Maharashtra Control of Organised Crime
Act, 1999
(Maharashtra Act No. 30 - of 1999)
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.
CONTENTS
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
MAHARASHTRA
CONTROL OF ORGANISED CRIME ACT, 1999
(MAHARASHTRA
ACT NO 30- OF 1999)
THE
ACT
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.
4.
Punishment for possessing unaccountable wealth on behalf of member of
organised crime syndicate.
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.
5.
Special Courts
(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.
11.
Power to transfer cases to regular Courts.
Where,
after taking cognizance of an offence, a Special Court is of the opinion
that the offence is not triable by it, it shall, notwithstanding that
it has no jurisdiction to try such offence, transfer the case for trial
of such offence to any Court having jurisdiction under the Code and
the Court to which the case is transferred may proceed with the trial
of the offence as if it had taken cognizance of the offence.
12.
Appeal.
(1)
Notwithstanding anything contained in the Code, an appeal shall lie
from any judgement, sentence or order, not being an interlocutory order,
of a Special Court to the High Court.
(2)
Every appeal under this section shall be preferred within thirty days
from the date of the judgement, sentence or order.
13.
Appointment of Competent Authority.
The
State Government may appoint any of its officer, in Home Department
not below the rank of Secretary to Government, to be the Competent Authority
for the purposes of section 14.
14.
Authorization of interception of wire, electronic or oral communication.
(1)
A Police officer not below the rank of Superintendent of Police Supervising
the investigation of an organised crime under this Act may
submit
an application in writing to the Competent Authority for an order authorising
or approving the interception of wire, electronic or oral communication
by the investigating officer when such interception may provide or has
provided evidence of any offence involving an organised crime.
(2)
Each application shall include the following information :
(a)
the indentity of the investigative or law enforcement officer making
the application, and the head of the department authorising the application
:
(b)
a statement of the facts and circumstance, relied upon by the applicant,
to justify his belief that an order should be issued, including-.
(i)
details as to the offence of organised crime that has been, is being,
or is about to be committed;
(ii)
a particular description of the nature and location of the facilities
from which or the place where the communication is to be intercepted;
(iii)
a particular description of the type of communications sought to be
intercepted; and
(iv)
the identity of the person, if known, committing the offence of organised
crime whose communications are to be intercepted;
(c)
a statement as to whether or not other modes of enquiry or intelligence
gathering have been tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too dangerous or is likely
to expose the identity of those connected with the operation of interception;
(d)
a statement of the period of time for which the interception is required
to be maintained. If, the nature of the enquiry is such that the authorization
for interception should not automatically terminate when the described
type of communication has been first obtained, a particular description
of facts establishing probable cause to be believe that additional communications
of the same type will occur thereafter;
(e)
a statement of the facts concerning all previous applications known
to the individual authorizing and making the application, made to the
Competent Authority for authorization to intercept; or for approval
of interceptions of, wire electronic or oral communications involving
any of the same persons, facilities or places specified in the application
and the action taken by the Competent Authority on each such application;
and
(f)
where the application is for the extension of an order, a statement
setting forth the results thus far obtained from the interception, or
a reasonable explanation of the failure to obtain such results.
(3)
The Competent Authority may require the applicant to furnish additional
oral or documentary evidence in support of the application.
(4)
Upon such application, the Competent Authority may after recording the
reasons in writing reject the application, or issue an order, as requested
or as modified, authorising or approving interception of wire, electronic
or oral communications, if the Competent Authority, on the basis of
the facts submitted by the applicant that-
(a)
there is a probable cause for belief that an individual is committing,
has committed, or is about to commit a particular offence described
and made punishable under section 3 and 4 of this Act;
(b)
there is a probable cause for belief that particular communications
concerning that offence will be obtained through such interception
(c)
normal modes of enquiry and, intelligence gathering have been tried
and have failed, or reasonably appear to be unlikely to succeed if tried
or to be too dangerous or is likely to expose the identity of those
connected with the operation of interception;
(d)
there is probable cause for belief that the facilities from which, or
the place where, the wire, electronic or oral communications are to
be intercepted or be used or are about to be used, in, connection with
the commission of such offence, leased to, or are listed in the name
of or commonly used by such person.
