AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1772 OF 2004 The State of Maharashtra, ) through Smt. Meera C. Borwankar, ) Jt. Commissioner of Police (Crime) ) Mumbai. ) ... Petitioner Versus Nitendrasingh @ Nitin Kumarsingh ) Patil, aged 40 years, Occ. Asstt. ) Police Inspector, Thane (Rural), ) Residing at: 203, Karmakshetra, Nr.) Naupada Police Station, Thane (W). ) ... Respondent Mr. V.A. Thorat, Advocate General with Mr. B.R. Patil, Act.P.P., Ms. P.H. Kantharia, A.P.P. and Ms. U.V. Kejriwal, A.P.P. for the petitioner-State. Ms. Asmita Sarangdhar for the respondent. CORAM : SMT. RANJANA DESAI & A.S. OKA, JJ. JUDGMENT RESERVED ON : 24TH NOVEMBER, 2004. JUDGMENT PRONOUNCED ON : 22ND DECEMBER, 2004. ORAL JUDGMENT:- (Per Smt. Ranjana Desai, J.) 1. This petition is filed by the State of Maharashtra through Smt. Meera Borvankar, the Joint Commissioner of Police (Crime), Mumbai, under Articles 226 and 227 of the Constitution of India and under section 482 of the Criminal Procedure Code, 1973 (for short, "the Code") challenging the orders dated 24/8/2004, 26/8/2004 and 30/8/2004 passed by the Special Judge under the Maharashtra Control of Organised Crime Act, 1999 (for : 2 : short, "the MCOCA") on Misc. Application No.243 of 2004 filed by the respondent (for convenience, "the complainant".) The complainant is the Assistant Police Inspector, Thane Rural. The petitioner is seeking a direction for quashing the impugned orders. 2. Since this petition arises out of the private complaint filed by the complainant, the gist of the allegations contained therein will have to be shortly stated. The complainant filed the said private complaint in the MCOCA Court at Bombay under section 3(2), 3(3), 3(4), 3(5), 4 and 24 of the MCOCA and under sections 120B, 143, 147, 149, 166, 182, 191, 192, 193, 195, 196, 218, 323 read with section 34 of the Indian Penal Code (for short, "the IPC") against 14 persons. Out of the said 14 persons who have been arraigned as the accused, 7 are police officers. One of the accused is a Sales Tax Officer. It is alleged in the complaint that there are in existence a large number of gangs which are indulging in the organised criminal activities of adulteration of petrol and diesel at the petrol pumps. The said gangs are procuring the petroleous adulterant chemicals through various sources for mixing them in the petrol and diesel. Their modus operandi consists of stealing the petrol and the diesel at illegal joints carried by the tankers from Government companies, mixing kerosene or Naphtha as substitutes, making forgery for the purpose of cheating, using forged document as genuine, opening regular workshops for processing on the imported Naphtha and : 3 : thereby converting Naphtha into an adulterant and using the same for the purposes of adulteration at the petrol pumps instead of selling it to the licensed companies, also using cheap blue subsidized kerosene for adulteration and thus compelling the common public to buy costly white imported kerosene by creating artificial shortage of the fuel. 3. According to the complainant, on 1/9/2003, he was attached to the Local Crime Branch, Thane Rural. During his patrolling duty, he seized a tanker carrying suspicious chemical product which was loaded at M/s. Kalpita Tex Chem (India) Pvt. Ltd., Silvassa and allegedly to be unloaded at M/s. Surjit Petro Chem Pvt. Ltd., Goa, as shown in the bill carried by the driver and took necessary action at Kasa Police Station, District Thane, as per section 41(1) (d) of the Code. The complainant arrested the driver Mr. Phuleshwar Yadav and sought his police custody, which was granted. During the course of investigation, the complainant recorded a number of statements. According to him, his investigation has revealed that the accused have formed an organised crime syndicate and have hatched a conspiracy and pursuant to the conspiracy they have committed several offences under the MCOCA. It is further alleged that these offences have been committed with active participation, help and assistance provided by the officers of the Police Department and various other Government Departments. The complaint recites the : 4 : particulars of the offences. According to the complainant, in order to keep him away from investigation and to facilitate the commission of an organised crime with the help of accused Jagan Pimple, the organised gang made one Sandeep Singh, a transport agent to file a concocted criminal complaint against the complainant and other officers that they demanded Rs.3,00,000/- as bribe on 1/9/2003 to release the tanker and asked the said Sandeep Singh to pay the bribe amount to one Himmat Nanda. According to the complainant, this is a false case and is merely a counterblast to the action taken by the complainant. 4. The complainant has prayed that in view of the responsible position held by the accused, the enquiry into these offences may be directed to be conducted by some independent investigating agency, preferably by the Central Bureau of Investigation (for short, "the CBI"), if found necessary. The complainant has also prayed that the court may take cognizance of the complaint and process may be issued against all the accused. 