Satyam Sharma is a second (2nd) Year BALLB (Hons) student at IILM University, Greater Noida, Read More
Abstract
In an age of rapidly changing technology and innovations in crime patterns, the traditional definitions of crime have been found wanting. Among the biggest challenges is the growth in size and reach of organised crime syndicates—more commonly referred to as the Mafia—and these now operate not merely in geographic spaces but increasingly in virtual spaces as well. The passing of the Bhartiya Nyaya Sanhita (herein referred to as ‘BNS’), 2023, effective in mid-2024, is a wholesale reorganisation of Indian criminal law. In particular, Section 111 of the BNS sets out, for the first time in federal legislation, a definition and provisions for addressing organised crime. This legislative innovation has, however, set off intense controversy within the legal fraternity, with opinions sharply divided regarding its scope, implications, and constitutional validity. Before the BNS was enacted into law, individual Indian states like Maharashtra, Gujarat, and Karnataka enacted their own legislative provisions, like the Maharashtra Control of Organised Crime Act (MCOCA) of 1999, to address the problem of organized crime. The present paper attempts a comparative legal study of the state-specific laws and the new centre-run legislation enacted by the BNS. The paper examines the statutory provisions, reach, procedural safeguards, and penal provisions incorporated in both legal regimes. Additionally, the paper draws upon seminal judicial interpretations of constitutional courts that have attempted to clarify and define the contours of organized crime in the Indian context. With a mix of doctrinal analysis and jurisprudential investigation, the present study attempts to eliminate interpretative vagueness and provide a harmonious legal framework that enables effective prosecution while protecting fundamental rights.
“Crime is simply a convenient monosyllable which we apply to what happens when the brain and the heart come into conflict and the brain is defeated.”[1]
Introduction
Organised crimes are not confined to any particular boundaries or territories or to one country, has now become a transnational problem. The contemporary patterns and methods of organised is different from the ancient times and now it has become more complex[2]. The emerging technologies in our ever-growing world have undermined the state sovereignties via making the state boundaries vulnerable to various attacks[3]. It is being further intensified due to communications and information technology advancement as the process of interaction and transcending of information and data across the borders have unprecedented opportunities. According to the Kefauver Committee (1951), organised crime can be a network of criminal or syndicate fundamentally based on the concept of indiscriminately usage of power to run criminal activities[4].
The United Nations Convention against Transnational Organized[5] crime has provided a definition of an organised criminal group- “a group of three or more persons existing over a period of time acting in concert with the aim of committing crimes for financial or material benefit”[6]. These groups operate on a criminal economy of buy and sell of counterfeit goods, frauds, drug trafficking and this not limited, it depends sometimes on the demographic location of the group. It’s astonishing that these groups do not operate in a single structure but it varies from hierarchies of network, clans and other structures[7]. These groups have now adopted a new stem of cybercrimes, which makes every individual accessible to internet vulnerable to various attacks.
Interpretation and Analysis of Section 111, Bharatiya Nyaya Sanhita, 2023
With the enactment of BNS, various changes or alterations or additions and one of which is the addition of an offence related to Organized crimes. Even though various states had already passed separate acts to curb this menace like the Maharashtra Control of Organised Crime Act (MCOCA), 1999[8], Karnataka Control of Organised Crime Act (KCOCA), 2000[9], Andhra Pradesh Control of Organised Crime Act, 2001[10], Gujarat Control of Terrorism and Organised Crime Act (GUJCTOC), 2015[11] and the Delhi not having a separate act, application of MCOCA was extended to the National Capital Territory by the Central Govt in 2002[12]. All the aforesaid acts (Except MCOCA) are identical to each other as these are based on MCOCA. The BNS also consists of some similarities as compared with other acts, but the ambit of crimes under its umbrella is wider. Organised crime is also defined in the United Nations Convention against Transnational Organized Crime[13] under Article 2 (a) as “Organized criminal group” shall mean 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”.
