This article has been written by Prabal Srivastava, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. 

Introduction 

Recently, Sushil Kumar, the two-time Olympic medalist, was accused in a murder case by a Delhi sessions court. The wrestler, along with his associates, has been charged under various provisions of the Indian Penal Code, 1860, and the Arms Act, 1959. However, upon further investigation by the police, it was discovered that the Olympian had been involved in numerous criminal activities for the past several years. As per the records, he had been in constant touch with the gangsters from various parts of the country, including the Delhi NCR region. In light of such a discovery, whether or not the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as “MCOCA” or the “Act”) should be invoked, is a debatable question. However, the ongoing investigation and the accused’s antecedents have failed to prove him guilty under the said legislation. The aim of this research work is to analyse the factual circumstances of the present incident along with the essential ingredients required to prosecute a person under the MCOCA. Further, the author concludes by asserting the reasoning behind the less likely invocation of the legislation in the present facts and circumstances.

Factual background

As reported, Sagar Rana (hereinafter referred to as the “deceased”), a former Junior National Wrestling Champion, along with his few friends (including Sonu Mahal and Amit Kumar), was living in a rented house owned by the accused near Chhatrasal Stadium in Delhi. The accused instructed the tenants to vacate the residential area over non-payment of rent, the refusal of which led to a heated altercation between them. 

On the night of 4th May 2021, the accused, accompanied by a group of twenty men armed with hockey sticks, batons, and baseball bats, brutally attacked the trio, consisting of the deceased and his two above-mentioned friends. Soon after the incident, the victims were admitted to Babu Jagjivan Ram Memorial Hospital (BJRM), Delhi. Later, Sagar Rana succumbed to the grievous head injury which he received during the altercation. The other two victims underwent treatment and survived. One of the victims, Sonu Mahal, narrated the entire incident in an exclusive interview, and his statements were corroborated by CCTV footage, in which Sushil Kumar could be spotted as the perpetrator of the offences committed.

Consequently, the police lodged an FIR against the accused under Sections 302 (murder), 308 (culpable homicide not amounting to murder), 365 (kidnapping), 323 (voluntarily causing hurt), 325 (voluntarily causing grievous hurt), 341 (wrongful restraint), 506 (criminal intimidation), 188 (disobeying order of public servant), 269 (public negligence), 120B (criminal conspiracy), and 34 (common intention) of the Indian Penal Code, 1860 and under Section 25 (punishment for various offences) of the Arms Act, 1959. The accused kept moving across various States like Delhi, Punjab, Haryana, and Uttar Pradesh to evade arrest but was finally arrested in Mundka near the Delhi-Haryana border. Previously the accused had applied for an anticipatory bail application before the Rohini Court in Delhi but was rejected on the merits of the case.

While hearing the application for anticipatory bail, the Additional Sessions Judge, Jagdish Kumar observed, “the allegations against the accused are serious in nature. From the perusal of the record of investigation so far, it reveals that prima facie the accused is the main conspirator.”

The accused was initially remanded to judicial custody for a period of fourteen days, which was extended to another fourteen days. Currently, he has been detained at the Tihar jail in New Delhi however, there has been a substantial delay in filing of charge sheet against the accused and the police authorities are planning to invoke MCOCA against him.

Sushil Kumar likely to grapple MCOCA essentials

MCOCA, as the name suggests is a State law that was legislated to combat the growing menace of ‘organised crime’ and terrorist activities by organised crime syndicates within the State of Maharashtra. However, the rising threat of similar offences was also observed in the northern parts of the country. Hence, the Ministry of Home Affairs, using its power envisaged under Section 2 of Union Territories (Laws) Act, 1950, (extended the territorial jurisdiction of MCOCA to the National Capital Territory of Delhi vide notification dated 2nd January 2002, which received Presidential assent. The specialty of MCOCA is that in certain cases it is seen to have an overriding effect against the central legislation. On the perplexity of being a deterrent, certain prerequisites unlike the traditional law need to be fulfilled to prosecute any person under MCOCA. The following requirements have been mandated by the law as well as through judicial pronouncements over time:

1. Commission of an organised crime

The term ‘organised crime’ has been defined under the act as the commission of any unlawful activity that was premeditated, calculated, deliberate, and systematic either by any member of the organised crime syndicate or carried out on behalf of the syndicate by illegal means such as threat, violence, coercion, or any other unlawful means to gain money or any other benefits for himself or any other prompting insurgency. Essentially, the said term deals with illegal monetary gains from offences such as extortion, smuggling in contrabands, contract killings, illegal trade in narcotics, kidnapping for ransom, money laundering, etc. 

2. Continuing unlawful activity

For any offence to fall within the ambit of ‘continuing unlawful activity’, it must ensure that the offence committed is a cognizable offence whose punishment is not less than three years as per penal law. In 2016, Sushil Kumar was accused of spiking one of his fellow mates named Narsingh’s food for which the victim faced a suspension for four years. However, the investigation acquitted the accused from all the charges.

3. Member of an organised crime syndicate 

A group of people who indulge in the commission of similar nature to criminal activities can fall under the purview of the term ‘Syndicate’. Generally, the term is alternatively used with ‘gang’. The United Nations Convention Against Transnational Organized Crime defines it as a group of three or more persons who for pecuniary or monetary benefits have been committing serious offences. However, by virtue of section 2(1)(f) of MCOCA, a minimum of two or more persons acting individually or collectively, as a syndicate or a gang and indulging in activities that would lead to the commission of organised crime. In the said case, upon investigation, it was also discovered that the international wrestler shared a friendly relationship with some dreaded criminals like Neeraj Bawana and Kala Jathedi since 2018 whereby he used to enter into contractual deals for properties and shared the profits equally among all. It is also pertinent to note that these criminals have also been charged under MCOCA. However, all these antecedents have never been reported.

