PREFACE
As explained in the statement of object and reasons, the menace of organised crime, was on the increase and there was no effective law in she Maharashtra State to effectively control the organised crimes. Mumbai being the economic capital of India, it is a targetted centre of criminals who hoard money through illegal means. In recent years criminal activities like murders of tycoons related to film industry as well by builders, extortion of money from businessmen, abduction etc. show that criminal gangs are active in the state. To cope with them- legislation in the lines of the present law was essential. Effective measures against the misuse of law have been provided in the Act itself. It is hoped that with the passing of this law, unlawful elements spreading terrorism in the society can be controlled to great extent and it will go a long way in minimizing the teeling of fear spread in the society.
STATEMENT OF OBJECTS AND REASONS
Organised crime has been for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organised crime being very huge, it has had serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and thus, there was immediate need to curb their activities.
It was also noticed that the organized criminals have been making extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice.
2. The 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. Government, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime.
It is the purpose of this act to achieve there objects.
1. PREFACE
2. Statement of object & reasons.
3. Sections
1. Short title, extent and commencement
2. Definitions.
3. Punishment for organised crime.
4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate.
5. Special Courts
6. Jurisdiction of special courts.
7. Power of special courts with respect to other offences.
8. Public prosecutor.
9. Procedure and powers of special courts.
10. Trial by special courts to have precedence.
11. Power to transfer cases to regular courts.
12. Appeal.
13. Appointment of competent Authority.
14. Authorisation of wire, electronic or oral communication.
15. Constitution of Review Committee for review of authorisation orders.
16. Interception and disclosure of wire, electronic or oral communications prohibited.
17. Special rules of evidence.
18. Certain confessions made to police officer to be taken into consideration.
19. Protection of witnesses.
20. Forfeiture and attachment of property.
21. Modified application of certain provisions of the coste.
22. Presumption as to offences under section 3.
23. Cognizance of, and investigation into, an offence.
24. Punishment for public servants failing in the discharge of their duties.
25. Overriding effect.
26. Protection of action taken in good faith.
27. Annual report of interception.
28. Power of high court to make rules.
29. Powers of State Government to makes rules.
30. Repeal of Mah. Ord. III of 1999 and saving
To make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected there will or incidental thereto.
WHEREAS it was expedient to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang and for matters connected therewith or incidental thereto;
AND WHEREAS, the Governor of Maharashtra was satisfied that Circumstances existed which rendered if necessary for him to take immediate action to make law, for the purposes aforesaid.
It is hereby enacted in the Fiftieth Year of the Republic of India as follows :
1. Short title, extend and commencement-
(1) This Act may he called the Maharashtra Control of Organised Crime Act, 1999.
(2) It extends to the whole of the State of Maharashtra.
(3) It shall be deemed to have come into force on the 24th February 1999.
2. Definitions-
(1) In this Act, unless the context otherwise requires,-
(a) "abet", with its grammatical variations and congnate expressions, includes,-
(i) 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 organised crime syndicate; (ii) the passing on or publication of, without any lawful authority, any information likely lo assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and
(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime Syndicate;
(b) "code" means the Code of Criminal Procedure, 1973;
(c) "Competent Authority" means the Competent Authority appointed under section 13;
(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 cognizance 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;
Note 1
The expression "organised" in 2 (e) is very important. It means a Crime done by a single person in a planned way, as well as, crime committed, with the help of others in an organised way. It presupposes that the criminal, before committing the crime, has obtained complete information regarding the economic as well as social status of the person against the crime of is committed.
(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; (g) "Special Court" means the Special Court constituted under section 5.
(2) Words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in the Code shall have the meanings respectively assigned to them in the code.
3. Punishment for organised crime-
(1) Whoever commits an offence of organised crime shall,
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a minimum of rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate; shall be punishable, With imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a, fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less, than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.
(5) Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs.
If any person on behalf of a member of an organised crime syndicate is, or, at any time bus been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also liable for attachment and forfeiture, as provided by section 20.
Organised criminals are undoubtedly hard core criminals. They have no derth of most modern weapons. Extorting money by spreading terrorism in society is their aim. They target elite class of society. Naturally, the money they recover is of unusual proportion. The money is not spent on just causes but to derail state economy. It is therefore, essential to provide for strictest punishment. Punishment envisaged in the Act is 3 to 10 years of imprisonment which can be extended to life imprisonment. Death penalty can also be imposed on the criminals kill any one. So also a fine of 3 to 10 lacs can also be imposed.
It will be interesting to compare the criminals under this Act with criminals under recently repealed Tada Act. Criminals under both Acts differ in attitude and approach. Criminals under Tada aim at disruptive activities. They are threat to the sovereignty of Nation. On the contrary criminals under present law are extortionist.
This law also proposes punishment to those who possess any type of property accumulated through illegal means.
(1) The State Government may, by notification in the Official Gazette, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.
(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government whose decision shall be final.
(3) A Special Court shall be presided over by a judge to be appointed by the State Government, with the concurrence of the Chief Justice of the Bombay High Court. The State Government may also appoint, with the concurrence of the Chief Justice of the Bombay High Court, additional judges to exercise jurisdiction in a Special Court-
(4)A person shall not be qualified for appointment as a judge or an additional judge of a Special Court, unless he immediately before such a appointment, is a sessions judge or an additional sessions judge.
(5) Where any additional judge is or additional judges are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order in writing, provide for the distribution of the business of the Special Court among himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judges.
6. Jurisdiction of Special Court
Notwithstanding anything contained in the Code, every offence. punishable under this Act shall, be triable only by the Special Court within whose local jurisdiction it was committed or at the case may be, by the Special Court constituted for trying such offence under subsection (1) of section 5.
7. Power of Special Court with respect to other offences.
(1) When trying any offence punishable under this Act, a Special Court may also try any other offence with which the accused may, under the Code, be charged at the same trial, if the offence is connected with such other offence.
(2) If, in the course of any trial of any offence under this Act, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may, convict, such person of such other offence and may pass any sentence authorised by this Act or, as the case may be, such other law for the punishment thereof.
8. Public Prosecutor.
(1) For every Special Court, the State Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:
Provided that, the State Government may also appoint for any case or group of cases, a Special Public Prosecutor
(2) A Person shall not be qualified to be appointed as a Public Prosecutor, an Additional Public Prosecutor or a Special Public Prosecutor unless he has been in practice as an Advocate for not less than ten years.
(3) Every person appointed as a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor, under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.
9. Procedure and powers of Special Court
(1) A Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.
(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub- section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of section 263 to 265 of the Code shall, as far as may be, apply to such trial:
Provided that, where-in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try in a summary way, the Special Court shall recall any-witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation, to a Special Court as they apply to and relation, to a Magistrate:
Provided further that, in case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding two years.
(3) A Special Court may, with a view to obtaining the evidence of any person, supposed to have been directly or indirectly concerned in or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abetter, in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tendered under section 307 thereof.
(4) Subject to other provisions of this Act, a Special Court shall; for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session.
Note 3
Criminals under this Act is Special types of criminal and it is not in the interest of society if they move around freely in society
Therefore provisions has been made in the Act for Special Court, to expediate their cases. Qualifications, experiences& Jurisdiction of these Judges can be well compared with Judges appointed under Tada act. The Act made by the state Government has not taker away the powers of the High Court. However, this Court too, when facts are brought before it, can take cognizance of the any offeree.
10. Trial by Special Courts to have precedence.
The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference of the trial of such other case and accordingly the trial of such other cases shall remain in abeyance.