Why the reversal

The Bombay High Court reinstates the charges under the MCOCA against the accused in the Malegaon blast case.

in New Delhi

THE Maharashtra Control of Organised Crime Act (MCOCA) has an interesting history. Enacted in 1999, when the Shiv Sena-BJP alliance was in power in the State and the BJP-led National Democratic Alliance was ruling at the Centre, it received the President's assent on April 24 that year. The law, which was enacted keeping in view the peculiar circumstances of the State, soon became a model for other States. A few States sought to control organised crime through legislation that had provisions similar to those in the MCOCA. However, not all such laws got the Centre's approval and the President's assent because of the perceived draconian provisions in them and the threat they posed to individual liberties.

Little would the authors of the MCOCA have imagined that a decade later the law would be used to prosecute their own followers.

When Justice B. Marlapalle and Justice A.V. Mohta of the Bombay High Court reinstated the charges under the MCOCA against 11 accused in the Malegaon blast trial on July 19, they dealt with the legal history of the Act to explain why its application in this case was justified. Faced with the appeal by the State government after the trial court dropped the charges under the MCOCA against the accused in 2009, the High Court relied on the words organised crime as defined in the Act and as interpreted by the Supreme Court in other cases.

Broad definition

The MCOCA defines organised crime in broad terms. It prescribes that at least two conditions must be satisfied for an offence to be tried under it. First, there has to be continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such a syndicate. Second, the accused should have used unlawful means to gain pecuniary benefits or promote insurgency.

The Act attempts a precise definition of the phrase continuing unlawful activity, and lays down more conditions that need to be fulfilled to charge an accused under it. First, it has to be a cognisable offence punishable with imprisonment for three years or more. Second, more than one charge-sheet must have been filed before a competent court within the preceding period of 10 years and the court must have taken cognisance of such offence.

For invoking the Act against the accused, it is sufficient if the court is satisfied prima facie that there are grounds to believe that the accused satisfies these conditions.

Following the Malegaon blast on September 29, 2008, in which six persons lost their lives and 101 persons were injured, the police arrested Rakesh Dattatray Dhawade, an arms curator and an antique arms collector in Pune, on November 2, 2008. Dhawade, associated with the Abhinav Bharat group, was charged with sourcing the explosives used in the incident.

During the investigation, the police found out that Dhawade already had two cases registered against him. One was in the Nanal Peth Police Station in Parbhani district in Maharashtra in connection with a blast on November 21, 2003, in which some persons were injured. A charge-sheet was filed against him, along with other accused in the case, under the provisions of the Indian Penal Code, the Explosive Substances Act and the Arms Act all prescribing more than three years' imprisonment on November 13, 2008.

The other case was at the Sadar Bazar Police Station in Jalna district in Maharashtra in connection with a blast on August 27, 2004. A charge-sheet was filed against him in this case on November 15, 2008.

The MCOCA Special Judge, Y.D. Shinde, in his order in 2009, held that on November 20, 2008, when the police recorded the commission of offence in the Malegaon blast case, the competent courts at Parbhani and Jalna had not taken cognisance of the offences against Dhawade, and more particularly of the offence under Section 153A of the IPC (promoting enmity between different religious groups). Therefore, he reasoned that the condition of continuing unlawful activity for an offence to be charged under the MCOCA was not present. He quashed the approval granted by the police to apply the MCOCA against Dhawade and the remaining accused in the Malegaon case.

Exercising his powers under the MCOCA, Judge Shinde transferred the Malegaon case registered with the Anti-Terrorism Squad (ATS), Mumbai, to the regular court of sessions. Thus, the ATS lost an opportunity to use the strong provisions of the MCOCA against the accused during the trial.

In gross error

The High Court, in its judgment, found that Judge Shinde was in gross error in holding that cognisance was required to be taken of Dhawade's offence. Before the police registered the commission of offence at Malegaon under the MCOCA, the competent courts had passed the committal orders with reference to the offences committed in 2003 and 2004 at Parbhani and Jalna respectively. In the Parbhani case, Dhawade was named in the third supplementary charge-sheet, and in Jalna, he became the accused in the fourth supplementary charge-sheet.

The High Court held that once the cognisance was taken and the committal order was passed, it was not necessary that the court takes cognisance for the supplementary charge-sheet. The court reasoned that cognisance was taken for the offence and not for the added offenders. Through cognisance, a judge took judicial notice of the commission of an offence.

The High Court noted that Judge Shinde was overwhelmed by the fact that no approval had been obtained under Section 196 of the Code of Criminal Procedure (CrPC) for taking cognisance of the offences punishable under Sections 153A and 120B (criminal conspiracy) read with Section 34 (acts done by several persons with a common intention) of the IPC. However, that non-compliance by itself would not lead to a conclusion that for the other offences under other sections of the IPC, the court had not taken cognisance. The High Court held that Judge Shinde's order suffered from this basic flaw, by ignoring cognisance taken by the courts at Parbhani and Jalna for other offences, which are punishable by imprisonment of more than three years.

Because of the peculiar provisions of the MCOCA, it was necessary to sustain the charges against at least one of the accused in order to sustain the charge of conspiracy against the remaining accused, who might have acted on his or her behalf. Therefore, it was imperative to sustain the cognisance of previous charge-sheets filed against Dhawade, so as to prove the charge of continuing unlawful activity.

The trial now shifts to the MCOCA Special Court again, while the accused are most likely to appeal against the High Court's judgment in the Supreme Court. As the trial progresses, another key condition of offence under the MCOCA promotion of insurgency would be tested against the accused.

In a judgment on April 23 this year, a Supreme Court Bench comprising Justice Mukundakam Sharma and Justice R.V. Raveendran found the offence of organised crime under the MCOCA distinct from terrorism, which the Unlawful Activities (Prevention) Act, as amended by Parliament in 2004 and 2008, seeks to punish.

The Bench noted that although the term insurgency' defies a precise definition, it could be understood to mean and cover the breakdown of peace and tranquillity as also a grave disturbance of public order so as to endanger the security of the state and its sovereignty.