Terrorist Have No Religion And Terrorism Has No Boundaries
The Primary Objective of an effective counter-terrorism is to safeguard humans,
strengthen democracy and upheld the Rule of Law. Terrorism has immensely
affected India. The Reasons for Terrorism in Indian may vary from religious to
geographical to caste and history.
The Supreme Court in Kartar Singh v/s State
has observed that the Country has been in the firm grip of spiraling
terrorist violence and is caught between deadly pangs of disruptive
Activities. The MCOCA was specifically enacted to deal with the rising crime in
Maharashtra and especially Mumbai due to underworld. This Article shall give an
overview of the Act.
What was the idea behind implementing the Maharashtra Control of Organized Crime
Organized crime is a category of transnational, national and local grouping of
highly centralized enterprises run by Criminals who tend to engage in illegal
activity. Activities that are planned and controlled by powerful enterprises on
a large scale are called organized crimes.
Syndicate and gangs practice
organized crime as a profession. Unlawful activities like terrorism, theft,
prostitution, robbery, drug trafficking, human trafficking, forced labor which
are practiced collectively by group of people are called as organized crimes.
Organized crime is nowhere defined in Indian Penal Code. Due to lack any
legislation on organized crimes, and Mumbai being the economical capital of
India it was a targeted center for criminals to hoard money. So, need was felt
by the State of Maharashtra to enact a law dealing with organized crimes to curb
the menace of syndicate and gangs. Maharashtra is the first Indian state which
implemented a consolidated law on organized crimes.
What was Maharashtra Control of Organized Crime Ordinance, 1999?
The 7th Schedule of Indian constitution empowers the State Government to make
laws in order to maintain public order and security of the state. Since, the
menace of organized crime in Maharashtra was increasing; an ordinance namely the
Maharashtra Control of Organized Crime Ordinance, 1999 was brought in by the
Governor on 24th February, 1999 since the Legislature was not in session.
necessary and expedient to replace the Ordinance by the Governor into an act by
the state legislature for effective implementation and adjudication of the
offences committed. The ordinance received President's assent on 23rd April 1999
(as per Article 254 of Indian Constitution) and it was published in the Official
Gazette on 24th April 1999. The Act was deemed to be implemented from 24
February 1999 when the ordinance was promulgated.
What is the jurisdiction of Maharashtra Control of Organized Crime Act?
The Act initially applied to the whole state of Maharashtra and after the
amendment in 2002, it extends to the National Capital Territory of Delhi.
What are the other states in India that have law on organized crimes?
Uttar Pradesh, Karnataka, Haryana, Andhra Pradesh have special law in place
dealing with organized crimes.
What is organized crime?
As per Section 2(e) of the Act 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 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 person or promoting insurgency;
To be precise the word 'organized' means the crime committed by a single person
in a planned way or with the help of other in an organized way. Organized crime
syndicate means a group of two or more persons who acting either as singly or
collectively as a syndicate of gangs indulge in organized crimes.
What is continuing unlawful activity mean?
As stated in the Act, 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 organized crime syndicate or on behalf of such,
syndicate in respect of which more than one charge-sheets have been field before
a competent Court in the preceding period of ten years and that Court has taken
cognizance of such offence. 'Continuing unlawful activity' is a prerequisite
condition to establish the offence of organized crime.
What is organized crime syndicate?
As defined in the Act, Organized crime syndicate means a group of two or more
persons who, acting either singly or collectively, as a syndicate of gang
indulge in activities of organized crime.
What is the punishment for the offender?
As per Section 3(1) of the Act, if a person commits the offence of organized
crime and that commission results into 'death of a person', such offender may be
punished with a death sentence or life imprisonment along with minimum fine of
Rs.1 lakh. In any other case the offender shall be punished for not less than
five years and it may extend to life imprisonment along with the fine of not
less than Rs. 5 lakhs.
As per Section 20, when a person has been convicted under this Act, the Court
along with imprisonment and fine, may declare that of any movable or immovable
property belonged to the convict to be forfeited to the State Government.
What is the punishment for attempting or abetting the crime?
As per Section 3(2) of the Act, Whoever conspires to commit an organized crime
or any offence preparatory to the organized crime or abets the crime shall be
punished with imprisonment for not less than five years but may extend to
imprisonment for life along with a fine of not less than Rs. 5 lakhs.
The same punishment can be imposed on anybody who harbors or conceals or
attempts to harbor or conceal (Section 3(3)). The same punishment is levied on
an individual if it is proven that he is the member of organized crime (Section
The term abet?
As per Section 2(a) of the Act, Abet includes:
- the communication or association with any person with the actual
knowledge or having reason to believe that such person is engaged in
assisting in any manner, an organized crime syndicate;
- the passing on or publication of, without any lawful authority, any
information likely to assist the organized crime syndicate and the passing
on or publication of or distribution of any document or matter obtained from
the organized crime syndicate; and of the documents so obtained from the
What is the punishment for an individual who possess property obtained from
Section 3(5) states that If anybody holds property obtained from the commission
of organized crime or which has been acquired from the syndicate funds shall be
imprisoned for not less than 3 years which can extend upto life along with the
fine of not less than 2 lakh rupees.