The afore mentioned section starts with “Any continuing unlawful activity”, to which the Explanation II have defined it as an activity which is illegal or prohibited by law, shall be cognizable offence punishable with imprisonment of atleast 3 years or more, person must undertake the act or persons under the name of their syndicate or on behalf of their syndicate and more than one charge sheets have been filed before a competent court within ten year period[14], adding to the court must have taken cognizance of such offence which also includes economic offences. This only relates to the statutory definition, but the Indian Courts have also added their own opinions while interpreting this term. The Apex Court in one of the case related to MCOCA[15], while interpreting, respectively the clauses (d), (e) and (f) of Section 2(1) which have defined organized crime syndicate were declared to necessary compliance to attract this offence and benefits other than economic[16] is also declared organized crime[17]. In the case of State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane[18], the person must continue to do unlawful act and if the guilty has committed crime once and stopped in subsequent years then provisions related to Gujarat Control of Terrorism and Organised Crime Act, 2015[19].
While reading the aforesaid explanation the word “……have been filed before a competent court……” is written, the issue arises is when the syndicate has its presence in various states, whether there will be different or separate cases or proceedings will be initiated? and whether one of the essentials to have more than one chargesheets and to which the court have taken cognizance of will be applicable to the fresh proceedings initiated under this section (retrospective application). The Supreme Court in the case of State (NCT Of Delhi) v. Brijesh Singh @ Arun Kumar And Anr[20], it was reiterated that there must be a territorial nexus between the crime committed in one state and proceedings initiated in another state. Where the members of the syndicate had indulged in continuing unlawful activity across the country, it can’t be assumed that there is no nexus or connection between the offences committed in various states. The competent courts herein referred must not be construed as confined to a particular jurisdiction, between it can also mean various or multiple jurisdictions[21]. But in the present case as there were no chargesheet being filed in Delhi, rather all the chargesheets were being filed outside Delhi and it was held that the respondents cannot be prosecuted. It gives an express definition of what do chargesheet filed in a competent court is essential to attract this offence[22]. There must be cognisance of the offence by the court to regard the offence as Organized crime.[23].
The continuing unlawful activities includes kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cybercrimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by this exhaustive definition majorly all the crimes which are prevalent in the society are considered under it.
After scrupulously analysing sub-sections of section 111 of BNS, the person or a group of persons who abets, attempts, conspires or knowingly facilitates the commission of the organised crime will be subjected to imprisonment which shall not be less than five years but may extend to imprisonment for life and shall be liable to fine which shall not be less than five lakh rupees. The wording of this sub-section depicts that even the attempt of organised crime is also punishable. In the case of State of Maharashtra V. Kamal Ahmed Mohammed Vakil Ansari & Ors[24]The court held that any confession made to a police officer not below the rank of Superintendent of Police recorded by way of writing or using any electronic device shall be admissible in the trial, and it is an exception or overriding effect on Section 25[25] & 26[26] of the Indian Evidence Act[27] But it must mandatorily be limited to the accused-confessor and a co-accused (abettor or conspirator)[28].
Clause (3) of section 111 of BNS is evident to punish someone who abets, attempts, conspires, or knowingly facilitates the commission of an organised crime. The Apex court of the Indian judiciary, in one of its landmark cases, which pertains to a test for establishing conspiracy, is Sardar Surdul Singh Caveeshar v. State of Maharashtra[29], the court held that
“(1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him after the intention was formed by any one of them; (4) if it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-conspirator and not in his favour.”[30].
The court thought that for proving the essence of conspiracy there must be agreement between persons to do or not to do something which may be proved by a direct evidence or it can be inferred from the conduct of the parties or by circumstantial evidence. But the court must be satisfied that all the above stated conditions are fulfilled beyond the reasonable doubt. The word “abet” which is being used in aforementioned section and other related provisions is scrupulously defined in the case of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr.[31] where it was explained as it as not what is being mentioned in the Section 107 of IPC (now BNS) but must be attributed to be referred as to grammatical variations and cognate expressions. According to the court it meant to include communication, association with any person with actual knowledge or having reason to believe that such person is engaged in assisting in any manner with an organised crime syndicate. This case primarily pertained to the statutory interpretation of provisions of MCOCA but in regard to BNS both the legislative definition and grammatical expressions must be considered. There must be an extrinsic evidence to attract the above said punishment[32]. The expression used in the section 111 of BNS “threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime” includes any activity which deceitful behaviour in public to disturb and usurp public peace and stability like money laundering, terrorism and etc[33]. The definition as compared to state specific laws is being broadened and now includes cyber-crimes and economic offences. It is not necessary that the there must be financial benefit but any direct or indirect unlawful means to procure material benefits is under the above mentioned offence.
