-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.127 OF 2005 CRIMINAL WRIT PETITION NO.127 OF 2005 CRIMINAL WRIT PETITION NO.127 OF 2005 WITH WITH WITH CRIMINAL APPLICATION NO.3172 OF 2005. CRIMINAL APPLICATION NO.3172 OF 2005. CRIMINAL APPLICATION NO.3172 OF 2005. Ashok Gyanchand Vohra ... .. Petitioner Vs The State of Maharashtra & Anr. .. Respondents. WITH CRIMINAL WRIT PETITION NO.1449 OF 2005 CRIMINAL WRIT PETITION NO.1449 OF 2005 CRIMINAL WRIT PETITION NO.1449 OF 2005 Shabbir N.Patel... .. Petitioner Vs The State of Maharashtra & Anr. .. Respondents. WITH CRIMINAL APPLICATION NO.6297 OF 2005 CRIMINAL APPLICATION NO.6297 OF 2005 CRIMINAL APPLICATION NO.6297 OF 2005 IN IN IN WRIT PETITION NO.127 OF 2005 WRIT PETITION NO.127 OF 2005 WRIT PETITION NO.127 OF 2005. Ketan Tirodkar ... ... .. Intervenor Vs The State of Maharashtra .. Respondents. WITH CRIMINAL WRIT PETITION NO.1956 OF 2005 CRIMINAL WRIT PETITION NO.1956 OF 2005 CRIMINAL WRIT PETITION NO.1956 OF 2005 Shri R.M.Dhariwal ... .. Petitioner Vs C.B.I. & Ors. ... .. Respondents. WITH -2- CRIMINAL WRIT PETITION NO.2016 OF 2005 CRIMINAL WRIT PETITION NO.2016 OF 2005 CRIMINAL WRIT PETITION NO.2016 OF 2005 Jagdish M.Joshi ... .. Petitioner Vs C.B.I. & Ors.... .. Respondents. WITH CRIMINAL WRIT PETITION NO.2065 OF 2005 CRIMINAL WRIT PETITION NO.2065 OF 2005 CRIMINAL WRIT PETITION NO.2065 OF 2005 Tariq Abdul Karim Parveen.. .. Petitioner Vs State of Maharashtra... .. Respondent. Mr R.M.Agarwal with Mr A.M.Sarogi and Mr Girish Agarwal, for the petitioner. Mr Ravi Kadam, Advocate General, with Mr S.R.Borulkar, Public Prosecutor with Smt P.H.Kantharia, A.P.P. and Mr D.S.Mahispurkar, APP i/by Government Pleader for respondent no.1-State. Ms Asmita Sarangdhar for respondent no.2 in W.P.No.127/05 and for the applicant in Cri.Application No.3172 of 2004 Mr Sushilkumar, Senior Counsel with Mr S.K.Jain, Mr Rajendra Shirodkar, H.Jain, Lalit Chavan and K.Damle i/b M/s Udwadia Udeshi & Co., for the petitioners in Writ Petition No.1956 of 2005. Mr Shirish Gupte, Senior Counsel, with Mr A.P.Mundargi and Mr S.Gole, for the petitioner in Writ Petition No.2016 of 2005. -3- Mr S.R.Chitnis, Senior Advocate with Mr G.Kulkarni and Mr H.Wadake, for the petitioner in Writ Petition No.2065 of 2005. Mr Prakash Naik, for respondent no.3 in Writ Petition No.1449 of 2005. Mr Amit Desai, Senior Counsel with Mr Subodh Desai and Mr G. Shenoy i/b M/s.Dhruve Liladhar & Co, for the petitioner in Writ Petition No.1449 of 2005. Mrs S.S.Matti, for the applicant in Cri.Application No.5984 and 6293 of 2005. Mr Ketan Tirodkar in-person as applicant in Cri.Application No.6297 of 2005. Mr Samir A.Vaidya, for the petitioner in Writ Petition No.974 of 2005. Mr V.M.Pradhan, for Intervenor in Cri.Application No.6399 of 2005. Mr V.M.Thorat, for the applicant in Cri.Application No.6433 of 2005 and in Writ Petition No.2065 of 2005. CORAM : V.G.PALSHIKAR Acg.C.J., CORAM : V.G.PALSHIKAR Acg.C.J., CORAM : V.G.PALSHIKAR Acg.C.J., D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. D.B.BHOSALE AND V.K.TAHILRAMANI,JJ. DATE : 22ND DECEMBER, 2005 DATE : 22ND DECEMBER, 2005 DATE : 22ND DECEMBER, 2005 Oral Judgment:(Per Palshikar, J.) Oral Judgment:(Per Palshikar, J.) Oral Judgment:(Per Palshikar, J.) 1. The above writ petitions were heard by us and the judgment was reserved. Then I prepared the judgment of the Bench in November, 2005 and circulated it to my -4- learned colleagues on the Bench. However to my dismay, I was informed by both my colleagues that they do not agree with the view taken by me on the presumption that they agree with me. I then read the majority view rendered by Hon’ble Shri Justice D.B. Bhosale. Having given my anxious consideration to the views expressed I found it impossible to agree with the majority view. Hence this opinion. 2. I regret my incapacity to convince my learned colleagues to the view that I propagated. In my humble opinion, the majority view has the result of virtually destroying the safeguards provided under the MCOC Act. The majority view reads several things into the Act which are not legislated. It has the effect of permitting the Special Court under the Act not only to take cognizance of private complaint alleging commission of offences under the MCOC Act and order investigation under section 156(3) of Criminal Procedure Code when section 23 of the MCOC Act specifically bars it. 3. Special Court is not a Court of Sessions as defined by the Code. Section 156 specifically contemplates Magistrate empowered under section 190 of the Code. Section 190 of the Code speaks only of Magistrate. What Magistrate means is defined by the -5- Code and Special Court ’as defined by sections 5 and 6 certainly is not a Magistrate. But for the provisions of sections 5 and 6 of the MCOC Act the Special Court contemplated by the Act does not come into existence. It is not in the hierarchy of Courts mentioned in the Criminal Procedure Code. It is not a Court of Magistrate. It is not Court of Sessions. Section 156 specifically contemplates Magistrate as defined by Criminal Procedure Code. The majority view has in effect held that Special Court constituted under sections 5 and 6 of the MCOC Act is a Magistrate as defined by Criminal Procedure Code for the purposes of exercising powers under section 156. Such construction is impermissible under any established principle of statutory interpretation. 