(5)
Each order by the Competent Authority authorizing or approving the interception
of any wire, electronic or oral communication under this section shall
specify-
(a)
the identity of the person, if know, whose communications are to be
intercepted;
(b)
the nature, and location of the communication facilities as to which,
or the place where, authority to intercept is granted;
(c)
a particular description of the type of communication sought to be intercepted,
and a statement of the particular offence to which it relates;
(d)
the identity of the agency authorized, to intercept, the communications,
and of the person authorizing the application; and
(e)
the period of time during which such interception is authorized, including
a statement as to whether or not the interception ;shall automatically
terminate when the described communication has been first obtained.
(6) The Competent Authority shall immediately passing the order under
sub-section (4), but in any case not later than seven days from the
passing of the order, submit a copy of the same to the Review Committee
constituted under section 15 alongwith all the relevant underlying papers;
record and his own, findings, etc; in respect of the said order, for
consideration and approval of the order by the Review Committee
(7)
An order authorizing the interception of a wire, electronic or oral
communication under this section shall, upon request of the applicant,
direct that a provider of wire or electronic communication service,
landlord, custodian or other person shall furnish to the applicant fortwith
all information, facilities, and technical assistance necessary to accomplish
the interception unobtrusively and with a minimum of interference with
the services that such service provider, landlord, custodian, or person
is providing to the person whose communications are intercepted.
(8)
An order issued under this section may authorize or approve the interception
of any wire, electronic or oral communication for any period longer
than is necessary to achieve the objective of the authorization, nor
in any event longer than sixty days. Such sixty days period shall begin-on
the day immediately preceding the day on which the investigative or
law enforcement officer first begins to conduct an interception under
the order or ten days after the order is issued, whichever is earlier.
Extension of an order may be granted, but only upon an application for
an extension is made in accordance with subsection (1) and the Competent
Authority making the findings required by sub-section (4). The period
of extension shall be no longer than the Competent Authority-deems necessary
to achieve the purposes for which it, was granted and in no event for
longer than sixty days at a time. Every order and extension, thereof
shall contain a provision that the authorization to intercept any event
shall be executed as soon as practicable and shall be conducted in such
a way or manner as to minimize the interception of communications not
otherwise subject to interception under this section and must terminate
upon attainment of the authorized, objective, or in any event on expiry
of the period of the order. In the event the intercepted communication
is in a code or foreign language, and an expert in that foreign language-or
code is nor reasonably available during the interception period, minimization
may be accomplished as soon as practicable after such interception.
An interception under this section may be conducted in whole or in part
by public servant, or by an individual operating under a contract with
the State Government, acting under the supervision of the investigative
or law enforcement officer authorized to conduct the interception.
(9)
Whenever an order authorizing interception is issued pursuant to this
section, the order may require reports to be made to the Competent Authority
who issued the order showing that progress has been made towards achievement
of the authorized objective and the need for continued interception.
Such reports shall be made at such intervals as the Competent Authority
may require.
(10)
Notwithstanding anything contained in any other provision of this section,
an Officer not below the rank of Additional Director General of Police
who reasonably determines that-
(a)
an emergency situation exists that involves.
(i)
immediate danger of death or serious physical injury to any person;
(ii)
conspiratorial activities threatening the security or interest of the
State; or
(iii)
conspiratorial activities, characteristic of organized crime, that requires
a wire, electronic or oral communication to be intercepted before an
order from the Competent Authority authorizing such interception can,
with due deligence, be obtained, and
(b)
there are grounds upon which an order could be issued under this section
to authorize such interception, may authorise, in writing, the investigating
Police Officer to intercept such wire, electronic or oral communication,
if an application for an order, approving the interception is made in
accordance with the provisions. Of sub-sections (1) and (2) within forty-eight
hours after the interception has occurred, or begins to occur.
