TMI Blog2009 (5) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay 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 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 Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uard against prosecution under 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 legislature to prevent misuse of the provisions of the Act. In this regard, reliance was placed on the decision of this Court in State of Orissa Vs. Ganesh Chandra Jew [(2004) 8 SCC 40], wherein while considering the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 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 by the State of Maharashtra, for modification of the order passed on 19th September, 2006, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar, 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 the decision of this Court in Harpal Singh Vs. State of Punjab [(2007) 13 SCALE 728], learned counsel submitted that this Court, while 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 Vs. State of Gujarat [(1997) 4 SCC 744], wherein, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Privy Council in Nazir Ahmad Vs. King Emperor [AIR 1936 PC 253] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court in Moti Lal Vs. CBI Anr. [(2002) 4 SCC 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 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being committed to it for trial, either on receiving a complaint of facts 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 shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. (2) No Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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