TARIQ ABDUL KARIM PARVEEN vs. THE STATE OF MAHARASHTRA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.127 OF 2005 CRIMINAL WRIT PETITION NO.127 OF 2005 CRIMINAL WRIT PETITION NO.127 OF 2005
WITH WITH WITH
CRIMINAL APPLICATION NO.3172 OF 2005. CRIMINAL APPLICATION NO.3172 OF 2005. CRIMINAL APPLICATION NO.3172 OF 2005.
Ashok Gyanchand Vohra ... .. Petitioner
Vs
The State of Maharashtra & Anr. .. Respondents.
WITH
CRIMINAL WRIT PETITION NO.1449 OF 2005 CRIMINAL WRIT PETITION NO.1449 OF 2005 CRIMINAL WRIT PETITION NO.1449 OF 2005
Shabbir N.Patel... .. Petitioner
Vs
The State of Maharashtra & Anr. .. Respondents.
WITH
CRIMINAL APPLICATION NO.6297 OF 2005 CRIMINAL APPLICATION NO.6297 OF 2005 CRIMINAL APPLICATION NO.6297 OF 2005
IN IN IN
WRIT PETITION NO.127 OF 2005 WRIT PETITION NO.127 OF 2005. WRIT PETITION NO.127 OF 2005
Ketan Tirodkar ... ... .. Intervenor
Vs
The State of Maharashtra .. Respondents.
WITH
CRIMINAL WRIT PETITION NO.1956 OF 2005 CRIMINAL WRIT PETITION NO.1956 OF 2005 CRIMINAL WRIT PETITION NO.1956 OF 2005
Shri R.M.Dhariwal ... .. Petitioner
Vs
C.B.I. & Ors. ... .. Respondents.
WITH
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CRIMINAL WRIT PETITION NO.2016 OF 2005
CRIMINAL WRIT PETITION NO.2016 OF 2005 CRIMINAL WRIT PETITION NO.2016 OF 2005
Jagdish M.Joshi ... .. Petitioner
Vs
C.B.I. & Ors.... .. Respondents.
WITH
CRIMINAL WRIT PETITION NO.2065 OF 2005 CRIMINAL WRIT PETITION NO.2065 OF 2005 CRIMINAL WRIT PETITION NO.2065 OF 2005
Tariq Abdul Karim Parveen.. .. Petitioner
Vs
State of Maharashtra... .. Respondent.
Mr R.M.Agarwal with Mr A.M.Sarogi and Mr Girish Agarwal,
for the petitioner.
Mr Ravi Kadam, Advocate General, with Mr S.R.Borulkar,
Public Prosecutor with Smt P.H.Kantharia, A.P.P. and Mr
D.S.Mahispurkar, APP i/by Government Pleader for
respondent no.1-State.
Ms Asmita Sarangdhar for respondent no.2 in
W.P.No.127/05 and for the applicant in Cri.Application
No.3172 of 2004
Mr Sushilkumar, Senior Counsel with Mr S.K.Jain, Mr
Rajendra Shirodkar, H.Jain, Lalit Chavan and K.Damle i/b
M/s Udwadia Udeshi & Co., for the petitioners in Writ
Petition No.1956 of 2005.
Mr Shirish Gupte, Senior Counsel, with Mr A.P.Mundargi
and Mr S.Gole, for the petitioner in Writ Petition
No.2016 of 2005.
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Mr S.R.Chitnis, Senior Advocate with Mr G.Kulkarni and
Mr H.Wadake, for the petitioner in Writ Petition No.2065
of 2005.
Mr Prakash Naik, for respondent no.3 in Writ Petition
No.1449 of 2005.
Mr Amit Desai, Senior Counsel with Mr Subodh Desai and
Mr G. Shenoy i/b M/s.Dhruve Liladhar & Co, for the
petitioner in Writ Petition No.1449 of 2005.
Mrs S.S.Matti, for the applicant in Cri.Application
No.5984 and 6293 of 2005.
Mr Ketan Tirodkar in-person as applicant in
Cri.Application No.6297 of 2005.
Mr Samir A.Vaidya, for the petitioner in Writ Petition
No.974 of 2005.
Mr V.M.Pradhan, for Intervenor in Cri.Application
No.6399 of 2005.
Mr V.M.Thorat, for the applicant in Cri.Application
No.6433 of 2005 and in Writ Petition No.2065 of 2005.
CORAM : V.G.PALSHIKAR Acg.C.J., CORAM : V.G.PALSHIKAR Acg.C.J., CORAM : V.G.PALSHIKAR Acg.C.J.,
D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. D.B.BHOSALE AND V.K.TAHILRAMANI,JJ.
DATE : 22ND DECEMBER, 2005 DATE : 22ND DECEMBER, 2005 DATE : 22ND DECEMBER, 2005
Oral Judgment:(Per Palshikar, J.) Oral Judgment:(Per Palshikar, J.) Oral Judgment:(Per Palshikar, J.)
1. The above writ petitions were heard by us and the
judgment was reserved. Then I prepared the judgment of
the Bench in November, 2005 and circulated it to my
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learned colleagues on the Bench. However to my dismay,
I was informed by both my colleagues that they do not
agree with the view taken by me on the presumption that
they agree with me. I then read the majority view
rendered by Hon’ble Shri Justice D.B. Bhosale. Having
given my anxious consideration to the views expressed I
found it impossible to agree with the majority view.
Hence this opinion.
2. I regret my incapacity to convince my learned
colleagues to the view that I propagated. In my humble
opinion, the majority view has the result of virtually
destroying the safeguards provided under the MCOC Act.
The majority view reads several things into the Act
which are not legislated. It has the effect of
permitting the Special Court under the Act not only to
take cognizance of private complaint alleging commission
of offences under the MCOC Act and order investigation
under section 156(3) of Criminal Procedure Code when
section 23 of the MCOC Act specifically bars it.
3. Special Court is not a Court of Sessions as
defined by the Code. Section 156 specifically
contemplates Magistrate empowered under section 190 of
the Code. Section 190 of the Code speaks only of
Magistrate. What Magistrate means is defined by the
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Code and Special Court ’as defined by sections 5 and 6
certainly is not a Magistrate. But for the provisions
of sections 5 and 6 of the MCOC Act the Special Court
contemplated by the Act does not come into existence.
It is not in the hierarchy of Courts mentioned in the
Criminal Procedure Code. It is not a Court of
Magistrate. It is not Court of Sessions. Section 156
specifically contemplates Magistrate as defined by
Criminal Procedure Code. The majority view has in
effect held that Special Court constituted under
sections 5 and 6 of the MCOC Act is a Magistrate as
defined by Criminal Procedure Code for the purposes of
exercising powers under section 156. Such construction
is impermissible under any established principle of
statutory interpretation.
4. According to the majority view wherever
legislature intended to prohibit use of the provisions
of Criminal Procedure Code, 1974 it has specifically
said so with non-obstante clause. Such clause is absent
in section 9 and therefore a Special Court functioning
under section 9 can act under section 156 and order
inquiry under section 156(3) though it is not a Court of
Magistrate as defined by the Code. Necessary corollary
of this view would be that provisions of section 190 of
Criminal Procedure Code 1974 would apply which
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specifically prohibits a Court of Sessions which is the
Court of original jurisdiction as is the Special Court
under MCOC Act from taking cognizance without committal
proceedings. If because of absence of non-obstante
clause provisions of Criminal Procedure Code 1974 are to
be applied under section 9 then provisions of section
190 also must apply and committal of proceedings would
become necessary. The Legislature knew this legal
position and therefore put the clause under section 9
which permits a Special Court under the Act to take
cognizance without committal proceedings. In effect
according to the majority view a Special Court can
direct investigation under section 156(3) of the Code
and can take cognizance of the matter inspite of bar
under section 23 of the Act.
5. The natural consequence of the majority opinion
would be that any private citizen by mere allegation of
possible commission of the offences under the Act can
put the machinery of the State into motion persuading
the Special Court to make order under section 156(3)
when that machinery cannot be put into motion by the
police themselves unless there is an approval under
section 23(1) of the Act. It provides that even
information regarding offences would not be recorded
unless it is approved or sanctioned by a designated
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officer. Thus, that which cannot be done even by the
Government of Maharashtra by reason of specific
prohibition imposed by the Act can be done by a
Magistrate on a complaint by private citizen by taking
recourse to section 156 of the Criminal Procedure Code
though that Special Court is not a Magistrate or Court
of Sessions as contemplated by Criminal Procedure Code
1974. According to the majority view therefore if
police wants to record information regarding commission
of offence under the Act it will have to take prior
approval of the designated officer under section 23(1)
before so recording the information but the police will
have to do it on complaint made by a private person to a
Special Court. In effect the bar provided by section 23
would only partially operate, it will prevent police
from taking any action without prior approval but will
be required to take it inspite of that section when the
complaint is made to a Special Court and he issues a
direction under section 156 (3). All that is provided
by section 9(1) of the MCOC Act in effect is empowering
a Special Court to take cognizance after sanction is
granted under section 23(2) without there being any
committal proceedings as contemplated by section 190 of
Criminal Procedure Code. The effect of the majority
view would thus run counter to the provisions of section
156(3) and section 23 of the Act.
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6. The direction to issue under section 156(3) to
investigate is issued to Station House Officer of the
concerned police station. He undoubtedly has the power
of requesting that the investigation be taken up by
Senior Officer but he can choose to do it himself which
would be in clean violation of provisions of section
23(1) which contemplates an investigation by a person
not below the rank of Superintendent of Police without
prior approval of the Director General of Police.
7. The majority view in my opinion, substitutes or
alters the provisions of section 9(1) and section 23.
It nullifies section 23(1) and permits the Special Court
to take cognizance inspite of the embargo put by section
23(2). It thus strikes down the provisions of section
23(2) to a large extent without there being any prayer
to that effect. It is for these reasons that I am
unable to agree with the majority view.
8. According to me the question referred has to be
answered as under :
Q. Whether in a private complaint filed Q. Whether in a private complaint filed Q. Whether in a private complaint filed
under the provisions of Section 9(1) of the under the provisions of Section 9(1) of the under the provisions of Section 9(1) of the
Maharashtra Control of Organized Crime Act, 1999 Maharashtra Control of Organized Crime Act, 1999 Maharashtra Control of Organized Crime Act, 1999
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designated Court is empowered to order designated Court is empowered to order designated Court is empowered to order
investigation under section 156(3) of the Code of
investigation under section 156(3) of the Code of investigation under section 156(3) of the Code of
Criminal Procedure before approval/sanction is Criminal Procedure before approval/sanction is Criminal Procedure before approval/sanction is
granted to investigate and take cognizance as granted to investigate and take cognizance as granted to investigate and take cognizance as
contemplated under section 23 of the said Act? contemplated under section 23 of the said Act? contemplated under section 23 of the said Act?
A. A designated Court under the MCOC Act A. A designated Court under the MCOC Act A. A designated Court under the MCOC Act
does not have the power to direct investigation does not have the power to direct investigation does not have the power to direct investigation
under section 156(3) of the Criminal Procedure under section 156(3) of the Criminal Procedure under section 156(3) of the Criminal Procedure
Code in view of the provisions of sections 9 and Code in view of the provisions of sections 9 and Code in view of the provisions of sections 9 and
23 of the MCOC Act. 23 of the MCOC Act. 23 of the MCOC Act.
My reasons for coming this conclusion are as follows:
. In this petition Hon’ble Shri Justice V.M.
Kanade on 23.3.2005 made an order requesting the Chief
Justice of Bombay High Court to constitute a larger
bench to resolve the conflict which according to the
learned Judge existed in the views expressed by two
Division Benches of this Court in Criminal Appeal
No.1451 of 2004 and Criminal Writ Petition No.1772 of
2004. He had framed the following question for
adjudication by the larger bench. The question reads
thus:
i) Whether in a private complaint filed
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under the provisions of Section 9(1) of the
Maharashtra Control of Organized Crime Act, 1999
designated Court is empowered to order
investigation under section 156(3) of the Code of
Criminal Procedure before approval/sanction is
granted to investigate and take cognizance as
contemplated under section 23 of the said Act?
9. I have heard the learned counsel appearing for
various parties who put forward their views on several
aspects touching the above question. Facts giving rise
to this reference stated briefly are that Criminal
Appeal No.1451 of 2004 was heard by the Division Bench
of this court presided over by Hon’ble Shri Justice S.B.
Mhase. It was dealing with conviction under the
provisions of Prevention of Terrorism Act, 2002 in an
appeal in Criminal Appeal No.1451 of 2004. While
deciding the appeal the Division Bench came across the
judgment delivered by a Single Judge of this Court which
is reported in 2004 All Mah. Reports (Criminal) 1689.
Though the division bench was considering several
contentions raised before it in the appeal under the
Prevention of Terrorism Act, it also considered similar
provisions under the Maharashtra Control of Organised
Crime Act, 1999 (MCOC) because the similarity was almost
identical. After considering the provisions the
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division bench led by Justice Mhase specifically
disapproved the judgment in Dayanand Nayak’s case
reported in 2004 All Mah. Reports 1689 (hereinafter
referred to as Dayanand Nayak’s case) and observed that
ordering investigation under section 156 of the Code of
Criminal Procedure in a private complaint filed under
section 9(1) of the MCOC Act is rendering the provisions
which required approval for investigation and sanction
for prosecution redundant. This judgment was pronounced
by the division bench on 21.12.04. The ratio of this
judgment, in our opinion, is that no action under the
provisions of the Prevention of Terrorism Act, 2002 can
be taken unless there is prior approval for
investigation and sanction for prosecution as
contemplated by the provisions of that act. The
necessary provisions of the Prevention of Terrorism Act
are contained in sections 29, 50 and 58(1) of that act,
which according to the bench are similar to the
provisions of sections 9 and 23 of the MCOC Act.
10. Criminal Writ Petition No.1772 of 2004 arose out
of the provisions of MCOC Act and the order questioned
therein was the order passed by a designated court
presumably under section 9 of the MCOC Act directing the
designated Judge to deal with matters a fresh in the
light of the observations made by the division bench in
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that judgment. However asserting that the Special Judge
can take cognizance of the complaint only after
requisite sanction is granted by sanctioning authority
petition was accordingly disposed of. By necessary
implication the order of the division bench deciding the
writ petition held that though cognizance of a private
complaint filed before the designated court cannot be
taken without previous sanction of the competent
authority investigation under section 156(3) of Cri.
P.C. could be ordered. This judgment was pronounced on
22.12.2004 i.e. on the next day the judgment in
Criminal Appeal No.1451 of 2004 was pronounced. The
fact that a division bench of this Court on 21.12.2004
had specifically overruled the Judgment in Dayanad
Nayak’s case could not be brought to the notice of the
division bench presided over by Hon’ble Smt.Justice
Ranjana Desai which decided Criminal Writ Petition
No.1772 of 2004. While so deciding the division bench
was naturally unaware of the fact that factually the
decision of the learned Single Judge Justice Marlapalle
stood specifically over ruled by division bench of this
Court on 21.12.2004. They consequently proceeded to
pronounce their judgment on 22.12.2004 that a Magistrate
can order investigation under section 156(3) of the Cri.
P.C. But cannot take cognizance of the complaint of
offences mentioned therein unless sanction of the
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competent authority under section 23 is obtained.
11. Justice Kanade while he was hearing above
Criminal Writ Petition No.127 of 2005 had the occasion
to consider both the judgments, one dated 21.12.2004 and
other dated 22.12.2004. He by his well reasoned concise
order brought out the differences between the two
orders, nailed the conflict which obviously existed
between the two, noticed the factual position due to
existence of which the conflict might have arisen and
proceeded to make reference to the Hon’ble Chief Justice
as sequel of which our bench was constituted and I have
heard the matter in details apart from hearing learned
advocates appearing for various parties, I also heard
Shri Ketan Tirodkar who sought to intervene in this
matter on the ground that it was his complaint which
ultimately culminated in the judgment of Dayanand
Nayak’s case and also other interveners who pointed out
to us during the course of arguments the necessity of
holding private complaint under section 9(1)
maintainable to avoid atrocities of the police under the
provisions of MCOC Act. I will notice all the arguments
of the learned counsel at proper places.
12. I will now notice the facts giving rise to the
present Criminal Writ Petition No.127 of 2005 in which
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this reference to Full Bench is made. I may also
incidentally note that during the pendency of this full
bench for hearing several such cases ultimately raising
the question of maintainability of a private complaint
under section 9(1) of MCOC Act were filed in this Court
and ultimately were referred for adjudication along with
this petition being Criminal Writ Petition No.127 of
2005. I have also heard the learned advocates appearing
for parties in each of them. Intervenors were also
permitted to submit their say generally in all cases.