(11)
In the absence of an order approving the interception made under sub-section
(10), such interception shall immediately terminate when the communication
sought is obtained or when the application for the order is rejected,
whichever is earlier. In the event where an application for permitting
interception is rejected under sub-section (4) or an application under
sub-section (10) for approval is rejected, or in any other case where
the interception is terminated without an order having been issued,
the contents of any wire, electronic or oral communication intercepted
shall be treated as having been obtained in violation of this section.
(12)
(a) The contents of any wire, electronic or oral communication intercepted
by any means authorized by this section shall, if possible, be recorded
on tape or wire or other comparable devise. Recording of the contents
of any wire, electronic or oral communication under this sub-section
shall be done in such a way as will protect the recording from editing
or other alterations. Immediately upon the expiration of the period
of order, or extension thereof, such recordings shall be made available
to the Competent Authority issuing such order and shall be scaled under
this directions. Custody of the recordings shall be wherever the Competent
Authority orders. They shall not be destroyed except upon an order of
the Competent Authority and in any event shall be kept for ten years.
(b)
Applications made and orders issued under this section shall be sealed
by the Competent Authority. Custody of the applications and orders shall
be wherever the Competent Authority directs, and shall not be destroyed
except on an order of the Competent Authority, and in any event shall
be kept for ten years.
The
Competent Authority upon the filing of a motion, may in his discretion
make available to such person or his counsel for inspection such portions
of the intercepted communications, applications and orders as the Competent
Authority determines to be in the interest of justice.
(13)
Notwithstanding anything in the Code or in any other law for the time
being in force, the evidence collected through the interception of wire,
electronic or oral communication under this section shall be admissible
as evidence against the accused in the Court during the trial of a case.
Provided
that, the contents of any wire, electronic or oral communication intercepted
pursuant to this section or evidence derived there from shall not be
received in evidence or otherwise disclosed in any trial, hearing or
other proceeding in any court unless each party, not less than ten days
before trial, hearing or proceeding, has been furnished with a copy
of the order of the Competent Authority, and accompanying application,
under which the interception was authorised or approved :
Provided
further that, this ten days period may be waived by the judge, trying
the matter, if he finds that it was not possible to furnish the party
with the above information ten days before the trial, hearing or proceeding
and that the party will not be prejudiced by the delay in receiving
such information.
Explanation.--For
the purposes of this section—
(a)
'write communication" means any aural transfer made in whole
or
part through the use of facilities for the transmission of communications
by the aid of wire, cable or other like connection between (he point
of origin and the point of connection, between the point of origin and
(he point of reception (including the use of such connection in switching
station) and such term includes any electronic storage of such communication;
(b)
‘oral communication’ means any oral communication uttered by a person
exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation but such
terms does not include any electronic communication;
(c)
"electronic communication' means any transfer of signs, 'signals,' writings,
images, sounds, data or intelligence of any nature transmitted in whole
or in part by a wire, radio, electromagnetic, photo electronic or photo
optical system that affects inland or foreign commerce but does not
include—
(i)
The radio portion of a cordless telephone communication-that is transmitted
between the wireless telephone hand-set and the base unit;
(ii)
any wire or oral communication;
(iii)
any communication made through a tone only paging device; or
(iv)
any communication from a tracking device;
(d)
‘intercept’ means the aural or other acquisition of the contents by
wire, electronic or oral communication through the use of any electronic,
mechanical or other device.
15.
Constitution of Review Committee for review of authorisation orders.
(1)
There shall be a Review Committee to review every order passed by the
Competent Authority under section 14.
(2)
The Review Committee shall consist of the following ex officio members
namely ;
(i)
the Chief Secretary to Government, Chairman.
(ii)
the additional Chief Secretary or the senior most Principal Secretary
as the case may be, in the Home Department…Member.
(iii)
Principal Secretary or Secretary and Remembrancer of Legal Affairs,
Law and Judiciary Department…Member.
(3)
Every order passed by the Competent Authority under section 14. placed
before the Review Committee, shall be considered by the
Review
Committee within ten days after its receipt, to decide whether the order,
authorising or approving the application under subsection (4) of section
14, for interception or disapproving the interception made under sub-section
(10) of that section in emergency situation, passed by the Competent
Authority was necessary, reasonable and justified.
