Invocation of MCOCA: At least one offence under MCOCA after commencement of the Act necessary.

The Maharashtra Control of Organised Crime Act, 1999, is  a special penal statute enacted to curb the activities of organised crime syndicates. It seeks to penalise the offence of organised crime defined under Act. However, an interesting issue arises as to the application of the Act vis-a-vis the previous offences committed by an accused. Let’s understand.

The Act lays down three definitions which are in cyclic order. The three definitions have to be read together to understand the ingredients of offences under the Act. The three definitions are of “continuing unlawful activity”, “organised crime” and “organised crime syndicate” defined in Section 2 of the Act. The three definitions are as follows:

(d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge-sheets have been field before a competent Court within the preceding period of ten years and that Court has taken cognisance of such offence;

(e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency;

(f) “organised 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 organised crime.

The definitions may appear complex at first reading, however, essential ingredients begin to crystallise once they are read in harmony. Section 3 of the Act punishes the offence of “organised crime”. Since, all the above definitions are inter-twined with each other, one has to look at all the definitions to ascertain  whether the offence is made out.

The aforesaid three definitions suggest the following essential ingredients:

  1. There has to be more than 1 chargesheet in the preceding period of 10 years (prior to commencement of the Act).
  2. The chargesheet must state that the crime is committed by or on behalf of the crime syndicate.
  3. The chargesheet must state that the offence has been committed for economic or other advantage.

However, these conditions are with respect to the offence(s) which have taken place in the preceding period of 10 years. So a question arises, whether more than 1 chargesheet in the said period is sufficient to invoke the Act without there being commission of any offence (fitting description as aforesaid) after the commencement of the Act.  The question is pertinent because it appears from the definitions that the offence under MCOCA is not an independent overt act that needs to be done by the accused. On a bare reading of the provisions as aforesaid, it can be said that the Act can be invoked even if no offence has taken place after the commencement of the Act, if other ingredients of definitions are made out. However, the Supreme Court answered the issue holding that if no offence has been committed falling within the ambit of the Act after its commencement, the Act cannot be invoked.

The aforesaid was held by the Supreme Court in State Of Maharashtra v. Shiva @ Shivaji Ramaji Sonawane & Ors., in Crl. Appeal Nos. 458-460 of 2009, as follows:

“9. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes No.37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only that the respondents were acquitted of the charge under the Arms Act even in Crimes Case No.1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court.”

However, it is to be noted that the above dictum declared by Supreme Court requiring commission of at least one offence after the invocation of MCOCA does not find mention in the Act. All that the Act requires is consideration of more than one chargesheets filed in the “preceding period of 10 years” coupled with other requirements as mentioned in the definition of “continuing unlawful activity”. Considering the object of the legislation, which is to curb the growing menace of gangs and criminal syndicates effectively, and the fact that the Act is a special legislation, provisions of the same have to be applied strictly. The provisions of the Act, thus, read plainly, allow for invocation of the Act notwithstanding the commission of offence(s) before or after its promulgation.

Perhaps, the matter will arise for consideration in any subsequent case. For now, the aforesaid decision, restricting the scope of the Act,  is the law declared by the Supreme Court.

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