13. The Special Judge which actually is designated
under the provisions of the MCOC Act, Shri A.P.
Bhangale was trying Special Case Nos.243 of 2004 and 258
of 2004 against the accused under the provisions of the
MCOC Act. During the continuance of the trial
application was filed by one Nitendra Singh Patil in the
shape of complaint of offences under MCOC Act and Indian
Penal Code conjointly. The complaint/application was
basically targeting several officers of the Bombay
Police who according to the complainant have committed
certain offences as defined in the MCOC Act, in addition
to having committed several other offences under the
provisions of Indian Penal Code. It would be necessary
for proper appreciation and adjudication of the above
referred question to note the prayers made in the
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application :
"1. Hon’ble Court may be pleased to take the
cognizance of the complaint and process may be
issued against all the accused above named OR
alternatively direct the competent police
authority to register the Complaint under Section
3(2), 3(3), 3(4), 3(5) 4 and 24 of MCOCA &
Section 120B, 143, 147, 149, 166, 182, 191, 192,
193, 195, 196, 218 & 323 read with 34 of I. P.
C.
2. Hon’ble Court may be pleased to allow
the complaint to rely on the averments made and
information given in the envelope as part and
parcel of this Complaint.
3. Hon’ble Court may be pleased to call
upon criminal record of all the Accused persons
mentioned in the complaint.
4. Hon’ble Court may be pleased to call
upon all the documents of investigation made by
the Anti Corruption Bureau in CR No.II 3071/2003
registered at Thane Nagar Police Station, Thane.
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5. Hon’ble Court may be pleased to call
upon all the documents of the investigation of CR
No.I 74/2003 registered at Kasa Police Station,
Thane Rural.
6. Hon’ble Court may be pleased to pass any
order in favour of the Complaint; in the
interest of justice.
14. It will thus be seen that the complainant in this
application clearly prayed for the Hon’ble Court to take
cognizance of the complaint and issue process thereon as
contemplated by law. The learned Judge entertained this
complaint, recorded evidence even before taking
cognizance of framing charge that is to say followed the
procedure contemplated by section 202 of the Criminal
Procedure Code and directed the Commissioner of Police
(Crimes) Mrs.Meera Borwankar to investigate into the
allegations made in the complaint, he ordered the manner
in which the investigation should be undertaken by
Mrs.Borwankar, directing constitution of Special
Investigation Team and commanded them to report under
section 156(3) of Cri. P.C.
15. This order was impugned before this Court in
Criminal Writ Petition No.1772 of 2004 of which judgment
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was delivered by the division bench led by Justice Smt.
Ranjana Desai on 22.12.2004 holding that though
cognizance of private complaint under section 9 cannot
be taken without sanction as contemplated by section 23
of the MCOC Act the designated Judge or the Special
Judge appointed under the act could order investigation
under section 156(3) of Cri. P.C. The order therefore
quashed the order directing constitution of the Special
Investigation Team under the leadership of Mrs.Borwankar
and directed consideration of the matter afresh. This
was then undertaken by Special Judge Shri Bhangale who
then passed the impugned order dated 10.1.2005 directing
investigation by the police in accordance with the
observations made by the division bench judgment dated
22.12.2004 in Writ Petition No.1772 of 2004. It is this
order of the Special Judge which was impugned before the
learned Single Judge Hon’ble Shri Justice V.M. Kanade
and while dealing with rival contentions in this
petition that he noticed the conflict as aforesaid and
made reference which I will now proceed to consider.
16. Criminal jurisprudence of this country is almost
in its entirety a British Legacy. Indian Penal Code
defining various offences that can be committed
providing punishment for commission of those offences
came into existence as back as in the year 1860. It
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covered almost all kinds of possible offences that can
be committed in our country. As the Society and
Statehood developed criminality also developed and
offences which could not be covered by the definitions
provided in the Indian Penal Code were being committed
giving rise to an urgent need of legislations to take
care of such criminals committing such crimes which
during the last 150 years gave birth to various other
special legislations taking into consideration the
diversifying aspects of crimes coming into existence
prior to and after independence of India. It is not
necessary to dilate any further on this aspect and it
will be sufficient for our purposes to state that
legislation of the Maharashtra Control of Organized
Crimes Act, 1999 was one such legislation needed to
prevent and destroy organized crime within the State of
Maharashtra. This obviously is a special legislation
created to take care of the crimes and special kind of
criminals perpetrating those crimes as the normal law
laid down in Indian Penal Code and the procedure in
which the trials could be made under the Criminal
Procedure Code, 1973 was considered grossly inadequate
to deal with such special kind of offences. It is
therefore a very strict and effective piece of
legislation designed to effectively prevent the
commission of organized crimes in the State of
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Maharashtra. This aspect that it is special legislation
created for special purpose is of strict criminal nature
of strict penal effects will have to be kept in mind
while interpreting provisions of this act along with
provisions of normal law of procedure and crime.
17. Except for such special legislations as MCOC Act,
Prevention of Terrorism Act, the repelled Terrorists and
Dangerous Activities act etc. all crimes covered by the
Indian Penal Code are required to be tried by all
encompassing well laid procedure contained in the
Criminal Procedure Code, 1894 which enactment was
replaced by Criminal Procedure Code, 1973 and which
presently is the Code which regulates the procedure for
criminal trials in India. The Indian Penal Code and the
Criminal Procedure Code are necessarily therefore the
general legislations covering the entire field of crimes
and punishment and procedure only exception being
special enactments created to meet special situations
provided special procedures. I have to keep this aspect
of general law and the aspect of special law mentioned
earlier in mind for correctly approaching the question
under reference.
18. The Indian Penal Code 1860 defines various
offences and various punishments. Definitions are
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contained in Chapter II. The doctrine of punishment in
criminal jurisprudence is encoded in Chapter III.
Chapter IV provides general exceptions. Chapter V deals
with abetment of offences and from Chapter VA states the
definition and punishment of various offences.
Categories or classifications of offences have been
made. Chapter VI deals with offences against the State.
Chapter VII deals with offences relating to the army,
navy and air force. Chapter VIII deals with offences
against the public tranquility. Chapter IX deals with
offences by or relating to public servants. Chapter IXA
relates to offences relating to elections. Chapter X
deals with offences pertaining to contempt of lawful
authority of public servants. Chapter XI deals with
offences of false evidence and offences against public
justice. Chapter XII deals with offences relating to
coin and Government stamps. Chapter XIII deals with
offences relating to weights and measures. Chapter XIV
deals with offences affecting the public health morality
etc. Chapter XV deals with offences pertaining to
religion. Chapter XVI deals with offence affecting the
human body. Chapter XVII deals with offences against
robbery. Chapter XVIII pertains to offences relating to
documents and property marks. Chapter XIX deals with
offences pertaining to criminal breach of contracts.
Chapter XX deals with offences relating to marriage.
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Chapter XXI deals with offences of defamation. Chapter
XXII deals with criminal intimation etc. It will thus
be seen that the entire Indian Penal Code defines and
prescribes punishment for various kinds of offences
touching almost all aspects of human life.
19. The procedure of conducting the trial and
punishing those persons who have committed offences
under the Indian Penal Code is prescribed by Criminal
Procedure Code. It also exhaustively deals with what
procedure should be for conducting trial on any of the
offences mentioned in the Penal Code. I will therefore
notice those provisions which deal with conduct of such
trials, hierarchy of Courts and the procedure of taking
cognizance as provided by this act. However before
proceeding with that exercise it is necessary to note
the schedule to the Code which gives in nut shell a
chart regarding the offences, punishment whether its
cognizable, bailable or non-bailable and by which Court
it is triable. In this schedule all the offences
mentioned in the Indian Penal Code are stated.
Ultimately it provides for classification of offences
under other laws and states how they are to be tied,
whether they are cognizable or not, states the Court
which can try them. This part of schedule therefore
takes care of offences not defined in the Indian Penal
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Code but are made offences by any other legislation in
the country which creates the offence, prescribes the
punishment but does not provide procedure with which the
trial is to be conducted. Care is therefore taken to
provide procedure and trial of such offences also.
Legal position in this regard is well settled. Wherever
there is special procedure prescribed by special
enactment then the procedure so prescribed shall prevail
over the general procedure. In the instant case it is
MCOC Act and the procedure laid down by it which will
prevail over the general procedure prescribed in the
Criminal Procedure Code, 1973. I will presently notice
how the MCOC Act creates a complete procedure for
conduct of investigation and trial of offences created
by it.
20. Section 2(d) of the Criminal Procedure Code,
1973, hereinafter referred to as "Code" defines what the
complaint is. According to it a complaint means any
allegation made oral or in writing to a Magistrate with
a view to his taking action under this Code that some
person has committed an offence. It will be seen that
complaint is an allegation made to the Magistrate
recording commission of offence and that Magistrate
taking action under this Code in relation to those
allegations. In Criminal Jurisprudence wherever the
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word "complaint" is not defined it would be necessary to
read this definition for understanding what a complaint
is. The word "complaint" is used in section 9 of the
MCOC Act but is not defined there and therefore it will
have the meaning given to it by section 2(d) of the
Code.
21. Section 2(g) of the Code defines what an inquiry
is. It means every inquiry other than a trial conducted
under this Code by a Court or a Magistrate. Therefore
every enquiry under any provision of the act other than
a trial is to be undertaken by the Court or Magistrate
as defined by the Code. Here the words "Court" and
"Magistrate" are to be kept in mind.
22. Section 6 of the Code provides for classes of
Criminal Courts, that shall be constituted under the
law. As of necessity therefore criminal courts in India
apart from the High Court can be Court of Sessions,
Court of Judicial Magistrate and Court of Metropolitan
Magistrate. These therefore are the Courts or
Magistrates who can direct inquiries as defined by
section 2(g) in any matters. It does not therefore
encompass or contemplate any other Court of criminal
jurisdiction than those defined in the Code.
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23. However after enactment of the MCOC Act in 1999
Special Courts are required to be established as a
matter of procedure prescribed by that act. After
coming into force of this act therefore in the State of
Maharashtra there would be four courts; (i) Court of
Sessions, (ii) Court of Judicial Magistrate; (iii)
Court of Metropolitan Magistrate and (iv) Special Court
constituted under section 5 of the act having
jurisdiction as defined by section 6 of the act. Thus,
but for the provision of section 5 of he MCOC Act a
Special Court as contemplated by section 5 thereof could
not have come into existence. The Special Court in
Bombay therefore owes its existence to section 5 of the
MCOC Act only and it is this Court which I must keep in
mind while answering the question as to its having
jurisdiction to take cognizance of a private complaint
under section 9 of the MCOC Act.
24. Sections 24 and 25 of the Code empower the State
to appoint Public Prosecutors and Additional and
Assistant Public Prosecutors for conducting of trials in
the Court under the Code. A perusal of these provisions
would make crystal clear that the State of Maharashtra
cannot use the power given to it under sections 24 and
25 to appoint a special Public Prosecutor in the Court
of Special Judge appointed under section 5 of the MCOC
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Act. The intention of the Legislature in this regard is
obvious from the specific provision made in the MCOC Act
by section 8 thereof. It empowers the State Government
to appoint person to be a Public Prosecutor or an
Additional Public Prosecutor for the Special Court. The
section also provides for the qualification necessary
for such an appointment. Thus, a Special Court other
than the Courts contemplated by the Code is created by
MCOC Act, a Special Public Prosecutor is required to be
appointed under the provisions of the MCOC Act without
taking recourse to sections 24 and 25 of the Code for
conducting trials under the Act.
25. Then I must notice provisions of section 4 of the
Code. It provides by sub-section (1) that all offences
under the Indian Penal Code shall be investigated,
inquired into, tried and otherwise dealt with according
to the provisions hereinafter contained. It then
provides by sub-section (2) of section 4 with regard to
offences under any other law. It prescribes that all
offences under any other law shall be investigated,
inquired into, tried and otherwise dealt with according
to same provisions viz. Provisions of Criminal
Procedure Code but subject to any enactment for the time
being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise
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dealing with such offences. The words "regulating the
manner of inquirying into" need special attention. It
is therefore ordained by section 4 of the Code that any
inquiry into any offence defined under any other law
shall normally be in accordance with the provisions of
the Code but shall always be subject to any enactment
for the time being in force regulating the manner of
inquiring to the offences mentioned in that act. From
section 4 of the Code it is therefore clear that
wherever any special enactment or any special provision
is made regulating the manner of inquiry and
investigation into the offence it is that special
provision that will prevail and not the provisions of
the Code. I will note the special provisions made in
the MCOC Act. In this relation it will be obvious that
the special offences mentioned in this special enactment
must be dealt with under that act itself.
26. Then I must notice section 26 of the Code which
provides for Courts by which offences are triable. It
begins with the words "subject to other provisions of
this Code" viz. Criminal Procedure Code any offence
under the Indian Penal Code may be tried by the High
Court or Sessions Court or any other court by which such
offence as shown in the first schedule is triable. Then
by sub-section (b) of section 26 it is provided that any
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offence under any other law shall, when any Court is
mentioned in this behalf in such law, be tried by such
Court and if no court is so mentioned, may be tried by
High Court or any other court by which such offence
shown is triable. This provision therefore necessarily
means that any offence under the MCOC Act is tribal only
by such court as is created by that act. This provision
of section 26 is required to be noted because the
contention raised is that though its a special court
created under the MCOC Act it can take recourse to the
provisions of the Code for conducting trial or
investigation or inquiry under the act. Any complaint
of any offence under the MCOC Act is therefore required
to be tried by such court as is established under the
MCOC Act. A combined reading of section 26(b) and 4(2)
of the Criminal Procedure Code would lead to inevitable
conclusion that any offence under the MCOC Act can be
tried only by that Court created under that act and the
procedure to govern the conduct of inquiry and
investigation and trial shall be that prescribed by MCOC
Act and not the general provisions of the Code. Section
5 of the MCOC Act specifically empowers the State
Government to create by a notification in the official
gazette one or more special courts for trial of persons
accused to have committed any offence under this act.
Procedure of appointment is stated in detail in section
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5. It will thus be seen that a special court
constituted under section 5 of the MCOC Act is a special
court and not a criminal court as defined by Criminal
Procedure Code. It is because of this power under
section 5 that the category of special courts under
section 5 of the MCOC Act has come into existence in the
State of Maharashtra and it is the power of this special
court which is to be examined to find out whether he can
entertain a private complaint and take cognizance
thereon of the offences mentioned therein. For doing
so, it would be necessary therefore to take into
consideration the provisions of special act viz. the
MCOC Act. However before I proceed to consider the
provisions of MCOC Act in details I also should notice
some other provisions of the Criminal Procedure Code for
elucidating the answer to the question referred.
Section 39 of the Code which makes it a duty of every
person to inform commission offence to Magistrate or a
police officer. Therefore complaint as defined by
section 2(d) of the Code has to be made by a person who
acquires any knowledge of commission of any offence to a
Magistrate or a police officer. I will advert to this
aspect of section 9 of the Code at later stage when I
deal with the submissions made at the bar regarding not
rendering any person remedy less or expose him to
hazards of police atrocities.
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27. Section 154 of the Code provides for the manner
in which information regarding cognizable offence is to
be recorded. Clause (3) thereof takes care of complaint
of cognizable offence where the police do not act as
contemplated by the section. Then section 156 provides
the power to police officer to investigate and empowers
the Magistrate under section 190 to order any such
investigation under section 156(3). At this juncture I
must notice section 3 of the Code which deals with
construction of references to certain legislations
mentioned in the Code. It provides that in this Code
any reference to a Magistrate shall be a reference to a
judicial magistrate, any reference to a Metropolitan
Magistrate shall be a reference to a Metropolitan
Magistrate. Similarly references to the words
"Magistrate", "Courts" etc. in the Code appearing in
other enactments is also stated and it deals with the
Magistrates, Chief Judicial Magistrates, Metropolitan
Magistrate or Chief Metropolitan Magistrate. It nowhere
provides for construction of a reference to a special
court as established under section 5 of the MCOC Act.
