Jamiruddin Ansari Vs.
Central Bureau of Investigation & ANR. [2009] INSC 960 (6 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. _ ______OF 2009
(Arising out of S.L.P.(Crl.)No.5677 of 2007) Jamiruddin Ansari ... Appellant
Central Bureau of Investigation & Anr. ... Respondents WITH Criminal Appeal
Nos.1085, 1088 & 1089 of 2006
ALTAMAS KABIR, J.
1.
Leave
granted in SLP(Crl.)No.5677/2007.
2.
Criminal
Appeal Nos.1085, 1088 and 1089 of 2006 have been taken up for final disposal
along with SLP(Crl.)No.5677 of 2007, inasmuch as, they arise out of the same set
of facts and common questions of law are involved. SLP(Crl.)No.5677 of 2007 has
been filed by Jamiruddin Ansari, challenging the 2 order passed by the Bombay
High Court on 16th April, 2007, rejecting his prayer for bail, although, he is
in custody since his arrest on 10th October, 2004, without trial. Criminal
Appeal No.1085/06 has been filed by Ashok, son of Gyanchand Vohra, against the
judgment of the Bombay High Court in Criminal Writ Petition No.127 of 2005,
which had been heard by a Bench of three Judges on a reference being made to
resolve two conflicting views which had been taken by two Division Benches of
the Bombay High Court relating to the interpretation of Section 9(1) vis-`-vis
Section 23 of the Maharashtra Control of Organized Crime Act, 1999 (hereinafter
referred to as `MCOCA').
Criminal Appeal
No.1088 of 2006 has been filed by one Shabbir Noormohamed Patel, raising the
same questions as those raised in Criminal Appeal No.1085/06. Criminal Appeal
No.1089 of 2006 has been filed by the State of Maharashtra, challenging the
judgment of the Bombay High Court dated 22nd 3 December, 2005, on the question
as to whether the Special Court could take cognizance of an offence on a
private complaint under Section 9(1) of MCOCA and order investigation in
respect thereof under Section 156(3) of the Code of Criminal Procedure
(Cr.P.C.).
3.
The
common thread running through these appeals is the question as to whether an
investigation could be ordered by the Special Court constituted under MCOCA,
save and except in accordance with Section 23(1) of MCOCA, and interplay, if
any, between Section 9(1) and Section 23 of MCOCA. In order to understand the
context in which these questions have arisen, it is necessary to briefly set
out the facts of the case.
4.
On
5th September, 2003, one Himmat Nanda was alleged to have been caught
red-handed accepting a bribe of Rs.3 lakhs, for and on behalf of one Nitindra
Singh, in a trap set up by the Anti- 4 Corruption Bureau, Mumbai. Pursuant to
his arrest, an offence was registered by the Anti-Corruption Bureau, Mumbai,
under Sections 7, 8, 9, 12, 13(1)(d) and 13(2) of the Prevention of Corruption
Act, 1988, being C.R. No.3071 of 2003, against the said Nitindra Singh and
several others. It was alleged that the said Himmat Nanda was, in fact, the
conduit for the said respondent, Nitindra Singh.
5.
On
19th August, 2004, Nitindra Singh, who was an Assistant Police Inspector, filed
a private complaint, being Special Case No.243 of 2004, under the penal
sections of MCOCA before the Special Judge, MCOCA Court, Mumbai, against 14
accused, 8 of whom were senior police and government officials and members of
the Anti-Corruption Bureau and some other government officials who were members
of the raiding party in the above-mentioned trap case.
After recording the
statements of six witnesses on 21st August, 2004, the learned Special Judge
passed 5 an order under Section 202 Cr.P.C. directing the Commissioner of
Police, Mumbai, to form a Special Investigation Team (hereinafter referred to
as `SIT') to raid the premises of all the accused named in the complaint filed
by the said Nitindra Singh, who were none other than the complainants against
Nitindra Singh and witnesses of the trap case along with all police officers of
the Anti- Corruption Bureau, who had conducted the raid in the trap case. On
30th August, 2004, the Special Judge, MCOCA Court, appointed Smt. Meera
Borvankar, Joint Commissioner of Police (Crime), Mumbai, to head the SIT. On
2nd September, 2004, acting on the instructions of the State of Maharashtra,
Smt.