(4)
The Review Committee, after examining the entire record and holding
such enquiry, if any, deemed necessary may, by order in writing. either
approve the order passed by the Competent Authority or may issue order
disapproving by the same. On issue of an order of disapproval by the
Review Committee, the interception, if any, already commenced shall
be fortwith discontinued. The intercepted communication, if any, in
the form of tape, wire or other device shall, thereupon, not be admissible
as evidence in any case and shall be directed to be destroyed.
16.
Interception and disclosure of wire, electronic or oral communications
prohibited.
Except
as otherwise specifically provided in section 14, any police officer
who—
(a)
intentionally intercepts, endeavours to intercept, or procures any other
person to intercept or endeavour to intercept any wire, electronic or
oral communication;
(b)
intentionally uses; endeavours to use, Or procures any other person
to use or endeavours to use any electronic, mechanical or other device
to intercept any oral communication when-
(i)
such device is affixed to, or otherwise transmits a signal through a
wire, cable, or other like connection used in wire communication; or
(ii)
such device transmits communications by radio, or interferes with the
transmission of such communication;
(c)
intentionally discloses, or endeavours to disclose, to any other person
the contents of any wire, electronic or oral communication, knowing
or having reason to know that the information was obtained through the
interception of a wire, electronic or oral communication in violation
of this sub-section;
(d)
intentionally uses, or endeavours to use, the contents of any wire,
electronic or oral communication, knowing or having reason to know that
the information was obtained through the interception of a wire, electronic
or oral communication in violation of this subsection; or
(e)
(i) intentionally discloses, or endeavours to disclose, to any other
person the contents of any wire, electronic or oral communication, intercepted
by means authorized by section 14;
(ii)
knowing or having reason to know that the information was obtained through
the interception of such a communication in connection with a criminal
investigation under this Act;
(iii)
having obtained or received the information in connection with a criminal
investigation; and
(iv)
with intent to improperly obstruct, impede, or interfere with a duly
authorised criminal investigation; or
(f)
intentionally continues the interception of wire, electronic or oral
communication after the issue of an order of disapproval by the Review
Committee under sub-section (4) of section 15, shall for such violation
be punishable with imprisonment for a term which may extend to one year
and with fine upto rupees fifty thousand.
17.
Special Rules of evidence.
(1)
Notwithstanding anything to the contrary contained in the Code, or the
Indian Evidence Act, 1872, for the purpose of trial and punishment for
offences under this Act or connected offences, the Court may take into
consideration as having probative value, the fact that the accused was,--
(a)
on any previous occasion bound under section 107 or section 110 of the
Code;
(b)
detained under any law relating to preventive detention; or
(c)
on any previous occasion was prosecuted in the Special Court under this
Act.
(2)
Where it is proved that any person involved in an organised crime or
any person on his behalf is or has at any time been in possession of
movable or immovable property which he cannot satisfactorily account
for, the Special Court shall, unless contrary is proved, presume that
such property or pecuniary resources have been acquired or derived by
his illegal activities.
(3)
Where it is proved that the accused has kidnapped or abducted any person,
the Special Court shall presume that it was for ransom.
18.
Certain confessions made to police officer to be taken into consideration.
(1)
Notwithstanding anything in the Code or in the Indian Evidence Act 1872,
but subject to the provisions of this section, a confession made by
a person before a police officer not below the rank of the Superintendent
of Police and recorded by such police officer either in writing or on
any mechanical devices like cassettes, tapes or sound tracks from which
sounds or images can be reproduced, shall be admissible in the trial
of such person or co-accused, abettor or conspirator:
Provided
that, the co-accused, abettor or conspirator is charged and tried in
the same case together with the accused.
(2)
The confession shall be recorded in a free atmosphere in the same language
in which the person is examined and as narrated by him.
(3)
The Police Officer shall, before recording any confession under sub-section
(1), explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence against
him and such police officer shall not record any such confession unless
upon questioning the person making it, he is satisfied that it is being
made voluntarily. The concerned police officer shall, after recording
such voluntary confession, certify in writing below the confession about
his personal satisfaction of the voluntary character of such confession,
putting the dace and time of the same.
