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High court widens scope of MCOCA
August, 06th 2011

The Bombay high court has widened the scope of the applicability of the stringent Maharashtra Control of Organized Crime Act. (MCOCA) State law meant to curb organized crimes.

A full bench of three judges on Friday accepted the state government's stand that the definition of "organized crime" includes acts that lead to advantages other than only pecuniary benefits to underworld gangs and their members.

The judgment will thus enable police to invoke MCOCA even when crime syndicates have benefitted in ways that do not involve only economic gains.

However, the high court gave leave for its judgment to be appealed against before the Supreme Court. This e issue will now land before the apex court before being implemented.

The issue before the HC was the meaning of the words "other advantage" in the definition of the term "organized crime" under the Act. The HC judgment is crucial as "organized crime" under MCOCA is described as "continuous illegal acts by an organized crime syndicate caused out of fear and to derive pecuniary or monetary advantage and other advantage".

A bench comprising Chief Justice Mohit Shah and Justices B R Gavai and Roshan Dalvi was deciding a reference made to it and held that the words "other advantage" cannot be Ejusdem Generis (Latin for "of the same kind") with "pecuniary benefit" and "undue economic advantage". A division bench of the HC had referred the issue to the larger bench after the state appealed against a MCOCA trail court's order. The trial court, which was hearing the murder case of a city lawyer, had that the MCOCA charges will not apply as there was no monetary benefit behind the crime.

The legal principle is used to interpret loosely written statutes.

The state government, through its special counsel Amit Desai, argued that "other advantage" had to mean more than just monetary benefits as criminal acts could also be committed by crime syndicates "supremacy" or to earn acquittal in a trial. But defence lawyers Aabad Ponda and S R Chitnis, among others, argued that the law was meant only to curb organized crime committed for financial gains. Ponda argued that the meaning of the words had to be "restricted" to the colour of the preceding words-"monetary and pecuniary". The meaning had to be read in the same context, he said, as otherwise it could lead to a worrying trend of police invoking the "draconian law" for petty and minor acts such as when a person uses a member of an underworld gang to get the last good ticket for a cricket match in Mumbai where the only advantage would be from enjoying the match.

But allaying all fears, the HC judgment said the MCOCA has "in-built safeguards" against its misuse under Section 23 of the Act. The Act, said the bench, bans special courts from taking congnizance of any offence under the Act if the complaint is filed without prior sanction of the additional director-general of police. It also requires a deputy inspector-general to give prior permission to record any complaint, said the bench.

The HC, thus, observed that it was clear that unless the "high-ranking" officers are "prima facie satisfied" about invoking MCOCA, it cannot be invoked. The HC also "cautioned police officers and designated courts from misusing MCOCA" and directed them to "enforce it effectively" within the meaning of the "legislative intent." And the HC said the legislative intent clearly was to curb organised crime.

Disagreeing with the petitioners, the HC said "it is difficult to accept that if wider meaning is given to provisions of section 2(e) of MCOCAit would be invoked for petty offences".

The HC gave examples of how its interpretation of the "organised crime" would not mean that MCOCA is slapped in regular crime cases. For instance it said, "A property disupte between two brothers in which a deadly weapon is used woruld not attract MCOCA' and no woruld it mean that a fight over tap water would. But when a "polician is killed at the behest of another politician by using the underworld, it could mean that the gang is doing it to gain political patronage from the one who one who sought the killing" and also "if a leader of one gang shot dead the head of another syndicate it could be for gang supremacy" and would fit under MCOCA. Even when a trial witness is killed or one gang member may kill another to promote his own interest and thus attract the stringent law which doesnot allow bail easily and attracts death sentence.

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