Consequently the power to direct investigation or
inquiry under section 156(3) of the Code can be
exercised by a Magistrate as provided by section 190 of
the Code. The word Magistrate occurring in section 190
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has to be construed by reason of section 3 as reference
to Judicial Magistrate in relation to an area etc. to a
Metropolitan Magistrate in relation to a metropolitan
area. The word Magistrate occurring in the provisions
of section 190 cannot therefore have reference to any
other Court or authority but to a Magistrate defined and
appointed under the Code. It is obvious that a special
court appointed under section 5 of the MCOC Act can
certainly not be construed or referred to as a
Magistrate while considering provisions of section 190
or 156(3) of the Code. It is pertinent to note that
section 3 which deals with the construction of
references to certain Courts does not even refer to or
provide for construction of reference to a Court of
Sessions because Criminal Procedure Code envisages
committal proceedings to precede the trial of case
triable by Court of Session and it is taking into
consideration this aspect of criminal trial provided by
Criminal Procedure Code that required framing of section
9 of MCOC Act in a particular manner. It specifically
says in that section that a special court may take
cognizance of any offence without the accused being
committed to it for trial. What is provided for by
section 9 therefore is a power to the special court
created under the act to take cognizance of any offence
under the act without requirement of committal of
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proceedings. But for this provision and provision of
procedural requirement under the special enactment an
offender under the act would have been tried under the
provisions of the Code first by a Magistrate who under
section 190 could take cognizance, order investigation
under section 156 and then make an order of discharge or
committal as the situation requires. For dealing with
special offences created by special enactment this
procedure of committal was thought unnecessary, the act
having provided special procedure by the phrase "A
special court may take cognizance of any offence without
the accused being committed to it for trial". I have to
consider the question of power of this special court to
order investigation under section 156(3) of the act. I
will have to examine the provisions of MCOC Act in this
perspective.
28. However before proceeding to deal with specific
procedural aspects of MCOC Act it is necessary that
reference to certain provisions of the Code is complete.
Section 173 of the Code requires a police officer to
report on completion of investigation or inquiry to a
Magistrate empowered under section 190. It is only the
Magistrate empowered under section 190 who can order
investigation under section 156(3) and it is only to
such Magistrate that the police would make a report
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under section 173. Reference to word Magistrate has to
be to a Magistrate as defined in the Code. There cannot
be any reference to a special court for special
cognizance except by a procedure as provided by special
enactment.
29. Provisions of section 190 empower the Magistrate
as defined by the Code to take cognizance of any offence
he can take cognizance of even offences which are not
triable by him. But he cannot take cognizance of
offence under the MCOC Act because MCOC Act empowers
only a special court created under section 5 to take
cognizance in accordance with provisions of sections 9
and 23 thereof. The special court created under section
5 of the MCOC Act cannot therefore take recourse to
provisions of section 190 of the Code as it empowers
only a Magistrate as defined in the Code to take
cognizance or order investigation or inquiry.
30. Then I must notice provisions of section 193 of
the Criminal Procedure Code. It specifically bars any
court of Sessions from taking cognizance of any offence
as Court of original jurisdiction unless the case is
committed to it by a Magistrate. The legislature was
aware of this bar under section 193 of the Code and
therefore it enacted section 9 in the form that it has
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been enacted and provided that special court can take
cognizance of offence under the special act without
there being any requirement of committal because by
reason of section 193 even the Court of Sessions cannot
take cognizance of offence unless committed to it by
Magistrate under the act. Section 9 does away with
requirement of this committal and empowers the special
court by providing that it may take cognizance of
offence under the special act without it being committed
to the special court. The word "may" used in section 9
is therefore an intentional use of a correct word.
31. Then section 200 of the Code speaks of a
Magistrate who can take cognizance of a private
complaint. It speaks of a Magistrate and not a sessions
court or special court created by special enactment.
Under section 200 it is only Magistrate to be construed
by reference to section 3 of the Code as Magistrate to
specified area who can entertain private complaint under
section 200. Provisions analogous to such contained in
section 200 are absent in the MCOC Act. It will be
clear from the provisions of Chapter XV which contains
section 200. Section 202 empowers the Magistrate to
enquire into the case complained of either by himself or
directing investigation to be made by police officer
thus invoking the provisions of section 156(3) of the
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Code. A direction to police officer under section
156(3) to investigate or inquire can therefore be issued
only by a Magistrate as defined in the Code and not by a
special court without specifically being empowered to
that effect and such empowering is provided by special
enactment in clause (4) of section 9 of that enactment.
A situation may arise where a Magistrate takes
cognizance of certain complaint disclosing offence under
the Indian Penal Code triable by the Court of Sessions
and the Court of Sessions i.e. the Sessions Judge is
also nominated and appointed as Special Court under
section 5 of the act. Act also provides that a Special
Court appointed under the act shall be competent to try
offences under the Indian Penal Code also. It is to
meet with such a situation that the word "may" is used
in section 9. Section 9 provides that a Special Court
may take cognizance of offences under the act or may
take cognizance on a matter being committed to it by a
Magistrate acting under section 190 of Criminal
Procedure Code but he shall always have the power to
take cognizance of offences under the MCOC Act when
accompanied by sanction under section 23 of the act
without there being proceedings for committal.
32. That takes us to the consideration of the
provisions prescribing procedure under the MCOC Act.
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The Maharashtra Control of Organized Crimes Act, 1990
was enacted to make special provisions for prevention of
control of and for coping with criminal activities by
organized crime syndicate and or gang and for matters
connected therewith or incidental thereto. It is
necessary to note the statement of aims and objects for
this enactment.
"Organised crime has for quite some years now
come up as a very serious threat to our society.
It knows no national boundaries and is fueled by
illegal wealth generated by contract killings,
extortion, smuggling in contrabands, illegal
trade in narcotics, kidnappings for ransom,
collection of protection money and money
laundering, etc. The illegal wealth and black
money generated by the organised crime is very
huge and has serious adverse effect on our
economy. It is seen that the organised criminal
syndicates make a common cause with terrorist
gangs and foster narco terrorism which extend
beyond the national boundaries. There is reason
to believe that organised criminal gangs are
operating in the State and thus, there is
immediate need to curb their activities.
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It is also noticed that the organised criminals
make extensive use of wire and oral
communications in their criminal activities. The
interception of such communications to obtain
evidence of the commission of crimes or to
prevent their commission is an indispensable aid
to law enforcement and the administration of
justice.
2.The existing legal frame work i.e. the penal
and procedural laws and the adjudicatory system
are found to be rather inadequate to curb or
control the menace of organised crime.
Government has, therefore, decided to enact a
special law with stringent and deterrent
provisions including in certain circumstances
power to intercept wire, electronic or oral
communication to control the menace of the
organised crime".
It will be seen that the existing penal procedural laws
of adjudicating system was considered to be inadequate
for controlling the menace of organized crime and
therefore this special law was enacted with stringent
and deterrent provisions for controlling the menace of
organized crime. It then proceeded to prescribe the
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procedure for implementation of the provisions of the
act and conduct of trial under the act. It would
therefore be obviously improper and impermissible to
take recourse to the procedural law which the State
while enacting MCOC Act itself found to be inadequate
for empowering the court created under that act. It
also provides for specific procedure for implementation
of that act. It must be borne in mind that the
procedure viz. Criminal Procedure Code was considered
inadequate by the State for controlling the menace of
organized crime. I must therefore be conscious of this
fact while considering the question whether special
court created under the act can take recourse to such
provisions under section 156 or 202 of the Criminal
Procedure Code.
33. Section 1 of the act makes it applicable
throughout the State of Maharashtra. It came into force
on 24.2.1999. Section 2 deals with definitions.
Section 3 deals with forfeiture of properties and
punishment for certain offences created by the act, so
is section 4.
34. Then comes section 5 which empowers Government of
Maharashtra to constitute by a notification in the
Official Gazette one or more special courts for dealing
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with cases arising out the provisions of the act. The
section elaborately provides the manner in which the
court is to be established. It provides for concurrence
of the Chief Justice of Bombay High Court, for
appointment of a presiding officer on the special court.
It lays down the classification, it states the duties of
special court and then by section 6 thereof provides
jurisdiction of the court in which it is said that
notwithstanding anything contained in the Code every
offence punishable under this act viz. MCOC Act, shall
be triable only by the special court within whose local
jurisdiction it was committed. It therefore effectively
bars a court of sessions established under the Code of
Criminal Procedure from trying any offence under the act
unless Court of sessions or the presiding officer
thereof is specifically nominated under section 5 by a
notification published in the official gazette by the
State Government. By necessary implication a special
court created under section 5 has jurisdiction only
under section 6 to do what section says. The special
court having this special jurisdiction therefore cannot
take recourse to the provisions of Code for the purposes
of ordering investigation as such procedure was
considered inadequate by the framers of this act.
Section 7 then empowers special court to try other
offences also so that there is no unnecessary
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protraction of trial.
35. Section 8 then provides for appointment of Public
Prosecutors. Procedure also is prescribed. It is
consequently obvious that unless a public prosecutor is
duly appointed in accordance with the provisions of
section 8, the public prosecutor appointed under
sections 24 or 25 of the act cannot act as public
prosecutor of the special court established under
section 5 of the act having jurisdiction under sections
6 and 7 of the act.
36. Then comes the crucial section, section 9. It
prescribes the procedure and powers of special court.
Sub-section 1 thereof provides that special court may
take cognizance of any offence without the accused being
committed to it for trial upon receiving complaint of
facts which constitute such offence or upon a police
report of such facts. It will be seen that section 9
not only empowers the special court to take cognizance
of any offence under the act but also empowers it to
take cognizance of any offence even those not mentioned
in this act. This can be done by special court without
waiting for committing proceedings to take place in
relation to offence not covered by the act. It is
therefore provided that the special court may take
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cognizance of any offence whether under the act or under
the Penal Code. Therefore it provides that he may do so
upon receiving a complaint or police report. The
questions which requires our opinion is what he should
do on receiving such a complaint which obviously is as
defined under section 2(d) of the Code and does not
include a complaint made to the police, which is taken
care of by the police report. In our opinion, it is in
the light of this discussions that a special court
established under section 5 of the MCOC Act having
jurisdiction under sections 6 and 7 of that act can
receive a complaint as defined by section 2(d) of the
Code. In fact the real question is what he can do after
receipt of such complaint. Whether he can direct
investigation under section 156(3) of the Code as is
done by the impugned order or transmit the complaint for
being dealt with in accordance with provisions of MCOC
Act. I will get the answer to this by referring further
provisions of the act.
37. Sub-sections 2 and 3 of section 9 of the MCOC Act
provide for the manner in which the trial will be
conducted and then sub-section 4 empowers the special
court with all the powers of the court of sessions to
try such offence as if it were a court of sessions and
for so doing it may exercise all powers of court of
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sessions. The entire code of Criminal Procedure nowhere
empowers the court of sessions to order investigation
under section 156(3). Such an order can be made only by
a Magistrate contemplated by section 190. A special
court or court of sessions obviously is not a Magistrate
as contemplated by section 190 of the code. In our
opinion, therefore a special court established under
section 5 of the MCOC Act having jurisdiction under
sections 6 and 7 of that has no power to order
investigation into a complaint of any offence whether
under the MCOC Act or the Indian Penal Code. A cohesive
reading of section 9 and its sub sections 1 to 4 would
thus establish that special court will function within
the limits prescribed by section 9 and have the powers
given to it by section 9. Section 10 gives precedence
to the trials by special courts.
38. Then I must notice the provisions of section 11.
It gives power to the special court to transfer cases to
regular courts. It reads thus:
"11. Power to transfer cases to regular Power to transfer cases to regular Power to transfer cases to regular
Courts Courts.---- Where, after taking cognizance of an Courts
offence, a Special Court is of the opinion that
the offence is not triable by it, it shall,
notwithstanding that it has no jurisdiction to
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try such offence, transfer the case for trial of
such offence to any Court having jurisdiction
under the Code and the Court to which the case is
transferred may proceed with the trial of the
offence as if it had taken cognizance of the
offence."
Section 11 quoted above thus empowers a special court to
transfer the case not triable by it to a Court of proper
jurisdiction. It will be seen that section 7 empowers
the Court to try other offences also. Section 5
provides that special Court shall be presided over only
by Sessions Judge or Additional Sessions Judge. By
necessary implication the offence, trial of which could
be taken up by special court even though they are not
offences punishable under the act would be trials of
offence triable exclusively by court of sessions as
prescribed under the schedule to the Code. Consequently
where after taking cognizance of an offence as provided
for by section 23 of the MCOC Act it comes to the
knowledge of the special court that an offence appears
to have been committed but it cannot try it as it is not
triable either by court of sessions or by special court
it shall have the power to transfer to appropriate court
viz. the Magistrate and in such eventuality cognizance
shall be deemed to have been taken as provided by
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section 11. A Magistrate can take cognizance within the
four corners of section 190 of the Code beyond that he
cannot do anything further. Section 11 therefore
provides that in such case the cognizance will be deemed
to have been taken. It thus takes care of a private
complaint made to a special court of which the special
court takes cognizance via section 23 and provides that
in such eventuality the offence triable by the
Magistrate shall be deemed to have been taken cognizance
of and special court shall have the power to transfer it
to the appropriate Magistrate. It cannot therefore be
said that a person filing a complaint under section 9 is
remedy less or the special court is power less to deal
with it. How it should do it is provided by further
sections.
39. In this case I am not concerned with sub-sections
12, 13, 14, 15 and 16 having been struck down by this
Court. Section 17 creates a certain presumption.
Section 18 makes certain confessions specified in it
admissible in evidence. Section 19 provides for
protection of eye-witnesses. This provision requires
notice. Why was it necessary for the Legislature of
Maharashtra to specifically provide protection to
witness. In my opinion, it was so thought necessary,
taking into consideration the seriousness of the
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offences or the organized crime syndicate, the power
which it yields and the serious threat it can pose to
witnesses and the power to come before the Court and do
their duties under section 39 of the Code and depose
before the Court their knowledge about the incident.
The State legislature was aware of vast power of the
organized crime syndicate therefore it provided
specifically for a protection of witness.
40. By section 20 it provided for forfeiture and
attachment of property connected with offence or
offender. This provision also requires notice. In
earlier point of time the Indian Penal Code did have
provisions which permitted attachment or forfeiture of
properties connected to a crime. But as the welfare
activities in the State grew rights of persons connected
by blood to a criminal, but not involving in the
criminality as that criminal, were regarded as separate
section of the society which could not be penalized for
no fault of their’s. Though these provisions are
deleted from the Code or Indian Penal Code they were
reenacted by section 20 as stringent measures were
necessary to prevent organized crime. It is this
stringent and strict nature of the enactment which must
be kept in mind while interpreting the provisions of
this act particularly while considering necessity of
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cognizance as contemplated by section 23 of the act.
41. Section 21 then provides for modification of
certain provisions of the Criminal Procedure Code. This
obviously points out that the provisions of Criminal
Procedure Code are not mutatis mutandis applicable to
offences or trials or investigations under the act and
wherever necessary specific provisions have been made
applicable or barred or modified. Section 22 then
provides for certain other things. It will be seen from
the aforesaid provisions in fact from the entire
enactment that its object is to prevent or control
organized crime. For doing so, stringent overriding
powers are given to the Courts appointed under the Act.
The possibility of such stringent provisions harming
innocent citizens cannot be overlooked and has not been
overlooked by Maharashtra Legislature. It therefore
specifically framed section 23 of the act which reads as
under :
"23.Cognisance of, and investigation into, an "23.Cognisance of, and investigation into, an "23.Cognisance of, and investigation into, an
offence offence.----- (1) Notwithstanding anything offence
contained in the Code, ------
(a) no information about the commission of an
offence or organized crime under this Act, shall
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be recorded by a police officer without the prior
approval of the police officer not below the rank
of the Deputy Inspector General of Police;
(b) no investigation of an offence under the
provisions of this Act shall be carried out by a
police officer below the rank of the Deputy
Superintendent of Police.
(2) No Special Court shall take cognizance of any
offence under this Act without the previous
sanction of the police officer not below the rank
of Additional Director General of Police".
It provides for the manner in which cognizance of
offence or investigation into offence is to be done.