Illustration based on Section 3
, a driver, is hired by H, one of the members of the crime syndicate
to drive the family members of H to the market to and fro. A is aware that H is
the member of crime syndicate but he never drove him to the gang nor helped him
in commission of any offence. One day H asked A to drive him to a bank. Unaware
of the intention of the gang members, A drove H to the bank. H killed a builder
in the bank. What crime has A committed?
Ans. A has not committed any crime because he did not have the knowledge that H
would murder the builder. Even though he knew the nature of crime committed by
the syndicate, he was not involved in the murder of the builder, his involvement
was not there. Hence, A is not liable under this Act.
What does the term member mean?
The term Member
is nowhere defined in the Act. Membership is a floating
concept. The fact that an individual is associated with a particular gang for
more than 2 to 3 years is enough to establish that the said individual is the
member of the particular gang.
Membership appears to be a concept which has been deliberately left open to
interpretation and anybody who is associated with a gang will be involved in.
Therefore, if a person is not actually associated with the organized crime he
will not be punished. But if a person is found to be associated with the gang as
a way of providing any aid to the gang will be punished as a member if his
association as a member of organized syndicate is established.
What are Special Courts?
As per Section 5 and Section 6 of the Act, provides for the appointment of
Special Courts. The Government may with the notification in the official Gazette
constitute one or more Special Courts in concurrence with the Chief Justice of
Bombay High Court. Any offence committed under this Act is triable by the Court
within whose jurisdiction it was committed or as notified by the State
Government in the Official Gazette.
The power to decide the jurisdiction of the
Special Courts lies with the State government and any dispute arising thereof
would be decided by the State Government. The decision of State government on
the said matter would be final and binding. Any Session Judge cannot try the
cases under MCOCA, only the judge appointed by the State government specifically
appointed for the said purpose will try the cases.
Powers of the Special Courts
Section 7 states that the Special Court has the power to try the accused charged
under this Act or any other law under the Code of Criminal Procedure, 1973 or
any other offence thereof connected to the same trial. If found guilty, the
Court may punish as per the provisions of this Act or any other law as the case
What are the powers and procedure to be followed by the Special Courts?
Section 9 states that a Special Court may take cognizance of an offence even
without the accused being committed into trial, upon receiving complain based on
reliable facts where the punishment for offence is not more than 3 years or fine
or both. The provisions in section 263 to Section 265 of the Code of Criminal
Procedure, 1973 shall apply to such trial. The Special Court, if otherwise
mentioned in any law, has the power to try the offence as that of the Sessions
Court and shall try as if it were a Sessions Court and the procedure to be
followed in the trial will be as prescribed in the Code of Criminal Procedure
for the trial in Court of Sessions.
Section 10 states that Trial of any offence under the Special Court will have
the precedence against the accused in any other court not being the Special
Court. Hence, the trial of the accused in the Special Court would be prioritized
over the case in any other courts.
Appeals against judgment passed by Special Court?
Section 12 states any appeal relating to any sentence, judgment or order from
the Special Court lies with the High Court. An appeal has to be made within
thirty days of any sentence, judgment or order delivered. However, no appeal can
be made for Interlocutory order.
Whether the case can be transferred from Special Court to Regular Court?
Section 11 states that after taking cognizance of the offence, if the Special
Court is of the opinion that it does not have the jurisdiction to the try the
offence under the Code of Criminal Procedure, then the court may transfer the
case to any other court which has jurisdiction to try the case.
What are the facts that Court has to take into account?
For the purpose of trial under this Act, the Court may take into consideration
the fact that on any previous occasion the accused was bound under Section 107
or Section 110 of the Code of Criminal Procedure; detained under any law
relating to punitive detention; on previous occasion was prosecuted in Special
Court under this Act.
When a person involved in the organized crime or acts in behalf or is in
possession of any movable or immovable property which he could not
satisfactorily account for, the Court may presume that such activity or such
possession of property have been acquired by illegal means. Where it is proved
that the accused had kidnapped or abducted that person, it shall be presumed
that it was for ransom. This section is contrary to the legal principle of
innocent until proven guilty.
Who is a Public Prosecutor?
As per Section 8 of the Act, for every Special Court, State Government may
appoint a public prosecutor. For any advocate to be eligible to become Public
Prosecutor or Additional Public Prosecutor or Special Public Prosecutor is that
he should be a practicing advocate who has an experience of not less than ten
years. Only the prosecutor appointed by the State government has the authority
to take up the matters of MCOCA and not any other prosecutor.
Protection of Witnesses
Section 19- There is also a provision for In Camera proceedings
if the Special
Court so desires for keeping the identity and address of any witness a secret.
Name, address has to be kept secret during the trial and after the trial. This
section contains provision for protection of witness involved in the trial.
What is the procedure to be followed by the police while investigating the
offence of organized crime?
