settled that the expression “abet” as understood in MCOCA, has a more expansive connotation, covering a larger range and manifestation of activities attributed to the expression “abetment”, in comparison to the definition of abetment found in the penal code;[ii]
4. Engagement/involvement/abetment would not only include actual commission of an act/activities covered under Sections 2(1)(a), (d), (e), 3(2), 3(3) and 3(5), but also an act of conspiracy in furtherance of such acts/activities, attempts to commit such acts/activities, advocating, knowingly facilitating or abetting the commission of such acts/activities and advocating, knowingly facilitating or abetting any act preparatory to organised crime (the illustrative range of organised crimes having already been enumerated above), the pre-requisite being that the continuing unlawful activities must give rise to cognizable offences punishable with imprisonment of 3 years or more;
5. Use of violence, threat of violence, intimidation and coercion in doing any of the acts are no doubt the determinative factors, however, the absence of the same would not make a difference in so far as it can be shown that the acts were carried out by any other type of unlawful means, that is to say that the means deployed to do such acts may or may not have the trappings of violence, threat, intimidation or coercion, but, nonetheless, the same were carried out towards the attainment of such objectives, which are enlisted as determinative objectives for inclusion of an offence under MCOCA;
6. The objective(s) of the acts may not necessarily be to cause death or to cause harm to public health, safety, convenience, morals, decency or those affecting human body, property, property marks, valuable documents and security and/or to commit offences against the State, including insurgency, but the objective of such acts may be confined to the limited objective of personal gains such as gaining pecuniary benefit for oneself, or gaining undue economic advantage for oneself or any other person, whose pecuniary benefit or economic advantage, may be of interest for such person, i.e. the person engaged/involved/found to be playing the role, direct or that of abetment, facilitation or preparatory in any of the acts summarised above; and
7. The requirement of more than one chargesheets, in respect of which cognizance came to be taken by the Court of competent jurisdiction (the maximum gap between the two chargesheets not being more than 10 years as provided in Section 2(1)(d) of MCOCA) is not centric to every individual, who may be involved as a member of an Organised Crime Syndicate or who is acting on behalf of an Organised Crime Syndicate, but the same is primarily in relation to the continuing unlawful activities of that Organised Crime Syndicate.? In other words, the requirement of more than one chargesheets is centric to the Organised Crime Syndicate and not to the individual members of the Syndicate, though in view of the requirement of the Syndicate being of two or more members and further requirement of continuing unlawful activity, inevitably at least two members of the Syndicate would be common.[iii]

From the above, it emerges that the role of an individual as a member of an organised crime syndicate, is to be evaluated from the point of view of his association/nexus with the organised crime syndicate (such syndicate being engaged in a continuing unlawful activity) against whom, at the given point in time, more than one charge-sheets stand filed, in relation to a cognizable offence punishable with imprisonment of three years or more, within last preceding ten years.

Another key feature of MCOCA is confessions. Under Section 18 of MCOCA, factors such as voluntary nature of the confession, the procedural requirements of recording of the statements and the other aspects including retraction can be gone into only at the stage of the trial and not before.[iv]

As we all understand that law is a living organ and in the dynamic process of its implementation, it grows and evolves constantly, rendering it imperative for the legal fraternity to keep track of the judgments in any field of laws. Given the complex nature of MCOCA,? such a need cannot be overemphasised.

Author: Sanjay Jain , Senior Advocate and Former Additional Solicitor General of India.

Sources:

i.?Sachin Bansilal Ghaiwal v. State of Maharashtra; (2014) SCC Online Bom 725

ii. Ranjitsing Brahmajeet Singh Sharma v. State of Maharashtra (2005) 5 SCC 294

iii. Kavitha Lankesh vs. State of Karnataka, (2022) 12 SCC 753; Zakir Abdul Mirajkar vs. State of Maharashtra, 2022 SCC Online SC 1092.

iv. Mohd. Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.