The Sushil Kumar Case

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MCOCA stands for Maharashtra Control of Organised Crime Act. The law has made headlines recently because it was invoked against wrestler Sushil Kumar. He was recently arrested for allegedly murdering another wrestler Sagar Rana who succumbed to his injuries after a brawl with Sushil Kumar and his friends. But why was he charged with MCOCA instead of relevant sections of IPC? What is Maharashtra Control of Organised Crime Act, 1999? When is a person charged under it and what are the different punishments prescribed in it? How is the evidence collected under this law? Let us answer the questions.

The incident took place at Chhatrasal Stadium in Delhi on May 4. A screengrab of a video that shows Olympic medallist Sushil Kumar and his friends hitting another wrestler with sticks[1] went viral on Twitter. The Delhi Police then filed an FIR under Section 302 (Murder), 308 (Culpable Homicide), 365 (Kidnapping), 325 (Causing Grievous Hurt), 323 (Voluntarily Causing Hurt), 341 (Wrongful Restraint), and 506 (Criminal Intimidation) of the Indian Penal Code. In the video, it is seen that Sagar Rana and his two friends, Sonu and Amit Kumar are being thrashed by Sushil Kumar and his friends. It has been found that four members of the Kala Asauda – Neeraj Bawana gang were allegedly involved in the murder of Sagar. It was also found that Sushil Kumar was allegedly getting monetary gains from the undertakings from these gangsters. It is alleged that he was working with them since 2018; Sushil Kumar used to take help of Jathedi, Neeraj Bawana and other gangsters to grab properties and get contracts and the profit was shared. [2] But due to lack of evidence a case could not be filed against him. It is because of these allegations that MCOCA was invoked against him.

Introduction to MCOCA and its purpose

Maharashtra Control of Organised Crime Act, 1999 is a State legislation, enacted by the State of Maharashtra to combat organised crime and terrorism. [3] The purpose of the law is simple: “Organised crime constitutes nothing less than a guerrilla war against society.” Said Lydon B. Johnson, 36th President of the United States of America. “Security of persons and property is an essential function of the State. It could be achieved through instrumentality of criminal law.” [4] observed Supreme Court in Adu Ram vs Mukna and Ors. Thus, organised crime is a great threat to civil society and then existing penal laws were inadequate to tackle the menace of organised crime.

But what is organised crime? Section 2 (1) (e) of Maharashtra Control of Organised Crime Act defines organised crime as any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.[5]

Under Article 2 (a) of Annex 1 of the United Nations Convention against Transnational Organised Crime, an “organised crime group” is defined as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.

Now coming back to the purpose of the law:

Such organised crime groups have money and are well resourced. They are legally equipped and can afford high pay lawyer, so they get can away with their crimes if usual penal laws such as IPC or NDPS are applied on them. Thus, we need a special legislation like Maharashtra Control of Organised Crime Act, 1999 to deal with organised crime. Not only violence, intimidation, coercion, or any other serious offences are punishable but also unaccountable wealth on behalf of member of organised crime syndicate is punishable. The act not only punishes criminals but also public servants for not discharging their duty. Thus, this penal legislation expanded the realms of penal laws existing then in our country and with the wider ambit of crimes, organised crime can now be controlled.

The first question that arises is how a state penal legislation is applicable in the NCT of Delhi? Ministry of Home Affairs in a notification dated 02.01.2002 used the power provided under Section 2 of Union Territories (Law) Act, 1950 (Act 30 of 1950) to extend the provisions of Maharashtra Control of Organised Crime Act, 1999 (Act 30 of 1999) to the National Capital Territory of Delhi.

What are the different crimes and their respective punishment enlisted in MCOCA?

Offences and Punishments

Sr. No.Particular of CrimePunishment Prescribed
Section-3: Punishment for Organised Crimes
1.(a) If commission of organised crime results in death of any personPunishable with Death or Life Imprisonment and fine (min. of ₹1lakh)
 (b) If commission of organised crime doesn’t result in death of any personImprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)
2.Whoever conspires or attempts to commit or advocates, abets, or knowingly facilitates the commission of an organised crime or any act preparatory to organised crimeImprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)
3.Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicateImprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)
4.Any person who is a member of an organised crime syndicateImprisonment with may extend to LI but not less than 5 years and fine (min. of ₹5lakhs)
5.Whoever holds any property derived or obtained from commission of an organised crime or which has been acquired through the organised crime syndicate fundsImprisonment with may extend to LI but not less than 3 years and fine (min. of ₹2lakhs)
Section 4- Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate
6.If any person on behalf of a member of an organised crime syndicate is, or, at any time has been, in possession of movable or immovable property which he cannot satisfactorily account forImprisonment with may extend to 10 years but not less than 3 years and fine (min. of ₹1lakh) and the property shall be liable for attachment & forfeiture per the procedure of Section 20 of MCOCA 1999.
Section 16- Interception and disclosure of wire, electronic or oral communications prohibited
7.Any Police Officer who intentionally or with malafide intention intercepts & disclosed wired or oral communication shall be punishedImprisonment for a term which may extend to one year and with fine up to ₹50 thousand
Section 24- Punishment for public servants failing in the discharge of their duties
8.A Public Servant who renders any help or support in any manner in the commission of organised crime as defined in clause (e) of section 2, whether before or after the commission of any offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act or intentionally avoids carrying out the directions of any Court or of the superior police officers in this respectImprisonment of either description which may extend to 3 years and also with fine.