5. The Special Judge verified this complaint. After recording evidence of six witnesses, he gave exhaustive directions. We will have to reproduce those directions as it was strenuously contended that the Special Judge could not have stepped into the shoes of the Investigating Officer and given such directions. Following are the said directions. : 5 : "Smt. Meera Borvankar, Jt. Commissioner of Police (Crime) is hereby required and authorised to form team of independent honest fair and impartial police officers to assist her and to visit residential as well as office premises of the accused named in the complaint to be pointed out by the complainant for to carry out searches in presence of the respective person to seize incriminating documents and articles, if any, under the panchanama and to produce them before the court. An inventory of the property belonging to the accused shall be carried out or prepared so as to collect evidence about the property details for huge unlawful wealth, if any. A photostate copy of the panchanama drawn be handed over to the accused or occupant of the residential or office premises as the case may be and an acknowledgement be obtained in respect of the receipt of the copy under signature of the owner or occupant of the house or office premises as the case may be belonging to accused. Any house or office if found locked shall be sealed for to be unlocked later in presence of its owner or occupant possessing the keys if according to the complainant such premises is : 6 : belonging to the accused. The report to be made to this court about the investigation done. Regarding the mobile phone nos. or land line telephone nos. which were allegedly used by the accused or their associates for to hatch criminal conspiracy by or on behalf of the organized crime syndicate led by Vishnu Khendelwal and Jagan Pimple and aided by others as alleged, the evidence about record of telephonic communications in the form of printouts available with the telephone companies concerned such as Orange, BPL, Reliance, MTNL, Airtel, Dolphin, etc. for period between 16/8/2003 to 07/09/2003 be collected. The Applicant/complainant to co-operate with Jt. Commissioner of Police (Crime) Mrs. Meera Borvankar and police officers deputed by her in the investigation and inquiry pursuant to this order. Report consisting of material collected namely inquiry and investigation as ordered as also record collected be produced before this court along with the report to enable this court to initial judicial action according to law. Joint Commissioner of Police (Crime) to act swiftly on the basis of copy of the order authenticated by Sheristedar to avoid any : 7 : artificial manipulation or tampering of evidence by the person who may be interested to defeat legal process. Joint Commissioner of Police to act on authenticated copy. Issuance of process against the accused is therefore postponed until 29/09/2004. Complainant has furnished copies of the complaint and annexure along with copies of the application before this court and copies of the evidence recorded including verification statement be sent to Mrs. Meera Borvankar for compliance and report as early as possible." 6. On 26/8/2004 and 30/8/2004, the learned Special Judge passed consequential orders. These three orders and the investigation started pursuant to them are under challenge in this petition. 7. We have heard, at considerable length, Mr. Thorat, the learned Advocate General for the petitioner and Ms. Sarangdhar, the learned counsel appearing for the respondent. 8. Mr. Thorat, the learned Advocate General contended that the impugned orders are illegal and are passed on a misconstruction of the relevant provisions of the MCOCA and the Code and, hence, deserve to be set aside. He : 8 : contended that when a court is constituted under the Statute it possesses only powers conferred upon it by that Statute, unless by doctrine of incorporation, powers under the general law or special law are conferred on it. He submitted that the Special Court is constituted under the MCOCA and, hence, can function only in the area demarcated by the MCOCA and under the powers conferred upon it by the MCOCA. The Special Judge could not have resorted to the procedure prescribed under section 202 of the Code as he is not a Magistrate as defined in the Code. It cannot be said that the said powers are conferred upon the Special Judge by incorporation. Mr. Thorat further submitted that on a conjoint reading of sections 9(1), 9(4), 21, 23 and 25 of the MCOCA, it is evident that a valid sanction under section 23(2) thereof is a sine-quo-non for taking cognizance under section 9(1). The learned Special Judge, therefore, could not have proceeded to take cognizance and given various directions to the police in the absence of the sanction under section 23(2) of the MCOCA. His order, therefore, suffers from a serious infirmity and must be set aside. Mr. Thorat also contended that the MCOCA does not confer pre-cognizance powers upon the Special Judge and the only powers conferred on him are under Chapter 18 of the Code (sections 235 to 237). Mr. Thorat pointed out that whenever, the legislature intended that certain provisions of the Code will govern the proceedings under the Special Law i.e. MCOCA, it has made a specific reference to those provisions such as sub-sections 2 and : 9 : 4 of section 9 and section 21. The MCOCA does not specifically state that the Special Judge can follow the procedure under Chapter 15 upon receipt of a private complaint. The Special Judge, therefore, erred in following the said procedure. 