(4)
Every confession recorded under sub-section (1) shall be sent forthwith
to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate
having jurisdiction over the area in which such confession has been
recorded and such Magistrate shall forward the recorded confession so
receive to the Special Court which may take cognizance of the offence.
(5)
The person from whom a confession has been recorded under sub-section
(I) shall also be produced before the Chief Metropolitan Magistrate
or the Chief Judicial Magistrate to whom the confession is required
to be sent under sub-section (4) alongwith the original statement of
confession, written or recorded on mechanical device without unreasonable
delay.
(6)
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 Surgeon.
Note
4
These
are most important provisions in this Act. Though the bowers have been
granted to police to intercept the messages by various methods, the
Government has retained with it ultimate reviewing bowers. Against the
unnecessary harassment of innocent persons, it is made essential in
every case to obtain orders from the competent authority. Further, a
committee to review every order bassed by the competent authority has
been provided. It is a precaution carefully provided by the lawmakers
to have check at every stage, against the misuse of law. Because, interception
of messages is multi-faceted weapon and any possibility that at same
stage it can be misused can not be ignored. Therefore it is essential
to have control over the machinery who are allowed by law to use these
methods to obtain information.
19.
Protection of Witness,
(1)
Notwithstanding anything contained in the Code, the proceeding under
this Act may be held in Camera, if the Special Court so desires;:
(2)
A Special Court may, on an application made by a witness in any proceeding
before it or by the Public Prosecutor in relation to such witness or
on its own motion, take such measures as it deems fit for keeping the
identity and address of any witness secret.
(3)
In particular, and without prejudice to the generality of the provisions
of sub-section (2), the measures which a Special Court may take under
that sub-section may include,-- (a) the holding of the proceedings at
a place to be decided by the Special Court;
(b)
the avoiding of the mention of the names and addresses of the witnesses
in its orders or judgements or in any records of, the case accessible
to public.
(c)
the issuing of any directions for securing that the identity and addresses
of the witnesses are not disclosed;
(d)
that, it is in the public interest to order that all or any of the proceeding
pending before such a Court shall not be published in any manner. (4)
Any person who contravenes any direction issued under subsection (3)
shall be punishable with imprisonment for a term which may extend to
one year and with fine which may extend to one thousand rupees.
20.
Forfeiture and attachment of property.
(l)
Where a person has been convicted of any offence punishable under, this
Act, the Special Court may, in addition to awarding any punishment,
by order in writing, declare that any property, movable or immovable
or both, belonging to the accused and specified in the order, shall
stand forfeited to the State Government, free from all encumbrances.
(2)
Where any person is accused of any offence under this Act, it shall
be open to the Special Court trying him, to pass on order that all or
any properties, movable or immovable or both belonging to him, shall,
during the period of such trial, be attached, and where such trial ends
in conviction, the properties so attached shall stand forfeited to the
State Government free from all encumbrances.
(3)(a)
If, upon a report in writing made by an investigating police officer
with the approval of the supervisory officer referred to in subsection
(1) of section 14, any Special Court has reason to believe that any
person, who has committed an offence punishable under this Act has absconded
or is concealing himself so that he may not be apprehended, such Court
may, notwithstanding anything contained in section 82 of the Code, publish
a written proclamation requiring him to appear at a specified place
and at a specified time not less than fifteen days but not more than
thirty days from the publication of such proclamation.
Provided
that, if the investigating police officer concerned fails to arrest
the accused, who has absconded or is concealing himself, within a period
of three months from the date of registering the offence against such
person, the officer shall, on the expiry of the said period, make a
report to the Special Court for issuing the proclamation.
(b)
The Special Court issuing a proclamation under clause (a) may, at any
time, order the attachment of any property, movable or immovable or
both; belonging to the proclaimed person, and thereupon the provisions
of sections 83 to 85 of the Code shall apply to such attachment as if
such attachment were made under that Code.