4. According to the majority view wherever legislature intended to prohibit use of the provisions of Criminal Procedure Code, 1974 it has specifically said so with non-obstante clause. Such clause is absent in section 9 and therefore a Special Court functioning under section 9 can act under section 156 and order inquiry under section 156(3) though it is not a Court of Magistrate as defined by the Code. Necessary corollary of this view would be that provisions of section 190 of Criminal Procedure Code 1974 would apply which -6- specifically prohibits a Court of Sessions which is the Court of original jurisdiction as is the Special Court under MCOC Act from taking cognizance without committal proceedings. If because of absence of non-obstante clause provisions of Criminal Procedure Code 1974 are to be applied under section 9 then provisions of section 190 also must apply and committal of proceedings would become necessary. The Legislature knew this legal position and therefore put the clause under section 9 which permits a Special Court under the Act to take cognizance without committal proceedings. In effect according to the majority view a Special Court can direct investigation under section 156(3) of the Code and can take cognizance of the matter inspite of bar under section 23 of the Act. 5. The natural consequence of the majority opinion would be that any private citizen by mere allegation of possible commission of the offences under the Act can put the machinery of the State into motion persuading the Special Court to make order under section 156(3) when that machinery cannot be put into motion by the police themselves unless there is an approval under section 23(1) of the Act. It provides that even information regarding offences would not be recorded unless it is approved or sanctioned by a designated -7- officer. Thus, that which cannot be done even by the Government of Maharashtra by reason of specific prohibition imposed by the Act can be done by a Magistrate on a complaint by private citizen by taking recourse to section 156 of the Criminal Procedure Code though that Special Court is not a Magistrate or Court of Sessions as contemplated by Criminal Procedure Code 1974. According to the majority view therefore if police wants to record information regarding commission of offence under the Act it will have to take prior approval of the designated officer under section 23(1) before so recording the information but the police will have to do it on complaint made by a private person to a Special Court. In effect the bar provided by section 23 would only partially operate, it will prevent police from taking any action without prior approval but will be required to take it inspite of that section when the complaint is made to a Special Court and he issues a direction under section 156 (3). All that is provided by section 9(1) of the MCOC Act in effect is empowering a Special Court to take cognizance after sanction is granted under section 23(2) without there being any committal proceedings as contemplated by section 190 of Criminal Procedure Code. The effect of the majority view would thus run counter to the provisions of section 156(3) and section 23 of the Act. -8- 6. The direction to issue under section 156(3) to investigate is issued to Station House Officer of the concerned police station. He undoubtedly has the power of requesting that the investigation be taken up by Senior Officer but he can choose to do it himself which would be in clean violation of provisions of section 23(1) which contemplates an investigation by a person not below the rank of Superintendent of Police without prior approval of the Director General of Police. 