Organized crime is defined as “those involved, normally working with others, in continuing serious criminal activities for a substantial profit, elsewhere”. The organized crime involves extortion, collection of protection money from rich businessmen, contract killing, kidnapping, film financing, human trafficking, human organ trafficking, drug trafficking, narcotics trafficking, smuggling and illicit trade in Arms and Ammunition. In this article, we shall discuss Special Court under MCOCA.

Jurisdiction of The Maharashtra Control of Organized Crime Act 1999:

MCOCA applies to the entire State of Maharashtra. The Home Ministry of the Government of India extended the applicability of MCOCA to the National Capital Territory of Delhi as well, by a notification dated 2 January 2002. MCOCA overrides all other Indian laws and will prevail over any Indian law that conflicts with the provisions that MCOCA contains.

There are two reasons why MCOCA is seen at par with the Central Legislation and in some cases have an overriding effect on State as well as Central Acts:

• Firstly, that being a State Act it has received the assent of the President of India; and
• Secondly, by virtue of Section-25 of the Act which unequivocally quotes while initiating with non-obstante clause that, anything contained in this Act or any rule or any order made under such rule shall have effect over anything inconsistent therewith contained in any other law for the time being in force and any instrument which is having force of law.

Offences Under the Act to be Tried by Special Court:

Every offence under MCOCA is to be tried only by a Special Court within whose local jurisdiction it was committed or as the case may be by the Special Court constituted for trying offences under Subsection (1) of Section 5. According to Section 2(g) of the Act “Special Court” means the Special Court constituted under section 5. Thus, specific reliance is to be made to Section 5 of the Act for elaborative sphere of Special Court.

Section 5:

Special Courts:

 (1) The State Government may, by notification in the Official Gazette, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.

(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government whose decision shall be final.

(3) A Special Court shall be presided over by a judge to be appointed by the State Government, with the concurrence of the Chief Justice of the Bombay High Court. The State Government may also appoint, with the concurrence of the Chief Justice of the Bombay High Court, additional judges to exercise jurisdiction in a Special Court.

(4) A person shall not be qualified for appointment as a judge or an additional judge of a Special Court, unless he immediately before such appointment, is a sessions judge or an additional sessions judge.

(5) Where any additional judge is or additional judges are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order in writing, provide for the distribution of the business of the Special Court among himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judges.

Section 5 of the Act provides that the State Government, by notification in the official gazette, constitute one or more special courts for such area/areas and for such cases/group of cases which it notifies in the gazette itself.

The special court shall preside over by a judge who is to be appointed by the State Government in concurrence with the Chief Justice of Bombay High Court and State Govt. can also appoint such additional judges to exercise the power of the Special Court, only with the concurrence of the Chief Justice of Bombay High Court. Moreover, the decision of the State Govt. is final as to the jurisdiction exercised by the Special Court.

Qualification as to preside over the judge of Special Court:

Immediately before his appointment as the judge of Special Court, he shall be a Sessions Judge or an Additional Sessions Judge. [Section 5(4)]

Appointment of Public Prosecutor:

Section 8:

Public Prosecutor:

 (1) For every Special Court, the State Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:

Provided that, the State Government may also appoint for any case or group of cases, a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor, an Additional Public Prosecutor or a Special Public Prosecutor unless he has been in practice as an Advocate for not less than ten years.

(3) Every person appointed as a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor under this section shall be deemed to be Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.

According to Section 8 of the MCOCA, 199 the State Govt shall appoint Public Prosecutor & Additional Public Prosecutor for every Special Court who has been practising as an Advocate for not less than 10 years.

Jurisdiction of the Special Court:

Section 6:

Jurisdiction of the Special Court

Notwithstanding anything contained in the Code, every offence punishable under this Act shall be triable only by the Special Court within whose local jurisdiction it was committed, or as the case may be, by the Special Court constituted for trying such offence under sub-section (1) of section 5.

According to Section 6 of the MCOCA, 199, the Special Court shall try all the offences under this Act which has been committed within its jurisdiction or as the case maybe by the Special Court constituted for trying such offence under sub-section (1) of section 5.

Powers of Special Court:

Section 7:

Power of Special Courts with Respect to Other Offences:

(1) When trying any offence punishable under this Act, a Special Court may also try any other offence with which the accused may, under the Code, be charged at the same trial, if the offence is connected with such other offence.

(2) If, in the course of any trial of any offence under this Act, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may convict such person of such other offence and may pass any sentence authorised by this Act or, as the case may be, such other law, for the punishment thereof.

According to Section 7 of MCOCA, 1999 while trying an offence under this Act, the Special court may also try any other offence committed by the accused under this Act or under any other Act, if it is related to that offence and may sentence the same accordingly.

Section 9:

Procedure and Powers of Special Court:

(1) A Special Court may take cognizance of any offence without the accussed being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.

(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of section 263 to 265 of the Code shall, as far as may be, apply to such trial:

Provided that, where in the course of a summary trial under this subsection, it appears to the Special Court that the nature of the case is such that it is undesirable to try in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation, to a Special Court as they apply to and in relation, to a Magistrate:

Provided further that, in case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding two years.

(3) A Special Court may, with a view to obtaining the evidence of any person, supposed to have been directly or indirectly concerned in or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principle or abetter, in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tendered under section 307 thereof.

(4) Subject to other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session

According to Section 9(1) of MCOCA, 1999 Special Court may take cognizance of offence under this Act against any person, even if it has not been committed to it, either on receiving the compliant or police report, as the case maybe.

According to Section 9(2) of MCOCA, 1999 when an offence is triable by a Special Court under this Act not exceeding the prescribed punishment beyond 3 years of imprisonment or fine or both, he can summarily try the case in accordance with the procedure prescribed in the Code of Criminal Procedure, 1973 u/s. 263 to 265. Thus, if the Special Court is of the opinion that it is undesirable to try a case in summary way, then he may dispense with such summary procedure and rehear the case, as if he is the magistrate to try that case in a trial and abide by the provisions of CrPC. Moreover, while summarily trying a case, Special Court may sentence an imprisonment for a term not exceeding 2 years.

According to Section 9(3) of MCOCA, 1999 the Special Court in view of obtaining evidence has power to the following: Tender a pardon to the person directly or indirectly connected with the case on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned.

According to Section 9(3) of MCOCA, 1999 Subject to other provisions of this Act, a Special Court under the MCOCA shall have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session. Thus, the Special Court shall have all the powers of that of a Sessions Court, as has been conferred on it by the CrPC.

Section 10:

Trial by Special Courts to have Precedence:

The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference of the trial of such other cases and accordingly the trial of such other cases shall remain in abeyance.

According to Section 10 of MCOCA, 1999 the trial of Special Court shall have precedence over the trial of any other case against the accused and the trial before the Special Court should be concluded in preference of trial of such other cases.

Section 11:

Power to Transfer Cases to Regular Courts:

Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.

According to Section 11 of MCOCA, 1999 the Special Court has power to transfer the case to other special court on want of jurisdiction and also to any other regular court.

Appeal:

Section 12:

Appeal:

(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgement, sentence or order, not being an interlocutory order, of a Special court to the High Court.

(2) Every appeal under this section shall be preferred within thirty days from the date of the judgement, sentence or order.