By A. Mirsab, TwoCircles.net
Maharashtra Control of Organized Crime Act 1999 (MCOCA) was enacted by the State of Maharashtra in 1999 when BJP/Shiv Seva was in power at Maharashtra and NDA at the centre. This is a stringent act which does not allow bail for the accused person unless prosecution agency do not object or at the first look case is not made out against accused. It is also stringent because one of the sections of it makes statement given by accused person before competent police officer as evidence before court and can alone be sufficient for conviction.
In one of the appeal before Bombay High Court (Vijay Washirde Vs State of Maharashtra), the division bench of justices Ranjana Desai and Mridula Bhatkar had said, “…The possibility of its misuse (of MCOCA) despite the inbuilt provisions of approval and sanction cannot be ruled out,” the court had said, adding that similar provisions (where a senior police officer’s sanction is needed to apply the law) was there in TADA too, yet the Supreme Court felt the need to provide for a review committee”.
Anti Terrorism Squad (ATS) which was formed by Maharashtra government in 2004 is continuing to apply this stringent Act against almost every terror case in the state. Although there is a central law Unlawful Activities Prevention Act (UAPA) which is enacted specifically to deal with the terror activities across the country. Regardless of extensive use of MCOCA by state ATS in terror cases, ATS has not succeeded in convicting any accused person under this stringent Act in last 10 years.
On the contrary Delhi Police Special Cell never applied MCOCA charges in any of the terror cases registered in Delhi but tried all terror accused persons under UAP Act, although MCOC Act has also been extended to the boundaries of Delhi to curtail organized crime activities.
In the year 2006, state ATS applied MCOC Act as well as sections of UAP Act in Mumbai train blasts, Aurangabad Arms haul and Malegaon 2006 blast cases. The accused persons in these cases preferred to challenge the constitutional validity of simultaneously applying state (i.e. MCOCA) as well as central law (i.e. UAP Act) in an offence which is allegedly against the country i.e. waging war against the nation. This technical issue was the brain of martyred Adv. Shahid Azmi. The said petition before Supreme Court was based on the grounds:
“the Maharashtra State legislature did not have legislative competence to enact provisions of MCOCA”
And
“the part of section of MCOCA, so far as it covers case of ‘insurgency’, is repugnant and has become void by the enactment of UAP Act”
This petition was dismissed in April 2010 by the Supreme Court stating that it is in the legislative competence of the State of Maharashtra to enact provisions of MCOCA in a terror related cases. But the apex court cautioned that MCOCA cannot be attracted in the ‘insurgency’ cases but can be attracted in the cases whose motive is ‘promoting insurgency’.
Boosted with this ruling the state ATS applied MCOCA in Indian Mujahideen 2008 threatening email cases, 13/7 Mumbai blasts case and JM road Pune 2012 blasts case.
It is only recently that the Jamiat senior advocate Mahmood Paracha challenged the applicability of MCOCA in JM road Pune 2012 blasts case before the MCOCA special court in Mumbai and that the special court on 11th February 2014 dismissed MCOCA charges from the case holding that MCOCA charges cannot be attracted in terror cases which are categorized only as ‘insurgency’ and not as ‘promoting insurgency’.
The interesting fact is that the special MCOCA court based its ruling upon the above said SC judgment which dismissed the petition of accused persons of Mumbai train blasts case. The special court said that the Supreme Court had upheld the constitutional validity of MCOCA but had clearly stated that MCOCA can be used only to punish those offences which ‘promote insurgency’ and not for the ‘insurgency’ offences and thereby said that the present case of prosecution is of ‘insurgency’ and not of ‘promoting insurgency’.
The special Judge A.L. Pansare said in the order, “The act alleged is admittedly a terrorist act which may also be called an act of insurgency but by no stretch of imagination can it be called an act of promoting insurgency”.
The court continued “In any case it is held by the Hon’ble Supreme Court that insurgency per se is not punishable under MCOC Act”.
The court also said,”…if the crime alleged in the present case is examined, it is not the case of prosecution that the organization named “Indian Mujahideen” has ever acted as organized crime syndicate or has ever indulged in the organized crime for gaining pecuniary benefits or gaining undue economic or other advantages, particularly in terms of the object of MCOC Act.”
The special judge A.L.Pansare did not dismissed MCOCA charges from JM Road Pune 2012 blast case alone but while hearing bail application of Mansoor Peerbhoy, an accused in Indian Mujahideen threatening email case of 2008, said that MCOCA will not apply in any of the terror cases running in his court.
Fearing the wider implication of the above order of dismissing MCOCA charges the prosecution agency immediately challenged this order before Bombay High Court and got the operation of this order stayed. The Bombay High Court has admitted the state appeal and has kept the matter for hearing on 7th April.
Meanwhile the special judge A.L.Pansare has kept all terror related trial proceedings on hold till the Bombay high court decides the matter and has shown confidence before the defense lawyers that his order will be uphold there too.