Abuse Of M.C.O.C.A - An Analysis
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Category: General Law
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ABUSE OF M.C.O.C.A: AN
ANALYSIS
Athith J Rai, Symbiosis Law School, Pune
ABSTRACT
The stringent and draconian laws like MCOCA give ambit power in the hands of the police administration and this has let to being abused like other draconian laws like Terrorist and Disruptive Activities Act(T.A.D.A) and Prevention of Terrorism Act(P.O.T.A), both of which are repealed in today’s date. The injustice and abuse can be seen in section 18 and section 22, starting from bail application to lack of review committees and unreasonable detention rules. Abdul Gafoor Chifa case and Madan S/o Ramkisan Gangwani v. State of Maharashtra are a few of many cases where the abuse of the act has been seen. The necessity of a such an Act is highly debated in today’s age.
INTRODUCTION
Since the times of kings and queens, it has been observed that when executive is given absolute power you are guaranteed its misuse, and history repeats itself once again through Acts like Maharashtra Control of Organised Crime Act [hereinafter “MCOCA”]. MCOCA was the first State legislation which was enacted to address organised crime in India. It is also known as the MCOCA 1999 bare act. It was introduced in the Legislative Assembly by Mr. Gopinath Munde and was passed by the Maharashtra State Legislative Assembly. Maharashtra Control of Organised Crime Act grants the State police, powers to, investigate and prosecute crime syndicates, including intercepting communications, and secret witnesses and seizing property.
MCOCA is another addition to the set of stringent and draconian laws which have a revengeful attitude, it was brought in during the underworld era in Mumbai and one can say it was a necessary evil then but the real question is it required even today. With this article I wish to explain how this act has been abused and how the act can and has set the stage for abuse of powers by the police.
Section 18 of MCOCA: Notwithstanding anything in the Indian Evidence Act, 1872 and Cr. P. C it empowers Police Officers to record Confessions of Accused persons and provides the manner and procedure in which a confession has to be recorded and forwarded, and these confessions are admissible in court1. The idea of not allowing the confessions given to the police in I. E. A is that the confession might be tainted we certainly cant rule out the possibility of the confession being obtained by threats/coercion, and the reality that the accused will be in a state of fear, anxiety and panic rendering his confession inadmissible according to I. E. A as the confession given by the accused isn’t from a free state of mind. Now let’s see the rationality of section 18, we must evaluate the atmosphere where the confession is given to the police.
The accused is transferred from the police custody to an empowered police officer, this gives the police officers unlimited power to threaten/pressurize the accused. There are high chances of nexus between the empowered officer and the investigating officer to procure a conviction and the innocent ends up getting caught in this. There are formalities such as the accused must be given 24 hours or more reflection time where no member of the investigating team can visit the accused, the empowered officer can just fulfil this as a mere formality to make the prosecutor’s case.
The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon2. But this fails to consider the possibility of metal torture by threatening or pressurizing. No review committee: misuse. There are several cases of misuse of MCOCA and, therefore, the provisions of the Review Committee as incorporated in POTA and retained by the Repealing Act pursuant to the Supreme Court's directions in Kartar Singh be incorporated in MCOCA.
Burden of proof and difficulty of getting a bail: Under section 22 of MCOCA, the Special Court is told to presume the accused guilty until he proves otherwise, so the burden of proof of proving his innocence is on the accused. Usually in criminal case the accused is innocent until proven guilty but here he is guilty until proven innocent, the prosecution proves beyond reasonable doubt that the accused is guilty in normal criminal cases but here it the accused has to prove beyond reasonable doubt that he is innocent. With such assumptions by the court it makes the possibility of procuring bail a distant dream. To add to that under section 21(5) the court wouldn’t grant bail to an accused if he is on bail in an offence under any Act. This doesn’t make sense as it doesn’t have any nexus with the objective of MCOCA, which is to prevent organized crime.
These has been many times when the Act was misused the first MCOCA case in Mumbai became an example, not of efficiency and precision, but of misuse and of the casual approach of investigating agencies that was associated earlier with TADA, and later with POTA. Farooq Abdul Gafoor Chifa, was arrested on March 13, 1999, soon after MCOCA was promulgated as an ordinance on February 24, 1999. After a month in police custody, Chifa was remanded to judicial custody where he stayed for another month before his case was brought before the court of the additional chief metropolitan magistrate K H Holambe-Patil. Under the provisions of the act (Section 23), the investigating officer, not below the rank of additional director general of police could present the prosecution's case.
While the investigating officer failed to present himself in the court, no progress in the investigation could be shown either, compelling the magistrate to reproach the police for not taking the arrest seriously. Moreover, while arrest under MCOCA was being carried out, special courts for trying offences under the act, were not yet set up by the state government. The metropolitan magistrate declared lack of jurisdiction over the case and handed Chifa back into police custody. As the case lingered it became obvious that Chifa was not a lead player in the gang he was accused of being a member, nor in the offence he was charged with. Ironically he was of no use to the police anymore, who had nothing more to extract from him, but being booked under MCOCA, Chifa could be kept in detention for 90 to 180 days. 4 Below are more examples of misuse of MCOCA: • State of Maharashtra and Ors. v.
Lalit Nagpal and Anr • Madan S/o Ramkisan Gangwani v. State of Maharashtra • Pradip Madgaonkar v. State of Maharashtra • Sherbahadur A. Khan v. State of Maharashtra • State of Maharashtra v. Bharat Baburao Gavhane In Vijay Anant Vashirde v. State of Maharashtra, 20105 it was argued that these cases are where, MCOCA was applied mali fide, the investigation agencies didn’t apply the act properly which lead to its misuse. After reading all this you can just think the ambit of power that is granted to the police through this act which is precisely the reason why it is vulnerable to be misuse. This act was the need of the hour in the 1990’s and the 2000’s, but the hour has passed and the current needs can be satisfied with the existing provisions in the I. P. C, etc. The existence of such act even today is evidence to how draconian laws can still be used even today.
REFERENCES:
4 Susan Abraham, 'The Case Against The State', The Times Of India, June 6, 1999
5 Vijay Anant Vashirde V. State Of Maharashtra, 2010 Scc Online Bom 738
Ujjwal Kumar Singh, Repeal of POTA: What about Other Draconian Acts: Economic and Political Weekly , Aug. 14-20, 2004, Vol. 39, No. 33 pp. 3677-3680 • Vijay Anant Vashirde v. State of Maharashtra, 2010 SCC OnLine Bom 738 • Jasleen Bedi, Tenuous Legality: Challenges within the Anti-Terrorism Laws in India, 4 INDIAN J.L. & LEGAL Rsch. 1 (2022). • Pooja, Human Rights under Anti-Terrorism Laws: Can Restriction of Civil Liberties for the Sake of Public Safety Be Justified or Is This Approach Unacceptable?, 3 INDIAN J.L. & LEGAL Rsch. 1 (2021) • Mrinal Satish & Aparna Chandra, Of Maternal State and Minimalist Judiciary: The Indian Supreme Court's Approach to Terror-Related Adjudication, 21 NAT'l L. Sch.
INDIA REV. 51 (2009).
• THE MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999