What is the Maharashtra Control of Organised Crime Act under which diamond merchant and film financier Bharat Shah was arrested on Monday? Wellknown lawyer Shrikant Bhat provides a ready reckoner.

Tukaram, as we shall call him, was an 18-year-old member of a criminal gang in Ghatkopar, northeast Bombay. He broke away from the gang and was suspected to have tipped the police off about the activities of some gang members.

One morning, five of his former colleagues broke his door open, killed him in the presence of his parents, brother and sister. The parents knew each killer by name. When the parents came to give evidence during the trial at the session court in Bombay, they said on oath that they did not know any of the accused and that their son's assailants were not present in court!

Three years ago, the accused in the murder of legislator Ramdas Nayak was being tried at the session court in Bombay. Nayak's driver was a key witness. He was so terrorised that he fainted in court. He was too afraid to speak, let alone identify anyone. At the same time, in a court nearby, while Principal Judge A S Aguiar was conducting an inquiry into police encounters, a lawyer was waxing on the human rights of the accused!

Who is a criminal?

Not one out of Bombay's 15 million citizens will have the courage to depose in a trial against any criminal. Who is a criminal? A criminal is a person who lives on crime. Every criminal is an offender, but every offender is not a criminal. A college student may get drunk and kill a man by rash driving on Marine Drive. He is an offender, but not a criminal. As against this, those who murder for living, those who commit dacoities because it is their profession, are criminals.

Crimes of extortion, kidnapping, getting flats vacated by force, driving out tenants, settling disputes amongst merchants, etc have become the staple food of organised criminal gangs operating within India and outside India. In the 1990s, no one could perform a marriage on a lavish scale in Bombay without paying protection money to the extortionists operating from Dubai. Bollywood actors and actresses, who fought criminals on screen, meekly yielded to the telephone calls which fixed their price, assigned them roles, enacting in real life what we had seen in The Godfather.

Why Maharashtra Control of Organised Crime Act?

The need for a law to try gangsters was undeniable. TADA was against terrorists. Since organised crime is also a form of terrorism, the Maharashtra Control of Organised Crime Act was drafted. It came into force on February 24, 1999. The MCOC is a variation of TADA.

The object of TADA was to curb terrorist activity against the State; the object of MCOC is to rid society of the menace of organised crime. MCOC has the same set of claws as TADA!

Giving reasons for such a drastic law, the preamble to MCOC says:

Statement and Object:

Organised crime has 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 killings, extortion, smuggling in contraband, 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 is very huge and has serious adverse effect on our economy. It is seen that the organised criminal syndicates make a common cause with terrorist gangs and foster narcoterrorism which extend beyond the national boundaries. There is reason to believe that organised criminal gangs are operating in the state and thus, there is immediate need to curb their activities.

It is also noticed that the organised criminals make 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 is an indispensable aid to law enforcement and the administration of justice.

The existing legal framework, ie the penal and procedural laws and the adjudicatory system, are found to be rather inadequate to curb or control the menace of organised crime. Government has, 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 organised crime.

What is sought to be punished under MCOC?

MCOC (Section 3) seeks to punish the following:

i. Committing offence of organised crime which result in death. Punishment is death itself or imprisonment for life or a fine.

ii. Aiding or abetting or knowingly facilitating the commission of organised crime or any act preparatory to organised crime. Punishment: Imprisonment for life or fine; minimum imprisonment of five years.

iii. Harbouring or concealing any member of organised crime. Minimum punishment of five years and maximum imprisonment for life.

(Note: Contrary to popular impression, the sentence of imprisonment for life is not for 14 years, but for the criminal's entire life. In simple words, a man convicted to life imprisonment shall enter prison vertically, but come out horizontally!)

iv. Being a member of organised crime. Minimum punishment of five years and maximum imprisonment for life.

v. Holding any property derived or obtained from commission of organised crime. Punishment: Minimum three years and maximum life imprisonment.

vi. Property in possession on behalf of member of organised crime. Punishment: Minimum three years, maximum ten years and also minimum fine of Rs 100,000. Such property shall be liable for attachment and forfeiture, as provided by Section 20.

Telephone taping

The MCOC also authorises the police to tap telephones or any electronic communication. Tape-recorded evidence has always been admissible. The MCOC contains elaborate provisions (Sections 14, 15, 16, 27) to prevent unwarranted invasions of privacy.