- Section 23 - Cognizance of, and investigation into, an offence:
No information of the commission of the offence under this Act would be recorded
by the police officer without the approval of the police officer not below the
rank of Deputy General of Police. The investigation of the offence shall be
carried out by an officer not below the rank of Deputy Superintendent of Police.
The Special Court can take cognizance of the offence only with the sanction of
police officer not below the rank of Additional Director General of Police.
- Section 13- Appointment of Competent Authority:
The State Government may appoint any officer of the Home Department, not below
the rank of Secretary to the Government to be the Competent Authority for the
purpose of authorizing interception of wire, electronic or oral communications.
- Section 14 - Authorization of interception of wire, electronic or oral
The competent Authority after the written application received from the
Supervising officer of the investigation, who is not below the rank of
Superintendent of Police may order to approve the usage of interception of wire,
electronic or oral communications when such usage may provide evidence for the
offence organized crime. The application should contain all the details and
information as mentioned in the Act.
- Section 15 - Constitution of Review Committee for review of
authorization of orders:
This section has provision for the constitution of the Review Committee. Every
order passed by the Competent Authority shall be reviewed by the Review
Committee. The Committee will consist of 1 Chairman (ex officio) and 2 Members
(ex officio). The Chairman of the Committee will be the Chief Secretary to the
State. The two members will be Additional Chief Secretary or the senior most
Chief Secretary in Home Department and Principal Secretary or Secretary and
Remembrance of Legal Affairs.
The Review Committee within ten days of the receipt of the order should decide
to approve or reject the order passed by the Competent Authority. If the order
is rejected when the order authorizing interception of wire has been passed by
the Competent Authority, the interception if commenced shall be discontinued
forthwith and any information received so far will not be admissible as
- Section 16- Interception and disclosure of wire, electronic or oral
If any police officer as otherwise mentioned in Section 14 intercepts or
endeavors to intercept may be punishable with imprisonment which may extend to
one year along with fine up to Rs. Fifty Thousand.
- What is Annual Report of Interceptions?
An Annual Report containing the details of:
- The number of applications for the authorization of interceptions
received by the Competent Authority from the police department in which the
prosecutions have been launched.
- The applications which have been accepted and rejected.
- The number of interceptions carried out on emergency situations and the
ex post facto approvals or rejections granted in such matters shall be
submitted to the State Government.
- The State Government shall lay such report in both the Houses of
Legislature within three months of the completion of every calendar year.
The State Government may not include details of some matters which it
believes may pose threat to the Security of the State.
What is the procedure for recording the confession by the police?
Even though there are provisions for recording confession in Code of Criminal
Procedure and Indian Evidence Act, this Act provides for recording confession by
the police. The statement recorded by police under this Act, not below the rank
of Superintendent of Police, is admissible in Court.
The police officer has to put in some questions which are not based on the merit
of the offence and give him some time to think if he still wants to make
confession. The individual is made aware that he need not confess, made aware of
the consequence of his confession after that he is removed from the custody of
investigating officer and taken to the police officer of higher rank to record
Any confession made by an individual in front of the police officer not below
the rank of Superintendent of Police in written form or any other form shall be
admissible in the trial of such a person or co-accused, abettor or conspirator.
Provided that all three of them are charged with the same offence as the
Every confession recorded has to forthwith send to the Metropolitan
Magistrate or Chief Judicial Magistrate having the jurisdiction over the area
where the confession has been recorded. The person who made the confession
should also be produced before the Magistrate. The Magistrate shall then send
the confession to the Special Court which may take cognizance of the offence.
What are other modified application of provisions made to the Act?
Every offence under this Act is a cognizable offence. Section 167 of Code of
Criminal Procedure may apply to the offences committed under this Act and are
subject to modifications. The 'fifteen days' and 'sixty days' wherever they
occur will be construed as thirty days
and ninety days
The following proviso will be inserted after the provision as mentioned in the
Code of Criminal Procedure:
Provided further that if it is not possible to complete the investigation within
the said period of ninety days, the Special Court shall extend the said period
up to one hundred and eighty days, on the report of the Public Prosecutor
indicating the progress of the investigation and the specific reasons for the
detention of the accused beyond the said period of ninety days.
Section 438 of Code of Criminal Procedure will not apply to any case involving
the arrest of any person for the offence committed under this Act. The accused
while in custody cannot be released on bail or bond unless the Public Prosecutor
has been given an opportunity to oppose the application and when the Public
Prosecutor opposes the application but the Court is satisfied that there are
reasonable grounds to believe he may have not committed the offence and that he
is not likely to commit an offence while on bail. The Accused shall be entitled
to apply for bail only on completion of the investigation.
What is the presumption of offences committed under Section 3?
This section is similar to section 17 of the Act. When any unlawful arms or
other materials are recovered from the possession of the accused and that there
are reasons to believe that such arms and material were used in the offence or
if the fingerprints of the accused were found in the sight of offence or any
material related to the commission of the offence, unless contrary is proved,
the Special Court will presume the offence to have been committed by the
accused. If anyone abets or facilitates the offence or provides any financial
assistance for the same, unless contrary is proved, the Special Court shall
presume that the offence is committed by such person.