The Legislature has noticed and has taken serious note
of the fact of possible misuse of the provisions of this
act, which are very stringent in nature, has to be
strictly avoided. Therefore there has to be, of
necessity, strict interpretation of the provisions of
this act. That they are penal needs no saying, that
they are stringent is obvious and therefore they
required strict interpretation and implementation is
also obvious. I must keep this in mind when I proceed
to analyze further provisions of section 23. It begins
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by saying notwithstanding anything contained in the Code
and then says no information about the commission of an
offence of organise crime under this act shall be
recorded by the police officer without prior approval of without prior approval of without prior approval of
the officer not below the rank of Deputy Inspector the officer not below the rank of Deputy Inspector the officer not below the rank of Deputy Inspector
General of Police General of Police. It prohibits even recording of
General of Police
information pertaining to commission of crime as defined
by the act by the Police Officer. It bans any
investigation into such offence under the act except by
a police officer of the rank of Deputy Superintendent of
Police and above. If the police whose ordinary duty is
to take information, recording commission of offence as
contemplated by section 154 and investigate it under
section 156 of the act cannot do something as required
of them under the Code how can a Special Court not
covered by the provisions of the Code take notice of the
complaint and order investigation. It will not be
possible to hold in the circumstances that a Special
Court can direct investigation under section 156(3) of
the Code because that cannot be directed even by
Superintendent of Police. I also cannot equate a
Special Court which is presided over by a Sessions Judge
to a Deputy Inspector General of Police. I also cannot
imagine a Special Court to be a police officer of the
rank of Deputy Superintendent of Police who can take
note of the information of commission of offence under
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the MCOC Act and order investigation after approval is
received. It is then provided by subsection 2 that no
Special Court shall take cognizance of offence under
this act without previous sanction of the police officer
not below the rank of Additional Director General of
Police. Information may be received, recorded or
investigation may be conducted by Deputy Superintendent
of Police with previous approval of Deputy Inspector
General of Police but sanction to take cognizance can be
given only by Additional Director General of Police the
second highest police officer in the State of
Maharashtra. If a Special Court cannot take cognizance
of offence without previous sanction of the Additional
Director General of Police how can it act and record
information of commission of such crime and direct
investigation which is the power given to an officer
subordinate to the Additional Director General of
Police.
42. In my opinion the word "may" used in section (1)
is used deliberately. For a cohesive reading of section
and proper interpretation thereof "may" will have to be
read as "may". Section 9(1) is legislated to overcome
ban under section 193 of the Criminal Procedure Code
which says no Court can take cognizance except under
section 190. To do away with the necessity committal
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proceedings for the special kind of offences mentioned
in the act it is provided that the special court may
take cognizance of any offence when taking committal of
it for trial. It is a permissive provision which but
for its existence could have prevented a special court
from taking cognizance of any offence defined under the
act. This can be considered from a different angle
also. Section 25 of the MCOC Act provides that the
provisions of the act and the rules will have overriding
effect for any other law for the time being in force if
it is viz. any other law inconsistent with the
provisions of this Act. Therefore notwithstanding
anything contained in section 193 of the Criminal
Procedure Code a special Court can take cognizance of an
offence under the act in a manner provided by the act.
There is yet another angle which supports my
interpretation that the word "may" occurring in
sub-section (1) of section 9 must be read as "may". A
Special Court under section 9 may take cognizance of an
offence on a private complaint or on police report
postulates existence of sanction under section 23(2).
If there is no sanction under section 23(2) of the MCOC
Act the Court acting under section 9 cannot take
cognizance. Therefore where there is sanction it may
take cognizance where there is a complaint the Court may
take cognizance even without committal proceedings The
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use of the word "may" is as observed above to avoid bar
to section 193 of Criminal Procedure Code and to prevent
a Magistrate from taking cognizance in cases where there
is no sanction under section 23(2) of the MCOC Act.
43. As I have already noticed the provisions of MCOC
Act were considered by the Division Bench of this Court
in the case of Saquib Abdul Hamid Nachan V. State of Saquib Abdul Hamid Nachan V. State of Saquib Abdul Hamid Nachan V. State of
Maharashtra & Ors. Maharashtra & Ors., (Criminal Appeal No.1451 of 2004) as Maharashtra & Ors.
the same were similar to the provisions of Prevention of
Terrorism Act, 2002 which that bench was considering.
In para 12 it noticed the provisions of sections 9 and
23 while dealing with the Judgment of the learned Single
Judge of this Court reported in 2004 ALL.MR (Cri) 1689 2004 ALL.MR (Cri) 1689 2004 ALL.MR (Cri) 1689
wherein the learned Single Judge had taken a view that
though cognizance under section 23 of the MCOC Act
cannot be taken without previous sanction the Special
Court has power to make precognisance investigation and
therefore can issue an order of investigation under
section 156(3). The Division Bench of this Court while
dealing with correctness of that judgment observed that
the judgment does not lay down correct law and has given
its reasons for so holding. I am in respectful
agreement with the observations made by the Division
Bench. They read as under:
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"The reasoning as is evident on reading paragraph
17 of the judgment which is quoted above, suffers
from drawback and puts the State and Central
Governments in embarrassing position. The Single
Judge has lost the sight of the fact that the
order dismissing the complaint is not a final
order under the law and it can be very well
challenged before this court and the Apex Court
by filling appropriate proceedings. If the
superior courts come to the conclusion that the
order of dismissal of such complaint by the
special court was erroneous one, then there is a
finding of the Superior Court or record that
there is a case for taking cognizance. In such a
situation, at the most the superior court in view
of Section 50, may direct the complainant to
approach the State Government or the Central
Government for getting a sanction to prosecute,
so that the Special Court can exercise a power of
taking cognizance under section 29. However, at
that stage, in view of the directions of the
Superior Courts if the Complainant approaching
the State or Central Government, the State
Government or Central Government cannot ignore
the finding of the superior court’s and they are
called upon to take decision whether to grant
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sanction or not to grant. In the backdrop of the
finding recorded by the Superior Court that there
is a case for taking cognizance and thereby not
only the Central Government and State Government
are placed in an embarrassing position but the
exercise of powers under section 50 of the
appropriate State Government becomes an empty
formality. The matter becomes a fait accompali
for both the governments. Same result equally
follows in case Special Court comes to the
conclusion that there is a case for taking
cognizance but is cannot be taken because here is
no sanction under section 50 and issue direction
to complainant to approach the appropriate
Government to get sanction under section 50 of
the POTA Act. Therefore, the appropriate way for
filling such prosecution is to approach to the
appropriate Government for getting a sanction and
if the sanction is granted, thereafter to file
the complaint under section 29 of which Special
Court can take cognizance. Any other procedure,
as submitted by the learned counsel and revealed
from the reasoning as given by the Single Judge
above, is not conducive to the judicial propriety
and especially to the right of the appropriate
government to consider the case for grant of
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sanction or not to grant it. The scheme of the
Act does not permit any other procedure except
the procedure as we envisage from the provisions
of the Act."
From the above quotation which I respectfully approve it
is obvious that the scheme of the act does not permit
any other procedure except that prescribed by the Act.
Our analysis of the provisions made herein before is in
consonance with the observation made by the Division
Bench. I am therefore supported by the view taken by
the Division Bench which I respectfully approve.
44. Similar question of taking cognisance by Special
Court was considered by the Supreme Court of India in
the case of Gangula Ashok & Anr. v. State of A.P., Gangula Ashok & Anr. v. State of A.P., Gangula Ashok & Anr. v. State of A.P.,
(2000) 2 SCC 504 (2000) 2 SCC 504. The Supreme Court there was (2000) 2 SCC 504
considering the provisions of Schedule Caste and
Schedule Tribes (Prevention of Atrocities) Act, 1989,
section 14 of which provides for Special Court taking
cognizance and the Supreme Court found on consideration
of the entire provisions that a Special Court under that
Act cannot take cognizance directly as Court of origin
jurisdiction without a case being committed to it by a
Magistrate in view of section 193. Thus it will be seen
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from the ratio of the above case that section 193 of the
Criminal Procedure Code is complete bar to taking
cognizance by any Court of origin jurisdiction without
it being committed to it by a Magistrate. Thus, my view
that cognizance cannot be taken without the previous
sanction would be fortified in view of the ratio of this
case. This judgment also fortifies my view with regard
to meaning of the words "may take cognizance without
being committed to it" in section 9 of the MCOC Act. It
is therefore that the word "may" has to be read as
"may". In this very case the Supreme Court has observed
in para 16 as under :
"16. Hence we have no doubt that a Special
Court under this Act is essentially a Court of
Session and it can take cognizance of the offence
when the case is committed to it by the
Magistrate in accordance with the provisions of
the Code. In other words , a complaint or a
charge-sheet cannot straight away be laid down
before the Special Court under the Act."
45. From the above it is clear that the bar contained
in section 193 of Criminal Procedure Code is complete.
No Special Court or Court of original jurisdiction can
directly take cognizance of any matter without it being
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committed to that Court. Consequently, it was essential
that the special legislation viz. MCOC Act contains
provision to over ride this bar under section 193 of
Cri. P.C. and it is for this reason that section 9 of
the MCOC Act is so worded to provide or empower the
Special Court under that Act to take cognizance of any
offence under the Act without there being committal
proceedings. It does not do away with the requirement
of sanction prior to cognizance as contemplated by
section 23.
46. Several judgments of the Supreme Court of India
and other High Courts were cited before us in support of
the contention that no cognizance can be taken by
Special Court without prior sanction of the authority
mentioned in the statute. These judgments considered
various statutes where such requirement as Special
Courts is mentioned. I need not deal with each of the
case cited as all the decisions are similar in their
ratio which says that such cognizance without prior
sanction cannot be taken. There is yet another and
substantial reason for not considering in detail the
various judgments cited at the Bar. Very recently the
Supreme Court of India had occasion to consider similar
provisions under Terrorist and Disruptive Activities
(Prevention) Act, 1987 in the case of Mukhtiar Ahmed Mukhtiar Ahmed Mukhtiar Ahmed
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Ansari v. State (NCT of Delhi), 2005 SCC (Cri.) 1037. Ansari v. State (NCT of Delhi), 2005 SCC (Cri.) 1037. Ansari v. State (NCT of Delhi), 2005 SCC (Cri.) 1037.
Section 20A of TADA reads as under :
"20A. Cognizance of offence Cognizance of offence" (1) Notwithstanding Cognizance of offence
anything contained in the Code, no information
about the commission of an offence under this Act
shall be recorded by the police without the prior
approval of the District Superintendent of
Police.
(2) No court shall take cognizance of any offence
under this Act without the previous sanction of
the Inspector-General of Police, or as the case
may be, the Commissioner of Police."
These provisions are almost identical to the provisions
of section 23 of the MCOC Act which read as under :
"23.Cognisance of, and investigation into, an "23.Cognisance of, and investigation into, an "23.Cognisance of, and investigation into, an
offence offence.----- (1) Notwithstanding anything offence
contained in the Code, ------
(a) no information about the commission of an
offence or organized crime under this Act, shall
be recorded by a police officer without the prior
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approval of the police officer not below the rank
of the Deputy Inspector General of Police;
(b) no investigation of an offence under the
provisions of this Act shall be carried out by a
police officer below the rank of the Deputy
Superintendent of Police.
(2) No Special Court shall take cognizance of any
offence under this Act without the previous
sanction of the police officer not below the rank
of Additional Director General of Police."
It will be seen that the only difference between the two
sections is that under TADA no information about
commission of offence under that act can be recorded
without prior approval of the District Superintendent of
Police, whereas under MCOC Act it is prior approval of
the Deputy Inspector General of Police which is
required. In the above referred judgment the Supreme
Court of India has exhaustively considered the several
judgments of the Supreme Court given prior to that
judgment and after extensively analysing the provisions
has come to the conclusion that prior approval under
section 20A is a condition precedent for registering a
case under TADA for recording information about
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commission of offence under that Act. I have noticed
above the similarity in section 20A of TADA Act and 23
of MCOC Act. The ratio of the Supreme Court judgment in
Mukhtiar Ahmed Ansari’s case above must therefore apply
mutatis mutandi to section 23 of the MCOC Act. It will
not be permissible for the High Court to take any other
view on the provisions of section 23 in view of the
interpretation by the Supreme Court of India on the
provisions of section 20A of TADA Act. I have already
pointed out in details how in our opinion, also sections
9 and 23 of the MCOC Act are required to be interpreted
in the manner indicated above. In my humble opinion, my
view in this regard as exhaustively discussed above, is
fortified by the ratio of Mukhtiar’s case. It is
because of this judgment and Article 141 that I do not
feel it necessary to consider in detail several other
judgments cited at the Bar and which were considered by
the Supreme Court of India in the above referred
judgment.
47. Yet another important aspect which must be kept
in mind while interpreting the provisions of the MCOC
Act is the nature of crimes defined by it, punishments
prescribed by it and the gravity of the offences to
cover which this enactment was legislated. I must
always keep in mind that this Act was legislated to make
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special provisions for prevention and control of and for
coping with criminal activities by organized crime
syndicate or gang. The offences defined by the Act are
serious and grave. The penalties are severe. It
confers several powers on the police. It makes
confessions made in certain situations admissible when
entire general law on the point makes such confessions
inadmissible. The totality of the fact of the powers
conferred by this Act on the police is enormous and,
therefore, it has provided for safeguards against misuse
of this power by the police. Those safeguards are
contained in Section 23 of the MCOC Act, which prohibits
even recording of an information regarding an offence
under the Act without the previous approval of the
Deputy Inspector General of Police and this is so
notwithstanding anything contained in the Code. To hold
that in spite of this embargo the police can investigate
or record information or make inquiry under Section
156(3) of the Code is to commit complete violence with
the language of Section 23 of the MCOC Act, which is
impermissible in law.
48. There is another aspect to this. But for such
provision as contained in Section 23(1) (a) and (b) of
the MCOC Act, recourse could have been taken to Section
156 of the Code and a Station House Officer, who usually
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is a Police Officer, could have recorded the information
or organized crime, proceeded to make inquiry, file
challans in the Court of a Magistrate and the Magistrate
can take cognizance of the offence. Section 9 of the
MCOC Act does not contemplate taking of cognizance by a
Magistrate. These safeguards are provided by Section 23
of MCOC Act to prevent misuse of these powers under the
MCOC Act by police officers generally. Even recording
of information, therefore, is made subject to prior
approval of a police officer not below the rank of
Deputy Inspector General of Police. Permitting a
Special Court to order on a private complaint inquiry or
investigation under Section 156(3) of the Code is to do
away with this precaution taken by the legislature as a
protection from unwarranted use of the provisions of the
MCOC Act. Therefore, it is not permissible to hold that
a Special Court under the MCOC Act can direct
investigation or inquiry under Section 156(3) of the
Code.
49. Similarly, no investigation or inquiry of an
offence under the MCOC Act shall be carried by a police
officer below the rank of a Deputy Inspector General of
Police. Section 156 of the Code contemplates inquiry
and investigation by a Station House Officer, who is
always below the rank of a Deputy Inspector General of
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Police. Even though it is open to a Station House
Officer, who is a Police Inspector, to transit such
investigation to a Deputy Superintendent of Police, it
is open for him to do it by himself, in which case it
will be a clear breach of Section 23(1) (b) of the MCOC
Act. When there is a statutory prohibition
notwithstanding anything contained in the Code to record
information or to investigate, to permit such recording
or investigation by use of Section 156(3) of the Code
would be illegal and, therefore, impermissible. Such
interpretation would be causing great violence to the
language and intention of the legislation. It will take
away the protection granted by the Act to people from
possible misuse of the provisions of the Act. I have
already observed above the disastrous results that will
take place by holding that on a private complaint, a
Special Court under the MCOC Act can direct
investigation by police under section 156(3) of the Code
and looking to the seriousness of the issues involved, I
would like to repeat what I have already said. If it is
held permissible for a Special Court to direct
investigation under section 156(3) of the Code on a
private complaint, what will happen is that any person
can file a private complaint before the Special Court
under the MCOC Act. The said Court, though it is not a
Magistrate as defined in the Code and contemplated by
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Section 156(3) of the C ode directs investigation or
inquiry under Section 156(3) and on receipt of the same
takes cognizance of it without there being a sanction.
It nullifies the entire provision of Section 23 of the
MCOC Act. Apart from that, it destroys the protection
given to citizens from possible misuse of the MCOC Act.
50. Taking into consideration all these aspects I am
of the opinion that the question referred to us will
have to be answered in negative that is to say:
"Q. Whether in a private complaint filed under Q. Whether in a private complaint filed under Q. Whether in a private complaint filed under
the provisions of Section 9(1) of the Maharashtra the provisions of Section 9(1) of the Maharashtra the provisions of Section 9(1) of the Maharashtra
Control of Organized Crime Act, 1999 designated Control of Organized Crime Act, 1999 designated Control of Organized Crime Act, 1999 designated
Court is empowered to order investigation under Court is empowered to order investigation under Court is empowered to order investigation under
section 156(3) of the Code of Criminal Procedure section 156(3) of the Code of Criminal Procedure section 156(3) of the Code of Criminal Procedure
before approval/sanction is granted to before approval/sanction is granted to before approval/sanction is granted to
investigate and take cognizance as contemplated investigate and take cognizance as contemplated investigate and take cognizance as contemplated
under section 23 of the said Act? under section 23 of the said Act? under section 23 of the said Act?
