Terrorist Have No Religion And Terrorism Has No Boundaries
Introduction 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 of Punjab 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 Act?

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.

It was 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 3(4)).

The term abet?

As per Section 2(a) of the Act, Abet includes:

1. 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;
    
2. 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 organized crime.

What is the punishment for an individual who possess property obtained from organized crime?

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

1. A, 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 maybe.

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 communication:
  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 evidence.
  
  
• Section 16- Interception and disclosure of wire, electronic or oral communications prohibited: 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:
  
  1. 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.
  2. The applications which have been accepted and rejected.
  3. 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.
  4. 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 the statement.

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 accused.

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 respectively.

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 duties?

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 effect.

Case laws:

1. 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 sources.
   
   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:

   1. 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.
       
   2. In most of the cases shown in the charge-sheet either the respondent is acquitted or convicted or is being tried separately.
       
   3. 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.
   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 infancy.
   
   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 High Court.
    

2. Zohra Sheikh vs State (Govt Of Nct Of Delhi) (Bail Application 1481/2016)

   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 associates.
   
   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.
    

3. 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 initially registered.
   
   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.
    

4. 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 Malegaon.
   
   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.
   
   The Supreme 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 on merits.
   
   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.
   
   Even during 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:
   
   1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
   2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
   3. Prima facie satisfaction of the court in support of the charge.
   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.
   
   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.
    

5. 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 investigation.
   
   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.
    

6. 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 Ahmednagar.
   
   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.
    

7. State of Maharashtra vs Bharat Shanti Lal Shah & others (2000 AIR (SCW) 6431

   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 substance.
   
   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 words

   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 invalid.
    

8. 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.
    

9. 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.
    

10. Prafulla s/o Uddhav shende vs State of Maharashtra ( 2009 ALL MR (Cri.) 870.

    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.

Conclusion: The above Article gives an overview of the MCOC Act along with few case laws.

Written By:

1. Advocate Swapana Pramod Kode and
2. Priyanka Chauhan