(c)
If, within six months from the date of attachment, any person, whose
property is, or has been, at the disposal of the State Government under
sub-section (2) of section 85 of the Code, appears voluntarily or is
apprehended and brought before the Special Court by whose order the
property was attached, or the Court to which such Court is subordinate,
and proves to the satisfaction of such Court that he did not abscond-or
conceal himself for the purpose of avoiding apprehension and that he
had not received such notice of the proclamation as to enable him to
attend within the specified time therein, such property or, if the same
has been sold, the net proceeds of the same and the residue of the property,
shall, after satisfying therefore all costs incurred in consequence
of the attachment, be delivered to him.
Note
5
Provisions
in these sections are of general nature. Persons supplying information
or procuring evidence against the offender might be in danger to his
life. It is the duty of law to provide them protection. It is equally
essential to observe secrecy about the evidence of these witnesses.
For this are will have to be taken that their identity is not disclosed.
Provision to this effect has been made in section 19. Provision is also
made in section 20 to attach the properly of absconding offender.
21.
Modified application of certain provisions of the code.
(1)
Notwithstanding anything contained in the Code or in any other law,
every offence punishable under this Act, shall be deemed to be a cognizable
offence within the meaning of clause (c) of section 2 of the Code and
"cognizable case" as defined in that clause shall be construed accordingly.
(2)
Section 167 of the Code shall apply in relation to a case involving
an offence punishable under this Act subject to the modifications that,
in sub-section(2),--
(a)
the reference to "'fifteen days", and "sixty days" wherever
they occur, shall be construed as references to "thirty days" and "ninety
days" respectively;
(b)
after the proviso, the following proviso shall be inserted, namely :-
"Provided
further that if it is not possible to complete the investigation within
the said period of ninety days, the Special Court shall extend the said
period upto one hundred and eighty days, on the report of the Public
Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of ninety
days"
(3)
Nothing in section 438 of the Code shall apply in relation to any case
involving the arrest of any person on an accusation of having committed
an offence punishable under this Act.
(4)
Notwithstanding anything contained in the Code, no person accused of
an offence punishable under this Act shall, if in custody, be released
on bail or on his own bond, unless-
(a)
the Public Prosecutor has been given an opportunity to oppose the application
of such release; and
(b)
where the Public Prosecutor opposes the application, the Court is satisfied
that there are reasonable grounds for believing that he is not guilty
of such offence and that lie is not likely to commit any offence while
on bail.
(5)
Notwithstanding anything contained in the Code, the accused shall not
be granted bail if it is noticed by the Court that he was on bail in
an offence under this Act, or under any other Act, on the date of the
offence in question.
(6)
The limitations on granting of bail specified in sub-section (4) are
in addition to the limitations under the Code or any other law for the
time being in force on the granting of bail.
(7)
The police officer seeking the custody of any person for pre- indictment
or pre-trial interrogation from the judicial custody shall file a written
statement explaining the reason for seeking such, custody and also for
the delay, if any in seeking the police custody.
22.
Presumption as to offences under section 3.
(1)
In a prosecution for an offence of organised crime punishable under
section 3, if it is proved—
(a)
that unlawful arms and other material including documents or papers
were recovered from the possession of the accused and there is reasons
to believe that such unlawful arms and other material including documents
or papers were in the commission of such offence; or
(b)
that by the evidence of an expert, the finger prints of the accused
were found at the site of the offence or on anything including unlawful
arms and other material including documents or papers and vehicle used
in connection with the commission of such offence, the Special Court
shall presume, unless the contrary is proved, that the accused had committed
such offence.
(2)
In a prosecution for an offence of organised crime punishable under
sub-section (2) of section 3, if it is proved that the accused rendered
any financial assistance to a person accused of, or reasonably suspected
of, an offence of organised crime, the Special Court shall presume,
unless the contrary is-proved, that such person has committed the offence
under the said sub-section (2).
23.
Cognizance of, and investigation into, an offence.
(1)
Notwithstanding anything contained in the Code
(a)
no information about the commission of an offence of organised crime
under this Act, shall be recorded by a police officer without the prior
approval of the police officer not below the rank of the Deputy Inspector
General of Police;
(b)
no investigation of an offence under the provisions of this Act shall
be carried our by a police officer below the rank of the Deputy Superintendent
of Police.