9. Mr. Thorat further contended that section 23 of the MCOCA is a safeguard to protect the interest of a citizen. It provides protection to a citizen against false involvement in the offence falling under the MCOCA. Section 23 prevents any officer from recording information about the commission of an offence of organized crime under the MCOCA without prior approval of the police officer not below the rank of Deputy Inspector General of Police and sub-section (b) of section 23 states that no investigation of an offence under the provisions of the MCOCA shall be carried out by a police officer below the rank of the Deputy Superintendent of Police. Section 23(2) states that no Special Court shall take cognizance of any offence under the MCOCA without the previous sanction of the police officer not below the rank of Additional Director General of Police. Mr. Thorat contended that these provisions are intended to prevent misuse of drastic provisions of the MCOCA. Mr. Thorat contended that if the impugned orders are allowed to stand, it would take away the protection offered to a citizen under section 23 of the MCOCA and there would be a spate of frivolous complaints and hence this court should quash the impugned orders. : 10 : 10. Relying on Rambhai Nathabhai Gadhvi and others v. State of Gujarat, (1977) 7 SCC 744 and the State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, Mr. Thorat contended that in the absence of sanction under section 23(2) of the MCOCA, the learned Special Judge could not have taken cognizance of the offence and given such directions. Mr. Thorat further contended that the court cannot trench upon the mode and method of the investigation carried out by the police. The learned Special Judge could not have given such detailed directions which gives an impression that the court itself was an Investigating Agency. Relying on Hemant Dhasmana v. Central Bureau of Investigation and another, 2001 SCC (Cri.) 1280, Mr. Thorat contended that in any event, the learned Special Judge could not have directed the investigation to be carried out by any particular police officer. He contended that the impugned order which directs the investigation to be carried out by Smt. Meera Borvankar exhibits impropriety. Mr. Thorat further contended that the judgment of the learned single judge in Dayanand B. Nayak v. Ketan K. Tirodkar & Anr., 2004 All.M.R. (Cri.) 1689, does not state the law correctly as certain vital aspects were not brought to the notice of the learned single judge. 11. Mr. Thorat also contended that the complaint contains frivolous allegations. The provisions of the : 11 : MCOCA and other penal sections can never be applicable to the police officers named as accused in the complaint. 12. We must note that though several legal points have been raised by the learned Advocate General not one of them is raised in the petition. The petition merely contains submissions on merits of the case and seeks quashing of the impugned orders. We find it surprising that the petition should not contain the legal submissions advanced by the learned Advocate General. However, since the points raised are legal, we would deal with them. Besides the complainant has not raised any objection to the legal points being raised by the petitioner. 13. Ms. Sarangdhar, the learned counsel for the complainant, contended that the present petition is filed by Smt. Borvankar in her personal capacity. The State of Maharashtra has, therefore, no locus standi. She drew our attention to section 4(2) of the Code and contended that since the MCOCA does not lay down what procedure has to be followed by the Special Court after a private complaint is entertained, the Special Court will have to follow the procedure prescribed under the Code and, therefore, the learned Special Judge has committed no illegality in following the procedure prescribed under section 202 of the Code. She submitted that the Special Judge can follow the procedure prescribed under Chapter XV of the Code. The learned counsel placed heavy : 12 : reliance on Dayanand Nayak’s case (supra). She also relied on Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947 and contended that once the Special Judge has exercised his discretion and ordered an enquiry under section 203 of the Code, the High Court cannot substitute its own discretion for that of the Special Court or to examine the merit of the case with a view to finding out whether or not the allegations in the complaint are true and ultimately end in the conviction of the accused. She also relied on Shambhoo Nath Misra v. State of U.P. and others, 1997 Cr.L.J., 2491 and Gangula Ashok and another v. State of A.P., (2000) 2 SCC 504. The learned counsel contended that the Special Court has followed the correct procedure and considering the seriousness of the allegations, this court should not interfere with the impugned orders. 14. So far as the contention raised in the petition that no offence is made out against the police officers is concerned, we are unable to come to any such conclusion at this stage. It is not for us, at this stage, to opine whether the accused would be ultimately convicted or not. We are unable to examine the merits of the case. It is for the trial court to examine the merits of the case. We only propose to examine the legal submissions. 