New Delhi: Back in 2021, gangster Lawrence Bishnoi was shifted to a high-security cell in Tihar Jail after Delhi police invoked against him provisions of the stringent Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and sections of the Arms Act, of 1959, for running an inter-state crime syndicate. Subsequently, in April, this year, Mumbai police invoked MCOCA provisions against Bishnoi, while he was still in Gujarat’s Sabarmati jail, following an incident of two bike-borne men opening fire outside actor Salman Khan’s home.
More recently, on 12 October, Nationalist Congress Party (NCP) leader Baba Siddique was shot in Mumbai, with police suspecting the plot was hatched by individuals with ties to the Bishnoi gang.
The chargesheet filed by Delhi police against him in March 2021 in the crime syndicate case referred to “Lawrence Bishnoi, a notorious, desperate and interstate criminal, having more than 25 cases” as a member of an organised crime syndicate.
It added that since Bishnoi was in jail, “his associate was actively participating in the criminal activities” of the syndicate. It also said members of this syndicate, in jail, or outside it, were enjoying a “lavish lifestyle” without any source of income.
ThePrint explains what sections of MCOCA Bishnoi has been charged with, what they mean, why police in Maharashtra felt the need for such a stringent law, and how courts have interpreted it.
What MCOCA provisions invoked against Bishnoi
According to the chargesheet against him, Bishnoi was charged with sections 3 and 4 of the 1999 act, which relate to punishment for organised crime and possessing unaccountable wealth on behalf of a member of an organised crime syndicate, respectively.
The application of MCOCA means the accused, when arrested, would remain in jail for a lengthier duration compared to other criminal laws. The stringency of the act’s provisions would also entail that bail is not easily granted.
Why was the act passed
The Maharashtra Control of Organised Crime Act is a state-specific statute enacted by the state of Maharashtra in 1999 to “make special provisions for prevention and control of, and for coping with, criminal activity by organised crime syndicate or gang”.
The Act’s Statement of Objects and Reasons states that the “existing legal framework” of penal and procedural laws was found to be inadequate to control organised crime and needed stringent and deterrent provisions.
Originally, the Act only applied to the state of Maharashtra. However, by January 2002, the Ministry of Home Affairs (MHA) extended its application to the National Capital Territory of Delhi as well, by way of a notification dated January 1, 2002.
What are offences under MCOCA
In the act, “organised crime” has been defined under section 2(1)(e) as “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 undue economic or other advantage for himself or any other person or promoting insurgency”.
On the other hand, an “organised crime syndicate” has been defined as a group of two or more persons who, acting either singly or collectively, as a syndicate or gang, perpetrate organised criminal activities, under section 2(1)(f).
Another offence given under the act is that of “continuing unlawful activity,” which refers to any activity “prohibited by law” for the time being, which is a cognisable offence, punishable with three or more years imprisonment. Such activity can either be carried out by an individual or even jointly as a member of “an organised crime syndicate” or on behalf of a syndicate against 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”.
Punishment for the offences of organised crime and possession of unaccountable wealth by members of an organised crime syndicate is given under sections 3 and 4 of MCOCA.
The former stipulates death or life imprisonment with a fine of at least one lakh rupees for cases that result in the death of an individual, while all other cases are punishable with imprisonment, between five years and life, subject to a minimum fine of Rs 5 lakh. The latter prescribes imprisonment for a term of 3-10 years, along with a fine of a minimum of Rs 1 lakh, in addition to liability for attachment and forfeiture of moveable or immovable property, for which one cannot “satisfactorily account”.
Section 15 requires the constitution of a review committee to review every order passed by the competent authority under section 14.
Section 16 imposes certain restrictions on interception and disclosure of wire, electronic, or oral communication. It prohibits interception and also disclosure of wire, electronic, or oral communication by any police officer except as otherwise specifically provided, and makes any violation of the provision punishable.
Apart from these, an additional 180 days to file the chargesheet is also stipulated under the act by way of the proviso to section 21, which empowers the special court to extend time prescribed by Section 167 of the Criminal Code of Procedure (CrPC) up to 180 days based on the report of the public prosecutor indicating progress of the probe and specific reasons for detaining the accused beyond the otherwise stipulated 90-day period.
How have courts interpreted this law
In 2008, a three-judge bench of the top court in “State of Maharashtra vs Bharat Shanti Lal Shah” dealt with a challenge to the constitutional validity of the Act’s provisions on grounds that the state legislature did not have the legislative competence to enact such a law that was both unreasonable and violative of Article 14 (right to equality).
This case dealt with a challenge to a 2003 Bombay High Court ruling, where provisions on continuing unlawful activity, organised crime syndicate, and organised crime were upheld, but other provisions, like sections 13 to 16, were struck down.
Section 13 entails the power of the state government to appoint a competent authority for the purposes of authorising interception of wire, electronic, or oral communication. The court said that the struck-down provisions were unconstitutional and beyond the state legislature’s legislative competence.
Subsequently, Maharashtra government challenged the high court ruling before the top court, which upheld the validity of the provisions, thereby partially overturning the high court ruling.
“The procedures authorising such interception are also provided therein with enough procedural safeguards,” the apex court said while adding that the “act under challenge contains sufficient safeguards” and rejecting the contentions that sections 13-16 violate the right to life under Article 21.
In another 2011 ruling in “State of Maharashtra vs. Jagan Gagansingh Nepali,” Bombay High Court observed that organised crime had become a “serious threat to the society beyond national boundaries and is fuelled by the illegal wealth achieved by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics, kidnapping for ransom, collection of protection money and money laundering, etc.”
“It was found that the illegal wealth and black money generated by the organised crime being very huge, it had a serious adverse effect on the economy,” said the high court.
In 2022, a Supreme Court bench of Justices Dinesh Maheshwari and Aniruddha Bose, in the case of “Abhishek vs. State of Maharashtra,” ruled that actual use of violence is not always a precondition for organised crime. It said, “Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate. Threat of violence or even intimidation or even coercion would fall within the mischief. This apart, use of other unlawful means would also fall within the same mischief.”
Application of MCOCA in other states
In the 2017 Supreme Court ruling in “State (NCT of Delhi) vs. Brijesh Singh,” a bench of Justices L. Nageswara Rao and S.A. Bobde held that “organised crime is not an activity restricted to a particular state,” and that was clear from the Act’s objectives.
However, these statements were made in the context of applying the MCOCA to a UP-based gangster who was charged with attempt to murder, murder, extortion, rioting, cheating, and forgery, and provisions of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
In this case, the court dealt with the interpretation of the term “competent court” under section 2(1)(d), which defines “continuing unlawful activity,” and had to decide whether chargesheets filed in courts of different states could be taken into account for booking offenders under the MCOCA.
Speaking to thePrint, Delhi-based criminal lawyer Yash Chaturvedi said that outside of Maharashtra, MCOCA can only be invoked in Delhi, adding that this was the context for the passage of the top court’s 2017 judgment.
“To invoke MCOCA in Delhi the crime should have taken place within the territory of Delhi. In a pivotal ruling, the Supreme Court in the case of State vs. Brijesh Singh held that prosecutions under MCOCA in Delhi require clear evidence of organised crime taking place within Delhi,” he said.
Adding, “In the absence of an organised crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge sheets filed outside Delhi (Uttar Pradesh in this case as MCOCA does not apply to UP or any other state for that matter), the court held. There cannot be a prosecution under MCOCA without an organised crime being committed within Delhi or Mumbai.”
(Edited by Amrtansh Arora)
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