What is the punishment for the public servants failing to discharge their
If a public servant renders any help in the commission of the offence whether
before or after the offence is committed or abstains from taking any legal
action which he is empowered to or intentionally avoids to carry out the
directions of the Court or any Superior Officer shall be punished with the
imprisonment which may extend to three years along with a fine.
What is the protection provided to the State Government and public servants for
the acts done in good faith?
No suit, prosecution or any legal proceeding will be initiated against the State
Government or any officer of the State Government for the acts done in good
faith in pursuance of the Act or through any rule or order issued under the Act.
Does High Court have the powers to make rules?
The High Court, may by notification in the Official Gazette make rules to alter
or modify the provisions of this Act relating to Special Courts.
What are the powers of State government for making the rules?
The State Government may make rules for carrying out the purpose of this Act.
Every rule which is made under this Act shall be laid down before each House of
the Legislature, if both Houses agree with the modification, such modification
will come into effect and shall be notified in the Official Gazette. If both
Houses disagree to the new rule made, such modification will not come into
State vs Satya Parkash (Cri.M.C 2138/2010)
Facts: The respondent started his criminal activity a while back in the year
1998 and in the earlier period of his criminal life, several cases of snatching
and robbery were registered against him. On 30.04.2008, respondent along with
three other associates were apprehended by the UP police and one country made
pistol, two live cartridges, 100 Grams heroine and looted property were
recovered from his possession and his associates.
It is further alleged that in
furtherance of his activities, the respondent along with his associates
committed heinous crimes in the area of UP with intention to gain pecuniary
benefits and on these allegations the aforesaid FIRs under the provisions of
MCOC Act was registered as the respondent was being financed by some unknown
Judgment by the Sessions Court: The MCOC Act provides for modified application
for certain provisions of the Cr. P. C. It neither modifies Section 300 Cr. P.
C. nor makes it inapplicable to trial against MCOC Act. The settled law that the
provisions of MCOC Act are to be strictly construed. Thus, Section 300 Cr. P. C.
cannot be violated in the absence of any expression provision in MCOC Act.
The Trial Court has granted bail on following grounds:
Judgment by Delhi High Court: The order by the Sessions Court was challenged in
the High Court by the prosecution. The High Court took into the account the
observations made by the Sessions Court stated that it cannot be said that
respondent has no reasonable or probable defense, he is not likely to commit any
offence, in case he may be released on bail. Giving any opinion on the facts of
the case at this stage would prejudice the trial as the matter is still in its
- That the sanction dated 16.01.2009 was given only on the basis of six
cases; out of which three cases are under Section 25 Arms Act registered in
the various police stations in the territory of Delhi and remaining three
cases are registered in the State of UP on other provisions of rovisions of IPC read with Arms Act etc.
- In most of the cases shown in the charge-sheet either the respondent is
acquitted or convicted or is being tried separately.
- No proof of pecuniary benefit, pecuniary gain or pecuniary advantages or
any unlawful advantages are brought on record by the prosecution due to the
direct effect of the cases allegedly registered against the respondent.
However, it is well settled that once bail is granted the same should
not be cancelled in a mechanical manner, without considering whether any
supervening circumstances have rendered it no longer conducive to a fair trial,
to allow the accused, to retain his freedom by enjoying the concession of bail
during trial. The order granting of bail by trial court was upheld by Delhi
Zohra Sheikh vs State (Govt Of Nct Of Delhi) (Bail Application
Facts of the case: Main accused Sharafat Sheikh, BC of PS Nizamudin, suspected
to trade in narcotics with his gang members in Delhi on a large scale, and was
to come to his residence with co accused Mohd Salim having smack and illegal
arms in his possession.
The investigation disclosed that the main/co accused Sharafat Sheikh purchased a number of immoveable and moveable properties in his
name and in the name of his wives - including the accused applicant Ms. Zohra
Sheikh, from the funds allegedly generated out of illegal trade of narcotics.
The applicant was holding many bank accounts, opened after her marriage in Delhi
and Mumbai. The applicant, with her husband/co accused Sharafat and their family
members were maintaining a very lavish and fancy lifestyle.
It was alleged that
the applicant had acquired and is possessed of the aforesaid wealth, movable and
immoveable properties by facilitating the crime syndicate led by her husband Sharafat and has thereby committed an offence, inter alia, under Section 3(2),
3(5) and 4 of MCOCA. She applied for regular bail before the Sessions Court.
Judgment by the Sessions Court: Session Court heard the accused and the public
prosecutor at length. The Court was of the view that there is no merit in the
petition. The Court observed that there is sufficient material available on
record to, prima facie, indicate the involvement of the applicant in abetting,
conspiring and knowingly facilitating the commission of organized crime alleged
to have been carried out by co accused/ main accused Sharafat Sheikh and his
The applicant herein is being tried under section 3(2), 3(5) and 4 MCOCA, section 201 & 471 IPC and section 3 read with 181 of MV Act. Zohra Sheikh
was arrested on charges in relation to the unlawful activities of the organized
crime syndicate, and not a particular accused. She was not granted bail under
sec 439 of Cr.P.C.