Meera Borvankar filed
Criminal Writ Petition No.1772 of 2004 before the Bombay High Court on behalf
of the State Government, praying for quashing of the order dated 24th August,
2004, passed by the learned Special Judge ordering the formation of a SIT to
raid the premises of all the 6 accused named in the complaint; the order dated
26th August, 2004, directing urgent investigation and the order dated 30th
August, 2004, appointing the writ petitioner to head the SIT. In her Writ
Petition, Smt. Meera Borvankar categorically stated that none of the accused in
the private complaint filed by Nitindra Singh was a member of any criminal gang
and that the said complaint filed by Nitindra Singh was false, frivolous and
liable to be quashed.
6.
Apart
from the above, on 7th September, 2004, Ashok, son of Gyanchand Vohra, the
appellant in Criminal Appeal No.1085 of 2006 and the proposed accused No.6 in
the said private complaint, filed Criminal Writ Petition No.1801 of 2004 in the
Bombay High Court for quashing the above-mentioned orders passed by the MCOCA
Court, Mumbai, along with the complaint itself.
7.
A
similar writ petition, being Criminal Writ Petition No.1802 of 2004, was filed
by Sandeep Singh, the proposed accused No.2 in the private complaint and the
complainant in the trap case, praying for the self-same reliefs as prayed for
by Ashok, son of Gyanchand Vohra.
8.
On
21st December, 2004 in another case, a Division Bench of the Bombay High Court
held that a private complaint under Section 9 of MCOCA could not be entertained
without compliance with Section 23 of the said Act. However, on the very next
date, on 22nd December, 2004, another Division Bench of the Bombay High Court,
while considering the Writ Petition filed by Smt. Meera Borvankar (Criminal
Writ Petition No.1772 of 2004), quashed the three orders passed by the learned
Special Judge on 24th August, 2004, 26th August, 2004 and 30th August, 2004, on
the private complaint filed by Nitindra Singh, but held that while entertaining
a private complaint under Section 9 of MCOCA, the Special 8 Court could take
recourse to the provisions of Section 156(3) Cr.P.C. and order investigation of
such private complaint. The matter was sent back to the Special Judge with the
aforesaid finding.
9.
Soon
thereafter, on 10th January, 2005, on an application filed by Nitindra Singh,
the Special Judge, passed an order under Section 156(3) Cr.P.C. and ordered the
Commissioner of Police, Mumbai, to investigate into the complaint filed by
Nitindra Singh. The said order was challenged by Ashok, son of Gyanchand Vohra,
in Criminal Writ Petition No.127 of 2005. When the same was taken up for
consideration on 23rd March, 2005, the learned Single Judge, noticed the
divergence of opinion in the judgments delivered by the two Division Benches
and referred the issue for decision to a larger Bench. On 22nd December, 2005,
the Full Bench of the High Court gave a split verdict with the majority view
being that a private complaint filed under Section 9 of MCOCA was independent
of Section 9 23 and compliance with the provisions of Section 23 was not a
pre-condition for the learned Special Judge to take cognizance of an offence
under MCOCA.
The learned Special
Judge was directed to consider afresh the private complaint filed by Nitindra
Singh.
10.
It
is against the said judgment and order of the Full Bench that these appeals
have been filed.
11.
Of
the four appeals indicated hereinbefore, Criminal Appeal No.1089 of 2006 filed
by the State of Maharashtra was taken up first for consideration. On behalf of
the State of Maharashtra it was emphasized that a special procedure had to be
prescribed under MCOCA to deal with the rising graph of organized crime within
the State of Maharashtra which could not be controlled under the existing laws.
It was pointed out that MCOCA made provisions for dealing with offences under
the Act by the Special Court to be 10 constituted under Section 5 of the Act.
It was also submitted that Section 9 of MCOCA provides the procedure to be
followed by the Special Court in taking cognizance of an offence and the powers
vested in it for holding a trial into such offences. Mr. U.U. Lalit, learned
Senior Counsel, appearing for the State of Maharashtra, further submitted that
under the MCOCA, the Special Judge discharged dual functions. At the stage of
Section 9, the Special Court discharged magisterial duties and functions as
prescribed under the Code of Criminal Procedure for the purpose of taking
cognizance, but at the same time, under sub-Section (4) for the purpose of
trial of any offence under the Act, it is vested with the powers exercised by
the Court of Session and is to try such offence as if it were a Court of
Session, in accordance with the procedure prescribed in the Code for conducting
trials before a Court of Session. Learned counsel submitted that under the
provisions of the Act, as 11 indicated in Section 9, the Special Judge
combined the functions of a Magistrate, as also a Court of Session, for the
purpose of taking cognizance, and, thereafter, conducting the trial.