15. Similar legal questions were raised before the learned single judge of this court (B.H. Marlapalle, J.) in Dayanand B. Nayak’s case (supra). The judgment in : 13 : this case is the sheet-anchor of the complainant. In that case, respondent 1 therein claimed to be a journalist and associated with the petitioner therein in the alleged organised crime under the MCOCA. The petitioner was working as Police Sub-Inspector attached to the Crime Investigation Unit of the Crime Branch of Mumbai Police. Respondent 1 approached the Special Court constituted under the MCOCA and filed Misc. Application. The learned Special Judge, after noticing the provisions of sections 9(1) and 23 of the MCOCA held that the complaint by a citizen can be entertained by the Special Court in respect of the fact which may constitute offence punishable under the MCOCA along with offences punishable under the Indian Penal Code and other penal statutes. He directed that the Misc. Application filed by respondent 1 therein be registered as Special Case. On the next day, he recorded the verification of respondent 1 (the complainant) under section 200 of the Code. He postponed the issuance of process and proceeded to record evidence of some witnesses. He issued search warrant pursuant to which search was conducted of the house of the accused. The petitioner therein then became aware of the complaint filed by the complainant therein and, being aggrieved by the orders passed by the Special Court entertaining a private complaint, moved this court under Article 226 of the Constitution of India. The following questions were raised for consideration of the learned single judge. (a) Whether a private complaint could be : 14 : entertained by the Special Court constituted under MCOCA in view of the provisions of section 9(1) therein, (b) Whether the court could take cognisance of such complaint unless requirements of section 23(2) of MCOCA were satisfied, and (c) Whether the Special Court committed an error apparent on the face of the record in entertaining the said private complaint. 16. The learned single judge referred to the preamble of the MCOCA, which shows that it was enacted for making the special provision for prevention and control of and for coping with, criminal activity by the organised crime syndicate or gang and for matters connected therewith or incidental thereto. The learned single judge also referred to the statement of objects and reasons of the MCOCA, which notes that the existing legal frame work i.e. the penal and procedural laws and the adjudicatory system are found to be rather inadequate to curb or control the menace of organised crime and, therefore, Government decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised : 15 : crime. The learned single judge then noted the salient provisions of the MCOCA. He referred, inter alia, to section 5, which provides for establishment of Special Courts by the State Government with the concurrence of the Chief Justice of this court. He referred to section 6 of the MCOCA which deals with jurisdiction of the Special Court and section 7 of the MCOCA which deals with the power of the Special Courts with respect to other offences. He referred to section 8 which provides for appointment of the Special Prosecutor and section 9 which deals with the procedure and powers of the Special Court. He referred to section 21 which provides for a modified application of certain provisions of the Code and which, inter alia, states that section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act with certain modifications. He then referred to section 23 which deals with the procedure for taking cognisance and enquiry into an offence. 17. The learned single judge quoted section 9 and section 23 of the MCOCA. It is necessary for us to do likewise. "9. Procedure and powers of Special Court. --- (1) A Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such : 16 : offence or upon a police report of such facts. (2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub-section (1) of section 260 or section 262 of the Code, try the offence in summary way in accordance with the procedure prescribed in the Code and the provisions of sections 263 to 265 of the Code shall, as far as may be, apply to such trial: Provided that, where in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try in a summary way, the Special Court shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation, to a Special Court as they apply to and in relation, to a Magistrate: : 17 : Provided further that, in case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding two years. (3) A Special Court may, with a view to obtaining the evidence of any person, supposed to have been directly or indirectly concerned in or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abetter, in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tendered under section 307 thereof. (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. : 18 : 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 Special Court shall take cognizance of any offence under this Act without the previous sanction of the police officer not below the rank of Additional Director General of Police." 18. The learned single judge then observed and, in our opinion, rightly that sub-section (1) of section 9 states that the Special Court may take cognizance of any offence : 19 : 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. It was then observed that this provision is in line with the provisions of section 190 of the Code in Chapter XIV which is titled as "conditions requisite for initiation of proceedings". It was rightly observed that