Judgment by the Delhi High Court: the order by Sessions Court was appealed
in High Court. High Court observed that Prima facie, the acts of the
applicant herein comes within the definition of
abet�as defined in Section 2(1)(a) of MCOCA and, prima facie, establishes her role as a conspirator in assisting and
managing the crime syndicate. She appears to be in possession of movable and
immovable properties derived and obtained from commission of an organized crime
syndicate, which she has not satisfactorily accounted for.
The applicant has,
therefore, failed to produce any reasonable grounds for believing that she is
not guilty of the offences she has been charged under. On the contrary, the
materials brought on record, point to her role in the abetment of the offences
by the crime syndicate. The High Court upheld the order of Sessions Court.
Dinesh Bhondulal Baisware vs State Of Maharashtra (CRIMINAL APPLICATION
(BA) No.424 OF 2016)
Facts of the Case: The accused along with four other accused persons, being a
member of an organized crime syndicate, was a part of the group, which took
active part in carrying out a dangerous assault upon the complainant Amol Mehar
on 29.5.2015. Amol Mehar, however, managed to escape, though he suffered
grievous injuries to his person. On the basis of complaint, offences punishable
under Sections 307, 143, 144, 147, 148, 294 and 427 read with Section 149 of the
Indian Penal Code and also Sections 3,4,25 and 27 of the Indian Arms Act were
Charge sheets were already filed against said crime
syndicate headed by Gijrya Lonare. As the applicant was a part of the syndicate,
permission was granted by the competent authority for proceeding against all the
members of the organized crime syndicate including the applicant under the
provisions of the Maharashtra Control of Organized Crime Act, 1999 (in short, MCOC
Act). Accordingly, offence punishable under Section 3(4) of the MCOC Act was
additionally registered against the applicant and other members of the crime
syndicate. The accused applied for bail in the court of High Court as the
sessions court rejected his application.
Judgment by the High Court: The Court observed that this is not a case wherein
it could be prima facie said that the applicant did not play any role in the
assault that was made upon the complainant on 28.5.2015. It is seen from the
statements of the witnesses that the applicant was carrying a sword in his hand,
when he got down from Maruti Omni and that he ran after one of the witnesses
carrying sword in the hand. Then, there is also a prima facie material showing
that at least two charge-sheets were filed against the crime syndicate headed by
the main accused Virendra alias Gijrya Lonare.
This would make it clear to us
that at least two of the parameters prescribed under Section 21(4) of the MCOC
Act, i.e. existence of prima facie evidence showing involvement of the applicant
in the offence registered under Section 3 of the MCOC Act and two charge-sheets
having been filed are met in this case. This is because, as stated earlier,
charge-sheets have been filed against two co-accused, who have been alleged to
be members of the crime syndicate, with one of them alleged to be the leader.
The Court observed that this is not a case wherein it could be prima facie said
that this applicant did not play any role in the assault that was made upon the
complainant. But, there is yet another criterion, criterion of possibility of
commission of offence under the MCOC Act, which must be shown to be satisfied by
the prosecution so as to disentitle the applicant from the relief sought by him.
Although, for being a member of the organized crime syndicate, it is not
necessary that the accused must be convicted in the charge-sheets previously
filed, as held in the case of Anil Murlidhar Deshmukh, presence of nexus between
those offences and activities of crime syndicate, however, would be relevant for
determining whether the accused is likely to indulge in commission of the crime
under the MCOC Act.
The charge-sheets that were previously filed against the
present applicant were characterized by individuality and it is seen from the
crime chart appended to the present charge-sheet that in those charge-sheets, no
other person or none of the co-accused of the applicant was made accused person.
Therefore, it would have to be said that so far as the present applicant is
concerned, there is no record or no material available on record giving rise to
a possibility of the applicant indulging in an offence under the MCOC Act in a
reasonable manner. Thus, the criteria necessary for denying relief of bail to
the applicant in such a case is absent in this case and, therefore, the
applicant would be entitled to be released on bail.
Lt Col Prasad Shrikant Purohit vs The State Of Maharashtra (Cri Appeal
No. 1448 of 2017). The Malegoan Blast Case
Facts of the case:
The appellant herein, along with other co-accused in the
case, entered into a criminal conspiracy between January, 2008 to October, 2008
with a common object and intention to strike terror in the minds of people
caused bomb blast at Malegaon by using explosive substances to cause damage to
life and property and to create communal rift. Accordingappellant
herein had brought RDX with him from Kashmir for the purpose of Bomb Blast at
The accused were charged under IPC, Arms Act, Explosive Substances
Act, UAPA along with MCOC. The appellant came to be arrested in connection to
the said offence. The appellant herein preferred a Bail Application before the
Special Judge under MCOCA for Greater Mumbai. The Special Judge discharged the
appellant and other co-accused from the offences under MCOC Act and directed to
transfer the case to the regular court at Nasik.