12.
A
further submission was made that although Section 9(1) of MCOCA does not debar
a private complaint from being entertained by the Special Judge, any subsequent
action upon such complaint would be subject to the provisions of Section 23(2)
of the said Act. It was urged that on account of the provisions of sub-Section
(2) of Section 23 of MCOCA, the Special Court was prevented from taking
cognizance of any offence under the Act without the previous sanction of a
police officer, not below the rank of Additional Director General of Police.
It was submitted that
the said provision did not contemplate an independent inquiry by the Special
Judge under Section 156(3) Cr.P.C. for the purpose of taking cognizance, since
no cognizance could be taken nor could an investigation be made or 12 directed
de hors the provisions of Section 23. Mr. Lalit submitted that Section 9(1)
would have to be read harmoniously with Section 23(2) of MCOCA in order to give
a meaningful effect to the provisions of both the Sections, having particular
regard to the fact that under Section 25 of the Act, the provisions of MCOCA or
any Rule made thereunder or any Order made under any such Rule has an
overriding effect over any other law for the time being in force or any
instrument having the force of law.
13.
Mr.
Lalit submitted that the decision of the Full Bench of the Bombay High Court
was erroneous and that the Hon'ble Judges who were in the majority had erred in
holding that on a plain reading of Section 9(1) of MCOCA, it would be apparent
that it is not controlled by any other provision of the law, much less Section
23 thereof.
It was also submitted
that the Hon'ble Judges had erroneously held that Section 9(1) and Section 23
13 of MCOCA were independent of each other and worked in totally different
spheres. The learned counsel contended that the Hon'ble Judges taking the majority
view had misconstrued the intention of the legislature in enacting MCOCA in
arriving at a conclusion that Section 23(2) of MCOCA was not a sine qua non for
taking cognizance of a complaint under Section 9(1) of MCOCA.
14.
It
was then submitted that the comparison made by the Hon'ble Judges with regard
to the sanction required under Section 197 Cr.P.C. and under Section 23(2) of
MCOCA was misconceived, and since the safeguards provided in Section 23 of
MCOCA had been put in place against possible misuse, the powers of the Special
Court to take cognizance on a private complaint under Section 9(1) would be
controlled by Section 23. It was urged that the Hon'ble Judges had possibly
overlooked the provisions of Section 23(2) of MCOCA, which, in fact, was the safeguard
against prosecution under 14 the provisions of the Act which are highly
stringent and could not be jettisoned for the purpose of taking cognizance
under Section 9(1) on a private complaint. It was contended that in enacting
the provisions of Section 23(2) of MCOCA, the legislature had clearly intended
that cognizance of any offence under the Act was not to be taken by the Special
Court without the previous sanction of a senior police officer, not below the
rank of Additional Director General of Police and that it was also the
intention of the legislature that Section 23(2) should serve as a check against
any malafide private complaint under the Act made with the intention of
misusing the provisions of the Act.
15.
Supporting
the minority view taken in the case, Mr. Lalit urged that if the majority view
was to be accepted, it would cause violence to the provisions of the other Act,
particularly, Sub-Section (1) of Section 23 which were also checks intended by
the 15 legislature to prevent misuse of the provisions of the Act. In this
regard, reliance was placed on Ganesh Chandra Jew [(2004) 8 SCC 40], wherein
while considering the bar under Section 197 Cr.P.C., it was observed that even
if the public servant acted in excess of his duty, if a reasonable connection
exists between the act complained of and his official duty, the excess
committed by him would not deprive him of the protection of Section 197.
Reference was also
made to the decision of this SCC 512], where the provisions of Section 197 Cr.P.C.
were also considered and in addition to what had been stated in earlier
decisions, it was explained that the protection given under Section 197
Cr.P.C., which is similar to the provisions of Section 23(2) of MCOCA, is to
prevent the institution of possible vexatious criminal proceedings in respect
of offences alleged to have 16 been committed by such public servants while
they were acting as public servants. It was observed that the intention of the
legislature is to afford adequate protection to public servants to ensure that
they are not prosecuted for anything done by them in the discharge of their
official duties, without reasonable cause.