Confessions to the Police

Normally under the Indian Evidence Act, confessions to the police by the accused are not admissible against the accused. But the MCOC makes an exception. If the confessions are voluntary and if they are made before a police officer not below the rank of superintendent of police (equivalent to deputy commissioner of police in cities), the confessions are admissible, not only against the accused giving the confession but also against the other accused in the same case (Section 18, MCOC).

In order to protect witnesses being threatened or contacted, the MCOC provides for their names and addresses to be kept secret and not given to the accused before or during trial (Section 19, MCOC).

But one of the definitions of abetment enhances danger of abuse of the MCOC and that is the wording of Section 2(1)(a)(iii) which defines abetment: 'Rendering of any assistance, whether financial or otherwise, to the organised crime syndicate.'

If a doctor renders medical help, he may come within the ambit of this definition of abetment of organised crime. Therefore, it is necessary to understand the definition of abetment in its proper context, namely, the rendering of such assistance must be with respect to an offence or criminal activity.

A lawyer may also render legal assistance to an accused gangster in court. A jailer will have to provide food to the accused. This cannot make the jailer and the lawyer responsible for abetment. But under TADA, a number of innocent people were arrested for abetment. This can and is possibly happening under MCOC.

What happens when the accused acts under threats from gangsters?

If a film producer/director is asked by a dreaded gangster to take a particular actress for a particular role, what does he do? If he refuses, how long will the police protect him, if at all? If a man is asked to collect money on a gangster's behalf, will he have the courage to refuse? Not only will this endanger his life, the gangster is capable of kidnapping his children.

In the JJ Hospital case, under TADA decided by the special court in Bombay in 1999, a gangster injured when the police shot him was brought to a doctor at Baroda. The other gangster, carrying a revolver, accompanied his injured friend. What choice did the Baroda doctor have? The threat may not be direct. The very action itself is menacing and any average white-collared citizen of India would today immediately yield to the demands of a gangster than face the consequences.

Neither TADA nor MCOC envisages and provides for a situation where action which may be technically speaking under MCOC, are committed under duress of this kind.

Undoubtedly, now is the time to amend such laws, to provide for actions under duress so that the victims of gangsters are not brought at par with the gangsters.

Bail and Anticipatory Bail under MCOC

MCOC Section 21(3) specifies that anticipatory bail is not available to anyone accused of having committed an offence under MCOC. By definition, anticipatory bail is granted before the person is arrested. Unfortunately, if a person is arrested under MCOC, getting regular post-arrest bail is made difficult by the phraseology of Section 21(4)(b).

The court can grant bail to an accused only if 'the court is satisfied that there are no reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.'

The stages of criminal law must be seen clearly to understand how difficult it would be for an accused to get bail.

First the offence, then investigation. After the material against the accused is collected by way of statements, etc, compilation of this is given to the accused. This is called the charge-sheet. After the charge-sheet, the charges are framed by the court. Witnesses are examined and cross-examined and then the judgment is given.

Without cross-examination of the witnesses, how can the accused at the stage of investigation or before trial, ever show that he is innocent? How can any court come to a conclusion at the stage of investigation that the accused is not guilty of the offence? Guilt or innocence has to be established at the time of trial.

Citizens must realise that at the stage of bail, there is no provision which will enable the accused to cross-examine any witness. Judges take police statements as the gospel truth at the stage of bail. This makes the task of innocent accused very difficult and it is quite likely that the innocent may perish in police custody before the court finds him not guilty.

Undoubtedly, TADA was abused. Equally, MCOC is capable of being abused. Whether it is being abused in Bharat Shah's case or not will naturally depend on the facts and circumstances of the case.

The author has not had occasion to see the police papers regarding Bharat Shah's case. This discussion is only to give readers an idea about the basics of law and the plight of the accused. Whether the law is necessary, whether draconian or not, will be decided by each reader in light of his own experience.

Any law is as good or as bad as the legal ethos in which the laws are implemented. In other words, it would depend upon the views, the integrity and performance of police officers, lawyers and judges.

It was Benjamin Cardozo, a former chief justice of America who uttered the profoundest wisdom on this subject. Said he: 'In the ultimate analysis, the personality of the judge is the only guarantee of justice.'

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