Conclusion
The induction of this offence under the new criminal act is a welcoming step and now the so-called mafia’s syndicate or network will be broken and hindered to hamper the growth of illegal and unlawful activities in the society. But still some parts must be defined or had been written briefly like special reference to knowledge and intention while facilitating organised crimes and others. Still, it must be open to the courts for their interpretation of this section. It is a major break through for covering up the grey area of the old laws.
[1] Arnold Bennett (1867–1931)
[2] The European Union Serious and Organised Crime Threat Assessment, 2017
[3] F. Calderoni, Organized Crime Legislation in the European Union, DOI 10.1007/978-3-642-04331-4_2, Springer-Verlag Berlin Heidelberg 2010
[4] M.L. Sharma, The Organised Crime in India, Tokyo: United Nations Asia and Far East Institute (UNAFEI), 1999, vol. 54, p. 24.
[5] https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf, also referred in Resolution adopted by the General Assembly [without reference to a Main Committee (A/55/383)].
[6] This definition is further being adopted by EU’s Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime and continues to reflect law enforcement authorities’ conceptualisation of organised crime across the world.
[7] Global Organized Crime Index accessible at https://ocindex.net/2021/rankings/mafia-style_groups?y=2021&f=rankings&view=List explains the concentrations of these groups in various states.
[8] Act 30 of 1999.
[9] Karnataka Act 1 OF 2002.
[10] Act No. 42 OF 2001.
[11] Gujarat Act No. 24 OF 2019.
[12] Ministry of Home Affairs Notification No: GSR 6(E) dated 2 January 2002, under section 2 of the Union Territories (Laws) Act, 1950.
[13] Resolution adopted by the General Assembly [without reference to a Main Committee (A/55/383)] 55/25
[14] Muhammad Rasheed v State of Kerala, 2024 LiveLaw (Ker) 533, BAIL APPL. NO. 5927 OF 2024
[15] Abhishek vs State of Maharashtra, CRIMINAL APPEAL NO. 869 OF 2022, ARISING OUT OF SLP (CRL.) NO. 1157 OF 2022, (@ DIARY NO. 2575 OF 2022).
[16] Section 2 (1)(e)- “……. with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself……”.
[17] Id. 9, Para 7.2,
[18] (2015) 14 SCC 272
[19] Id. Para 51
[20] AIR 2017 SC 4888, 2018 (1) SCC (CRI) 117 (This case relates to MCOCA)
[21] Id. Paras 25, 26.
[22] Id. Paras 31-32.
[23] Prasad Shrikant Purohit v. State of Maharashtra & Anr. (2015) 7 SCC 440, Paras 19, 23, 24, 26, 38, 39, 40, 41, 57, 58, 59.
[24] (2013) 12 SCC 17
[25]Confession to police-officer not to be proved––No confession made to a police-officer, shall be proved as against a person accused of any offence.
[26]Confession by accused while in custody of police not to be proved against him––No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
[27] Act No. 1 of 1872
[28] Id. Paras 40 & 41.
[29] AIR 1965 SC 682
[30] Para Nos. 8 to 11
[31] AIR 2005 SUPREME COURT 2277, 2005 SCC(CRI) 1057
[32] Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366; Govind Sakharam Ubhe vs The State Of Maharashtra CRIMINAL APPEAL NO.18 OF 2009- Bombay High Court.
[33] Explanation of Terrorism- Madan Singh vs State of Bihar AIR 2004 SUPREME COURT 3317
