Confession Under MCOCA:

Section 18:

Certain Confessions Made to Police Officer to be Taken into Consideration:

(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirtor : Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

(3) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall , after recording such voluntry confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.

(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so recived to the Special Court which may take cognizance of the offence.

(5) The person from whom a confession has been recorded under subsection (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay. (6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.

Section 18 provides the permissibility of the confessions made by a person before a police officer not below the rank of the Superintendent of Police either in writing or by any mechanical device like cassettes, tapes or sound tracks. The confession is recorded in the same language in which the person is examined. It will be explained by the police officer to the person that he is not bound to make the confession but if he does so it can be used against him in the court of law. Only in MCOCA cases, if the arrested gang member wants to confess, his/her voice can be recorded by some Deputy Commissioner of Police or an Officer of higher rank, and such confession is admissible by Court. But, the Deputy Commissioner of Police or higher rank officer who would record the confession should not be investigating or supervising the case.

Protection of Witness Under MCOCA:

Section 19:

Protection of Witness:

 (1) Notwithstanding anything contained in the Code, the proceedings under this Act may be held in Camera, if the Special Court so desires.

(2) A Special Court may, on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.

(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Special Court may take under that sub-section may include,—

(a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgements or in any records of the case accessible to public;

(c) the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed;

(d) that, it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner.

(4) Any person who contravenes any direction issued under sub-section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.

For the protection of witness, it is laid down that, if not willing, the witness need not be produced in Court. Thus, under such a judicial dispensation, there is no fear of victimisation. As per section 19(1) of the MCOCA, 1999, notwithstanding anything contained in the Code, the proceedings under this Act may be held in camera if the Special Court so desires.

As per section 19(2) of the MCOCA, 1999 a Special Court may, on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.

As per section 19(3) of the MCOCA, 1999 in particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Special Court may take under that sub-section may include:

• the holding of the proceedings at a place to be decided by the Special Court;
• the avoiding of the mention of the names and addresses of the witnesses in its orders or judgements or in any records of the case accessible to public;
• the issuing of any directions for securing that the identity and addresses the witnesses are not disclosed;
• that, it is in the public interest to order that all or any of the proceeding pending before such a Court shall not be published in any manner.

As per Section 19(4) of the MCOCA, 1999 any person who contravenes any direction issued under subsection (3) shall be punishable with imprisonment for a term, which may extend to one year and with fine that may extend to one thousand rupees.

Forfeiture and Attachment of Property:

Section 20:

Forfeiture and Attachment of Property:

(1) Where a person has been convicted of any offence punishable under this 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.

(2) Where any person is accused of any offence under this Act, it shall be open to the Special Court trying him, to pass an order that all or any properties, movable or immovable or both, belonging to him, shall, during the period of such trial, be attached, and where such trial ends in conviction , the properties so attached shall stand forfeited to the State Government, free from all encumbrances.

(3) (a) If, upon a report in writing made by an investigating police officer with the approval of the supervisory officer referred to in subsection (1) of section 14, any Special Court has reason to believe that any person, who has committed an offence punishable under this Act has absconded or is concealing himself so that he may not be apprehended, such Court may, notwithstanding anything contained in section 82 of the Code, publish a written proclamation requiring him to appear at a specified place and at a specified time not less than fifteen days but not more than thirty days from the publication of such proclamation : Provided that, if the investigating police officer concerned fails to arrest the accused, who has absconded or is concealing himself, within a period of three months from the date of registering the offence against such person, the officer shall, on the expiry of the said period, make a report to the Special Court for issuing the proclamation.

(b) The Special Court issuing a proclamation under clause (a) may, at any time, order the attachment or any property, movable or immovable or both, belonging to the proclaimed person, and thereupon the provisions of sections 83 to 85 of the Code shall apply to such attachment as if such attachment were made under that Code.

(c) If, within six months from the date of attachment, any person, whose property is, or has been, at the disposal of the State Government under sub-section (2) of section 85 of the Code, appears voluntarily or is apprehended and brought before the Special Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding apprehension and that he had not received such notice of the proclamation as to enable him to attend within the specified time therein, such property or, if the same has been sold, the net proceeds of the same and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.