16.
The
same views, though in stronger terms, were expressed by this Court in State of
Himachal 4 SC 584], wherein a Three-Judge Bench was of the view that it was a
condition precedent to obtain sanction under Section 197 Cr.P.C. when the
offence was triable by a Court of Session.
17.
Mr.
Lalit lastly referred to the decision of 284], where it was clearly observed
that before coming to a conclusion regarding the application of 17 Section
197, the Court would have to come to a conclusion that there was a reasonable
connection between the act complained of and the discharge of official duties,
and that the act must bear such relation to the duty that the accused could lay
a reasonable claim that he did it in the course of performance of such duty.
18.
In
conclusion, Mr. Lalit submitted that similar to the control of Section 197
Cr.P.C. over Section 190 Cr.P.C., Section 9 and Section 23 of MCOCA are so
worded that Section 9 is controlled by Section 23, inasmuch as, if Section 9
were to be treated as being independent of Section 23, then, in that event,
Section 23 could be applied only when a complaint emanated from the police,
which was not contemplated under the Act. Consequently, the majority view of
the High Court was erroneous since Section 9 could not be treated in isolation
of Section 23, as otherwise Section 23(2) would be 18 rendered inconsequential
in relation to taking of cognizance under Section 9(1) of the Act.
19.
Learned
Additional Solicitor General, Mr. Amrendra Sharan, appearing for the Central
Bureau of Investigation (hereinafter referred to as `CBI') supported the
submissions made on behalf of the State of Maharashtra that the provisions of
Section 9(1) and Section 23(2) of MCOCA had to be construed harmoniously in the
case of private complaints. It was submitted that the bar of taking cognizance
without the previous sanction of a Police Officer not below the rank of
Additional Director General of Police, as contained in Sub-Section (2) of
Section 23, prohibited the learned Special Judge from taking cognizance of any
offence under the Act without such sanction.
20.
Apart
from the above, the learned Additional Solicitor General submitted that the CBI
had filed an application in Criminal Appeal No.1089/06, filed 19 by the State
of Maharashtra, for modification of the order passed on 19th September, 2006,
staying all proceedings in the Trial Courts and the matters before the Bombay
High Court. He submitted that such stay should be vacated as far as Shri R.M. Dhariwal
and Shri G.M. Joshi were concerned, since in their case, prior approval under
Section 23(1)(a) of MCOCA had been given on 21st October, 2004 for
investigation of Cr.No.122/04. The learned ASG further submitted that on the
basis of material collected during the investigation, the Special Court had
passed an order on 26th July, 2005 under Section 319 Cr.P.C. summoning the said
two persons in connection with the said case. The said order was challenged in
Crl.W.P.Nos.1956 of 2005 and 2016 of 2005, which were transferred to the Full
Bench on a representation being made that the issues involved in the writ
petitions were similar to those which were considered by the Full Bench.
Upon holding that
sanction under Section 23(2) was not required for taking cognizance on a
private complaint, the Full Bench on 22nd December, 2005, remitted the two writ
petitions filed by Shri Dhariwal and Shri Joshi to the Division Bench for
hearing. It was also submitted that the Competent Authority had, on 21st
February, 2006, granted sanction under Section 23(2) of MCOCA in respect of the
said two writ petitions. The learned ASG submitted that since sanction under
the provisions of Section 23 of MCOCA had been given by the Competent
Authorities, as far as the two writ petitioners are concerned, their cases were
required to be delinked from the other appeals so that the records could be
sent back to the Trial Court to proceed with the trial, as far as they were
concerned.
21.
Mr.
Sushil Kumar, learned Senior counsel who appeared for the appellant in Criminal
Appeal No.1088/2006, submitted that the appeal had arisen out of a private
complaint made by one Abdul Razzak Zariwala under Section 9(1) of MCOCA. He
submitted that instead of taking cognizance on the said complaint, the Special
Judge, had, by his order dated 4th May, 2005, directed the Commissioner of
Police, Mumbai, to have the matter inquired into by a competent Police Officer,
who could investigate the accusations made against the accused and submit a
report pursuant to the investigation/ inquiry in keeping with the provisions of
Section 156(3) Cr.P.C. accompanied by the statutory sanction, as contemplated
under Section 23(2) of MCOCA.