The State Government, being
aggrieved by the order, filed an appeal being before the High Court. A Division
Bench of the High Court vide order set aside the order and restored the bail
application filed by the Lt Col Prasad Shrikant Purohit for hearing on merits.
The accused appealed this decision of High Court in Supreme Court.
Court held that with the available material on record, it is not possible to
show any nexus of the appellant who has been arraigned against for their
involvement in Malegaon blast with the two earlier cases, namely, Parbhani and
Jalna. There is considerable doubt about their involvement in Parbhani and Jalna
and, therefore, they are entitled for their bail applications to be considered
The appellant herein filed a fresh bail application before the Court of Special
Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater Mumbai. The Special
Judge denied the bail to the appellant herein. Being aggrieved by the order, the
appellant herein went in appeal before the High Court and filed Criminal Appeal.
A Division Bench of the High Court dismissed the bail application of the
appellant herein. Aggrieved by the order, the appellant has filed appeal before
this Court by way of special leave.
Judgment by the Supreme Court: The Supreme Court acknowledged the variations in
the charge sheets filed by ATS Mumbai and NIA. The Supreme Court also observed
that a perusal of the statements of various prosecution witness recorded under
Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced
them to make the statements under the aforesaid Section by threatening them to
falsely implicate them in the case. In other words, witnesses retracted from
their statements recorded by the ATS, Mumbai at Mumbai.
re-examination of a public witness recorded under Section 164 of the Code, he
deposed that he did not attend any meeting of Abhinav Bharat held at Bhopal and
he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal. The very
same statement was again recorded at Delhi by learned Metropolitan Magistrate,
where he confirmed the same.
Supreme Court further observed there are material
contradictions in the charge sheets filed by the ATS Mumbai and the NIA which
are required to be tested at the time of trial and this Court cannot pick or
choose one version over the other. Liberty of a citizen is undoubtedly important
but this is to balance with the security of the community. A balance is required
to be maintained between the personal liberty of the accused and the
investigational rights of the agency. It must result in minimum interference
with the personal liberty of the accused and the right of the agency to
investigate the case.
The Apex Court also observed that the court while granting bail should exercise
its discretion in a judicious manner and not as a matter of course. The law in
regard to grant or refusal of bail is very well settled. Though at the stage of
granting bail a detailed examination of evidence and elaborate documentation of
the merit of the case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail was being granted
particularly where the accused is charged of having committed a serious offence.
Any order devoid of such reasons would suffer from non-application of mind. It
is also necessary for the court granting bail to consider, among other
circumstances, the following factors also before granting bail; they are:
The appellant, who was at the relevant time was an Intelligence officer of the
Indian Army has refuted the claim of conspiracy on the ground of Intelligence
inputs which he informed to his superior officers as well and the alleged role
of ATS officials in the planting of RDX at the residence of A-11 clearly
indicate the fresh grounds which persuade the appellant herein to take a view
different from the one taken in the earlier applications.
- The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence
- Reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant.
- Prima facie satisfaction of the court in support of the charge.
As mentioned earlier,
at the stage of granting bail, a detailed examination of evidence and elaborate
documentation of the merit of the case need not be undertaken. However, keeping
in view the fact that NIA has submitted the supplementary charge-sheet which is
at variance with the charge-sheet filed by the ATS and that the trial is likely
to take a long time and the appellant has been in prison for about 8 years and 8
months, we are of the considered view that the appellant has made out a prima
facie case for release on bail and the court released him on bail. It was also
ordered that the Appellant was reinstated in service with immediate effect.
Another co-accused Sadhvi Pragya and Deshpande have also been granted bail and
the trial is in progress.
Prakash @ Pappu Hirji Savla vs The State Of Maharashtra And Ors ( Cr.
Writ Petition No. 4058 of 2019)
Facts of the case:
On April 8, 2019, a team of police personnel from Kolhapur's
Karvir police station raided the gambling den of Salim Mulla. Police initially
booked the accused persons under relevant sections of the Indian Penal Code,
Maharashtra Gambling Act, Maharashtra Police Act and Maharashtra Prohibition
Act. Two days later police invoked stringent provisions of MCOCA against the
gang, involving more than 40 members. Fourteen of them had moved High Court
challenging invocation of MCOCA against them.
Judgment by the Bombay High Court: The Court heard the arguments of the accused
claiming that they were not present at the den when it was raided, and they did
not have any association with Mulla or his alleged organized crime syndicate.
They further argued that on the basis of the material collected by police, they
can, at the most, be said to have committed the offences under the gambling act,
and since maximum punishment for these offences is two years imprisonment, MCOCA
could not have been invoked against them.
The High Court held that though the
gambling by itself may not be an organized crime, however, an organized crime
syndicate may take recourse to it as one of if profit making venture. It may
earn some profit or benefit out of it to support its other activities. It may
indulge in contract killing, abduction or dacoity or other similar offences
along with gambling business.
