2. cr wp 2565-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2565 OF 2010 Ashok Gyanchand Vohra .. Petitioner Vs The State of Maharashtra & Ors .. Respondents Mr. A.A. Kumbhakoni, Sr. Advocate i/b Mr. Viresh V. Purwant for the Petitioner Mr. Chaitanya Pendse for Respondent No. 6 Mr. Y.S. Shinde, APP for Respondent Nos. 1 to 5 CORAM : D.D. SINHA AND SMT. V.K. TAHILRAMANI, JJ DATE : 23rd DECEMBER, 2010 P.C.: 1. Heard the learned counsel for the petitioner (original accused), learned counsel for respondent no. 6 (original complainant) and learned Additional Public Prosecutor for respondent nos. 1 to 5. 2. In the instant case, respondent no.6 filed a private complaint before the Special Court under the provisions of MCOC Act. The Special Court passed the 1 2. cr wp 2565-10.doc orders dated 09.09.2009, 22.02.2010 and 28.07.2010 in the said proceedings initiated by Respondent no. 6 by filing private complaint under the provisions of MCOC Act before the Special Court. Being aggrieved by the same, the petitioner (accused) preferred the present Writ Petition impugning this oder. Since the issue more or less revolves around the direction given by the Special Court in the operative parts of these orders, we have reproduced the same as under: 3. The operative part of the order dated 09.09.2010 reads thus: " The complaint is forwarded to the Additional Commissioner of Police (West Region), Mumbai who is the officer of the rank of Deputy Inspector General of Police, to have an inquiry conducted into the complaint by a police officer of the rank of Deputy Superintendent of Police. The officer who may be appointed to conduct the inquiry shall place the papers of investigation, if any, before the police officer of the rank of Additional Director General of Police for obtaining sanction for prosecution, if any and then submit the report to this Court on 26th December, 2009. M.A. NO. 49/09 stands disposed off." 2 2. cr wp 2565-10.doc 4. The operative part of the order dated 22.02.2010 reads thus: " The complaint is forwarded to the Jt. Commissioner of Police (Crime), Mumbai who is the officer of the rank of Dy. Inspector General of Police, to have an inquiry conducted into the complaint by police officer of the rank of Dy. Supdt. of Police. The officer who may be appointed to conduct the inquiry shall place the papers of investigation, if any, before the police officer of the rank of Addl. Director General of Police for obtaining sanction for prosecution, if any, and then submit the report to this Court on or before 31.03.2010. The Addl. Commissioner of Police (west region) shall return the papers received by him pursuant the order passed on M.A. 49/09. The application Exh. 13 is disposed of." 5. It is brought to the notice of this Court that the Apex Court passed a judgment dated 06.05.2009 in Cri. Appeal No. 958 of 2009. In para nos. 38, 39 and 41, the Apex Court has observed as under: "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 3 2. cr wp 2565-10.doc herein above. 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 herein above, the provisions of Section 23 are the safeguards provided against the invocation of the 4 2. cr wp 2565-10.doc provisions of the Act which 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..... 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. 6. The learned Additional Public Prosecutor has submitted that the Joint Commissioner of Police (Crime), Mumbai filed application being M.A. No. 53 of 2010 before the Special Court for modification of order dated 22.02.2010 passed by the Special Court. The Special Court on this application passed the order dated 28.07.2010. The operative part of the said order reads thus: "In view of the Order of the Hon'ble Supreme 5 2. cr wp 2565-10.doc Court in Criminal Appeal No. 1089/06, the order of my Learned Predecessor directing the Director General of Police, Maharashtra State to make an inquiry in exercise of power under Section 202 of Cr.P.C. no longer survives. The report of investigation made by the Director General of Police cannot therefore be looked into. A fresh order for making investigation into allegation made in the complaint has to be passed. A fresh inquiry/investigation therefore needs to be made. Needles to mention that the report of inquiry made pursuant to the direction issued by my learned Predecessor is not in favour of the applicant (complainant)-Nitin Patil. He has,therefore, filed protest petition. It would, therefore, not be in the interest of justice to direct the same authority to have an inquiry made into the allegations made in the application/complaint. True, the alleged offences took place in various parts of Maharashtra. Conspiracy to commit alleged offences was said to have been hatched in Mumbai. The Jt. Commissioner of Police (Mumbai) has therefore, authority to have an inquiry made into the allegations made in the complaint. It needs no mention that all the concerned police stations in the State of Maharashtra will have to coordinate with the officer making investigation of the alleged offences. The officer making investigation may make use of the 6 2. cr wp 2565-10.doc papers of inquiry/investigation made by the State, CID under the directions of Director General of Police. This Court, therefore, see no reason to modify its order dated 22.02.2010 as sought for. The application, therefore, stands rejected." 