According to Mr.
Sushil Kumar, if the minority view of the Full Bench of the High Court
regarding dependence of Section 9(1) of MCOCA on Section 23 was to be accepted,
then the exercise of jurisdiction by the learned Special Judge was bad in law
and was liable to be quashed. Referring to State of Punjab [(2007) 13 SCALE
728], learned counsel submitted that this Court, while 22 considering the
provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as `TADA'), in regard to grant of sanction, confirmed the earlier
view expressed in Rambhai Nathabhai Gadhvi and others it was observed that
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. In
fact, taking of cognizance by the Court was subject to the grant of sanction
not for the Designated Court to take cognizance of an offence, but, for the
prosecuting agency to approach the Court concerned to enable it to take
cognizance of the offence and to proceed to trial against the persons indicated
in the report.
In other words, a
valid sanction is the sine qua non for enabling the prosecuting agency to
approach the Court in order to enable it to take cognizance of the offence as
disclosed.
22.
Appearing
for Rasiklal Manikchand Dhariwal, Mr. R.F. Nariman, learned Senior counsel,
submitted that the provisions of MCOCA had to be read as a whole since it was
the intention of the legislature to minimise the application of the Code in
respect of matters covered by MCOCA. He, however, disputed the submissions made
both on behalf of the appellant as also the respondents that the Special Judge
combined magisterial functions with that of the Court of Session. According to
him, Section 9(1) of the Act merely eliminates the committal process and allows
the Special Judge to take cognizance of the offence complained of directly.
Mr. Nariman, however,
adopted the submissions advanced by Mr. Sushil Kumar as to the control of
Section 23(2) of MCOCA over Section 9(1) where cognizance was required to be
taken either on a private complaint or on a police report. Drawing a parallel
with provisions in the Prevention of 24 Terrorism Activities Act, 2002 (POTA),
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the
provisions of MCOCA, Mr. Nariman submitted that the provisions of Sections 29
and 50 of POTA were in pari materia with Sections 9 and 23 of MCOCA and Section
14(1) of TADA was the same as Section 9(1) of MCOCA and none of the said
provisions contemplated the invocation of the provisions of Section 156(3)
Cr.P.C. by the learned Special Judge. Learned counsel submitted that the
majority view of the Full Bench that Sections 9 and 23 of MCOCA were completely
independent of each other suffered from the cardinal error of failure to read
the statute as a whole before applying the provisions of MCOCA to the facts of
this case. He submitted that the majority view of the Full Bench that Section
9(1) of MCOCA was not controlled by any provision of the said Act, much less
Section 23, was not acceptable as otherwise by taking recourse to Section 9(1)
of 25 MCOCA, any private individual could circumvent the rigours imposed under
Sections 23(1) and (2) of MCOCA, which would completely defeat the object of
the said Act. Reference was made by Mr. Nariman to Union of India & Anr.
[(1992) 4 SCC 711] and several other decisions in support of his submission
regarding Harmonious Construction and urged that in construing the provisions
of the several enactments dealing with terrorist and disruptive activities, a
purposeful construction has to be adopted in order to promote the object of the
Act and to prevent possible abuse thereof.
23.
Mr.
M.S. Ganesh, learned Senior counsel, who appeared for Shri G.M. Joshi, the
other respondent against whom a private complaint had been filed, contended
that it would not be correct to say that the provisions of the Code would not
apply to proceedings under MCOCA. He, however, submitted that the provisions of
Section 23(1) requiring 26 prior approval for recording an information and the
provisions of Section 23(2) of MCOCA requiring previous sanction for
prosecution clearly indicates that the said provisions are mandatory and if not
complied with, the investigation and/or prosecution would be rendered invalid.
Mr. Ganesh urged that Section 23(2) is a threshold provision having a direct
bearing to the jurisdiction of the Special Court to take cognizance under
Section 9(1) of MCOCA. Referring to the celebrated decision of the 1936 PC
253], Mr. Ganesh submitted that when a power had been given to do a certain
thing in a certain way, it would have to be done in that way or not at all.