Analysis

The genesis and the development of the entire statute revolve around the above-mentioned prerequisites. If proven, the accused shall be sentenced to punishment beyond the traditional penal law provisions i.e. a death punishment or imprisonment for life. Depending upon the facts and circumstances of the case and investigation so far, Sushil Kumar may not be tried under the MCOCA. It is evident that the accused has fallen under the jurisdictional extent of the state legislation. Further, the sources claim that he has a criminal record, and has been involved with criminals like Neeraj Bawana and Kala Jathedi. 

This shows that he has been involved in frivolous activities in his past and used to work together for economic benefits. But all these factors do not necessarily constitute charges under the MCOCA as the filing of a charge sheet is both a mandate and a prerequisite. The judicial system has laid special attention on the filing of two charge sheets for which the cognizance should have been taken by the competent court is not met. The Honorable Supreme Court in Brijesh Kumar v State NCT of Delhi strictly emphasized that this legislation also mandates the filing of two charge sheets within ten years from the time of this legislation enforcement as a condition precedent. The mere filing of a charge sheet in itself is not sufficient to make any person liable under MCOCA. According to such filing of charge sheets, the cognizance must have been taken by the special court codified under the law. Further, either the offences committed should be ejusdem generis (of the same nature/kind) or there should be a direct nexus between the two offences committed.

To prosecute any person under MCOCA, by the virtue of provisions and case law repactuliated above, is mandatory compliance to fulfill the prerequisites. If this does not comply with it shall lead to vitiating the procedure established by law which further may lead to an acquittal. 

Similarly, in Chenna Boyanna Krishna Yadav v State of Maharashtra, The court focused upon the commission of the offences and the filing of the charge sheet. It was held that with no clear nexus between the accused and the MCOCA offences, he will not be held accountable for the offence he was charged under, and so the bail that was previously denied was granted.  

MCOCA is one of the most stringent laws in the country. Charging a person under it without fulfilling all the conditions precedent may violate his fundamental rights envisaged under the Indian Constitution. To date, there is not even an iota of evidence to prove Sushil Kumar’s guilt under MCOCA. There have been several cases in the past where the accused has been lucky to escape MCOCA due to lack of proof and fulfillment of essential ingredients as discussed above.

Conclusion

Without a doubt, offenders involved in organised crimes should be subjected to stringent provisions as per MCOCA. However, as explained above, the accused cannot be charged under the Act for the commission of organized crimes mainly on the ground that there was no charge sheet filed against the accused during the time period as prescribed by law, eventually, no cognizance was taken by the competent court thereafter. It is truly heartbreaking to see that a world-class wrestling champion and Rajiv Gandhi Khel Ratna’s legatee are now under police custody. For an athlete, factors such as wealth, fame, power, etc. all play a vital role in boosting his morale and his acceptance in society. It is a major setback not only for his fans across the world but for the sport too. 

Though MCOCA is less likely to be invoked against the accused, his future certainly is adversely affected as Indian Railways exercised its power under Rule 5(2) of Discipline and Appeal) Rules, 1968 and fired him from the post of a Serial Manager of Northern Indian Railways till further orders. Sushil Kumar’s troubles may not end there either. With the Wrestling Federation of India (WFI) set to drop off his annual contract and representing India in the Olympics again a far-fetched dream his fans can only sigh and wonder what could have been. 

Note: This article was written on 24th July 2021. However, the charge sheet has been filed against the accused under provisions of the Indian Penal Code, 1860 dated 3rd August, 2021.

References

• Phitugxpkg, ‘THIS CAUSED SAGAR RANA’S DEATH, REVEALED IN POSTMORTEM REPORT’ (Sportsdailyindianet, 25 May 2021) <https://sports.dailyindia.net/sports-news-english/this-caused-sagar-ranas-death-revealed-in-postmortem-report/> accessed 16 July 2021 
• Biji Ahuja, N. and Bhatia, N., 2021. Sushil Kumar’s road to perdition. [online] The Week. Available at: <https://www.theweek.in/theweek/sports/2021/06/03/sushil-kumars-road-to-perdition.html> [Accessed 24 July 2021].
• A., 2021. Chhatrasal Stadium murder case: Wrestler Sushil Kumar suspended by Railways. [online] ANI News. Available at: <https://www.aninews.in/news/national/general-news/chhatrasal-stadium-murder-case-wrestler-sushil-kumar-suspended-by-railways20210525153131/> [Accessed 24 July 2021].
• Release, P., 2021. Wrestlers Sushil Kumar, Pooja Dhanda set to be left out of WFI’s central contracts: Report. [online] Scroll.in. Available at: <https://scroll.in/field/995774/wrestlers-sushil-kumar-pooja-dhanda-set-to-be-left-out-of-wfis-central-contracts-report> [Accessed 24 July 2021].
• Gokhale, N., 2021. Gokhale, Nishant — “Criminal Liability for Match-Fixing” [2009] NUJSLawRw 17; (2009) 2(2) NUJS Law Review 319. [online] Liiofindia.org. Available at: <http://www.liiofindia.org/cgi-bin/disp.pl/in/journals/NUJSLawRw/2009/17.html?
• Biswas, S., 2021. Sushil Kumar: The Indian Olympic legend accused of murder. [online] BBC News. Available at: <https://www.bbc.com/news/world-asia-india-57340072> [Accessed 24 July 2021].

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