[6]

What makes this act more special than other penal statutes is Special Courts.

Special Courts – Powers and Jurisdiction

Special Courts are trial courts specifically set up to try the offences mentioned in the Act. Subject to the provisions of the Act, the Special Court will have all the powers of a Court of Sessions. The State Government may by notification constitute Special Courts to try the offences listed in the Act. The judge who will preside over the Special Court is to be appointed by the State Government with concurrence of the Chief Justice of the High Court. And a prerequisite for the judge is to be a sessions judge or an additional sessions judge. The trial can be held in Camera if the Special Court desires.

The Special Courts can also try for any other offence with which the accused may be charged at the same trial, if the offence is connected to/ incidental to/ the result of any other offence mentioned in the act. And if found guilty of the other offence (than ones mentioned in the Act), the Special Court can convict and pass the sentence to punish the accused according to the provisions of the Act or any other law for that matter.

A trial in Special Court can begin even without the accused being committed to it for trial or even upon receiving a complaint of facts which account for the offence or a mere police report. If the punishment of the offence of accused is less than three years or with fine or both, the Special Court can for a summary trial and follow the procedure prescribed under Section 263 to 265.

If a person connected (directly or indirectly) or is privy to an offence mentioned in the Act offers to make a full and true disclosure to the best of his knowledge then to obtain the evidence, the Special Courts have power to tender a pardon to the person.

All the appeals of the Special Court will lie in High Court. The appeal must be filed within thirty days from the date of judgement, sentence, or order.

The Special Court may on application by the witness or by Public Prosecutor or on its own take measures for keeping the identity of witness hidden. To protect the identity of the witness, the Special Court can avoid mentioning the name in any of its records or judgement or order. It can also direct to not publish its proceedings in any manner.

The Special Court has power, aside giving punishment, to forfeit the property of the accused to the State Government. The Special Court can also attach the property of the accused and if convicted shall be forfeited to the State Government.

The Special Court can even publish a written proclamation requiring a person to appear before the Court at a specified time and place. The Special Court may at any time order attachment of property after issuing the proclamation. The proclamation can only be issued if, upon a written report by an investigating officer with approval of supervisory officer (referred to in sub-section (1) of section 14), the Special Court has reason to believe that the accused has absconded or is concealing himself to avoid any arrest. 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. If within six months of attachment, the accused is brought before the court, voluntarily or apprehended, and he successfully convinces that he did not abscond or conceal himself and that he had not received such notice of the proclamation then 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.

The Special Courts, unless proven otherwise, shall presume that unlawful arms and other material including documents or papers were recovered from the possession of the accused and there is reason to believe that such unlawful arms and other material including documents or papers were used in the commission of such offence or that by the evidence of an expert, the finger prints of the accused were found at the site of the offence or on anything including unlawful arms and other material including documents or papers and vehicle were used in connection with the commission of such offence.

Not only the Act has provisions for Special Court but also provision for a Competent Authority for a special purpose. Let us explore that part of the Act.

Competent Authority

Section 13 of the Act talks about a Competent Authority with its sole member not below the rank of Secretary to Government in the Home Department. The officer who is to be the Competent Authority must be appointed by the State Government.

The purpose of the Competent Authority is to authorise or approve the interception of wire, electronic or oral communication by the investigating officer to furnish evidence of any offence involving organised crime.

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. [7] 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.

If the Competent Authority requires, it may ask the applicant to furnish additional oral or documentary evidence to support the application. The Competent Authority determines whether to accept or reject the application by considering if:

(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.

The order issued under Section 13 must not exceed sixty days under any event. And it begins the day preceding the beginning of the interception or ten days after issuing the order, whichever is earlier. Extension of the order may also be granted in accordance with sub-section (1) and sub-section (4) of Section 13. The period of extension cannot be longer than sixty days at a time.