Submitting that there was a difference between the expression
"permission" and "prior permission", Mr. Ganesh contended
that while the former did not prevent ex facto sanction for investigation or
taking cognizance, the latter was mandatory in nature and without such prior
27 permission, no cognizance could be taken of any offence under MCOCA. In this
regard, reference was Escorts Ltd. & Ors. [(1986) 1 SCC 264]; and (ii)
which were both on the same lines.
24.
Mr.
Ravindra Srivastava, learned senior counsel, appearing for the appellant in
Criminal Appeal No.1085 of 2005, while accepting the submissions advanced by
Mr. Sushil Kumar, Mr. R.F. Nariman and Mr. M.S. Ganesh and holding that private
complaints were maintainable under Section 9 of MCOCA, submitted further that
the said provision was an enabling provision, which was controlled by Section
23 which is a repository of the safeguards against false and malicious
prosecution. Referring to the stringent nature of MCOCA and the existing
safeguards introduced in Section 23 thereof, Mr. Srivastava referred to the
decision of this Court in State of Maharashtra & 28 171], where the
importance of the requirement for grant of sanction had been considered and it
was observed that in taking recourse to the provisions of MCOCA which has the
effect of curtailing the liberty of an individual, a great responsibility had
been cast on the authorities to ensure that the provisions of the Act are
strictly adhered to and followed.
25.
Mr.
Srivastava also referred to the decision in [(1984) 2 SCC 500], wherein the
safeguards with regard to taking cognizance on private complaints under Section
8 of the Prevention of Corruption Act, 1947, in respect of offences under
Section 6 introduced by way of Section 5A by the Criminal Law Amendment Act,
1952, was considered and it was observed that the said amendment was necessary
to prevent any abuse by way of private complaints.
Mr. Srivastava urged
that there is no conflict between Sections 9 and 23 of MCOCA and both have to
be read in a holistic manner and in the context of the Special Act to allow
both of them to have play in the joints.
26.
On
behalf of the Respondent No.2, Nitindra Singh, in Criminal Appeal No.1089 of
2006, Mr. Amit Sharma, learned counsel, submitted that the questions which were
required to be decided in this case were mainly confined to the following two
questions :
(i) Does the Special
Court have original jurisdiction of magisterial powers under MCOCA? (ii)
Whether Section 23 of MCOCA is a condition precedent for the Special Judge to
invoke the provisions of Section 9(1) of the said Act, both with regard to
private complaints as well as police reports? In other words, the question is
whether sanction is required to be taken under Section 23(2) before a private
30 complaint could be filed under MCOCA?
27.
Answering
the first question in the affirmative, Mr. Sharma submitted that the Special
Court combines in itself both magisterial functions as well as Session Court,
but at different stages.
He submitted that
while at the stage of cognizance the Special Judge exercises magisterial
powers, at the stage of trial he exercises all the powers of a Court of Session
as provided under Section 9(4) of the Act.
28.
Regarding
the second question, Mr. Sharma submitted that Section 23 of MCOCA governed
Section 9(1) only with regard to police reports, but not in respect of private
complaints and consequently the provisions of the Code would become operative
in respect of a private complaint and Section 9(1) of MCOCA would, therefore,
be independent of Section 23(2) when a private complaint was made. He also
pointed out that Section 24 of MCOCA was an 31 additional safeguard as it
provides for punishment of a public servant who fails or abstains from taking lawful
measures under the Act.
29.
In
support of his aforesaid submissions, Mr. Sharma, while referring to the
decision in A.R. Antulay's case (supra) referred to various other decisions of
this Court which only have repetitive value. Mr. Sharma submitted that the view
taken by the Full Bench was correct and did not require any interference.
30.
Mr.
E.C. Agrawala, who appeared for Abdul Razzak Zariwala, a respondent in Criminal
Appeal No.1088 of 2006, adopted the submissions made by Mr. Amit Sharma.
31.
Ms.
