“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.[1]”
Countries across the world acknowledge the crucial role of criminal machinery in maintaining law and order. Lawlessness mutilates the foundation of a country and disintegrates the innate feeling of security, which every citizen of a country must enjoy in order to live a productive life. Existence of effective criminal law and justice system, therefore, becomes imperative for a society, State and its citizens to thrive and prosper. States are considered as a protector of its citizens and an integral organ to ensure law and order. Such objects are ultimately sought to be achieved, inter alia, by means of an effective penal machinery and criminal justice system.
The Supreme Court in Adu Ram v. Mukna[2], while recognising the importance of penal laws, observed, “[s]ecurity of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law.”
Further, as per the Supreme Court[3], “[t]he contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences.”
There is no dearth of penal statutes in India dealing with several kinds of offences. Besides the commonly known Penal Code, 1860, special enactments in form of the Prevention of Corruption Act, 1988; the Narcotic Drugs and Psychotropic Substances Act, 1985, etc., exist in statute books, dealing with a wide range of offences.
Significant amongst these penal laws are the provisions under the Maharashtra Control of Organised Crime Act, 1999[4] or commonly known as MCOCA. MCOCA is a State legislation, enacted by the State of Maharashtra to combat organised crime and terrorism. Under the ‘Statement of Objects and Reasons’ of the said enactment[5], it was, inter alia, observed, “existing legal framework i.e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organised crime”. Accordingly, realising an imminent need of a special law with stringent and deterrent provisions; MCOCA was enacted in the year 1999. Being a State legislation, applicability of the provisions of the said enactment was initially confined to the State of Maharashtra. However, vide Notification[6] dated 02.01.2002, the Ministry of Home Affairs, Government of India, extended the provisions of MCOCA to the National Capital Territory of Delhi.
MCOCA penalises commission of an offence of organised crime and possession of unaccountable wealth on behalf of member of organised crime syndicate under Sections 3 and 4 thereof, respectively. The terms organised crime and organised crime syndicate[7], in turn, are defined under Sections 2(1)(e) and 2(1)(f) of MCOCA respectively. Under the said enactment organised crime is defined to mean,
“any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence of threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.”
The term, ‘continuing unlawful activity’ under Section 2(1)(d) of the said enactment is defined to mean an activity prohibited by law, for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more. Further, such activity must have been “undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence.”
Therefore, a careful perusal of the provisions of Section 2(1)(d) of MCOCA would demonstrate that the impetus for invocation of the provisions of the said enactment is the continuing unlawful activity undertaken by a person singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and the court has taken cognizance of such offence.
Appreciating that organised crimes pose a serious threat to civil society, courts have time and again embarked on a rigorous exercise to expand the scope and application of provisions of MCOCA. Accordingly, activities/actions involving engagement of individuals and/ or members of organised crime syndicate, with a wide network, in ‘continuing unlawful activity’ for commission of offences such as human trafficking and prostitution[8]; rigging of examination[9]; etc., have been brought within the ambits of the penal provisions under MCOCA. Simultaneously, several provisions of MCOCA have been subjected to strict scrutiny for their vires, especially in terms of the provisions of Articles 14 and 21 of the Constitution of India (“the Constitution”), before several judicial forums, from time to time. Illustratively, in State of Maharashtra v. Bharat Shanti Lal Shah[10], the Supreme Court, upheld the validity of the provisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 of MCOCA.
Similarly, the High Court of Delhi[11] struck down the challenge to the provisions of Section 3(1)(ii) of MCOCA, on the ground that it prescribes a mandatory imposition of minimum fine, as violative of Articles 14 and 21 of the Constitution. As per the Court,
“[t]o subject convicts under the said Act to minimum fines appears to be completely justified, as the object appears to be to deter such offenders and to denude them of their ill-gotten wealth. The quantum of minimum fine also does not appear to be excessive in today’s context.”