(2)
NO Special Court shall take cognizance of any offence under this Act
without the precious, sanction of the police officer not below the rank
of Additional Director General of Police.
24.
Punishment for public servants failing in the discharge of their duties.
Whoever
being a public servant renders any help or support in any manner in
the commission of organised crime as defined in clause (e) of section
2, whether before or after the commission of any offence by a member
of an organised crime syndicate or abstains from taking lawful measures
under this Act or intentionally avoids to carry out the directions of
any Court or of the superior police officers in this respect, shall
be punished with imprisonment of either description for a term which
may extend to three years and also with fine.
25.
Overriding effect.
The
provisions of this Act or any rule made there under or any order made
under any such rule shall, have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or
in any instrument having the force of law.
26.
Protection of action taken in good faith.
No
Suit, prosecution or other legal proceeding shall lie against the State
Government or any officer or authority of the State Government for anything
which is in good faith done or intended to be done in pursuance of this
Act or any rule made there under or any order issued .under any such
rule.
27.
Annual Report of Interceptions.
(1)
The State Government shall cause an annual report to be prepared giving
a full account of,
(i)
the number of applications for authorisation of interceptions received
by the Competent Authority from the Police Department in which; prosecutions
have been launched;
(ii)
the number of such applications permitted or rejected;
(iii)
the number of interceptions carried out in emergency situations and
the number of ex-post-facto authorisations or approvals granted or rejected
in such matters; (iv) the number of prosecutions launched based on such
interceptions and, convictions resulting from such interceptions, alongwith
an explanatory memorandum giving general assessment of the utility and
importance of the interceptions authorised.
(2)
Such annual report shall be laid by the State Government before each
House of the State Legislature within three months of the completion
of every calendar year:
Provided
that, if the State Government is of the opinion that the inclusion of
any matter in the annual report would be prejudicial to the security
of the State, or to the prevention or detection of any organised crime,:
the State Government may exclude such matter from being included in
such annual report.
28.
Power of High Court to make rules.
The
High Court may, by notification in the Official Gazette, make such rules
as it may deem necessary for carrying out the provisions of, this. Act
relating to the Special Courts.
29.
Power of State Government to make rules.
(1)
Without prejudice to the powers of the High Court to make rules under
section 28, the State Government may, by notification in the Official
Gazette, make rules for carrying out the purpose of this Act.
(2)
Every rule made under this Act shall be laid, as soon as may be after
it is made, before each House of the State Legislature, while it is
in session, for a total period of thirty days which may be comprised
in one session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any modification in
the rule or both Houses agree that the rule should not be made, and
notify such decision in the Official Gazette, the rule shall, from the
date of publication of such notification have effect only in such modified
form or be of no effect, as the case may be, so however, that any such
modification or annulment shall be without prejudice to the validity
of anything previously done under that rule.
Note
6
Law-makers
have gone into several minute things before enacting the present law.
As [here are provisions against any misuse of this Act against innocent
persons, there are also stricter provisions against bail being granted
to any hard-care criminal on any flimsy ground. Before granting bail
the special court will take into account many factors, such as-
1)
The opportunity must be given to the public prosecutor to oppose the
bail;
2)
The court first must ensure that the accused, if released on bail shall
not indulge in my unlawful activity; and
3)
The most important factor is that the court must be satisfied that the
accused who was arrested for crime under this act, was not on bail for
any other crime under this or any other act, when the crime under inquiry
was committed.
Section
27 has made it compulsory to submit detailed annual report on interceptions
of messages, to both the houses of legislature secret matters have been
allowed to be dropped from such report.
Sections
28 and 29 empower the high Court and the Government to make necessary
rules under this Act.
30.
Repeal of Mali. Ord. III of 1999 and saving
(1)
The Maharashtra Control of Organised Crime Ordinance 1999 is hereby
repealed.
(2)
Notwithstanding such repeal anything done or any action taken under
the said Ordinance shall be deemed to have been done or taken, as the
case may be, under the corresponding provisions of this Act.
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