Aishwarya Bhati, learned counsel appearing for the sole respondent, Ketan
Pirodkar, in Criminal Appeal No.1089 of 2006, who was also one of the
complainants, while generally agreeing with the submissions made by Mr. Lalit,
Mr. Sushil Kumar 32 and Mr. Srivastava, contended that the provisions of
Section 23 of MCOCA have to be given a harmonious construction in relation to
Section 9(1) in order to avoid a collusion between the apparently contrary
provisions. She urged that if sanction under Section 23(2) is held to be a sine
qua non for a private complaint, it would render Section 9(1) redundant and
completely frustrate the remedy of a private complaint before the Special
Court. She urged further that since a private complaint could be filed directly
under Section 9(1), the legislature intended that in such case the provisions
of Section 23(2) will not be applicable. However, if further investigation was
required into such private complaint, the Special Judge could order such an
investigation, subject to the safeguards provided in Section 23(1) of MCOCA.
32.
Ms.
Bhati then referred to Section 4 Cr.P.C.
and submitted that
all offences under the Indian Penal Code have to be investigated, inquired
into, 33 tried and otherwise dealt with according to the provisions of the
Criminal Procedure Code and all offences under any other law are to be dealt
with according to the same provision, but subject to any enactment for the time
being in force regulating the place of investigation and trial. In this regard,
Ms. Bhati referred to the decisions of this 713], where the question involved
was whether the CBI was authorized to investigate an offence punishable under
the Wild Life (Protection) Act, 1972, in view of the argument that the said
enactment was a self-contained Code. Answering the said question, this Court
held that the provisions of the Criminal Procedure Code would apply in respect
of investigation and trial even in respect of such enactments, but would be
subject to any provision regulating the manner of such investigation and trial.
Ms. Bhati urged that consequently, the provisions of the Cr. P.C. would 34
apply with full force in all aspects of investigation, enquiry and trial,
except where there is a specific provision to the contrary in the Special Act,
such as MCOCA.
33.
Ms.
Bhati submitted that if sanction under Section 23(2) was held to be a sine qua
non for private complaint also, the object of Section 9 would be completely
frustrated and would lead to startling results and that complaint of a private
party would become the subject of police investigation.
34.
Mr.
Harish Salve, learned senior counsel, appearing for the Union of India, added a
new dimension to the submissions made on behalf of the respective parties by
contending that, in fact, no private complaint would lie under Section 9(1) of
MCOCA and that such private complaints will have to be made under Section 190
Cr.P.C. He urged that since Section 9(1) was subject to compliance with the
provisions of Section 23(2), the said provisions did not contemplate the filing
of a private complaint and the provisions of Section 190(1)(c) Cr.P.C. stood
excluded.
35.
We
have carefully considered the submissions made on behalf of the respective
parties and we are convinced that Section 9 of MCOCA cannot be read or invoked
independent of Section 23. In our view, Section 9(1) contemplates filing of
complaints both by the investigating authorities and also by private parties
and the learned Special Judge is, therefore, entitled to take cognizance of offences
under MCOCA even on a private complaint, but after due compliance with Section
23(2) thereof. In view of the stringent provisions of MCOCA, the Legislature
included certain safeguards for invoking the provisions thereof. The same is
manifest from the provisions of Section 23 as a whole. In order to understand
and appreciate the provisions of Sections 9 and 23 and the inter-play 36
between them, Sub-Sections (1) and (4) of Section 9, which are relevant to the
submissions made in these appeals, are reproduced hereinbelow :- "9.
Procedure and powers of Special Court :- (1) A Special Court may take
congnizance 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.
(2) xxx xxx xxx (3)
xxx xxx xxx (4) Subject to other provisions of this Act, a Special Court shall,
for the purpose of trial of any offence, have all the powers of a Court of
Session and shall try such offence as if it were a Court of Session, so far as
may be, in accordance with the procedure prescribed in the Code for the trial
before a Court of Session."
36.
The
expression used in Section 9(1) indicates that the Special Court may take
cognizance of any offence without the accused being committed to it for trial,
either on receiving a complaint of facts 37 or upon a police report of such
facts, which clearly indicates that the Special Court is also empowered to take
cognizance of an offence under MCOCA even on a private complaint. The said
power vested in the learned Special Judge is, however, controlled by the
provisions of Section 23(2) of the Act, which provides that no Special Court
shall take cognizance of any offence under the Act without the previous
sanction of a Police Officer not below the rank of Additional Director General
of Police.
37.
For
the sake of reference, the provisions of Section 23 are extracted hereinbelow.
"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 38 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 precious,
sanction of the police officer not below the rank of Additional Director
General of Police."
38.
