In a recent decision discharging eight men accused of charges under the Maharashtra Control of Organised Crime Act, the special court (MCOCA) held that this Act’s provisions cannot be applied in a case where the chargesheet has been filed under the Unlawful Activities (Prevention) Act and directed that it be sent to a court with this jurisdiction. It was the second time in six months that the special court had taken this view, with the Bombay High Court having remitted the case back to it after the first time.
The special court, however, stayed the operation of the August 2 order for four weeks to allow the government to appeal in the high court because the order has “wider ramifications” and “would affect other cases”.
So, what are those ramifications and other cases?
On July 18, the Supreme Court acquitted 12 men convicted of the 1993 Surat blasts. They had been arrested under TADA, since lapsed, under which their confessions made in custody was admissible as evidence. The court held TADA provisions were not applicable in this case; as such, the convictions could not be sustained in the absence of evidence independent of the confessions under custody.
Two months earlier, the Supreme Court had acquitted six men — three of them on death row since 2006 and one serving a life sentence — of the 2002 Akshardham attack and indicted the Gujarat police for picking up “innocent people” and “imposing grievous charges against them” and not the “real culprits”. The police had booked them under POTA, since repealed, and produced hardly any evidence other than the confessions in custody, which the accused said were extracted under torture.
As under TADA and POTA, a confession extracted during police custody is admissible as evidence under MCOCA, too, but not under UAPA, the main law the police use in terror cases. With the other two Acts no longer enforceable, the police have only the MCOCA provisions to fall back on. The special court order, therefore, is set to impact several high-profile cases, such as the 7/11 Mumbai train blasts, which the Maharashtra police claim to have solved after invoking MCOCA.
Introduced by the state government in 1999, MCOCA is meant to fight organised crime. The court order has drawn the line between organised crime and terror. The first time A L Pansare, special judge under MCOCA, Greater Mumbai, expressed this view was on February 11 this year, when he noted that “MCOCA and UAPA stand on different footings”.
The case relates to serial blasts on Junglee Maharaj Road, Pune, on August 1, 2012. The police then invoked provisions of IPC and UAPA. With more than one chargesheet having already been filed, police invoked MCOCA citing “prior approval” and “prior sanction” from the state government. Unlike UAPA, cases cannot be filed under MCOCA, but the Maharashtra government can invoke its provisions if there is more than one chargesheet of “continuing unlawful activity” by a member of an organised crime syndicate.
In the February order, special judge Pansare referred to a Supreme Court judgment delivered in 2008, and ruled, “MCOCA does not deal with terrorist organisations & UAPA does not deal with organised gangs specifically targeted by the MCOCA… To my mind, the ‘organised crime syndicate’ and ‘terrorist organisation’ cannot run concurrently. The syndicate/gang is indulged in organised crime mainly for pecuniary or other benefits whereas terrorist organisation is indulged in striking terror or to postulate threat to unity, integrity, security and sovereignty of India.”
Discharging the accused of charges under MCOCA, judge Pansare said, “The act alleged would not attract the provisions of MCOCA but would attract the provisions of UAPA and other provisions of IPC and other Acts. It cannot be said that the serial bomb blasts that occurred at Junglee Maharaj Road would amount to an organised crime”.
The Maharashtra government appeal and on June 26, 2014, the Bombay High Court directed that “the matter is remitted back to the trial court for a decision afresh in accordance with law”. This was followed by the August 2 order.