The State's Approach: The Special Criminal Statute

Take the two together and the design of Chapter II appears. Section 3 declares the association unlawful, section 7 freezes its money and section 8 notifies the places it uses; sections 10, 11 and 12 then punish, respectively, belonging to it, dealing with its money, and using its premises. A ban that reached only the members would leave the funds and the building untouched.

Section 13 punishes taking part in, committing, advocating, abetting, advising or inciting the commission of any unlawful activity.

Section 15 defines the terrorist act, and section 16 punishes it, with death or imprisonment for life where the act has resulted in the death of any person, and otherwise with a term of not less than five years extending to imprisonment for life.

Sections 18 to 20 punish conspiracy and attempt, organising a terrorist camp, and membership of a terrorist gang or organisation.

Section 43 names the officers competent to investigate offences under Chapters IV and VI.

Section 43D(5): notwithstanding the Code, no person accused of an offence punishable under Chapters IV and VI shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard; and the proviso is the crucial part: such a person shall not be released on bail if the court, on a perusal of the case diary or the report under section 173 of the Code, is of opinion that there are reasonable grounds for believing that the accusation against him is prima facie true. Sub-section (6) adds that this restriction is in addition to the restrictions under the Code.

The Maharashtra Control of Organised Crime Act 1999

Section 2 defines organised crime, organised crime syndicate, and continuing unlawful activity. The last is the key: the Act reaches a pattern of activity rather than a single act.

Section 3 punishes the commission of an offence of organised crime, and section 4 punishes possession, on behalf of a member of an organised crime syndicate, of property derived from organised crime.

Section 21 is the modified procedure, and it is markedly more severe than the UAPA:

• 21(2): section 167 of the Code applies with fifteen days read as thirty and sixty days read as ninety, and where investigation cannot be completed in ninety days the Special Court shall extend the period up to one hundred and eighty days on the Public Prosecutor's report indicating progress and specific reasons.
• 21(3): anticipatory bail is not available at all.
• 21(4): no bail unless the Public Prosecutor has had an opportunity to oppose, and, where he opposes, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.
• 21(5): bail shall not be granted if the court notices that the accused was on bail in an offence under this or any other Act on the date of the offence in question.
• 21(6): the limitations are in addition to those in the Code.
• 21(7): a police officer seeking custody for interrogation must file a written statement explaining the reason and any delay.

Section 23 bars the recording of information about an organised crime without the prior approval of an officer not below the rank of Deputy Inspector General, and bars cognizance without the previous sanction of an officer not below the rank of Additional Director General. Section 24 punishes a public servant who renders help or support in the commission of organised crime.

And now a central offence of organised crime

Section 111 of the Bharatiya Nyaya Sanhita 2023 brings into the general criminal law what had been the subject of State legislation for a quarter of a century, and the comparison with the Maharashtra Act is the point.

Organised crime under section 111(1) is any continuing unlawful activity, including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, an economic offence, cyber-crime, or trafficking in persons, drugs, weapons or illicit goods, by a person or a group acting in concert, singly or jointly, as a member of or on behalf of an organised crime syndicate, by the use of violence, threat of violence, intimidation, coercion or any other unlawful means, to obtain a direct or indirect material benefit.

The Explanation defines the two terms the offence turns on. An organised crime syndicate is a group of two or more persons indulging in any continuing unlawful activity. Continuing unlawful activity is an activity prohibited by law which is a cognizable offence punishable with three years or more, undertaken as a member of or on behalf of such a syndicate, in respect of which more than one charge sheet has been filed before a competent court within the preceding ten years and that court has taken cognizance.

The punishments, section 111(2) to (4). Where the offence has resulted in death, death or imprisonment for life and a fine of not less than ten lakh rupees. In any other case, not less than five years up to imprisonment for life and a fine of not less than five lakh rupees. Abetment, attempt, conspiracy, knowingly facilitating, or any act preparatory to an organised crime carries the same range. And mere membership of an organised crime syndicate carries not less than five years up to life.

How it compares with the Maharashtra Act. The structure is the same: a syndicate, a pattern of activity rather than a single act, and a threshold of prior charge sheets. Two differences are examinable. Section 111 sets the syndicate at two or more persons, and it operates throughout India without a State notification. What it does not carry is the modified procedure: the special bail test, the extended detention and the admissibility of a confession to a police officer are in the Maharashtra Act and not in section 111, so an accused charged under the Sanhita is tried under the ordinary procedure of the Bharatiya Nagarik Suraksha Sanhita 2023.

That is the reason a State Act of this kind survives the enactment of section 111: what such an Act supplies is not the offence but the procedure.

The two bail tests compared

Say in an answer why the difference matters. The UAPA test asks the court to look at the prosecution's own material and ask whether the accusation is prima facie true. It is therefore satisfied by a case diary that discloses a case. The MCOCA test asks the court to be satisfied of something close to innocence at a stage when no evidence has been tested, which is a condition few applicants can meet.

The judicial answer

National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734.

Held, in substance. At the stage of section 43D(5) the court must take the material in the charge sheet as it stands, must not weigh it or assess its admissibility as at a trial, and must decide only whether, on that material taken at face value, the accusation is prima facie true. That approach makes bail under the UAPA very difficult to obtain, and Watali is the decision that made it so.