7. The majority view in my opinion, substitutes or alters the provisions of section 9(1) and section 23. It nullifies section 23(1) and permits the Special Court to take cognizance inspite of the embargo put by section 23(2). It thus strikes down the provisions of section 23(2) to a large extent without there being any prayer to that effect. It is for these reasons that I am unable to agree with the majority view. 8. According to me the question referred has to be answered as under : Q. Whether in a private complaint filed Q. Whether in a private complaint filed Q. Whether in a private complaint filed under the provisions of Section 9(1) of the under the provisions of Section 9(1) of the under the provisions of Section 9(1) of the Maharashtra Control of Organized Crime Act, 1999 Maharashtra Control of Organized Crime Act, 1999 Maharashtra Control of Organized Crime Act, 1999 -9- designated Court is empowered to order designated Court is empowered to order designated Court is empowered to order investigation under section 156(3) of the Code of investigation under section 156(3) of the Code of investigation under section 156(3) of the Code of Criminal Procedure before approval/sanction is Criminal Procedure before approval/sanction is Criminal Procedure before approval/sanction is granted to investigate and take cognizance as granted to investigate and take cognizance as granted to investigate and take cognizance as contemplated under section 23 of the said Act? contemplated under section 23 of the said Act? contemplated under section 23 of the said Act? A. A designated Court under the MCOC Act A. A designated Court under the MCOC Act A. A designated Court under the MCOC Act does not have the power to direct investigation does not have the power to direct investigation does not have the power to direct investigation under section 156(3) of the Criminal Procedure under section 156(3) of the Criminal Procedure under section 156(3) of the Criminal Procedure Code in view of the provisions of sections 9 and Code in view of the provisions of sections 9 and Code in view of the provisions of sections 9 and 23 of the MCOC Act. 23 of the MCOC Act. 23 of the MCOC Act. My reasons for coming this conclusion are as follows: . In this petition Hon’ble Shri Justice V.M. Kanade on 23.3.2005 made an order requesting the Chief Justice of Bombay High Court to constitute a larger bench to resolve the conflict which according to the learned Judge existed in the views expressed by two Division Benches of this Court in Criminal Appeal No.1451 of 2004 and Criminal Writ Petition No.1772 of 2004. He had framed the following question for adjudication by the larger bench. The question reads thus: i) Whether in a private complaint filed -10- under the provisions of Section 9(1) of the Maharashtra Control of Organized Crime Act, 1999 designated Court is empowered to order investigation under section 156(3) of the Code of Criminal Procedure before approval/sanction is granted to investigate and take cognizance as contemplated under section 23 of the said Act? 9. I have heard the learned counsel appearing for various parties who put forward their views on several aspects touching the above question. Facts giving rise to this reference stated briefly are that Criminal Appeal No.1451 of 2004 was heard by the Division Bench of this court presided over by Hon’ble Shri Justice S.B. Mhase. It was dealing with conviction under the provisions of Prevention of Terrorism Act, 2002 in an appeal in Criminal Appeal No.1451 of 2004. While deciding the appeal the Division Bench came across the judgment delivered by a Single Judge of this Court which is reported in 2004 All Mah. Reports (Criminal) 1689. Though the division bench was considering several contentions raised before it in the appeal under the Prevention of Terrorism Act, it also considered similar provisions under the Maharashtra Control of Organised Crime Act, 1999 (MCOC) because the similarity was almost identical. After considering the provisions the -11- division bench led by Justice Mhase specifically disapproved the judgment in Dayanand Nayak’s case reported in 2004 All Mah. Reports 1689 (hereinafter referred to as Dayanand Nayak’s case) and observed that ordering investigation under section 156 of the Code of Criminal Procedure in a private complaint filed under section 9(1) of the MCOC Act is rendering the provisions which required approval for investigation and sanction for prosecution redundant. This judgment was pronounced by the division bench on 21.12.04. The ratio of this judgment, in our opinion, is that no action under the provisions of the Prevention of Terrorism Act, 2002 can be taken unless there is prior approval for investigation and sanction for prosecution as contemplated by the provisions of that act. The necessary provisions of the Prevention of Terrorism Act are contained in sections 29, 50 and 58(1) of that act, which according to the bench are similar to the provisions of sections 9 and 23 of the MCOC Act. 10. Criminal Writ Petition No.1772 of 2004 arose out of the provisions of MCOC Act and the order questioned therein was the order passed by a designated court presumably under section 9 of the MCOC Act directing the designated Judge to deal with matters a fresh in the light of the observations made by the division bench in -12- that judgment. However asserting that the Special Judge can take cognizance of the complaint only after