Quite recently, the Supreme Court in State (NCT of Delhi) v. Brijesh Singh[12] dealt with the applicability of the provisions of MCOCA in light of the principles of ‘extra territoriality and territorial nexus’. The moot question before the Division Bench[13] of the Supreme Court in the said case was, ‘Whether the charge-sheets filed in the courts in other States can be considered to establish continuing unlawful activities in a State where the provisions of MCOCA were applicable[14]?’ In turn, the question revolved around the meaning of the words “competent court”, existing in Section 2(1)(d) of MCOCA. In this regard, the Court, at the outset, reiterated that an organised crime is not an activity restricted to a particular State and accordingly, held that a restrictive reading of the words “competent court”, under Section 2(1)(d) of MCOCA, would stultify the object of the Act. As per the Court,
“If members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination be said, that there is no nexus between the charge-sheets filed in courts in States other than Delhi and the offence under MCOCA registered in Delhi… We hold that “competent courts” in the definition of “continuing unlawful activity” is not restricted to courts in Delhi alone.”
However, it was cautioned by the Supreme Court that for prosecution under MCOCA at Delhi[15], based on the charge-sheets filed before the courts in other States, commission of organised crime in Delhi is sine qua non and that,
“[i]n the absence of an organised crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge-sheets filed outside Delhi.”
It was further clarified by the Court that under such circumstances, consideration of charge-sheets filed in other States is not for the purpose of prosecution of accused for an offence committed outside the State in a State to which the provisions of MCOCA are made applicable, rather, their use/reliance was restricted, “merely for the purpose of determining the antecedents of the respondents”. Such an accused, as per the Court, would still be liable to face trial in competent courts where the charge-sheets are filed.
It goes without saying that when crime enlarges its reach, it becomes imperative for criminal justice system to expand with equal vigour. It becomes equally vital for penal provisions to mould themselves to cater to the imminent need of society, so that the rising fangs of crime may be nipped in the bud. It is further universally recognised that with the change of social norms, values and needs, law, too, is required to be modified, amended and re-interpreted to meet the changing needs.
As per the Supreme Court[16], “Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts.”
Provisions under MCOCA, unquestionably, are a major step in the direction of modernising and recasting penal provision for uprooting the evils of organised crime and to cause deterrence to members/individual engaging in crime syndicates for recurrent offences. Further, it goes without saying that any law, no matter how deterrent, is as efficient as is enforcement and implementation. Seen in this light, the judicial approach in dealing with the offences/offenders under MCOCA, clearly, demonstrates an attitude of impatience towards perpetrators of such offences and those actively associating themselves with such crime syndicates. The decisions of various Courts have further demonstrated that mere technicalities and literal interpretation of legal provisions have been deprecated by the Courts. In fact, the Courts have repeated clarified[17] that the applicability of the provisions under law[18] must depend on the object and purpose of the enactment. Clearly, there is no bending of laws to meet the ulterior designs of offenders; especially the provisions of MCOCA provide no respite to its violators, to perpetrate tyranny. Clearly, abiding by the remarks, once made by Montesquieu, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”
*Managing Associate, L&L Partners Law Offices
[1]Plato
[3]State of M.P. v. Munna Choubey, (2005) 2 SCC 710
[4] Maharashtra Control of Organised Crime Act, 1999
[5] Refer also to State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779
[6]https://www.mha.gov.in/sites/default/files/video_59.PDF
[7] Section 2(1)(f) of MCOCA, “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;”
[8]Kamaljeet Singh v. State, 2008 SCC OnLine Del 110
[9]Mahipal Singh v. CBI, 2012 SCC OnLine Del 2983 [overruled on merits in Mahipal Singh v. CBI, (2014) 11 SCC 282]
[11]Mohd. Irfan v. State of NCT of Delhi, 2018 SCC OnLine Del 13223
[13] Two-Judges Bench comprising of S.A. Bobde and L. Nageswara Rao, JJ.
[14] In the instant case, the question/issue related to the fact whether the charge-sheets filed in States outside Delhi could be considered for initiating proceedings against the accused at Delhi, in terms of the provisions of MCOCA?
[15] In the instant case at Delhi. However, same principles apply to States (i.e. Bombay) where the provisions of MCOCA are made applicable
[16]B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313
[17] Supreme Court in State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779
observed, “…it is no more res integra that even a penal provision should be interpreted to advance the object which the legislature had in view [Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684, para 6 ].”
[18] Including that under MCOCA.