If the existence of an organized crime syndicate
comes to the knowledge of State for the first time while conducting raid on a
gambling establishment and the investigation shows previous two or more
charge-sheets for cognizable offences punishable with imprisonment of three or
more years, the police may take recourse to the MCOC Act and complete the
The MCOC Court may after trial punish accused only for being a
member of or for abetting if it finds that there is no proof of actual
participation. Section 3 itself shows the possibility of such punishment though
there may be acquittal of charge under section 3 (i) or (ii) if concerned. The
division bench of chief justice BP Dharmadhikari and Justice NR Borkar, however,
rejected the argument after noticing that the petitioners provided risk cover to
the main accused Mulla and thus helped him run the gambling den. Therefore, the
Court held that the petitioners on the basis of above materials be said members
of organized crime syndicate led by accused.
Surjit Bhagatsingh Gambhir vs The State Of Maharashtra (Writ Petition
No. 913 of 2019)
Facts of the case: Two candidates who were contesting election of Zilla Parishad
and Panchayat Samiti being the nominated candidates of a political party
arranged a dinner party. It is alleged that in the said party, liquor was
served along with dinner and two brothers of the complainant who attended the
party started feeling uneasiness in the night of 12/02/2017 and since their
condition deteriorated, they were hospitalized in a private hospital at
They came to be shifted to the City Civil Hospital and while
undergoing the treatment, they breathed their last. As an outcome of the
consumption of liquor, 9 people died and 13 people took seriously ill and were
required to be offered treatments. During investigation, it was revealed that
the alcohol, which was supplied in the party was manufactured in one 'Sai
Bhushan canteen' of the City Civil Hospital, District Ahmednagar.
It is this
canteen of the Civil Hospital which fell within the loop of investigation and
the present Petitioner, on a nexus being established, came to be roped in. Jagjitsingh
Gambhir had formed an Organized Crime Syndicate and engaged in continuing
unlawful activities with the object of gaining pecuniary benefits for himself
and other members of the gang.
Judgment by the Bombay High Court: The Court heard the petitioner's argument
that the contention of the Petitioner is that he has been falsely implicated in
the said crime and while granting the approval/sanction by the Respondents,
there was complete absence of application of mind and according to the
Petitioner, there is no nexus established between the crime registered and the
Petitioner nor any incriminating evidence or proof of commission of any illegal
act either individually or collectively has been attributed to the Petitioner
and the Petitioner questions the very act of the Respondents in arraigning him
as a member of the Organized Crime Syndicate and the filing of the Charge Sheet
against him under the relevant provisions. The High Court ascertained the claim
of the Petitioner from the facts placed before it.
The Court observed that
perusal of the overall material against the Petitioner taken at its face value,
does not disclose any sufficient or tangible material to justify the invocation
of the provisions of the MCOCA against the Petitioner. There is no material
placed on record to establish him as a member of any crime syndicate nor it is
established that he was a participant in the commission of an offence by
establishing that he had the knowledge of the happenings in the Civil Hospital's
canteen which was allotted to him on paper but which he never physically
administered by him.
In absence of any mens rea, knowledge or intention, if the
Petitioner is subjected to the rigors of trial and with the stringent provisions
of being incarcerated in the absence of a provision for anticipatory bail and
the grant of bail being subjected to stringent condition enumerated in Section
23 of the Act, in considered view the Petitioner is entitled for protection
against his arrest in the said offence reserving the question of determination
of validity of Section 21 (3), in appropriate proceedings.
In the result, in
exercise of our writ jurisdiction to protect the fundamental rights of the
Petitioner enshrined in Article 21 of the Constitution of India and to protect
him from being arrested under the relevant C.R in respect of which a
charge-sheet has been filed and the Petitioner has been shown to be an
absconding accused, we direct that the Petitioner shall not be arrested in
absence of any material being available against the Petitioner in the
charge-sheet establishing his culpability under the provisions of the
Maharashtra Control of Organized Crime Act, 1999.
State of Maharashtra vs Bharat Shanti Lal Shah & others (2000 AIR (SCW)
Facts of the case: The two respondents to the appeal were arrested under the
provisions of the MCOCA and cases were registered against them. Being aggrieved
by the aforesaid arrest and registration of cases both of them filed separate
writ petitions being Criminal Writ Petition respectively in the Bombay High
Court challenging the constitutional validity of the MCOCA, particularly the
provisions of Section 2(d), (e) and (f) and that of
Sections 3, 4 and 13 to 16 and Section 21(5) of the MCOCA. Respondent Bharat
Shah also filed a writ petition of similar nature being Criminal Writ Petition
filed by the other two respondents.
Judgment of Bombay High Court: The Bombay High Court held Section 2(d), (e), (f)
and section 3 and section 4 as constitutionally valid. However, the High Court
struck down Sections 13 to 16 as unconstitutional as being beyond the
legislative competence of the State legislature. The High Court held that the
Parliament alone has the power to make law in that regard as provided for under
Entry 31 of List I of Seventh Schedule to the Constitution and that already
the Indian Telegraph Act 1885, a Central Act was holding the field. The High
Court also struck down sub-section (5) of Section 21 of the MCOCA holding that
the same violated of provisions of Article 14 of the Constitution of India.