requisite sanction is granted by sanctioning authority petition was accordingly disposed of. By necessary implication the order of the division bench deciding the writ petition held that though cognizance of a private complaint filed before the designated court cannot be taken without previous sanction of the competent authority investigation under section 156(3) of Cri. P.C. could be ordered. This judgment was pronounced on 22.12.2004 i.e. on the next day the judgment in Criminal Appeal No.1451 of 2004 was pronounced. The fact that a division bench of this Court on 21.12.2004 had specifically overruled the Judgment in Dayanad Nayak’s case could not be brought to the notice of the division bench presided over by Hon’ble Smt.Justice Ranjana Desai which decided Criminal Writ Petition No.1772 of 2004. While so deciding the division bench was naturally unaware of the fact that factually the decision of the learned Single Judge Justice Marlapalle stood specifically over ruled by division bench of this Court on 21.12.2004. They consequently proceeded to pronounce their judgment on 22.12.2004 that a Magistrate can order investigation under section 156(3) of the Cri. P.C. But cannot take cognizance of the complaint of offences mentioned therein unless sanction of the -13- competent authority under section 23 is obtained. 11. Justice Kanade while he was hearing above Criminal Writ Petition No.127 of 2005 had the occasion to consider both the judgments, one dated 21.12.2004 and other dated 22.12.2004. He by his well reasoned concise order brought out the differences between the two orders, nailed the conflict which obviously existed between the two, noticed the factual position due to existence of which the conflict might have arisen and proceeded to make reference to the Hon’ble Chief Justice as sequel of which our bench was constituted and I have heard the matter in details apart from hearing learned advocates appearing for various parties, I also heard Shri Ketan Tirodkar who sought to intervene in this matter on the ground that it was his complaint which ultimately culminated in the judgment of Dayanand Nayak’s case and also other interveners who pointed out to us during the course of arguments the necessity of holding private complaint under section 9(1) maintainable to avoid atrocities of the police under the provisions of MCOC Act. I will notice all the arguments of the learned counsel at proper places. 12. I will now notice the facts giving rise to the present Criminal Writ Petition No.127 of 2005 in which -14- this reference to Full Bench is made. I may also incidentally note that during the pendency of this full bench for hearing several such cases ultimately raising the question of maintainability of a private complaint under section 9(1) of MCOC Act were filed in this Court and ultimately were referred for adjudication along with this petition being Criminal Writ Petition No.127 of 2005. I have also heard the learned advocates appearing for parties in each of them. Intervenors were also permitted to submit their say generally in all cases. 13. The Special Judge which actually is designated under the provisions of the MCOC Act, Shri A.P. Bhangale was trying Special Case Nos.243 of 2004 and 258 of 2004 against the accused under the provisions of the MCOC Act. During the continuance of the trial application was filed by one Nitendra Singh Patil in the shape of complaint of offences under MCOC Act and Indian Penal Code conjointly. The complaint/application was basically targeting several officers of the Bombay Police who according to the complainant have committed certain offences as defined in the MCOC Act, in addition to having committed several other offences under the provisions of Indian Penal Code. It would be necessary for proper appreciation and adjudication of the above referred question to note the prayers made in the -15- application : "1. Hon’ble Court may be pleased to take the cognizance of the complaint and process may be issued against all the accused above named OR alternatively direct the competent police authority to register the Complaint under Section 3(2), 3(3), 3(4), 3(5) 4 and 24 of MCOCA & Section 120B, 143, 147, 149, 166, 182, 191, 192, 193, 195, 196, 218 & 323 read with 34 of I. P. C. 2. Hon’ble Court may be pleased to allow the complaint to rely on the averments made and information given in the envelope as part and parcel of this Complaint. 3. Hon’ble Court may be pleased to call upon criminal record of all the Accused persons mentioned in the complaint. 4. Hon’ble Court may be pleased to call upon all the documents of investigation made by the Anti Corruption Bureau in CR No.II 3071/2003 registered at Thane Nagar Police Station, Thane. -16- 5. Hon’ble Court may be pleased to call upon all the documents of the investigation of CR No.I 74/2003 registered at Kasa Police Station, Thane Rural. 