It was noticed that organized criminals in carrying out their criminal activities make extensive use of wire and oral communication. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice. In this article, we shall discuss recording of communication under MCOCA (Wire, Electronic or Oral)

Sections 13 to 16 of MOCCA authorize interception of wire, electronic or oral communication, (Recording of Communication Under MCOCA)render such intercepted communication admissible as evidence against the accused in a trial, require a review committee to review every order passed by the authority competent to authorize such interception, and impose certain restrictions on the interception.

Section 13:

Appointment of Competent Authority:

The State Government may appoint any of its officer, in Home Department, not below the rank of Secretary to Government, to be the Competent Authority for the purposes of section 14.

Section 14:

Authorization of Interception of Wire, Electronic or Oral Communication.

(1) A police officer not below the rank of Superintendent of Police supervising the investigation of an organised crime under this Act may submit an application in writing to the Competent Authority for an order authorising or approving the interception of wire, electronic or oral communication by the investigating officer when such interception may provide or has provided evidence of any offence involving an organised crime.

(2) Each application shall include the following information :—

(a) the identity of the investigative or law enforcement officer making the application, and the head of the department authorizing the application ;

(b) a statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including—

(i) details as to the offence of organised crime that has been, is being, or is about to be committed ;

(ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted ;

(iii) a particular description of the type of communications sought to be intercepted ; and

(iv) the identity of the person, if known, committing the offence of organised crime whose communications are to be intercepted;

(c) a statement as to whether or not other modes of enquiry of intelliegence gathering have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous or is likely to expose the identity of those connected with the operation of interception ;

(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the enquiry is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter ;

(e) a statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to the Competent Authority for authorization to intercept, or for approval of interceptions of, wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application and the action taken by the Competent Authority on each such application; and

(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

(3) The Competent Authority may require the applicant to furnish additional oral or documentary evidence in support of the application.

(4) Upon such application, the Competent Authority may after recording the reasons in writing reject the application, or issue an order, as requested or as modified, authorising or approving interception of wire, electronic or oral communications, if the Competent Authority deteremines on the basis of the facts submitted by the applicant that—

(a) there is a probable cause for belief that an individual is committing, has committed, or is about to commit a particular offence described and made punishable under sections 3 and 4 of this Act;

(b) there is a probable cause for belief that particular communications concerning that offence will be obtained through such interception;

(c) normal modes of enquiry and intelligence gathering have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous or is likely to expose the identity of those connected with the operation of interception ;

(d) there is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted or be used or are about to be used, in connection with the commission of such offence, leased to, or are listed in the name of or commonly used by such person.

(5) Each order by the Competent Authority authorizing or approving the interception of any wire, electronic or oral communication under this section shall specify—

(a) the identity of the person, if known, whose communications are to be intercepted ;

(b) the nature and location of the communication facilities as to which, or the place where, authority to intercept is granted;

(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offence to which it relates ;

(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and (e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(6) The Competent Authority shall immediately after passing the order under sub-section (4), but in any case not later than seven days from the passing of the order, submit a copy of the same to the Review Committee constituted under section 15 alongwith all the relevant underlying papers, record and his own findings, etc., in respect of the said order, for consideration and approval of the order by the Review Committee.

(7) An order authorizing the interception of a wire, electronic or oral communication under this section shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish to the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is providing to the person whose communications are to be intercepted.

(8) No order issued under this section may authorize or approve the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than sixty days. Such sixty days period shall begin on the day immediately preceding the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is issued, whichever is earlier. Extension of an order may be granted, but only upon an application for an extension is made in accordance with subsection (1) and the Competent Authority making the findings required by sub-section (4). The period of extension shall be no longer than the Competent Authority deems necessary to achieve the purposes for which it was granted and in no event for longer than sixty days at a time. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable and shall be conducted in such a way or manner as to minimize the interception of communications not otherwise subject to interception under this section and must terminate upon attainment of the authorized objective, or in any event on expiry of the period of order. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may by accomplished as soon as practicable after such interception. An interception under this section may be conducted in whole or in part by public servant, or by an individual operating under a contract with the State Government, acting under the supervision of the investigative or law enforcement officer authorized to conduct the interception.