A. A designated Court under the MCOC Act does A. A designated Court under the MCOC Act does A. A designated Court under the MCOC Act does
not have the power to direct investigation under not have the power to direct investigation under not have the power to direct investigation under
section 156(3) of the Criminal Procedure Code in section 156(3) of the Criminal Procedure Code in section 156(3) of the Criminal Procedure Code in
view of the provisions of sections 9 and 23 of view of the provisions of sections 9 and 23 of view of the provisions of sections 9 and 23 of
the MCOC Act. the MCOC Act." the MCOC Act.
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This answer by me to this question referred to above
therefore necessarily creates another question as to
what would happen when a complaint of offence as
prescribed under the act is made in writing or orally to
the designated court directly. This aspect was
emphasized by several learned advocates appearing before
us. The fear was expressed that in such a situation the
private complainant would be remedy-less and will have
to tolerate atrocities of the authorities concerned
under the act without a Forum where he can complain
about it. In my opinion, all such fears are baseless.
I have already pointed out above that a complaint can be
made to a designated Court of any offence as defined in
that act being committed by any person. In the event of
such complaint being made to a designated court all that
is required of the learned Judge to do is to transmit
that complaint to the Deputy Inspector General of Police
of the area concerned for being dealt with in accordance
with law. On such receipt of the complaint the Deputy
Inspector General of Police would issue his necessary
prior approval to the concerned police officer for
recording information about the commission of offence of
the crime under the act. That police officer if he
himself is of the rank of Deputy Superintendence of
Police or above him carry out investigation himself, or
may direct another officer not below the rank of Deputy
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Superintendent of Police to carry out investigation. On
completion of investigation the police officer who is
designated officer will file the report before the
Additional Director General of Police who thereafter
would consider the report and may grant sanction under
section 23(2) to take cognizance which then would be
transmitted to the special court designated under the
act and whereupon the Court shall take cognizance of the
complaint of fact as originated by the complaint
initially filed before it.
51. It will be seen that section 9(1) itself
stipulates that cognizance can be taken in two
situations; (i) upon receiving a complaint of facts
which constitutes such offence and (ii) upon a police
report of such facts. A cohesive reading of the
provisions of sections 9 and 23 would result in
transmission of the complaint so received to the
designated police officer who will then with approval
conduct investigation and not only go to the Additional
Director General of Police for consideration of grant of
sanction but on receipt of such sanction, if granted,
matter would come back to the Special Court. When the
police report of such facts is filed it will have to be
accompanied by appropriate order of sanction before the
special court can take cognizance of such offence. It
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cannot therefore be said that an individual who wants to
make a complaint of an offence under the act is
remedy-less. I will again revert to the provisions of
section 39 of the Criminal Procedure Code which makes it
a duty of ever person aware of commission of offence to
report the matter to the police. It is therefore
possible that the person who acquires such knowledge
goes to the police but his complaint is turned down. In
such an eventuality, which may be rare, it is open for
the complainant to then file criminal complaint before
the designated court upon receipt of such complaint the
designated court or special court will follow the
procedure which I have indicated above. Consequently it
cannot be said that any person aggrieved of any offence
being committed under the act being remedy-less.
Adequate remedies exit in the Act as it stands.
52. To sum up I restate my conclusions:
(i) a complaint as contemplated by section 2(d)
of Cri.P.C. that can be filed by any individual
before special court designated under the act;
(ii) on receipt of such complaint the learned
special court would transmit the same to the
Deputy Inspector General of Police of the range
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from which the complaint emanates for appropriate
action under section 23(1);
(iii) The Deputy Inspector General of Police to
whom such complaint is forwarded will then apply
his mind and grant approval to appropriate
officer mentioned in section 23(1)(a) to record
information about commission of offence as it
emanates from the complaint and then order
investigation by an officer not below the rank of
Deputy Superintendent of Police as contemplated
by section 23(1)(b);
(iv) on completion of investigation the report
shall be placed before the Additional Director
General of Police for consideration of the
question regarding grant of sanction to take
cognizance, who on application of his mind to the
report and the facts as disclosed thereby will
grant or refuse as the case may be previous
sanction to take cognizance of the matter under
section 9(1) of the act;
(v) it is on receipt of such police report
accompanied by sanction under section 23(2) that
the Court will take cognizance under section
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9(1). From the above it will be seen that that
being the procedure prescribed under the Act
section 9(1) says that a special court may take
cognizance. To illustrate a special court cannot
take cognizance if the report placed before it is
not accompanied by a sanction .
53. I would therefore allow the writ petition No.127
of 2005 and set aside the order impugned therein. I
would also allow Writ Petition No.1449 of 2005 and set
aside the order impugned therein. In so far as other
writ petitions are concerned mentioned in the cause
title, having regard to the fact that my view is
minority opinion, I would direct those petitions to be
placed before appropriate bench for adjudication of the
same in the light of the observations made in majority
view.
sd/-
(V.G.PALSHIKAR, ACG.C.J.)
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ORAL JUDGMENT : (Per D.B.Bhosale,J. for himself and ORAL JUDGMENT : (Per D.B.Bhosale,J. for himself and ORAL JUDGMENT : (Per D.B.Bhosale,J. for himself and
for V.K.Tahilramani,J.)
for V.K.Tahilramani,J.) for V.K.Tahilramani,J.)
54. We have had the benefit of reading the Judgment
proposed by V.G.Palshikar,Acg.C.J. With due respect, we
cannot persuade ourselves to agree with the opinion
expressed and the reasons recorded in support thereof in
the said judgment, hence this separate opinion. The
judgment of V.G.Palshikar,Acg.C.J.has elaborately dealt
with the facts, arguments advanced by the learned
counsel and relevant provisions of law. Hence, we
consider it unnecessary to reproduce the facts including
the arguments advanced on behalf of the parties except
to make a reference to the same to the extent necessary
in the course of this Judgment.
55 The conflict in the views on the question,
referred to for adjudication by the larger bench, was
between the Division Bench consisting of Smt.Ranjana
Desai and A.S.Oka, JJ., which pronounced the judgment on
22.12.2004 in Criminal Writ Petition No.1772 of 2004,
and the judgment pronounced on 21.12.2004 in Criminal
Appeal No.1451 of 2003 by the Division Bench consisting
of S.B.Mhase and A.V.Mohta,JJ. Both the Division
Benches, while pronouncing the law on the question, made
reference to the judgment of the learned Single Judge
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(B.H.Marlapalle,J.) in Dayanand B.Nayak Vs. Ketan Dayanand B.Nayak Vs. Ketan Dayanand B.Nayak Vs. Ketan
K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689. The
K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689 K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689
Division Bench in Criminal Writ Petition No.1772 of 2004
finally concurred with the view of the learned Single
Judge in Dayanand B.Nayak’s case whereas the Division
Bench in Criminal Appeal No.1451 of 2003 differed and
took the exact contrary view.
56. The Division Bench in Criminal Writ Petition
No.1772 of 2004 while upholding the ratio laid down in
Dayanand B.Nayak’s Dayanand B.Nayak’s case, in paragraph 39 of the judgment Dayanand B.Nayak’s
recorded the following conclusions:
(a) The Special Court under the MCOCA is a court of
original criminal jurisdiction.
(b) A sanction under section 23(2) of the MCOCA is a
sine-quo-non for taking cognizance of a private
complaint.
(c) The Special Court cannot take steps under Chapter
XV of the Code unless the sanction is obtained.
However, prior to the sanction, it can take resort to
section 156(3) of the Code.
(d) As per section 9(4) of the MCOCA, for the purpose
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of trial, the Special Court will have all the powers of
a Court of Sessions as far as may be, in accordance with
the procedure prescribed in the Code for the trial
before a Court of Sessions.
57. The Division Bench in Criminal Appeal No. 1451
of 2003 after expressing their disagreement with the
ratio laid down in Dayanand B.Nayak’ Dayanand B.Nayak’s case observed that Dayanand B.Nayak’
the Special Court cannot take cognizance of a complaint
unless there is a sanction under section 50 of the
Prevention of Terrorism Act,2002 (for short, "POTA").
The only option open to the Special Court is to direct
the complainant to approach the appropriate government
to get the sanction under section 50 of POTA, and if the
sanction is granted, may proceed to file complaint under
section 29 of POTA of which the Special Court can take
cognizance. It was further observed that "any other
procedure, as observed or revealed from the reasoning
given by the learned Single Judge in Dayanand B.Nayak’s
case, would not be conducive to the judicial propriety
and especially to the right of the appropriate
government to consider the case for grant of sanction or
not to grant it". The differentiation in the cases
which were for consideration before the Division Benches
may be noticed. The Division Bench in Criminal Writ
Petition No.1772 of 2004 was directly dealing with the
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provisions of MCOCA whereas the Division Bench in
Criminal Appeal No.1451 of 2003 was dealing with the
provisions of the POTA. Against this backdrop, the
aforesaid question has been referred to the larger Bench
by the learned Single Judge vide order dated 23.3.2005.
58. The core question, referred to for our
consideration, is of great importance. We, therefore,
heard the learned counsel for the parties in all the
petitions/applications at great length. Some other
important questions were also posed during the
discussions. We propose to make reference to all such
questions and deal with them in the course of this
Judgment at appropriate places.
59. Before we proceed further, let us make a
reference to the Judgment of the Supreme Court in
Reserve Bank of India Vs. Peerless General Finance and Reserve Bank of India Vs. Peerless General Finance and Reserve Bank of India Vs. Peerless General Finance and
Investment Co.Ltd (1987) 1 Supreme Court Cases 424 Investment Co.Ltd (1987) 1 Supreme Court Cases 424. In Investment Co.Ltd (1987) 1 Supreme Court Cases 424
that judgment, while interpreting the provisions of the
statutes which were under consideration of the Supreme
Court, it was observed that "Interpretation must depend
on the text and the context. They are the bases of
interpretation. One may well say that if the text is
the texture, context is what gives the colour. Neither
can be ignored. Both are important. That
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interpretation is best which makes the textual
interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With this
knowledge, the statute must be read, first as a whole
and then section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at, in
the context of its enactment, with the glasses of the
statute-maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take colour and
appear different than when the statute is looked at
without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each
word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no
word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a
place and everything is in its place". It is, thus,
clear that basic principle of interpretation is that a
statutory provision should be construed ’according to
the intent of the legislature and normally, such intent
is gathered from the language of the provision as
observed by the Supreme Court in Chief Justice of A.P Chief Justice of A.P. Chief Justice of A.P
Vs.L.V.A. Dixitulu (1979) 2 SCC 34 Vs.L.V.A. Dixitulu (1979) 2 SCC 34. Keeping these Vs.L.V.A. Dixitulu (1979) 2 SCC 34
rules of interpretation in view, we would like to deal
with the question of law referred to for our
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consideration.
60. It would also be advantageous to glance through
the Statement of Object and Reasons (for short,"SOR")
which is supposed to be a key to unlock the mind of
legislature in relation to substantive provisions of
statutes. The SOR to MCOCA and other enactments, such
as POTA and the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, "NDPS") having
stringent provisions, are not similar. The backdrop in
which the MCOCA was introduced will have to be borne in
mind. The MCOCA was enacted and brought into force on
24.4.1999. The SOR of MCOCA record that "the organised
crime has for quite some years now come up as a very
serious threat to our society. It knows no national
boundaries and is fueled by illegal wealth generated by
contract killings, extortion, smuggling in contrabands,
illegal trade in narcotics, kidnappings for ransom,
collection of protection money and money laundering,
etc". It further records that "the illegal wealth and
black money generated by the organised crime is very
huge and has serious adverse effect on our economy. It
is seen that the organised criminal syndicates make a
common cause with terrorist gangs and foster narco
terrorism, which extend beyond the national boundaries.
There is reason to believe that organised criminal gangs
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are operating in the State and thus, there is immediate
need to curb their activities". It was also noticed
that the organised criminals make extensive use of wire
and oral communications in their criminal activities.
The interception of such communications to obtain
evidence of the commission of crimes or to prevent their
commission is an indispensable aid to law enforcement
and the administration of justice. It further proceeds
to note that the existing legal frame work, i.e. the
penal and procedural laws and the adjudicatory system
are found to be rather inadequate to curb or control the
menace of organised crime. The Government, therefore,
decided to enact a special law with stringent and
deterrent provisions including in certain circumstances
power to intercept wire, electronic or oral
communication to control the menace of the organised
crime. Keeping this in view we now proceed to address
the question referred to and the questions incidental
thereto.
61. At the outset, we would like to consider a
question, raised by Mr Amit Desai, learned counsel for
the petitioner in Criminal Writ Petition No.1449 of
2005, whether or not a private complaint under section
9(1) of MCOCA is tenable. Section 9(1) empowers a
Special Court to take cognizance of any offence without
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the accused being committed to it for trial either upon
receiving a "complaint" of facts which constitute such
offence or upon a "police report" of such facts. The
word "complaint" and the expression "police report"
occurring in this section have not been defined in
MCOCA. Sub-section (2) of Section 2 provides that
"words and expressions" used but not defined in MCOCA
and defined in the Code shall have the meanings
respectively assigned to them in the Code of Criminal
Procedure, 1973 (for short, "the Code"). The Code
defines the word "complaint" and the expression "police
report" in clauses (d) and (r) in section 2 thereof.
"Complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking
action under the Code, that some person, whether known
or unknown, has committed an offence, but does not
include a police report. It may be noticed that no form
is prescribed which the complaint must take. It may
only be said that there must be allegations which prima
facie disclose the commission of an offence with the
necessary facts for the Magistrate to take action. The
definition of "complaint" specifically excludes a
"police report". "Police report" as defined in clause
(r) of Section 2 of the Code means a report forwarded by
a police officer to a Magistrate under sub-section (2)
of Section 173 of the Code. Section 173 of the Code
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provides for a report of police officer on completion of
investigation under Chapter XII. Sub-section (2)(i) of
section 173 provides that the officer-in-charge of the
police station shall forward to a Magistrate empowered
to take cognizance of the offence on a "police report"
as soon as the investigation is completed in the form
prescribed by the State Government, containing all the
particulars mentioned in clauses (a) to (g) thereof.
Clause (b) speaks about the nature of "information".
The word "information" used in clause (b) means "First
Information Report" which would be a part of "police
report".
62. In A.R.Antulay Vs. Ramdas Sriniwas Nayak and A.R.Antulay Vs. Ramdas Sriniwas Nayak and A.R.Antulay Vs. Ramdas Sriniwas Nayak and
Anr, 1984 (2) SCC 500 Anr, 1984 (2) SCC 500 the Supreme Court while dealing Anr, 1984 (2) SCC 500
with the provisions of the Prevention of Corruption Act,
observed that it is a well recognised principle of
criminal jurisprudence that anyone can set and put the
criminal law into motion except where the statute
indicating or creating an offence indicates to the
contrary. It was further observed that the scheme of
the Code envisages two parallel and independent agencies
for taking criminal offences to Court. Even for a
serious offence of murder a private complaint can, not
only be filed but, be entertained and proceeded with
according to law. Keeping this enunciation in view and
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the definition of "complaint" in section 2(d) and the
language employed in sub-section (1) of Section 9, we
have no hesitation in holding that the word "complaint"
occurring in sub-section (1) of Section 9 means a
private complaint. Moreover, there is no contra
indication in MCOCA preventing an individual from filing
a complaint. The further question raised in these
petitions, therefore, is what course the special Court
should adopt if it receives a private complaint. In
other words, whether it is open for the special Court to
direct investigation under section 156 (3) by
overlooking the provisions of clause (a) and (b) of
sub-section (1) of Section 23 of MCOCA and that the
previous sanction under section 23(2) is sine-qua-non
for taking cognizance of such complaint.
63. To address the core question a scrutiny of all
the relevant provisions of the Code would be necessary
for better appreciation of the submissions of the
learned counsel for the parties.
64. Section 2(d) and 2(r) of the Code, as
aforestated, define "complaint" and "police report".