Judgment of the Supreme Court of India: Being aggrieved by the order of High
Court, the State of Maharashtra filed appeal in the Apex Court. The Supreme
Court observed that one of the proven methods of examining the legislative
competence of an enactment is by the application of doctrine of pith and
This doctrine is applied when the legislative competence of the
legislature with regard to a particular enactment is challenged with reference
to the entries in various lists. In this process, it is necessary for the courts
to go into and examine the true character of the enactment, its object, its
scope and effect to find out whether the enactment in question is genuinely
referable to the field of legislation allotted to the respective Legislature
under the constitutional scheme.
Where a challenge is made to the constitutional
validity of a particular State Act with reference to a subject mentioned in any
entry in List I, the court has to look to the substance of the State Act and on
such analysis and examination, if it is found that in the pith and substance, it
falls under an entry in the State List but there is only an incidental
encroachment on topics in the Union List, the State Act would not become
invalid merely because there is incidental encroachment on any of the topics in
the Union List.
The expression or under any other Act appearing in the section is
arbitrary and discriminatory and accordingly struck down the said words from
sub-Section (5) of Section 21 as being violated of Article 14 and 21 of the
Constitution. We uphold the order of the High Court to the extent that the
or under any other Act should be struck down from Sub section (5) of Section
21.The Supreme Court upheld the constitutional validity of Sections 13 to 16 of MCOCA.
The decision of the High Court striking down the words or under any
other Act from sub-Section (5) of Section 21 of the Act is however upheld.
Therefore, the words mentioned in Section 21 (5) were held constitutionally
Ghatkopar Bomb blast case.
On 2nd December 2002, a bomb was placed under a seat of a B.E.S.T and the bus
exploded near the Ghatkopar station. The blast killed two people and injured
over 50. Ghatkopar being the final stop, all the passengers in the bus had just
alighted and passengers for the return trip had not yet entered the bus. Later,
the police defused an unexploded bomb in another BEST Bus Depot in SEEPZ
industrial area at Andheri. The Mumbai Police had originally listed 29 accused
in the case, but could arrest only 19. Of the 19, Court discharged 9 for the
lack of evidence, one died in Hyderabad and another Khwaja Yunus died in police
custody. Remaining eight accused were acquitted by a Special Court in 2005 owing
to lack of evidence.
The State Of Maharashtra V/s Bharat Baburao Gavhane And 13 Ors.
Judgment of the Supreme Court: The Appellant-State of Maharashtra has preferred
this Appeal challenging the judgement and order passed by the learned Special
Judge, MCOC Act, Nashik. By the Judgement and order dated 2nd September 2002 the
learned Special Judge has allowed an application preferred by the
respondents-original accused for transfer of the case under Section 11 of MCOC
Act, 1999 (for short referred to as MCOC Act).
The materials produced by the
prosecution and has observed that barring relying upon the Approval and the
sanction order, the prosecution has not produced anything to show that the
respondents are prima facie guilty of commission of offences of organized crime.
The charge sheets referred have also been perused by the learned Judge but as is
clear, merely because they allege commission of serious offences, their nature
is not such as would come within the purview of the term organized crime as
defined in MCOC Act. Appeal is accordingly dismissed.
Prafulla s/o Uddhav shende vs State of Maharashtra ( 2009 ALL MR (Cri.)
The accused persons, who were tried in Special Criminal Case No.1/2001, are
allegedly gangsters led by one Shiva (Accused No.1 therein) and those in Special
Criminal Case No.2/2001, allegedly belong to rival gang led by Mehmood Khan
Pathan (Accused No.1 in Special Criminal Case No.2/2001). It is alleged that
initially all of them formed one gang, which later split into two gangs. They
used to clash over right to extort. Both these gangs were allegedly involved in
criminal activities like extortion etc. in industrial town of Khaparkheda on the
outskirts of Nagpur City. The Supreme Court held that the conviction of
appellants is based upon only filling of charge sheets in the past.
There is no
avert act or omission which would amount to continuation of unlawful activity
carried out by the use of force for the purpose of pecuniary gain, with which
the appellants are charged. The only overt acts attributed to, and to the gang
leaders is possession of arms, at their houses, when they were in custody and
after offences were registered under MCOCA.
For these offences learned Special
Judge has acquitted them. Crimes for which MCOCA was sought to be applied, ended
up in filing the chargesheet without applying MCOCA and eventual acquittal of
the accused. This leaves a big question mark or question marks, not only
application of mind while granting approval and sanction under Sec 23, but also
mindlessness in pursuing the whole matter. All the appeals were allowed.
The above Article gives an overview of the MCOC Act along with few case laws.
- Advocate Swapana Pramod Kode and
- Priyanka Chauhan