Since the law deals with organised crime and the organised crime groups are well structured and are skilful in keeping things secret. So it is not possible all the time to collect the evidence for interception and thus under certain circumstances an Officer not below the rank of Additional Director General of Police may authorise the investigating Police Officer to intercept such wire, electronic or oral communication if the application is made according to sub-section (1) and (2) of Section 13 within forty-eight hours after the interception has occurred or began. These certain conditions are:

(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.

In the absence of an order authorising interception made under sub-section (10), any interception like such will terminate as soon as it is obtained or when such application is rejected, whichever is earlier.

Upon the expiration of the period of order, or its extension, the recordings of the contents of interception of wire, electronic or oral communication should be made available to the Competent Authority. Custody of these recordings shall also be decided by the Competent Authority. The tapes of recording cannot be destroyed except an order by the Competent Authority and in any case will be kept for ten years.

With the provisions of the Act in mind, let us try to explore what all can happen to Sushil Kumar after MCOCA is invoked.

Future of Sushil Kumar

Sushil Kumar’s reputation as one of the greatest Olympians in the country is now being on the wire of getting tarnished. [8] Many from the sports community have criticised this incident. WFI Assistant Secretary Vinod Tomar said that the murder case has hurt the image of wrestling. Former Hockey Captain Ajay Singh termed this incident as unfortunate. Indian Railways has suspended the wrestler as a senior commercial manager with the Northern Railways. Also, WFI is set to drop Sushil from its annual contract list. He is currently part of the Grade A category of the contract list earning Rs 30 lakh annually. [9] Recently he was shifted from Mandoli jail to Tihar jail which is not a good sign. As of now, the future is not very bright for Sushil Kumar. Delhi Crime Branch is bringing other convicted gangsters to question alongside him and is arresting suspects in the case. Once MCOCA is invoked, his properties bought by and as profits of the crimes he did for the gangs will be seized. Other ramifications can be prolonged custodies, tapping of communication devices of gangsters he was connected to, if he confesses to his crime to a police officer not below the rank of SP and is recorded then it can be used as evidence, and once a Special Court is set up to try him things can get extremely difficult for him. Lastly let us not forget the punishments provided under this Act.

Maharashtra Control of Organised Crime Act, 1999 is a perfect law to deal with organised crimes. The provisions are clearly not in favour of the organised crime groups. The law is designed in a crafty way to be effectively implemented and the attitude of courts might seem hasty when trying the perpetrators of organised crime, but such is necessary. Provisions under MCOCA, unquestionably, are a major step in the direction of modernising and recasting penal provision for uprooting the evils of organised crime and to cause deterrence to members/individual engaging in crime syndicates for recurrent offences. [10]


[1] Sagar Rana Murder Case, available at:

https://www.india.com/sports/sagar-rana-murder-case-first-photos-of-assault-night-where-sushil-kumar-is-accused-emerges-4696132 (Last Modified May 25, 2021).

[2]Saurabh Trivedi, MCOCA likely to be invoked against Sushil Kumar, The Hindu, May 30, 2021.

[3] MCOCA: Expanding Realms of Penal Provisions, available at:

https://www.scconline.com/blog/post/2020/12/19/mcoca-expanding-realms-of-penal-provisions (Last Modified Dec 19, 2020).

[4] Adu Ram vs Mukna and Ors (2005) 10 SCC 597.

[5] The Maharashtra Control of Organised Crime Act, 1999 (Act 30 of 1999).

[6] All about Maharashtra Control of Organised Crimes Act,1999, available at:

https://www.latestlaws.com/articles/all-about-maharashtra-control-of-organised-crimes-act-1999-by-harshit-sharma/

[7] The Maharashtra Control of Organised Crime Act, 1999 (Act 30 of 1999).

[8] Two-time Olympic medallist is now a fugitive? Sushil Kumar’s future in question, available at:
https://thebridge.in/wrestling/two-time-olympic-medallist-fugitive-sushil-umar-future-21406 (Last Modified May 10, 2021).

9 Ujwal Singh, Sushil Kumar link in Sagar Dhankar murder case and how it impacts his legacy, FirstPost, May 31, 2021.

[10] MCOCA: Expanding Realms of Penal Provisions, available at:

https://www.scconline.com/blog/post/2020/12/19/mcoca-expanding-realms-of-penal-provisions (Last Modified Dec 19, 2020).

Author: Vedant Gupte, Dharmashastra National Law University, Jabalpur

Editor: Kanishka VaishSenior Editor, LexLife India.

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