(9) Whenever an order authorizing interception is issued pursuant to this section, the order may require reports to be made to the Competent Authority who issued the order showing that progress has been made towards achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the Competent Authority may require. (10) Notwithstanding anything contained in any other provision of this section, an Officer not below the rank of Additional Director General of Police who reasonably determines that—

 (a) an emergency situation exists that involves—

(i) immediate danger of death or serious physical injury to any person ;

(ii) conspiratorial activities threatening the security or interest of the State ; or

(iii) conspiratorial activities, characteristic of organized crime, that requires a wire, electronic or oral communication to be intercepted before an order from the Competent Authority authorizing such interception can, with due diligence, be obtained, and

(b) there are grounds upon which an order could be issued under this section to authorize such interception, may authorise, in writing, the investigating Police Officer to intercept such wire, electronic or oral communication, if an application for an order approving the interception is made in accordance with the provisions of sub-sections (1) and (2) within forty-eight hours after the interception has occurred, or begins to occur.

(11) In the absence of an order approving the interception made under sub-section (10), such interception shall immediately terminate when the communication sought is obtained or when the application for the order is rejected, whichever is earlier. In the event where an application for permitting interception is rejected under sub-section (4) or an application under sub-section (10) for approval is rejected, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, electronic or oral communication intercepted shall be treated as having been obtained in violation of this section.

(12) (a) The contents of any wire, electronic or oral communication intercepted by any means authorized by this section shall, if possible, be recorded on tape or wire or other comparable device. Recording of the contents of any wire, electronic or oral communication under this sub-section shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of order, or extension thereof, such recordings shall be made available to the Competent Authority issuing such order and shall be sealed under his directions. Custody of the recordings shall be wherever the Competent Authority orders. They shall not be destroyed except upon an order of the Competent Authority and in any event shall be kept for ten years.

(b) Applications made and orders issued under this section shall be sealed by the Competent Authority. Custody of the applications and orders shall be wherever the Competent Authority directs, and shall not be destroyed except on an order of the Competent Authotity, and in any event shall be kept for ten years. The Competent Authority upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the Competent Authority determines to be in the interest of justice.

(13) Notwithstanding anything in the Code or in any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under this section shall be admissible as evidence against the accused in the Court during the trial of a case : Provided that, the contents of any wire, electronic or oral communication intercepted pursuant to this section or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any Court unless each party, not less than ten days before trial, hearing or proceeding, has been furnished with a copy of the order of the Competent Authority, and accompanying application, under which the interception was authorised or approved : Provided further that, this ten days period may be waived by the judge, trying the matter, if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving such information.

Explanation.—For the purposes of this section—

(a) ‘wire communication’ means any aural transfer made in whole or part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between the point of origin and the point of connection, between the point of origin and point of reception (including the use of such connection switching station) and such term includes any electronic storage of such communication ;

(b)‘oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation but such term does not include any electronic communication;

(c)‘electronic communication’ means any transfer of signs, singnals, writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects inland or foreign commerce but does not include,—

(i) the radio portion of a cordless telephone communication that is transmitted between the wireless telephone hand-set and the base unit;

(ii) any wire or oral communication ;

(iii) any communication made through a tone only paging device; or

(iv) any communication from a tracking device ;

(d) ‘intercept’ means the aural or other acquisition of the contents by wire, electronic or oral communication through the use of any electronic, mechanical or other device

• Section 14(1) of the Act empowers a police officer not below the rank of the Superintendent of Police supervising the investigation of an organised crime under MCOCA to submit an application in writing to the competent authority for an order authorising or approving interception of wire, electronic or oral communication by the investigating officer, when such interception may provide or has provided evidence of any offence involving an organised crime.  
• Section 14(2) of the Act gives list of items to be included with each application.
• Under Section 14(3) of thw Act, the Competent Authority may require the applicant to furnish additional oral or documentary evidence in support of the application 14(3)
• Under Section 14(4) of the Act, upon such application under clause(1), the Competent Authority may after recording the reasons in writing reject the application, or issue an order, as requested.
• Under Section 14(5), each order by the Competent Authority authorizing or approving the interception of any wire, electronic or oral communication under this section shall specify the information as specified under this clause.
• Sections 14(2) – (13) lay down the detailed procedure for conducting such interception as also the requirements to be fulfilled before approval is granted.

Section 15:

Constitution of Review Committee for Review of Authorisation Orders:

 (1) There shall be a Review Committee to review every order passed by the Competent Authority under section 14.

(2) The Review Committee shall consist of the following ex officio members, namely :—

(i) the Chief Secretary to Government . . Chairman

(ii) the Additional Chief Secretary or the . . Member senior most Principal Secretary, as the case may be, in the Home Department.

(iii) Principal Secretary or Secretary and . . Member Remembrancer of Legal Affairs, Law and Judiciary Department.

(3) Every order passed by the Competent Authority under section 14, placed before the Review Committee, shall be considered by the Review Committee within ten days after its receipt, to decide whether the order, authorising or approving the application under sub-section (4) of section 14, for interception or disapproving the interception made under sub-section (10) of that section in emergency situation, passed by the Competent Authority was necessary, reasonable and justified.