Section 2 (c) defines "cognizable offence" which means
an offence for which, and "cognizable case" means a case
in which, a police officer may, in accordance with the
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First Schedule or under any other law for the time being
in force, arrest without warrant. Section 6 in Chapter
II of the Code, which deals with constitution of
Criminal Courts, provides for classes of Criminal Courts
and stipulates that besides the High Courts and the
Courts constituted under any law, other than this Code,
there shall be, in every State, the following classes of
Criminal Courts:- (i) Courts of Session; (ii) Judicial
Magistrates of the first class and, in any metropolitan
area, Metropolitan Magistrates; (iii) Judicial
Magistrates of the second class and (iv) Executive
Magistrates. Section 26 in Chapter III, which deals
with the powers of Courts, provides for Courts by which
offences are triable. Clause (b) of Section 26 provides
that any offence under any law shall, when any Court is
mentioned in this behalf in such law, be tried by such
Court and when no Court is so mentioned, may be tried by
the High Court or any other Court by which such offence
is shown in the First Schedule to be triable. The
offence under MCOCA is triable by the Special Court
constituted under section 5 of MCOCA. It is thus clear
that the special court constituted under section 5 of
MCOCA is covered by Section 26(b) of the Code. Section
36 in Chapter IV deals with the powers of superior
officers of police. It provides that police officers
superior in rank to an "officer-in-charge of a police
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station" may exercise the same powers, throughout the
local area to which they are appointed, as may be
exercised by such officer within the limits of his
station. Officer-in-charge of a police station, defined
in clause (o) of section 2, includes the police officer
present at the station-house who is next in rank to such
officer and is above the rank of a constable when the
officer-in-charge of the police station is absent from
the station-house or unable from illness or other cause
to perform his duties, or, when the State Government so
directs, any other police officer so present.
65. Then it must be noticed that whenever a complaint
within the meaning of section 2(d) is received by a
Magistrate he has two options to follow under the
provisions contained in Chapter XII and Chapter XIV of
the Code. Chapter XV of the Code further provides the
procedure when a Magistrate decides to take cognizance
under section 190 (1)(a) in Chapter XIV of the Code.
66. Chapter XII of the Code, which comprises sections
154 to 176, relates to information to police and their
powers to investigate. Section 154 deals with
information in cognizable cases. Section 156 of the
Code with which we are primarily concerned in this group
of writ petitions reads thus:
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"156. Police officer’s power to investigate
cognizable cases -- (1) Any officer in charge of
a police station may, without the order of
Magistrate, investigate any cognizable case which
a Court having jurisdiction over the local area
within the limits of such station would have
power to inquire into or try under the provisions
of Chapter XIII.
(2) No proceeding of a police officer in any
such case shall at any stage be called in
question on the ground that the case was one
which such officer was not empowered under this
section to investigate.
(3) Any Magistrate empowered under section
190 may order such an investigation as
above-mentioned".
This section deals with the powers of police officer to
investigate cognizable cases. Sub-section (3) with
which we are concerned in particular, provides that any
magistrate empowered under section 190 to take
cognizance of the offences, may order such investigation
as contemplated under sub-section (1) of Section 156.
On completion of investigation undertaken under section
156 (1) the officer-in-charge of the police station is
required under section 173(2) to forward to a Magistrate
empowered to take cognizance of the offence on a "police
report", a report in the form prescribed by the State
Government containing all the particulars mentioned
therein.
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67. Chapter XIV of the Code lays down the conditions
requisite for initiation of proceedings by the
Magistrate. Section 190(1) which occurs in Chapter XIV
may be reproduced at this stage which reads thus:
"190. Cognizance of offences by Magistrates --
(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence --
(a) upon receiving a complaint of facts
which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any
person other than a police officer, or upon his
own knowledge, that such offence has been
committed".
A plain reading of this section would show that under
sub-section (1) any Magistrate of the first class or any
Magistrate of the second class specially empowered "may
take cognizance" of any offence (a) upon receiving a
complaint of facts which constitutes such offence; (b)
upon a "police report" of such facts; or (c) upon
information received from any person other than a police
officer or upon his own knowledge that such offence has
been committed. Chapter XV of the code comprising
sections 200 to 203 prescribes the procedure the
Magistrate has to initially follow if it takes
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cognizance of an offence on a complaint under section
190(1)(a).
68. A conjoint reading of the above provisions would
show that when a "complaint" disclosing a cognizable
offence is made before a Magistrate, he "may take
cognizance" of the same under section 190(1)(a) of the
Code and proceed with the same in accordance with the
provisions of Chapter XV. The other option available to
the Magistrate in such a case is to send the complaint
to the appropriate police station under section 156(3)
for investigation. Once such a direction is given under
sub-section (3) of section 156, the police are required
to investigate into that complaint under sub-section (1)
thereof and on completion of investigation to submit a
"police report" in accordance with section 173 (2) on
which the Magistrate "may take cognizance" under section
190(1)(b) but not under section 190(1)(a). A complaint
filed before a Magistrate cannot be a police report in
view of the definition of a complaint referred to
earlier and it is further clear that the investigation
of a "cognizable case" by the police under section
156(1) ultimately culminates in a police report under
section 173(2) of the Code. This position of law is
explained by the Apex Court in Madhu Bala Vs.Suresh Madhu Bala Vs.Suresh Madhu Bala Vs.Suresh
Kumar and ors, AIR 1977 SC 3104 Kumar and ors, AIR 1977 SC 3104. Kumar and ors, AIR 1977 SC 3104
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69. Thus, it would be seen that while Chapter XIV
deals with the post cognizance stage, Chapter XII,
comprising of Sections 156 and 173, deals with
pre-cognizance stage. Sections 190 and 156(3) are
mutually exclusive and function in totally different
spheres. A Magistrate can order investigation under
section 156(3) only at the pre-cognizance stage, that is
to say, before taking cognizance under sections 190, 200
and 204 and where a Magistrate decides to take
cognizance under the provisions of Chapter XIV, in law
he need not order any investigation under section 156(3)
though in cases not falling within the proviso to
section 202 he can order an investigation by the police
which would be in the nature of an enquiry as
contemplated by section 202 of the Code. This is
settled by the Apex Court in Tula Ram and ors Vs. Tula Ram and ors Vs. Tula Ram and ors Vs.
Kishor Singh, (1977) 4 SCC 459 Kishor Singh, (1977) 4 SCC 459 while interpreting the Kishor Singh, (1977) 4 SCC 459
expression "taking cognizance". Thus, the law is no
more res integra and it is settled by the Apex Court in
a long series of Judgments that passing order under
section 156(3) is a precognizance stage and such order
cannot be construed to mean that a Magistrate has taken
cognizance of the offence disclosed in the complaint.
Insofar as powers of the Magistrate are concerned, the
aforestated position of law was not disputed by the
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learned counsel appearing for the petitioners in this
group of writ petitions. However, the question raised
and falls for consideration is whether the Special Court
constituted by sections 5 of MCOCA can exercise the
aforesaid powers of a Magistrate. We will deal with
this question little later.
70. To consider the question referred to for our
consideration and to appreciate the arguments advanced
by the learned counsel for the parties it would be
advantageous to reproduce Sections 9(1) and 23 of MCOCA
which read thus:
"9. Procedure and powers of Special Court -
(1) A Special Court may take cognizance of any
offence without the accused being committed to it
for trial, upon receiving a complaint of facts
which constitute such offence or upon a police
report of such facts.
23. Cognizance of, and investigation into, an
offence - (1) Notwithstanding anything
contained in the Code-
(a) no information about the commission of an
offence of organised crime under this Act, shall
be recorded by a police officer without the prior
approval of the police officer not below the rank
of the Deputy Inspector General of Police;
(b) no investigation of an offence under the
provisions of this Act shall be carried out by a
police officer below the rank of the Deputy
Superintendent of Police.
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(2) No Special Court shall take cognizance of any
offence under this Act without the previous
sanction of the police officer not below the rank
of Additional Director General of Police."
71. In section 9(1) of MCOCA the phraseology employed
may be noticed at this stage. A Special Court "may take
cognizance" of any offence without the accused being
committed to it for trial, upon receiving a "complaint"
of facts which constitute such offence or upon a "police
report" of such facts. Keeping this provision in view
if we hold that the provisions of Sections 156 and 190
of the Code are not inconsistent with the provisions of
MCOCA and in particular with section 23 thereof and that
the Special Court while dealing with a "complaint" under
section 9(1) can exercise those powers conferred on the
Magistrate then the Special Judge will have an option to
take cognizance of the complaint under section 190(1)(a)
and proceed in accordance with the provisions of Chapter
XV of the Code or to direct investigation under section
156(3) and on receipt of a "police report" under section
173(2) "may take" cognizance of such complaint under
section 190(1)(b) of the Code.
72. The provisions of section 23 of MCOCA deal with
cognizance of, and investigation into, an offence.
Sub-section (1) of section 23 deals with the powers of
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investigating agency whereas sub-section (2) deals with
the powers of the Special Court to take cognizance
subject to previous sanction. Sub-section (1) begins
with a non-obstante clause. Clause (a) thereof provides
that notwithstanding anything contained in the Code, "
no information" about the commission of an offence of
organised crime under MCOCA,shall be recorded by a
police officer without the "prior approval" of the
police officer not below the rank of the Deputy
Inspector General of Police. Clause (b) of sub-section
(1) provides that notwithstanding anything contained in
the Code, no investigation of an offence under the
provisions of MCOCA shall be carried out by a police
officer below the rank of the Deputy Superintendent of
Police. Sub-section (2) of Section 23 deals with the
power of the Special Court by which no Special Court is
empowered to take cognizance of any offence under MCOCA
without the "previous sanction" of the police officer
not below the rank of the Deputy Superintendent of
Police. A bare perusal of section 23 makes it
explicitly clear that it provides threefold
protections/safeguards before the Special Court takes
cognizance of any offence under this Act i.e, (i) prior
approval for recording and registration of an
"information"; (ii) investigation by a senior police
officer; and (iii) the previous sanction for taking
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cognizance of the offence under MCOCA. The submission
that these protections cannot be whittled down or
rendered nugatory by maintaining a private complaint and
by passing an order under section 156(3) of the Code,
will stand addressed at the end of this judgment.
73. The Supreme Court had an occasion to consider the
provision of Section 20A (1) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (for short,
"TADA"), which is para materia with clause (a) of
sub-section (1) of Section 23 of MCOCA, in Mukhtiar Mukhtiar Mukhtiar
Ahmed Ansari Vs State (N.C.T. of Delhi), (2005) SCC Ahmed Ansari Vs State (N.C.T. of Delhi), (2005) SCC Ahmed Ansari Vs State (N.C.T. of Delhi), (2005) SCC
(Cri) 1037 (Cri) 1037. This judgment was heavily relied upon by (Cri) 1037
the petitioners. The Supreme Court while considering
the aforesaid provision of TADA observed that it clearly
lays down that no information about the commission of an
offence under TADA is to be recorded by the police by the police by the police
without prior permission of the District Superintendent
of Police and "such prior permission is a condition
precedent for registering a case under TADA". From the
facts of that case, it is clear that the cognizance was
taken on the basis of the "first information report"
recorded by the police and not on the basis of a
"private complaint" and the Supreme Court was dealing
with the submission that the proceedings could not have
been initiated in the absence of "prior approval" of the
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District Superintendent of Police as required under
sub-section (1) of Section 20A of TADA. Against that
backdrop the Supreme Court held that the police have no
power to record and register "first information report"
about the commission of an offence under TADA without
prior approval of the District Superintendent of Police.
Indubitably, that analogy would apply only if the "first
information report" is recorded by the police officer
without prior approval an officer not below the rank of
the Deputy Inspector General of Police, as provided for
in sub-section (1)(a) of Section 23 of MCOCA, of the
offence of organised crime under that Act and in that
case the proceedings would vitiate and conviction, if
any, will be liable to be set aside. In other words,
the prior approval under section 23(1)(a) is a condition
precedent for recording first information report "by the "by the "by the
police police" about the commission of an offence of organised police
crime under MCOCA. It may be noticed, at this stage,
that the Supreme Court in Mukhtiar Ahmed Ansari’s Mukhtiar Ahmed Ansari’s case Mukhtiar Ahmed Ansari’s
was not considering the provision of Section 14(1) of
TADA and the word "complaint" occurred therein which is
para-materia with Section 9(1) of MCOCA.
74. Similarly, the Supreme Court also had an occasion
to deal with the provisions of Section 20A( 2) of TADA
in Rambhai Nathabhai Gadhvi and others Vs. State of Rambhai Nathabhai Gadhvi and others Vs. State of Rambhai Nathabhai Gadhvi and others Vs. State of
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Gujarat (1997) 7 SCC 744 Gujarat (1997) 7 SCC 744. The provisions of sub-section Gujarat (1997) 7 SCC 744
(2) of Section 23 of MCOCA are para materia with section
20(A) (2) of TADA. It will be useful to refer to the
observations made in paragraph 8 of that judgment which
reads thus:
"8. Taking cognizance is the act which the
Designated Court has to perform and granting
sanction is an act which the sanctioning
authority has to perform. Latter is a condition
precedent for the former. Sanction contemplated
in the sub-section is the permission to prosecute
a particular person for the offence or offences
under TADA. We must bear in mind that sanction
is not granted to the Designated Court to take
cognizance of the offence, but it is granted to
the prosecuting agency to approach the Court
concerned for enabling it to take cognizance of
the offence and to proceed to trial against the
persons arraigned in the report. Thus a valid
sanction is sine-qua-non for enabling the
prosecuting agency prosecuting agency to approach the Court in order prosecuting agency
to enable the Court to take cognizance of the
offence under TADA as disclosed in the report.
The corollary is that, if there was no valid
sanction the Designated Court gets no
jurisdiction to try a case against any person
mentioned in the report as the Court is forbidden
from taking cognizance of the offence without
such sanction. If the Designated Court has taken
cognizance of the offence without a valid
sanction, such action is without jurisdiction and
any proceedings adopted thereunder will also be
without jurisdiction." (emphasis supplied)
It is clear from the facts of this case that the
cognizance of the offence under the provisions of TADA
was taken on the basis of the information recorded by
the police and not on the basis of a "private complaint"
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and against that backdrop the Apex Court had observed
that taking cognizance of the offence without "valid
sanction" is without jurisdiction and any proceedings
adopted thereunder will also be without jurisdiction. A
plain reading of sub-section (2) of Section 23 in the
light of the aforesaid observations would clearly show
that the previous sanction as contemplated therein is
sine-qua-non in order to enabling the Special Court to
take cognizance of the "offence "offence" under MCOCA recorded "offence
"on information to the police on information to the police". In other words, a valid on information to the police
sanction is sine-qua-non for enabling the prosecuting
agency to approach the Court in order to enable it to
take cognizance of the offence under MCOCA as disclosed
in the police report forwarded by the competent police
officer after carrying out an investigation with prior
approval as contemplated by section 23(1) of MCOCA. It
is thus clear that the ratio laid down by the Supreme
Court in both these cases would apply whenever the
offence under MCOCA is recorded on the information to
the police, investigated and taken cognizance of by the
Special Court without "prior approval" and "sanction" as
contemplated by section 23 of MCOCA and in that case the
proceedings would vitiate. It is very pertinent to
notice that in both the aforestated cases the provision
of section 14(1) of TADA which is para materia with
section 9(1) of MCOCA and the question whether a private
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complaint is tenable and directions for investigation
could be given under section 156(3) of the Code was not
under consideration of the Supreme Court. However, the
question that falls for our consideration is whether
sanction contemplated by section 23(2) is sine-qua-non
for taking cognizance upon receiving a private complaint
as contemplated by section 9(1) of MCOCA.
75. The scheme of Section 23 of MCOCA would show that
the Special Court requires to take cognizance of any
offence of organised crime only upon a strict compliance
of the conditions enumerated in clauses (a) and (b) of
sub-section (1) and with the previous sanction of the
police officer not below the rank of Additional Director
General of Police as provided in sub-section (2)
thereof. In other words, unless all the three
conditions contemplated under section 23 are strictly
complied with, the Special Court has no power to take
cognizance of any offence of organised crime under MCOCA
and if they are complied with it has no option but to
take cognizance. Sub-section (2), though is an
independent sub-section, in our opinion, has a force of
proviso to sub-section(1) In short, section 23 provides
for three conditions/safeguards and they are all
mandatory. In the absence of "prior approval" and
"previous sanction" as provided for under section
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23(1)(a) and 23(2), and unless investigation is being
carried out by the competent officer as required under
section 23(1)(b), no information about the commission of
an offence of an organised crime under MCOCA can be
recorded, investigated and taken cognizance of by the
Special Court. Section 9(1), however, does not
stipulate such conditions. The learned Advocate General
vehemently submitted that the conditions stipulated in
section 23 are mandatory for the Special Court to take
cognizance of even a private complaint under section
9(1). He further submitted that the Special Court
cannot pass an order under section 156(3) of the Code
and the only option is to forward such complaint to the
police for appropriate action under section 23. In
other words, unless police machinery steps in and grants
sanction, as provided for in section 23, a private
complaint cannot be taken cognizance of.
76. In criminal jurisprudence, the police always act
under the direct control of the Court and have to take
orders from it at every stage of an enquiry or
investigation or trial, as case may be, particularly
when the enquiry or investigation is being conducted on
the directions of the Court. The Court exercises an
overall control on the action of the police officer in
every such case either before or after taking
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cognizance. Police do not control the Court or the
Court does not take orders from the police. The whole
set up of Court is for the purposes of administration of
justice, and the control which the Judge exercises over
the police has also the object of maintaining purity of
administration of justice. The Court does perform
multifarious function for due administration of justice.