The
wording of Sub-Section (2) of Section 23 leaves no room for doubt that the
learned Special Judge cannot take cognizance of any offence under MCOCA unless
sanction has been previously given by the police officer mentioned hereinabove.
In such a situation, even as far as a private complaint is concerned, sanction
has to be obtained from the Police Officer not below the rank of Additional
Director General of Police, before the Special Judge can take cognizance of
such complaint.
Accordingly, the
provisions of Section 9(1) will have to be read in harmony with the provisions
of Section 23(2) as far as private complaints are concerned, and we have no
hesitation in negating the majority view of the Full Bench holding otherwise.
39.
We
are also inclined to hold that in view of the provisions of Section 25 of
MCOCA, the provisions of the said Act would have an overriding effect over the
provisions of the Criminal Procedure Code and the learned Special Judge would
not, therefore, be entitled to invoke the provisions of Section 156(3) Cr.P.C.
for ordering a special inquiry on a private complaint and taking cognizance
thereupon, without traversing the route indicated in Section 23 of MCOCA. In
other words, even on a private complaint about the commission of an offence of
organized crime under MCOCA cognizance cannot be taken by the Special Judge
without due compliance with Sub-Section (1) of Section 23, which starts with a
non-obstante clause. As indicated hereinabove, the provisions of Section 23 are
the safeguards provided against the invocation of the provisions of the Act
which 40 are extremely stringent and far removed from the provisions of the
general criminal law. If, as submitted on behalf of some of the respondents, it
is accepted that a private complaint under Section 9(1) is not subject to the
rigours of Section 23, then the very purpose of introducing such safeguards
lose their very raison d'etre. At the same time, since the filing of a private
complaint is also contemplated under Section 9(1) of MCOCA, for it to be
entertained it has also to be subject to the rigours of Section 23.
40.
Accordingly,
in view of the bar imposed under Sub-Section (2) of Section 23 of the Act, the
learned Special Judge is precluded from taking cognizance on a private
complaint upon a separate inquiry under Section 156(3) Cr.P.C. The bar of
Section 23(2) continues to remain in respect of complaints, either of a private
nature or on a police report. In order to give a harmonious construction to the
provisions of Section 9(1) and 41 Section 23 of MCOCA, upon receipt of such
private complaint the learned Special Judge has to forward the same to the
officer indicated in Clause (a) of Sub-Section (1) of Section 23 to have an
inquiry conducted into the complaint by a police officer indicated in clause
(b) of Sub-Section (1) and only thereafter take cognizance of the offence
complained of, if sanction is accorded to the Special Court to take cognizance
of such offence under Sub-Section (2) of Section 23.
41.
In
substance, we agree with the minority view of the Full Bench, which, in our
opinion, correctly interprets the inter-play between Sections 9, 23 and 25 of
MCOCA.
42.
We,
therefore, allow Criminal Appeal No.1089 of 2006 filed by the State of
Maharashtra and set aside the majority decision of the Full Bench in the
judgment impugned, together with the directions issued thereupon. Instead, we
endorse the minority view of the acting Chief Justice and accept the
conclusions arrived at by His Lordship and the directions given thereupon.
43.
As
far as the appeal preferred by Jamiruddin Ansari is concerned, the trial has
not progressed on account of the stay orders passed by this Court on the
appeals filed by the State of Maharashtra against the decision of the Full
Bench on the reference made on the conflicting views expressed by different
Benches of the High Court with regard to the interpretations of Sections 9 and
23 of MCOCA. Except for the fact that the appellant has undergone a further
period in custody, there is really no change in the circumstances under which
his initial bail application was rejected. We, therefore, see no reason to
entertain the appeal filed by him and the same is dismissed.
44.
Criminal
Appeal No.1085 of 2006 filed by Ashok son of Gyanchand Vohra and Criminal
Appeal No.1088 of 2006 filed by Shabbir Noormohamed Patel will also stand
disposed of along with the appeals filed by the State of Maharashtra in the
same vein.
45.
The
appeals filed by the State of Maharashtra in respect of the writ petitions
filed by Shri Rasiklal Manikchand Dhariwal and G.M. Joshi are delinked from the
other appeals and disposed of with a direction to the High Court to dispose of
their writ petitions expeditiously. Let the lower court records in respect of
their matters be sent back to the High Court forthwith.
________________J.
(ALTAMAS KABIR)
________________J.
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