7. The learned counsel for the petitioner has submitted that in view of law laid down by the Apex Court, the MCOCA Court upon receipt of the private complaint has to forward the same to the officer indicted 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 can take cognizance of such offence under Sub- Section (2) of Section 23. It is, therefore contended that the complaint which is filed by Respondent No.6 before the Special Court under the provisions of MCOC Act, which is already forwarded by the Special Court needs to be looked into and the procedure stipulated under Section 23 and reflected in the order of the Apex Court is required to be 7 2. cr wp 2565-10.doc undertaken by the Competent Authority and appropriate report in respect of grant of sanction or otherwise is required to be submitted to the Special Court. 8. The learned Additional Public Prosecutor has not disputed the factual and legal aspect of the matter and contended that the complaint which is forwarded by the Special Court shall be investigated / inquired as per the law declared by the Apex Court within framework of the provisions of Section 23 of MCOCA. The learned Additional Public Prosecutor has further submitted that after due and appropriate investigation / inquiry appropriate decision shall be taken by the Competent Authority under Section 23 of MCOC Act within a period of six months from today and appropriate report in this regard shall be submitted to the Special Court. 9. The learned counsel for Respondent No.6 has submitted that the Competent Authority as contemplated under Section 23 of the MCOC Act is entitled to conduct the inquiry / investigation and is required to take a decision about grant of sanction or refusal of sanction keeping in view the law declared by the apex Court. 8 2. cr wp 2565-10.doc 10.We have considered the contentions canvassed by the respective counsel. Perused the operative parts of the orders passed by the Special Court as well as the law declared by the Supreme Court on this aspect. 11.In the instant case, it is not in dispute that the Special Court has already forwarded a complaint to the Joint Commissioner of Police (Crime), Mumbai for taking appropriate decision regarding grant or refusal of sanction. It appears that while forwarding the complaint to the police, the Special Court has issued certain directions asking / requiring the Competent Authority to undertake investigation / inquiry in a particular manner. However, by virtue of law declared by the Apex Court on the subject, it is evident that the provisions of Section 9(1) and Section 23 of MCOC Act stipulate that upon receipt of the private complaint, a Judge of the Special Court 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 if sanction is accorded, then the Special Court can take cognizance of such offence under Sub-Section 9 2. cr wp 2565-10.doc (2) of Section 23. 12.We hope and trust that the Competent Authority as contemplated under Section 23 and mentioned by the Apex Court in the judgment alone shall undertake the entire exercise within the framework of provisions of Section 23 of MCOC Act and shall take appropriate decision in accordance with law and the procedure stipulated under Section 23 keeping in view the law declared by the Apex Court on this aspect and submit its final report regarding grant or refusal to grant sanction to the Special Court on or before expiry of six months from today. 13.Parties before the Court agree that in view of this direction issued by this Court, the Writ Petition be disposed of with liberty to the parties to challenge the order of grant / refusal of sanction before the appropriate forum. 14.In view of the above referred observations and directions, we dispose of Criminal Writ Petition No. 2565 of 2010 with liberty as prayed for. Needles to mention that if the decision to grant / refuse sanction, if not taken by the Competent Authority stipulated under Section 23 of MCOC Act as well as in 10 2. cr wp 2565-10.doc view of the Law declared by the Apex Court in above referred judgment, it will be open for the parties to the present proceedings to agitate before the appropriate forum. Since the procedure of inquiry or investigation under the provisions of Section 23 of MCOC Act needs to be undertaken by the Competent Authority on its own though it must be in conformity with the Scheme of Section 23 of MCOC Act as well as the law declared by the Apex Court in this regard, the directions given by the Special Court in the orders impugned to the Competent Authority, requiring him to undertake investigation in a particular manner shall loose its efficacy. [SMT. V.K. TAHILRAMANI, J.] [ D. D. SINHA, J ] 11 2. cr wp 2565-10.doc 12