Organised crime is being addressed in a comprehensive way at the national level for the first time, with its introduction in a specific section of the recently enacted Bharatiya Nyaya (Second) Sanhita (BNS), 2023. The new statute will replace the Indian Penal Code, 1860, which does not have any clauses pertaining to organised crimes, though the offence has inter-State and even international ramifications.
“To allow for an effective prosecution of such an offence, the Maharashtra State Legislative Assembly had passed the Maharashtra Control of Organised Crime Act (MCOCA), 1999. Thereafter, similar laws were adopted in various States. However, there was a need for a legal framework at the national level to combat the menace efficiently,” a senior police officer said.
A comparison of the BNS’ provisions on organised crime with the MCOCA shows that several sections are substantially the same.
Section 109 of the BNS defines organised crime as “any continuing unlawful activity” committed by “groups of individuals acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit”.
The types of organised crime explicitly included in the provision are kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom.
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The definition differ from the MCOCA only insofar as the specific types of organised crimes which have been included in the BNS.
Section 109 provides detailed explanations to terms such as “organised crime syndicate” and “continuing unlawful activity”, which have also been explained in the MCOCA. However, it further adds explanations for the terms “benefit” and “economic offences”.
In both the laws, the punishments for various degrees of offences linked to organised crime are also almost the same. However, a major difference is that in the BNS, whoever “attempts” to commit, or commits an offence of organised crime, which has resulted in the death of any person, will be punishable with death or imprisonment for life and are liable for a fine of not less than ₹10 lakh.
In the MCOCA, only the commission of organised crime which results in the death of any person attracts the punishment of death or life imprisonment, apart from a minimum fine of ₹1 lakh.
“There are several issues involved... First, that MCOCA-like State laws are properly enacted by the State legislature and many of them have also been approved by the Central Home Ministry and President. The validity of those laws have been endorsed by High Courts and the Supreme Court. In Delhi and many Union Territories, the Central government is using those State legislations for law and order,” said Supreme Court lawyer Virag Gupta.
Mr. Gupta, who has edited a Compendium of New Criminal Laws, then compared the State law with the new criminal law subsequently enacted by the Centre. “There is no conflict between the two laws [MCOCA and BNS]. Then the questions are of quantum of punishment, and whether the case will be taken up before a regular or special court. Under MCOCA, there are powers of preventive detention and the law has wider details and deeper implications to address the organised crimes. Therefore, the respective States may very well continue to invoke it,” Mr. Gupta said.
In Section 110, the BNS also defines “petty organised crime or organised crime in general” as “any crime that causes general feelings of insecurity among citizens”. The provision highlights various types of such offences, which include the theft of or from a vehicle, domestic and business theft, trick theft, cargo crime, theft (attempt to theft, theft of personal property), organised pick-pocketing, and snatching.
In view of the new criminal law, another police officer said that appropriate amendments would have to be made in some other related laws, including the Prevention of Money Laundering Act, for a coordinated approach towards combating organised crime.
