Jamiruddin Ansari vs Central Bureau Of Investigation & Anr

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

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

the decision of this Court in State of Orissa Vs.

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

Court in K. Kalimuthu Vs. State by DSP [(2005) 4

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

Pradesh Vs. M.P. Gupta [(2004) 2 SCC 349] and in

Sankaran Moitra Vs. Sadhna Das and another [(2006)

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

this Court in N.K. Ogle Vs. Sanwaldas [(1999) 3 SCC

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 20

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 21

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

the decision of this Court in Harpal Singh Vs.

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

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, 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.

23

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

the decisions of this Court in (1) Nelson Motis Vs.

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

Privy Council in Nazir Ahmad Vs. King Emperor [AIR

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

made to the decision of this Court in (i) LIC Vs.

Escorts Ltd. & Ors. [(1986) 1 SCC 264]; and (ii)

Mansukhlal Vs. State of Gujarat [1997) 7 SCC 622],

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

Ors. Vs. Lalit Somdatta Nagpal & Anr. [(2007) 4 SCC

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

A.R. Antulay Vs. Ramdas Sriniwas Nayak & Anr.

[(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 29

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

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 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 35

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 39

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 42

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 43

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.

(CYRIAC JOSEPH)

New Delhi Dated: 06.05.2009