Meaning of Competent Court under MCOCA

Meaning of organised crime

In re: Maharashtra Control of Organised Crime Act, 1999 (MCOCA) as applied to Delhi under Delhi Laws Act:

The commission of crimes like contract killings, extortion, smuggling in contrabands, illegal trade in narcotics, kidnappings for ransom, collection of protection money and money laundering, etc. by organised crime syndicates was on the rise. To prevent such organised crime, an immediate need was felt to promulgate a stringent legislation. The Government realized that organised crime syndicates have connections with terrorist gangs and were fostering narcotic terrorism beyond the national boundaries. MCOCA was promulgated with the object of arresting organised crime which was posing a serious threat to the society. The interpretation of the provisions of MCOCA should be made in a manner which would advance the object of MCOCA.

Extra Territoriality and Territorial nexus:

It was submitted on behalf of the Respondents that MCOCA is applicable only within the territories of Delhi as per Section 1(2) of the Act. Therefore, according to the learned senior counsel for the Respondents, the charge sheets filed in a competent Court outside the NCT of Delhi cannot be taken into account for satisfying the requisites of continuing unlawful activity.

Extra territorial effect of legislation

Statutes made by a Sovereign States cannot be said to be invalid on the ground of extra territoriality subject to certain conditions as is clear from the judgments referred to supra. The same principle was applied to State legislations in the United States of America. There is no distinction between the applicability of the aforesaid principle to civil or criminal statutes.

In the present case, it is sufficient to examine whether there is a territorial nexus between the charge sheets filed in competent Courts within the State of Uttar Pradesh and the State of NCT of Delhi where the Respondents are being prosecuted. The prosecution of the Respondents under MCOCA cannot be said to be invalid on the ground of extra territoriality in case the nexus is sufficiently established.

25. Organised crime which is an offence punishable under Section 3 of MCOCA means a continuing unlawful activity committed by the use of force or violence for economic gain. One relevant pre-condition which has to be satisfied before any activity can be considered as a continuing unlawful activity is that there should be at least two charge sheets filed against the members of an organised crime syndicate within the previous 10 years and a ‘competent Court’ has taken cognizance of such charge sheets. In the instant case, there are eight charge sheets filed against the Respondents, six out of which are in the State of Uttar Pradesh. The submission of the Respondents, which was accepted by the Courts below, is that such charge sheets which are filed in the State of Uttar Pradesh are not relevant for the purpose of determining whether the Respondents have indulged in a continuing unlawful activity. The Courts below held that only charge sheets filed in competent Courts within Delhi have to be taken into account. We are not in agreement with the Courts below.

Competent Court

 Organised crime is not an activity restricted to a particular State which is apparent from a perusal of the Statement of Objects and Reasons. A restrictive reading of the words“competent Court” appearing in Section 2 (1)(d) of MCOCA will stultify the object of the Act. We disagree with the learned senior counsel for the Respondents that it is impermissible for the Special Courts to take into account charge sheets filed outside the National Capital Territory of Delhi as that would result in giving extra territorial operation to MCOCA. A perusal of the charge sheets filed against the Respondents in the State of Uttar Pradesh which are relied upon by the prosecution to prove that organised crime was being committed by them shows clear nexus between those charge sheets and the National Capital Territory of Delhi where prosecution was launched under MCOCA. The twin conditions to establish territorial nexus in RMD Chamarbaugwala’s case (supra) are fulfilled. If members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination said, that there is no nexus between the charge sheets filed in Courts in States other than Delhi and the offence under MCOCA registered in Delhi. In such view, we are unable to accept the submission of the Respondents that charge sheets filed in competent Courts in the State of Uttar Pradesh should be excluded from consideration. We hold that ‘competent Courts’ in the definition of ‘continuing unlawful activity’ is not restricted to Courts in Delhi alone.

However, we are in agreement with the submission of the learned Senior Counsel for the Respondents that an activity of organized crime in Delhi is a sine qua non for registration of a crime under MCOCA. In the absence of an organized crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge sheets filed outside Delhi.

FIR No.122 of 2010 is registered under Sections 341, 506 read with Section 34 of the IPC. Section 341 IPC is punishable with a maximum sentence of one month, though it is cognizable offence. Section 506 IPC is a non-cognizable which was made a cognizable offence by a notification issued by the Delhi Government. This notification was quashed by the High Court of Delhi on 13.01.2003. A second notification for the same purpose was issued by the Delhi Government on 31.03.2004 which was challenged in W.P. (C) No.2596 of 2007. The High Court of Delhi initially stayed and ultimately struck down the second notification on 18.01.2016. As such, Section 506 IPC was a non-cognizable offence at the date of registration of the FIR and filing of the charge sheet. Only an unlawful activity which is a cognizable offence punishable with minimum sentence of three years or more would be a continuous unlawful activity under section 2(1)(d) of the Act. Hence, the FIR No.122 of 2010 cannot be taken into account.

[Source: State (Nct Of Delhi) vs Brijesh Singh @ Arun Kumar on 9 October, 2017]
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