Keeping these principles in view and for the reasons
recorded in this judgment, the submission that the
Special Court has no powers to direct investigation
under section 156(3) or to take cognizance of a private
complaint under section 9(1) unless all the three
conditions stipulated in Section 23 of MCOCA are
strictly complied with, must be rejected. If the powers
of Court are made subject to control of the police
machinery then it will virtually result in mockery of
justice and defeat the very mandate of Article 21 of the
Constitution of India. Powers of Court are wide enough
to protect interest of everyone who is before it.
77. The legislature did not find it necessary to put
fetters/conditions on the powers of the Special Court,
as they are put on the police machinery in Section 23 of
MCOCA. The legislature was conscious of the fact that
the Special Court is competent enough to take care of
the object of putting fetters on the powers of police
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under section 23 before taking cognizance of a private
complaint received under section 9(1) and has,
therefore, not made the powers of the Court subject to
such conditions. In short, keeping in view the SOR, it
appears to us that the legislature did not find it
necessary to make powers of the Court subject to "prior
approval" and "previous sanction" of the police
machinery while dealing with a private complaint.
Making previous sanction under sub-section (2) of
Section 23 as a condition precedent for taking
cognizance is understandable and seems to be reasonable
in view of the conditions imposed on the police
machinery under Section 23(1) of which strict compliance
is mandatory before grant of sanction. In other words,
it is only after strict compliance of the conditions
stipulated in sub-section (1) and (2) of Section 23 the
Special Court is empowered to take cognizance under
sub-section (2). That appears to be the reason why
phraseology "shall take cognizance" has been employed in
sub-section (2) of Section 23 of MCOCA.
78. At this stage, it would be appropriate to look
into the relevant provisions of POTA with which the
Division Bench in Criminal Appeal No.1451 of 2003 was
primarily concerned. The provisions of Sections 29(1)
and 50 of POTA and sections 9(1) and 23 of MCOCA are
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somewhat similar, though not identical. Section 29(1)
of POTA reads thus:-
"29. Procedure and powers of Special Courts:-
(1) subject to the provisions of Section 50, a
Special Court may take cognizance of any offence,
without the accused being committed to it for
trail, upon receiving a complaint of facts that
constitute such offence or upon a police report
of such facts."
A bare perusal of this provision would show that,
subject to the provisions of Section 50, a Special Court
can take cognizance of any offence, without the accused
being committed to it for trial, upon receiving a
complaint of facts that constitute such offence or upon
a police report of such facts. The power of the Court
is expressly made subject to the provisions of Section
50. The difference of language between this provision
and section 9(1) of MCOCA is apparent. The power of the
Special Court under section 9(1) is not made subject to
any other provisions in MCOCA. Section 50 of POTA reads
thus:
"50. Cognizance of offences:- No Court shall
take cognizance of any offence under this Act
without the previous sanction of the Central
Government or as the case may be, the State
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Government."
Section 50 of POTA empowers the Court to take cognizance
of any offence under that Act only with the previous
sanction of the Central Government or as the case may
be, the State Government. A bare perusal of this
section makes it explicitly clear that previous sanction
is mandatory for taking cognizance of any offence under
POTA and the powers of the Special Court under section
29(1) are made subject to that provision. Keeping in
view the statement of object and reasons and the role of
the Central as well as State Governments in the cases of
terrorism, the legislature in its wisdom made the
provisions of Section 29(1) subject to the provisions of
Section 50. Such control on the powers of the Special
Court does not find place in section 9(1) of MCOCA.
79. We would also like to consider, at this stage,
the submission advanced on behalf of the petitioners
that in the face of the provisions of sub-section (1) of
Section 23, which provide for an investigation of an
offence under MCOCA by a police officer not below the
rank of the Deputy Superintendent of Police, whether the
investigation could be made over to an officer-in-charge
of a police station as contemplated by sub-section (1)
of Section 156 of the Code. It was further submitted
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that there may be occasions of a private complaint being
filed against the police officer superior in rank to the
officer-in-charge of a police station or against a
public servant holding higher rank in which case it
would not be proper to direct an officer-in-charge of a
police station to carry out investigation under section
156(3), of the offences under MCOCA. It is true that
the primary responsibility for conducting investigation
into offences in cognizable cases vests with
officer-in-charge of a police station. Section 156(3)
of the Code empowers a Magistrate to direct such officer
in charge of the police station to investigate any
cognizable case over which such Magistrate has
jurisdiction. Though a Magistrate under Section 156(3)
can only direct an officer-in-charge of a police station
to conduct such investigation and not a superior police
officer, nevertheless, when such an order is passed, any
police officer superior in rank of such officer, can as
well exercise the power to conduct an investigation, and
all such investigations would then be deemed to be the
investigation conducted by the officer in-charge of a
police station. Section 36 of the Code is not meant to
substitute the magisterial power envisaged in Section
156(3) of the Code, though it could supplement the
powers of an officer in charge of a police station. It
is permissible for any superior officer of police to
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take over the investigation from such officer in charge
of the police station either suo motu or on the
direction of the superior officer or even that of the
Government. However, the magisterial power cannot be
stretched under section 156(3) beyond directing the
officer in charge of a police station to conduct the
investigation, as noted by the Supreme Court in CBI Vs. CBI Vs. CBI Vs.
State of Rajasthan, (2001) 3 SCC 333 State of Rajasthan, (2001) 3 SCC 333. It is true that State of Rajasthan, (2001) 3 SCC 333
the Special Court, while exercising the powers under
section 156(3) of the Code, can only direct an
officer-in-charge of a police station to conduct such
investigation. But when such order is passed, any
police officer superior in rank of such officer can as
well exercise the power to conduct an investigation, and
all such investigations would then be deemed to be the
investigation conducted by the officer-in-charge of a
police station. Section 36 of the Code clearly empowers
any superior officer of police to take over the
investigation from officer-in-charge of a police station
either suo motu or on the direction of the superior
officer or even that of the Government. In other words,
it is always open for the police machinery or the
Government, in the event of an order under section
156(3) of the Code, to take over the investigation from
the officer-in-charge of a police station by the
superior officer either suo motu or on the direction of
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the Government.
80. A plain reading of Section 9(1) of MCOCA would
show that it is not controlled by any other provisions
of MCOCA much less section 23 which primarily deals with
the powers of the police machinery. Section 9(1) is an
independent section which confers powers on the special
Court and they are not made subject to
supervision/control of the police. The police machinery
cannot decide whether the Special Court should take
cognizance if it receives private complaint. By using
the expression "may take cognizance" in Section 9(1) the
Special Court is empowered to "take or not to take"
cognizance of any offence under MCOCA without the
accused being committed to it for trial, upon receiving
a "private complaint" of facts which constitute such
offence or upon a police report of such facts forwarded,
after completing the investigation, under section 173(2)
of the Code. In other words, section 9(1) of MCOCA does
away with the requirement of committing the accused to
the Special Court for trial and states that cognizance
can be taken upon receiving a complaint of facts which
constitute such offence or upon a police report of such
facts. The word "may" in Section 9(1) in any case
cannot be construed to mean "must" and it retains its
meaning "may" for the reasons recorded earlier. As
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against this, Section 23 deals with the cognizance of
and investigation into an "information" recorded by a
police officer after strict compliance of the conditions
stipulated therein.
81. A conjoint reading of Sections 9 and 23 of MCOCA
would show that a clear distinction is made between a
"complaint" contemplated by section 2(d) of the Code and
recording of an "information" by the police about the
commission of an offence of organised crime. Reference
to "police report" in Section 9(1) is to the report
under section 173(2) of the Code which police would
forward to the Special Court on completion of the
investigation directed under section 156(3) of the Code.
Though there is no specific reference to a police report
in Section 23, the Special Court is empowered to take
cognizance of a report being filed after completing the
investigation of the "information" recorded and
investigated as provided for in sub-section (1) of
Section 23 of MCOCA. The word "information" in Section
23(1) means "first information report" contemplated by
section 154 in Chapter XII of the Code inasmuch as it
has not been defined in MCOCA. A reference to "police
report" in sub-section (1) of Section (9) and "police
report" contemplated by section 23 are independent of
each other. In other words, a "police report" in
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sub-section (1) of Section 9 means a report that would
be forwarded by the police on completion of the
investigation under section 173(2) of the Code made on
the basis of the "private complaint". Whereas a "police
report" under section 23 would be on the basis of an
"information" recorded by the police and after carrying
out the investigation by a senior police officer with
the prior approval under sub-sections (1) (a) of Section
23. This is further clear from the language of Sections
9(1) and 23(2). The phraseology employed in Section
9(1), "may take cognizance" empowers the Special Court
to take or not to take cognizance of a "complaint" or a
"police report" whereas under section 23(2) the
phraseology employed is "shall take cognizance". No
option is left to the Special Court for the reasons
recorded earlier. Thus, Section 9(1) and Section 23 are
independent of each other and work in a totally
different sphere. The language or the phraseology
employed by the legislature is precise and plain and it
proclaims the legislative intent in unequivocal terms
and hence the same must be given effect to, regardless
of the consequences that may follow. It is against this
backdrop, though we agree with the opinion expressed by
the Division Bench in Criminal Writ Petition No.1772 of
2004 holding that the Special Court has power to take
recourse to the provisions of the Code while dealing
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with a private complaint, we find it difficult to
persuade ourselves to agree with the view that the
provisions of section 23(2) of MCOCA are sine-qua-non
for taking cognizance of a complaint under section 9(1).
Except the conclusions arrived at in paragraph 39(b) and
(c) partly of that judgment, we agree with all other
conclusions arrived at in the Judgment of the Division
Bench in Criminal Writ Petition No.1772 of 2004.
Similarly we are unable to persuade ourselves to agree
with the ratio laid down by the Division Bench in
Criminal Appeal No.1451 of 2004 decided vide Judgment
pronounced on 21.12.2004, requiring a private
complainant to approach the police agency and/or
requiring the Special Court to forward such complaint
received from a private individual for compliance of the
conditions stipulated in Section 23 of MCOCA.
82. Let us add some more reasons for not agreeing
with the conclusion in paragraph 39(b) of the judgment
in Criminal Writ Petition No.1772 of 2004. Sanction
under section 197 of the Code and sanction under section
23(2) of MCOCA are totally independent of each other and
cannot be equated for any purpose whatsoever. Section
197 of the Code makes requirement of obtaining sanction
of prosecuting a "public servant" mandatory. The bar
under section 197 is absolute and complete and the Court
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cannot take cognizance of a complaint of facts
disclosing any offence alleged to have been committed by
a public servant while acting or purporting to act in while acting or purporting to act in while acting or purporting to act in
discharge of his official duty discharge of his official duty unless the previous discharge of his official duty
sanction is obtained from the appropriate authority.
The object for the protection offered by section 197 is
the public interest in seeing that the official acts do
not lead to endless or vexatious prosecution. It should
be left to the Government to determine from the point of
view the question of expediency of prosecuting any
public servant. In other words, the object and purpose
underlying this section is to afford protection to
public servants against frivolous, vexatious or false
prosecution for offences alleged to have been committed
by them while acting or purporting to act in the
discharge of their official duty. This section is
designed to facilitate an effective and unhampered
performance of their official duty by public servants by
providing for scrutiny into the allegations of
commission of offence by them by their superior
authorities and prior sanction for their prosecution as
a condition precedent to the cognizance of the cases
against them by the Courts, as noted by the Supreme in
Bhagwan Prasad Srivastava V. N.P.Mishra, (1970) 2SCC Bhagwan Prasad Srivastava V. N.P.Mishra, (1970) 2SCC Bhagwan Prasad Srivastava V. N.P.Mishra, (1970) 2SCC
56. 56. It is also well settled that where the offence 56.
committed by a public servant is not one while he is
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acting or purporting to act in the discharge of his
official duty as such offence has no necessary
connection between it and the performance of the duties
of a public servant, the official status furnishing only
the occasion or opportunity for the commission of the
offences, he is not entitled to claim the protection of
Section 197(1) of the Code. The Supreme Court has made
this clear in Manohar Nath Kaul V. State of J & K, Manohar Nath Kaul V. State of J & K, Manohar Nath Kaul V. State of J & K,
(1983) 3 SCC 429 (1983) 3 SCC 429. In Director of Inspection and Audit (1983) 3 SCC 429 Director of Inspection and Audit Director of Inspection and Audit
Vs. C.L.Subramaniam, 1994 Supp (3) SCC 615 Vs. C.L.Subramaniam, 1994 Supp (3) SCC 615, the Supreme Vs. C.L.Subramaniam, 1994 Supp (3) SCC 615
Court has observed that in order to apply the provisions
of Section 197 Cr.P.C two conditions must be fulfilled;
one is that the offence mentioned therein must be
committed by a public servant and the other is that the
public servant employed in connection with the affairs
of the Union or a State is not removable from his office
save by or with the sanction of the Central Government
or the State government, as the case may be. The object
of the section is to provide guard against vexatious
proceedings against the public servants and to secure
the opinion of superior authority whether it is
desirable that there should be a prosecution. As
against this, sanction contemplated by section 23(2) is
with an object to afford protection or safeguard before
prosecuting a person, irrespective of his status whether
or not he is a public servant, under the stringent and
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deterrent provisions of MCOCA. No special protection
has been provided to a public servant under the
provisions of MCOCA though it provides punishment to the
public servants also. Since in the instant petitions we
are not concerned with the question that whether in the
instant petitions the previous sanction under section
197 of the Code is necessary for prosecuting a public
servant under the provisions of MCOCA we refrain from
expressing any opinion on this question. In any case,
the object of sanction under section 197 of the Code and
sanction under section 23(2) of MCOCA are distinct. We,
therefore, find it difficult to agree with the
observations made by the Division Bench in Criminal Writ
Petition No.1772 of 2004 in paragraph 39(b) of their
judgment.
83. It is true that the provisions of this Act are
very harsh and drastic containing stringent and
deterrent provisions and provide for minimum punishment
and in some other offences enhanced penalty also. It is
also true that to avoid misuse of the application of the
provisions of MCOCA, the safeguards under section 23
have been provided. However, the misuse contemplated is
not by the Court but by the police. The powers of the
Special Court under section 9(1) are not controlled by
Section 23. The legislature never intended to leave
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anyone remediless and the Court powerless to move
against persons involved in an organised crime,
particularly if such crime either has not been known to
or noticed by the police or there is total inaction on
the part of the police. If the acts of miscreants
attract the provisions of MCOCA, as observed earlier,
even a private individual has a right to approach the
Special Court under section 9(1) and in that case the
Court is empowered to move on receiving a complaint of
facts which, to the mind of the Special Court,
constitute offence under MCOCA. A person involved in an
organised crime or a member of an organised crime
syndicate cannot be allowed to go scot-free,
irrespective of his status and regardless of the
consequences that may follow, merely because the police
are either not aware of his activities or there is total
inaction on their part for whatsoever reason. If the
Court is satisfied of the prima facie case and decides
to proceed against such person it cannot be left at the
mercy of police machinery.
84. The Special Court, however, while dealing with
the private complaint under sub-section (1) of section 9
of MCOCA should exercise its power to direct
investigation under section 156(3) and/or to take
cognizance of such complaint sparingly, cautiously and
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only if the allegations made in the complaint, prima
facie, constitute an offence under the provisions of
MCOCA. In other words, the learned Special Judge should
examine the complaint and see whether all the
ingredients to constitute an offence of organised crime
prima facie exist in such complaint, requiring him to
proceed against the accused either under section 156(3)
or Section 190(1)(a) of the Code. The Special Court is
not expected to act merely as a post office of the
investigating agency by forwarding the complaint to the
investigating agency under section 156(3) of the Code
without being satisfied the allegations made in the
complaint do constitute an offence under MCOCA. The
Special Court, while doing so, should keep all the time
in view a serious and drastic consequences of directing
investigation under section 156(3) of the Code. In a
given case, it would be appropriate for the Special
Court to see who is the complainant?; why is he
approaching the Court directly?; whether an attempt has
been made to approach the police?; his antecedents and
interest, if any, in filing such complaint etc. This
does not mean that the learned Judge should embark upon
an enquiry as to the reliability or genuineness or
otherwise of the complaint. It is also not necessary
that in every private complaint filed before the Special
Court, it should direct investigation under section
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156(3). The other option, in view of the peculiar facts
and circumstances of the case, open to the Court is to
transmit the complaint to the Deputy Inspector General
of Police for appropriate action under section 23(1) of
MCOCA. This option may be exercised by the Special
Court when it finds that the allegations are serious and
it is doubtful about the bonafides and intention of the
complainant.
