LLM Group 5 Criminal Law and Criminal Administration Penal Laws 2016 Question Paper with Solutions

For full marks, cover: three terms, roughly eight marks each, and the third is the one that catches candidates out, because there is no well known body of case law on the Rules. Answer it by explaining the rule making powers in sections 28 and 29, what the Rules can and cannot do, and the striking feature that MCOCA put its most sensitive procedure in the Act itself rather than leaving it to rules.

(a) Protection of witness

Why the provision exists. A prosecution of an organised crime syndicate ordinarily fails because the witnesses do not come. The syndicate can reach a witness and his family long before trial, and the ordinary criminal process offers no protection at all. Section 19 of the Maharashtra Control of Organised Crime Act, 1999 answers that, and it does so in four sub-sections.

Section 19(3), the measures. Without prejudice to the generality of sub-section (2), they may include: (a) holding the proceedings at a place to be decided by the Special Court, which permits it to sit inside a prison or another secure location; (b) avoiding the mention of the names and addresses of witnesses in its orders, judgments or any records of the case accessible to the public; (c) issuing any directions for securing that identities and addresses are not disclosed; and (d) ordering, where it is in the public interest, that all or any of the proceedings shall not be published in any manner.

Section 19(4), the sanction. A person who contravenes a direction under sub-section (3) is punishable with imprisonment which may extend to one year and with fine which may extend to one thousand rupees.

On conviction, section 20(1). Where a person has been convicted of any offence punishable under the Act, the Special Court may, in addition to awarding any punishment, by order in writing declare that any property, movable or immovable or both, belonging to the accused and specified in the order, shall stand forfeited to the State Government free from all encumbrances. The order is discretionary and must specify the property, so a blanket order is bad; and forfeiture free from encumbrances defeats a mortgagee or charge holder who was never before the court, which is the provision's principal injustice to third parties.

During trial, section 20(2). Where a person is accused of an offence under the Act, it is open to the Special Court trying him to order that all or any of his properties be attached during the period of the trial, and where the trial ends in conviction the attached property stands forfeited to the State Government free from all encumbrances. This is a pre-conviction restraint, justified because a syndicate can dispose of its assets long before a verdict and criticised because it can destroy a business before any finding of guilt.

The provisions that feed section 20. Section 4 punishes a person who, on behalf of a member of an organised crime syndicate, holds movable or immovable property which he cannot satisfactorily account for, with three to ten years and a minimum fine of one lakh rupees, and provides that such property is also liable to attachment and forfeiture as provided by section 20. Section 3(5) punishes holding property derived from an organised crime with three years to life and a minimum fine of two lakh. Section 17(2) supplies the evidential engine: where it is proved that a person involved in organised crime, or a person on his behalf, is or has been in possession of property he cannot satisfactorily account for, the Special Court shall presume, unless the contrary is proved, that the property was acquired or derived from his illegal activities.

Read together, sections 4, 17(2) and 20 reverse the burden on property: the prosecution proves possession and the syndicate connection, and the accused must then account for the property or lose it.

What the Rules do, and what they cannot do. The Rules made under section 29 are procedural machinery. They supply the forms and the manner of doing what the Act requires: the form and manner of an application for interception under section 14, the manner in which the Competent Authority's order and the underlying record are submitted to the Review Committee, the custody, sealing and destruction of intercepted material, and the administrative arrangements for the Review Committee's meetings. They cannot enlarge the Act. A rule that permitted interception on a ground not in section 14(4), or that dispensed with the ten day review in section 15(3), would be ultra vires.

The feature worth pointing out. MCOCA is unusual among Indian statutes in that it put the whole of its most sensitive procedure in the Act itself and not in the Rules. The interception code in sections 13 to 16 states the authorising rank, the grounds, the contents of the application, the emergency power and the composition of the Review Committee on the face of the statute. Section 14(6) even fixes the time within which the Competent Authority must send his order to the Review Committee, not later than seven days from the passing of the order, together with all the relevant underlying papers, record and his own findings.

Conclusion. Section 19 protects the witness by in camera proceedings, by anonymity ordered on the court's own motion, by allowing the court to sit where it chooses and to prohibit publication, with a penalty far too small at one year and one thousand rupees. Section 20 attacks the syndicate's property in three ways, forfeiture on conviction free from encumbrances, attachment during trial, and proclamation and attachment against an absconder with restoration within six months, reinforced by sections 4, 3(5) and the presumption in section 17(2). The MCOC Rules are made by the State Government under section 29 and by the High Court under section 28, are laid before both Houses for thirty days, and are of limited reach, because the Act deliberately placed its interception safeguards, its review timetable and its annual reporting duty in the statute rather than in subordinate legislation.