Special Procedure : Change in Rules of Evidence and Criminal Procedure
(Sections 17- 23) Under The Maharashtra Control of Organized Crime Act, 1999
Section 17 - Special Rules of Evidence:
- In trials related to this Act or similar offenses, the court can consider certain things as evidence, even if regular rules say otherwise.
- These things include whether the accused was:
- Bound by certain legal orders before.
- Detained under preventive laws.
- Previously prosecuted in the Special Court under this Act.
- If someone involved in organized crime has property they can't explain, the court will assume it's from illegal activities unless proven otherwise.
- If the accused kidnaps someone, the court will assume it's for ransom.
Section 18 - Certain Confessions Made to Police Officer:
- Confession Admissibility: A confession made to a police officer of at least the rank of Superintendent of Police can be used as evidence in a trial, but there's a condition. It can only be used if the co-accused, abettor, or conspirator is also charged and tried in the same case along with the accused who made the confession.
- Language and Atmosphere: The confession should be recorded in a relaxed atmosphere and in the same language in which the person is speaking.
- Voluntary Nature: Before recording the confession, the police officer must inform the person that they don't have to confess, and if they do, it can be used against them. The officer can only record the confession if they are satisfied that it's being made voluntarily. They must certify this in writing along with the date and time.
- Forwarding the Confession: The confession must be sent immediately to the Chief Metropolitan Magistrate or Chief Judicial Magistrate in the area where it was recorded. They will then send it to the Special Court that can handle the case.
- Producing the Accused: The person who confessed must also be brought before the Chief Metropolitan Magistrate or Chief Judicial Magistrate along with the original confession statement without any unreasonable delay.
- Recording Statements and Medical Examination: The Magistrate should carefully note any statements made by the accused when they are brought in. If there are complaints of torture, the person should be directed to undergo a medical examination by a qualified Medical Officer.
Section 19 - Protection of Witness:
- Closed Proceedings: The Special Court can decide to hold the proceedings in private (in-camera) if it thinks it's necessary.
- Witness Protection: The Special Court can, upon request by a witness, the Public Prosecutor, or on its own, take steps to keep a witness's identity and address secret.
- Protective Measures: These steps might include holding proceedings at a specific location, not mentioning witness names or addresses in public records, issuing directions to protect witness identity, or ordering that the proceedings should not be made public.
- Punishment for Violation: Anyone who disobeys these protective directions can be punished with up to one year in prison and a fine of up to one thousand rupees.
Section 20 - Forfeiture and Attachment of Property:
- Forfeiture of Property upon Conviction: If someone is found guilty of an offense under this Act, the Special Court can order that specific properties they own will be taken by the government. These properties will no longer have any legal claims or debts against them.
- Attachment of Property during Trial: If a person is accused of an offense under this Act and is on trial, the Special Court can order their property to be temporarily held. If they are convicted, this property will be permanently taken by the government.
- Proclamation for Absconding Accused:
- If a person accused of an offense under this Act is hiding to avoid arrest, the Special Court can issue a notice requiring them to appear at a specific place and time. This notice must be made public.
- The Special Court can also order the attachment of any property owned by the accused at any time. This attachment process follows certain rules in the Code of Criminal Procedure (sections 83 to 85).
- If the accused shows up within six months and can prove they didn't hide on purpose and didn't receive the notice in time, their property or the money earned from selling their property (if already sold) will be given back to them, minus any costs incurred.
Section 21 - Modified application of certain provisions of the Code:
- Cognizable Offense: Any offense punishable under this Act is deemed to be a "cognizable offense," as defined in the Code of Criminal Procedure, section 2.
- Time Limits for Detention:
- Police custody can last up to "thirty days."
- Judicial custody can last up to "ninety days."
- An extension up to "one hundred and eighty days" is allowed by the Special Court if the investigation cannot be completed within ninety days.
- No Anticipatory Bail: Section 438 of the Code (related to anticipatory bail) does not apply to cases involving the arrest of a person accused of an offense under this Act.
- Strict Bail Conditions: Accused persons cannot be granted bail if they are currently on bail for an offense under this Act or any other law, unless:
- The Public Prosecutor has a chance to oppose the bail application.
- The Court is satisfied that the accused is likely not guilty of the offense and will not commit another offense while on bail.
- Additional Bail Restrictions: These limitations on bail are in addition to any existing limitations under the Code or other laws.
- Police Custody Explanation: If the police officer seeks custody of an accused person for pre-indictment or pre-trial interrogation from judicial custody, they must provide a written statement explaining the reasons for seeking such custody and any delays in making the request.
Section 22 - Presumptions in Prosecutions for Organized Crime:
- Offense Under Section 3 - Unlawful Arms and Fingerprints:
If it is proven that unlawful arms, documents, papers, or other materials were found in the possession of the accused, and there is reason to believe these items were used in the commission of the organized crime offense (as specified in section 3), The Special Court will presume, unless proved otherwise, that the accused committed the offense.
- Offense Under Section 3- Financial Assistance:
If it is proven that the accused provided financial assistance to a person accused of or reasonably suspected of an organized crime offense The Special Court will presume, unless proved otherwise, that such person has committed the offense under section 3(2).
Section 23 - Special Provisions Regarding Investigations and Sanctions:
- Recording Offense Information:
- Before a police officer can record information about an organized crime offense under this Act Approval from a police officer of at least the rank of Deputy Inspector General of Police is required.
- For investigating such offenses Only police officers at or above the rank of Deputy Superintendent of Police can conduct the investigation.
- Cognizance by Special Court:
A Special Court cannot take action on any offense under this Act unless It has received prior approval from a police officer of the rank of Additional Director General of Police.
Written By: Harshavardhan Prakash Deshmukh
, 4th Year Of B.A.LL.B. - Modern Law College, Pune