6. Hon’ble Court may be pleased to pass any order in favour of the Complaint; in the interest of justice. 14. It will thus be seen that the complainant in this application clearly prayed for the Hon’ble Court to take cognizance of the complaint and issue process thereon as contemplated by law. The learned Judge entertained this complaint, recorded evidence even before taking cognizance of framing charge that is to say followed the procedure contemplated by section 202 of the Criminal Procedure Code and directed the Commissioner of Police (Crimes) Mrs.Meera Borwankar to investigate into the allegations made in the complaint, he ordered the manner in which the investigation should be undertaken by Mrs.Borwankar, directing constitution of Special Investigation Team and commanded them to report under section 156(3) of Cri. P.C. 15. This order was impugned before this Court in Criminal Writ Petition No.1772 of 2004 of which judgment -17- was delivered by the division bench led by Justice Smt. Ranjana Desai on 22.12.2004 holding that though cognizance of private complaint under section 9 cannot be taken without sanction as contemplated by section 23 of the MCOC Act the designated Judge or the Special Judge appointed under the act could order investigation under section 156(3) of Cri. P.C. The order therefore quashed the order directing constitution of the Special Investigation Team under the leadership of Mrs.Borwankar and directed consideration of the matter afresh. This was then undertaken by Special Judge Shri Bhangale who then passed the impugned order dated 10.1.2005 directing investigation by the police in accordance with the observations made by the division bench judgment dated 22.12.2004 in Writ Petition No.1772 of 2004. It is this order of the Special Judge which was impugned before the learned Single Judge Hon’ble Shri Justice V.M. Kanade and while dealing with rival contentions in this petition that he noticed the conflict as aforesaid and made reference which I will now proceed to consider. 16. Criminal jurisprudence of this country is almost in its entirety a British Legacy. Indian Penal Code defining various offences that can be committed providing punishment for commission of those offences came into existence as back as in the year 1860. It -18- covered almost all kinds of possible offences that can be committed in our country. As the Society and Statehood developed criminality also developed and offences which could not be covered by the definitions provided in the Indian Penal Code were being committed giving rise to an urgent need of legislations to take care of such criminals committing such crimes which during the last 150 years gave birth to various other special legislations taking into consideration the diversifying aspects of crimes coming into existence prior to and after independence of India. It is not necessary to dilate any further on this aspect and it will be sufficient for our purposes to state that legislation of the Maharashtra Control of Organized Crimes Act, 1999 was one such legislation needed to prevent and destroy organized crime within the State of Maharashtra. This obviously is a special legislation created to take care of the crimes and special kind of criminals perpetrating those crimes as the normal law laid down in Indian Penal Code and the procedure in which the trials could be made under the Criminal Procedure Code, 1973 was considered grossly inadequate to deal with such special kind of offences. It is therefore a very strict and effective piece of legislation designed to effectively prevent the commission of organized crimes in the State of -19- Maharashtra. This aspect that it is special legislation created for special purpose is of strict criminal nature of strict penal effects will have to be kept in mind while interpreting provisions of this act along with provisions of normal law of procedure and crime. 17. Except for such special legislations as MCOC Act, Prevention of Terrorism Act, the repelled Terrorists and Dangerous Activities act etc. all crimes covered by the Indian Penal Code are required to be tried by all encompassing well laid procedure contained in the Criminal Procedure Code, 1894 which enactment was replaced by Criminal Procedure Code, 1973 and which presently is the Code which regulates the procedure for criminal trials in India. The Indian Penal Code and the Criminal Procedure Code are necessarily therefore the general legislations covering the entire field of crimes and punishment and procedure only exception being special enactments created to meet special situations provided special procedures. I have to keep this aspect of general law and the aspect of special law mentioned earlier in mind for correctly approaching the question under reference. 18. The Indian Penal Code