Union of India v. K.A. Najeeb, AIR 2021 SC 712.

Held, in substance. The restriction in section 43D(5) does not oust the constitutional power of a court to grant bail where there has been a long incarceration without the prospect of an early trial, since article 21 is engaged and a statutory bar cannot survive an indefinite deprivation of liberty without trial.

Why the two must be given together. Watali is the rule and Najeeb is the exception, and an answer that gives only one of them is describing half the law. The practical position is that bail under section 43D(5) is refused on the material, and is granted years later on the delay.

State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, and Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246, are the two decisions on MCOCA that a Maharashtra student should name, and they concern the State legislature's competence to enact it and the survival of its provisions alongside central law.

Worked example

A person is arrested after a bomb is found in a bag traced to a group he is said to belong to.

Under the general law he would be entitled to bail on the ordinary principles: the gravity of the offence, the risk of absconding, the risk of tampering.

Under the UAPA the court must first hear the Public Prosecutor, then read the case diary, and then ask whether the accusation is prima facie true on that material taken as it stands. If the case diary discloses the traced bag and an alleged membership, it will usually so find, and bail is refused.

Under MCOCA, if the same facts are framed as organised crime, anticipatory bail is unavailable, the investigation may run to one hundred and eighty days before a charge sheet, and bail requires the court to be satisfied that he is not guilty and will not offend on bail.

And three years later, with the trial not begun, Najeeb becomes available: the constitutional court may grant bail on the ground of the delay itself, because article 21 does not permit an indefinite deprivation of liberty without trial.

That sequence is the honest answer to a question on the misuse of terrorism law, and it is better than an assertion. The statute does not convict anybody. What it does is hold people for years before any court decides whether the accusation was true.

What it does NOT mean

A special statute is not automatically unconstitutional. Kartar Singh, examined in Module IV, upheld the TADA statutes while reading down provisions and reading in safeguards, and that is the pattern of the Indian answer.

And the criticism is not that the offences are unnecessary. Terrorism and organised crime are real. The criticism is about the procedure: how long a person may be held before a charge sheet, and on what condition he may be released before trial.

Nor is MCOCA a lesser statute because it is a State one. Its bail provision is stricter than the central Act's, and its competence has been upheld.

Quick revision

• A special statute changes procedure, not usually the definition of the wrong, and the change that matters is bail.
• UAPA: section 3 declaration, sections 4 and 5 confirmation by a Tribunal of a High Court Judge; section 7 prohibitory order over funds and section 8 notification of places; section 10 membership of an unlawful association, two years, section 11 dealing with its funds, section 12 using a notified place, one year; section 13 unlawful activities; section 15 terrorist act, section 16 punishment; sections 18 to 20 conspiracy, camps, membership of a terrorist organisation; section 43 competent officers.
• Section 43D(5) and its proviso: no bail if the court, on the case diary or the police report, is of opinion that there are reasonable grounds for believing the accusation prima facie true.
• MCOCA section 21: thirty and ninety days, extendable to one hundred and eighty; no anticipatory bail; bail only if the court is satisfied the accused is not guilty and not likely to offend on bail; absolute bar if he was on bail on the date of the offence.
• Section 23: prior approval of a Deputy Inspector General to record information, sanction of an Additional Director General for cognizance. Section 24: the public servant who helps.
• Watali is the rule, Najeeb the exception: prima facie true on the material, but long incarceration without an early trial engages article 21.

Test yourself

1. State the bail test in section 43D(5) of the UAPA and the approach the Supreme Court has taken to it. Bail is refused if the court, on a perusal of the case diary or the report under section 173 of the Code, is of opinion that there are reasonable grounds for believing that the accusation against the accused is prima facie true. In Watali the Court held that the material must be taken as it stands, without weighing it or assessing admissibility as at a trial.

2. How does section 21(4) of MCOCA differ, and why is the difference significant? It requires the court to be positively satisfied that there are reasonable grounds for believing the accused is not guilty, and that he is not likely to commit any offence while on bail. That is a far harder condition than asking whether the accusation looks true, and it must be met before evidence has been tested.

3. What does K.A. Najeeb decide, and how does it sit with Watali? That the statutory restriction does not oust the constitutional power to grant bail where there has been long incarceration with no prospect of an early trial, because article 21 is engaged. Watali governs the application on the material; Najeeb governs the application made after years of delay.

4. What do sections 10, 11 and 12 of the UAPA punish, and why are all three needed? Belonging to an unlawful association, dealing with its moneys, securities or credits in contravention of a prohibitory order under section 7(1), and using an article in contravention of a prohibitory order in respect of a notified place under section 8(3). All three are needed because a ban that punished only the members would leave the association's funds and its premises untouched.

5. Name three procedural changes MCOCA makes besides bail. Anticipatory bail is excluded by section 21(3); the period for investigation is extended to ninety days and may be extended by the Special Court to one hundred and eighty; and under section 23 information may not be recorded without the prior approval of an officer not below Deputy Inspector General, nor cognizance taken without the sanction of an officer not below Additional Director General.