(4) The Review Committee, after examining the entire record and holding such enquiry, if any, deemed necessary may, by order in writing, either approve the order passed by the Competent Authority or may issue order disapproving the same. On issue of an order of disapproval by the Review Committee, the interception, if any, already commenced shall be forthwith discontinued. The intercepted communication, if any, in the form of tape, wire or other device shall, thereupon, not be admissible as evidence in any case and shall be directed to be destroyed.

Section 16:

Interception and Disclosure of Wire, Electronic or Oral Communications Prohibited:

Except as otherwise specifically provided in section 14, any police officer who—

(a) intentionally intercepts, endeavours to intercept or procures any other person to intercept or endeavour to intercept any wire, electronic or oral communication ;

(b) intentionally uses, endeavours to use, or procures any other person to use or endeavours to use any electronic, mechanical or other device to intercept any oral communication when—

(i) such device is affixed to, or otherwise transmits a signal through a wire, cable, or other like connection used in wire communication ; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication;

(c) intentionally discloses, or endeavours to disclose, to any other person the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this sub-section ;

(d) intentionally uses, or endeavours to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communicaiton in violation of this subsection ; or

(e) (i) intentionally discloses, or endeavours to disclose, to any other person the contents of any wire, electronic or oral communication, intercepted by means authorized by section 14 ;

(ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation under this Act ;

(iii) having obtained or received the information in connection with a criminal investigation ; and

(iv) with intent to improperly obstruct, impede, or interfere with a duly authorised criminal investigation ; or

(f) intentionally continues the interception of wire, electronic or oral communication after the issue of an order of disapproval by the Review Committee under sub-section (4) of section 15, shall for such violation be punishable with imprisonment for a term which may extend to one year and with fine upto rupees fifty thousand.

Section 16 prohibits interception and disclosure of wire, electronic, or oral communication by any police officer except as otherwise specifically provided, and makes any violation of the provision punishable

Constitutional Validity of Ss. 13 to 16:

In State of Maharashtra v Bharat Shanti Lal Shah, (2008) 13 SCC 5  case, the challenge was made in the Supreme Court specifically with respect to the competence of the State legislature to enact provisions regarding interception of telegraph communications. Entry 31 of the Union List empowers the Central legislature to enact a law in respect of posts and telegraph, telephones, wireless, broadcasting, and other like forms of communication. It was argued that the Telegraph Act is an existing law with respect to these matters. Sections 13 to 16 of MCOCA, providing for interception of wire, electronic and oral communication, were then argued to be invalid.

The Supreme Court upheld the constitutional validity of these provisions. It held that MCOCA authorises the interception of such communication only for the purpose of prevention of commission of an organised crime. In contrast, the Telegraph Act permits interception of communication if there was public emergency and in the interest of public safety. The grounds of interception under MCOCA and Telegraph Act are completely different. The subject matter of MCOCA is maintaining public order and prevention by police of commission of serious offences affecting public order and are relatable to Entries 1 (public order) and 2 (police) of the State List. Even if the content of MCOCA may have encroached upon the scope of Entry 31 of the Union List, this is merely an incidental encroachment. Since the main purpose of the Act is within the parameter of Entries 1 and 2 of the State List, sections 13 to 16 cannot be held as invalid on the ground that the State has no legislative competence to enact these provisions.

This judgment is significant as it implies that if the broader subject matter of the State law is within the limits of its powers, it may incidentally encroach upon the Union’s powers and provide for supplementary matters. The previous section discusses how Indian courts have demarcated the powers of the Centre and States in enacting terrorism-related statutes. Thus, it seems that as long as the State law is within its broader powers to enact a law dealing with public order, it may even provide more draconian procedural provisions that are in conflict with the Central law.

The fact that MCOCA has received Presidential assent as per Article 254 of the Constitution was also relevant in the Court’s decision. Since Presidential assent has been obtained, even where the subject matter is found to be covered under Concurrent List, the Act will remain constitutionally valid. The Court noted that Entries 1 (criminal law), 2 (criminal procedure) and 12 (evidence) of the Concurrent List can aid the Entries in the State List. Thus, this judgment brings out the significance of the requirement of Presidential assent under Article 254. Even though the broader subject matter may be covered under the State List, overlapping Entries in the Concurrent List also become relevant. And this necessitates taking the assent of the President to avoid the application of doctrine of repugnancy.

Once Presidential assent has been obtained, the provisions of the State law will override the Central Acts, allowing States to enact laws in direct conflict with Central laws for matters that fall within the Concurrent List. Even otherwise, with respect to general criminal laws such as IPC or CrPC, provisions of special laws, State or Central, shall continue to prevail.