85. For arriving at the aforesaid conclusions and in
support thereof, we would like to further examine
whether the Special Court can exercise the powers
conferred on the Magistrate by Chapters XII, XIV and XV
of the Code as a Court of original jurisdiction and
whether such powers conferred on the Magistrate are
inconsistent with the provisions of MCOCA. However,
before we proceed further, we would like to deal with
the submission of the learned Advocate General that
though sub-section (1) of Section 9 contemplates private
complaint, the only role that should be played by the
Special Court is to forward such complaint to the police
to act on the same in accordance with the provisions of
Section 23 of MCOCA. In other words, the role of a
Special Court is not more than a post office of the
investigating agency. The intent of the legislature as
discussed earlier is clearly reflected in the provisions
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of MCOCA. The legislature in its wisdom provided for
private complaint of facts constituting an offence under
MCOCA which, in our opinion, is not an empty formality.
Had the legislature intended the Special Court to act as
a post office it would have made such intention clear in
the Act itself. There is no express provision in the
Act requiring the Special Court to forward such
complaint for complying with the provisions of Section
23 and then to proceed further.
86. It was strenuously urged that the provisions of
Sections 156 and 190 read with the provisions of Chapter
XV are inconsistent with the provisions of Section 23 of
MCOCA. We have already observed that the provisions of
section 9 (1) are independent of the provisions of
Section 23 and they are not controlled or subject to the
provisions of section 23. Section 9(1) independently
gives powers to the Special Court to entertain a
"complaint" or a "police report" and decide whether or
not to take cognizance of any offence under MCOCA. It
is well settled rule of interpretation that a statute
has to be construed according to the intent of them that
make it and the duty of the Court is to act upon the
true intention of the legislature. Further the
provisions of the Statute are meant for its enforcement
and that should be the approach while dealing with such
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provisions. Reading of MCOCA as a whole would show that
whenever and wherever the legislature intended the
provisions of the Code to be followed or not to be
followed, it has so indicated by employing a non
obstante clause in all such provisions. For instance,
Section 6 which deals with jurisdiction of a Special
Court. It begins with non-obstante clause and declares
that notwithstanding anything contained in the Code,
every offence punishable under this Act shall be triable
only by the Special Court within whose local
jurisdiction it was committed, or as the case may be, by
the Special Court constituted for trying such offence
under sub-section (1) of Section 5. By employing a
non-obstante clause, the legislature made it clear that
under any circumstances jurisdiction of the Special
Court would be controlled by this provision and not by
the provisions of the Code. There are several such
provisions in MCOCA which begin with a non-obstante
clause including Section 23. Section 21 deals with
modified application of certain provisions of the Code
which also begins with a non-obstante clause.
Sub-section (1) of Section 21 of MCOCA clearly provides
that notwithstanding anything contained in the Code or
in any other law, every offence punishable under this
Act, shall be deemed to be a cognizable offence within
the meaning of clause (c) of Section 2 of the Code and
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"cognizable case" as defined in that clause shall be
construed accordingly. Sub-section (2) of section 21
has modified section 167 of the Code. Sub-section (3)
bars the application of section 438 of the Code.
Sub-sections (4), (5) and (6) further put fetters on the
powers of Court for release of the accused on bail.
Section 25 provides for overriding effect of the
provisions of MCOCA, which states that the provisions of
MCOCA or any rule made thereunder or any order made
under any such rule shall, have effect notwithstanding
anything inconsistent therewith contained in any other
law for the time being in force or in any instrument
having the force of law. It is thus clear that the
provisions of the Code can be taken recourse to by the
Special Court as long as such access is not denied by
employing a non-obstante clause and the provisions to
which recourse was taken by the Special Court, are not
inconsistent with the provisions of MCOCA.
87. The legislature can create a Special Court to
deal with a special problem. It can also create new
procedures within the existing system. The MCOCA is a
special Act and creates a new class of offences called
"Organised Crimes" as defined in Section 2(1)(d)(e) and
(f) and provides for a special procedure for the trial
of such offences. No doubt, the legislature by the use
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of the words "as if it were" in section 9(4) of the Act
vested a special court with the status of a Court of
Session. But looking to the scheme of the Act, it is a
Court of original jurisdiction and not strictly a Court
of Session as defined under section 6(i) of the Code.
It is conferred with powers under section 190 of the
Code and, therefore, bar under section 193 does not
operate against the special Court. There is a total
departure from different classes of Criminal Courts
enumerated in Section 6 of the Code. Under the Code,
Session Court has no powers, except as otherwise
expressly provided by any other law for the time being
in force, to take cognizance of any offence as a Court
of original jurisdiction unless the case has been
committed to it by a Magistrate under the Code. The
MCOCA does confer the status of a Court of Session on
the special Court for the purposes of trial of any
offence and empowers it to take cognizance of any
offence as a Court of original jurisdiction. Bar under
section 193 on the powers of Session Court, therefore,
does not operate against the special Court constituted
under section 5 of MCOCA. It is, therefore, seen that
the Special Court can exercise the powers of a Court of
original jurisdiction, i.e. a Magistrate conferred
under the Code, as long as they are not inconsistent
with the provisions of MCOCA.
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88. That takes us to add some more reasons to hold
that a Special Judge under section 9(1) of MCOCA is a
Magistrate and has powers to proceed under Sections
156(3) and 190 of the Criminal Procedure Code. Section
9(1) of MCOCA does away with the requirement of
committing the accused to the Special Court for trial
and states that cognizance can be taken upon receiving a
complaint of facts which constitute such offence or upon
a police report of such facts. On fair reading of the
provisions of MCOCA it appears to us that the Court of
Special Judge is a Court of original criminal
jurisdiction. In order to make it functionally
oriented, some powers are conferred on it by MCOCA which
has set it up. The Division Bench of this Court in
Criminal Writ Petition No.1772 of 2004 has rightly held
that "no debate is necessary where powers are
specifically conferred on or specifically denied to it."
On a proper reading of section 9(1) and on the basis of
basic principles of criminal jurisprudence enunciated by
the Supreme Court in A.R.Antulay’s case, in our opinion,
under section 9(1) a Special Court can, therefore, not
only entertain a "private complaint" but can also take
recourse to Section 156(3) of the Code. In the case of
A.R.Antulay Vs. Ramdas Sriniwas Nayak and anr, AIR 1984 A.R.Antulay Vs. Ramdas Sriniwas Nayak and anr, AIR 1984 A.R.Antulay Vs. Ramdas Sriniwas Nayak and anr, AIR 1984
SC 718 SC 718, the Constitution Bench while interpreting the SC 718
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provisions of the Prevention of Corruption Act, 1947,
and considering implication of Section 8(1) of the
Criminal Law Amendment Act, 1952 (for short, "1952 Act")
once again clarified the procedural law to be followed
by the Special Court. Section 8(1) as introduced by
1962 Act, reads thus:
"8. Procedure and powers of special judge - (1)
A special judge may take cognizance of offences
without the accused being committed to him for
trial, and in trying the accused persons, shall
follow the procedure prescribed by the Code of
Criminal Procedure, 1898 (Act V of 1898), for the
trial of warrant cases by magistrates."
The scheme of the above section is on the lines of the
scheme of Section 9(1) and 9(4) of MCOCA as observed by
Dayanand B.Nayak Vs.Ketan
the learned Single Judge in Dayanand B.Nayak Vs.Ketan Dayanand B.Nayak Vs.Ketan
K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689 K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689. We agree K.Tirodkar and Anr, 2004 All.M.R.(Cri) 1689
with the opinion expressed by the learned Single Judge
in that case which has been upheld by the Division of
this Court in Criminal Writ petition No.1772 of 2004.
In Antulay’s case (supra), while dealing with the powers
of the Special Court under the Prevention of Corruption
Act, the Constitutional Bench made reference to the
provision of Section 8(1) of 1952 Act and has observed
that "in order to give full effect to Section 8(1), the
only thing to do is to read Special Judge in Sections
238 to 250 wherever the expression Magistrate occurs.
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This is what is called legislation by incorporation.
Similarly, where the question of taking cognizance
arises, it is futile to go in search of the fact whether
for purposes of Section 190 which conferred power on the
Magistrate, to take cognizance of the offence, Special
Judge is a Magistrate. What is to be done is that one
has to read the expression Special Judge in place of
Magistrate, and the whole thing becomes crystal clear.
The Legislature wherever it found the grey area
clarified it by making specific provisions such as the
one in sub-section (2) of Section 8 and to leave no one
in doubt further provided in sub-section (3) that all
the provisions of the Criminal Procedure Code shall so
far as they are not inconsistent with the Act apply to
the proceedings before a Special Judge". The Apex Court
further observed that "the net outcome of this position
is that a new Court of original jurisdiction was set up
and whenever a question arose as to what are its powers
in respect of specific questions brought before it as
Court of original criminal jurisdiction it had to refer
to the Criminal Procedure Code undauntedly by any
designation claptrap. When taking cognizance, a Court
of Special Judge enjoyed the powers under Section 190.
When trying cases, it is obligatory to follow the
procedure for trial of warrant cases by a Magistrate
though as and by way of status it was equated with a
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Court of Session."
89. Keeping the aforesaid enunciation in the judgment
of Antulay’s case in view, if we go back to Section 9 of
MCOCA we find that the Special Judge is for some
purposes deemed to be a Sessions Judge and for some
other purposes deemed to be a Magistrate and some powers
exercised by the Magistrate are conferred on him. The
Special Judge under section 9(1) is empowered to take
cognizance without the accused being committed and while
trying the accused persons he is required to follow the
procedure for trial as a Court of Session as
contemplated under sub-section (4) of Section 9 of
MCOCA. It is thus clear that while exercising powers
conferred under sub-section (1) of Section 9, the
Special Court exercises powers of Magistrate and while
trying the accused it exercises the powers of Court of
Sessions under Sub-section (4) of Section 9. In other
words the Special Court for taking cognizance of any
offence is a Court of original jurisdiction and for
trying the accused it functions as a Court of Sessions.
Moreover, the Court of Sessions has no inherent power to
order investigation especially in view of bar under
section 156(3), 190, 193,195 and 340 of the Code, nor
can Sessions Court direct Inspector General of Police or
a particular officer to conduct investigation. This
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bar, however, would not operate against the Special
Court constituted under section 5 of MCOCA since it is a
Court of original criminal jurisdiction. It is in this
view of the matter, I have no hesitation in holding that
the Special Judge under section 9(1) of MCOCA is a
Magistrate and can exercise the powers under section
156(3) and 190 of the Code.
90. What broadly emerges from the above discussion
and, which, in our opinion, is a clear answer to the
question referred to for our consideration, is outlined
as follows:
(i) A private complaint under section 9(1) of MCOCA
is tenable.
(ii) The Special Court, on receipt of a private
complaint under section 9(1) of MCOCA, has the power to
order an investigation under section 156(3) of the Code
and upon receipt of a police report may or may not take
cognizance of any offence under MCOCA. It can also
reject such complaint outright if it does not disclose
offence under MCOCA.
(iii) Any officer-in-charge of a police station or
police officer superior in rank to such officer, as the
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case may be, can investigate any offence under MCOCA as
and when such investigation is directed by the Special
Court under section 156(3) of the Code and forward a
report to the Special Court as provided for under
section 173(2) of the Code. Compliance of the
conditions mentioned in clauses (a) and (b) of
sub-section (1) of Section 23 are not the conditions
precedent for investigating a private complaint pursuant
to the directions of the Special Court.
(iv) The Special Court will have the power to take
cognizance of any offence under MCOCA either upon
receipt of a private complaint of facts which constitute
such offence or upon a police report forwarded under
section 173(2) of the Code after completion of the
investigation pursuant to the directions under section
156(3) of the Code and for which previous sanction under
section 23(2) of MCOCA shall not be a condition
precedent. In other words, the sanction under section
23(2) of MCOCA is not a sine-qua-non for taking
cognizance of a "private complaint".
(v) The Special Court, while dealing with a private
complaint under sub-section (1) of Section 9, has the
powers of the Magistrate and while trying the accused it
will have all the powers of the Court of Session under
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sub-section (4) of Section 9 of MCOCA. In other words,
the Special Court for taking cognizance of any offence
is a Court of original jurisdiction and for trying the
accused it functions as a Court of Session.
. The question referred to for our consideration,
accordingly, stands answered in aforesaid terms.
91. That takes us to consider each of the
petitions/applications transmitted to us by various
orders for decision.
(i) In Writ Petition No.127 of 2005, the petitioner
has impugned the order dated 10.1.2005 rendered by the
Designated Court and has prayed for quashing of the
private complaint filed by respondent no.2. The learned
Judge, after going through a copy of the complaint and
annextures thereto, has directed the Commissioner of
Police to take steps as contemplated under section 23 of
MCOCA and to appoint a competent police officer to
investigate the said complaint. He has further directed
investigation under section 156(3) of the Code. We have
already expressed the opinion on the question referred
to for our consideration. Keeping that in view the
impugned order is liable to be quashed and set aside
since it is not in consonance with the interpretation of
the relevant provisions made by us in this Judgment. We
accordingly set aside the judgment and order impugned in
the writ petition and direct the concerned Special Court
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to consider the complaint filed by respondent no.2
afresh keeping in view the opinion expressed and the
conclusions arrived at in this judgment and pass
appropriate orders within six weeks from the date of
receipt of this judgment. Prayer (b) of the writ
petition is rejected. The writ petition is,
accordingly, disposed of.
(ii) In Criminal Writ Petition No.1449 of 2005, the
order dated 4.5.2005, directing investigation under
section 156(3) of the Code passed on the private
complaint lodged by respondent no.3, is under challenge.
For the selfsame reasons, which we have recorded in the
aforesaid sub-paragraph (i), the impugned order dated
4.5.2005 is quashed and set aside. The Special Court to
consider the complaint filed by respondent no.3 afresh
keeping in view the opinion expressed and the
conclusions arrived at in this judgment and pass
appropriate orders within six weeks from the date of
receipt of this order. It is needless to express that
if the investigation pursuant to the impugned order is
complete, and the report under section 173(2) of the
Code is already forwarded, the Special Court may pass
appropriate orders thereon within four weeks from the
date of receipt of this order.
(iii) Criminal Application No.6297 of 2005, seeking to
intervene in Cri.Writ Petition No.127 of 2005, stands
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allowed in view of the fact that the applicant was heard
on merits for quite some time. The application is
accordingly disposed of.
(iv) In so far as other writ petitions/applications
are concerned, in our opinion, those can be decided by
the appropriate Bench. We, therefore, direct those
petitions/applications to be placed before appropriate
Bench for adjudication of the same on merits in
accordance with law.
sd/-
(D.B.BHOSALE,J.) (D.B.BHOSALE,J.) (D.B.BHOSALE,J.)
sd/-
(V.K.TAHILRAMANI,J.) (V.K.TAHILRAMANI,J.) (V.K.TAHILRAMANI,J.)
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CORAM : V.G.PALSHIKAR Acg.C.J.,
CORAM : V.G.PALSHIKAR Acg.C.J., CORAM : V.G.PALSHIKAR Acg.C.J.,
D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. D.B.BHOSALE AND V.K.TAHILRAMANI,JJ.
ORDER:- ORDER:- ORDER:-
. Considering the majority view as also the
minority view, in our opinion Writ Petitions are liable
to be disposed of in terms of the following:
i) Writ Petition No.127 of 2005 Writ Petition No.127 of 2005 Writ Petition No.127 of 2005
Impugned order is set aside. Matter is remitted
back to the Special Court for deciding afresh the
application before it in the light of majority
view.
ii) Writ Petition No.1449 of 2005 Writ Petition No.1449 of 2005. Writ Petition No.1449 of 2005
Impugned order is set aside. The matter is
remitted back to the Special Court for further
orders on receipt of the report under Section
156(3) of Criminal Procedure Code.
iii) Interevention Application is disposed of as the
Intervenors seeking intervention were heard.
iv) All other petitions/applications should be listed
before the concerned Division Bench for decision
in the light of majority opinion expressed above.
There shall be no order as to costs.
V.G.PALSHIKAR Acg.C.J., V.G.PALSHIKAR Acg.C.J., V.G.PALSHIKAR Acg.C.J.,
D.B.BHOSALE,J D.B.BHOSALE,J D.B.BHOSALE,J
V.K.TAHILRAMANI,J. V.K.TAHILRAMANI,J. V.K.TAHILRAMANI,J.
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fcjwp127-05gr
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