- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 536 OF 2007 Anil Sadashiv Nanduskar, Age 38 ) years, Occu.- Business, residing ) Appellant Nariman Bhat Nagar, Old Prabhadevi (Original Room No. 26, Mumbai-400 025. ) Accused (At present detained at Yerwada ) No.1) Central Prison, Pune. ) Vs. The State of Maharashtra ) Respondent Sri S. R. Chitnis, Sr. counsel with Smt. V. R. Raje for the appellant. Sri S. R. Borulkar, Public Prosecutor for respondent. CORAM : SRI R.M.S. KHANDEPARKAR & SRI A.A. SAYED, JJ. DATE : NOVEMBER 23, 2007. ORAL JUDGMENT [ PER SRI R.M.S. KHANDEPARKAR, J.] . This appeal arises from order dated 23rd April 2007 passed by the learned Special Judge under the Maharashtra Control of Organised Crime Act 1999 (hereinafter referred to as the MCOC Act). By the - 2 - impugned order, the learned Special Judge Pune in Special Case No. 2 of 2005 has dismissed various applications, including the application raising objection for framing of charge on the ground of invalid approval under section 23(1)(a) and invalid sanction under S. 23(2) of the MCOC Act. It was the case of the appellant that the approval and the sanction issued under the said provision of law were invalid as they were issued without application of mind. 2. The appellant is the accused No.1 in Special Case No. 2 of 2005 before the Special Judge Pune and he is facing trial on accusation of commission of offence punishable under S. 3(1)(i) and 3(2) of MCOC Act. An application was sought to be moved for discharge of the appellant/accused on various grounds, which came to be dismissed by the impugned order dated 23rd April 2007. The said order is sought to be challenged on two grounds. Firstly that the Special Judge failed to take note of the fact that the approval which was sought to be granted under section 23(1)(a) of the MCOC Act was without application of mind, and therefore, bad in law and the fact that it is without application of mind is apparent on the face of record - 3 - in as much as that though the appellant was sought to be prosecuted for commission of the offence of organized crime, the letter of approval does not disclose that the concerned authority had taken into consideration whether the materials placed before it disclose the factum of commission of alleged offence of organized crime by the appellant so as to enable the investigating agency to commence investigation under the MCOC Act. Secondly, that the Special Judge failed to take note of the fact that the appellant was sought to be prosecuted without valid sanction which is pre-requisite for initiating prosecution against the accused under MCOC Act, and also that the sanction in question was granted without application of mind in as much as that it does not ex-facie disclose that the concerned authority had considered as to whether the appellant was member of the alleged syndicate involved in commission of an offence with the object of pecuniary gain or economic benefits. 3. The trial Court after considering the materials placed before it by the investigating agency and taking into consideration the provisions of law comprised under MCOC Act held that there was no substance in the objection which was sought to be - 4 - raised on behalf of the appellant, and neither the approval nor the sanction ex-facie discloses to be invalid and hence, dismissed the application for discharge of the appellant. 4. Placing reliance in the decisions in the matter of- (i) State of Maharashtra & Ors. Vs. Lalit State of Maharashtra & Ors. Vs. Lalit State of Maharashtra & Ors. Vs. Lalit Somdatta Somdatta Somdatta Nagpal and Anr. Nagpal and Anr. Nagpal and Anr. reported in (2007) 4 Supreme Court Cases 171, (ii) Sherbahadur Akram Khan & Ors. (ii) Sherbahadur Akram Khan & Ors. (ii) Sherbahadur Akram Khan & Ors. Vs. Vs. Vs. State of Maharashtra State of Maharashtra State of Maharashtra reported in 2007 (1) AIR Bom. R. 320. (iii) State of Maharashtra Vs. Bharat (iii) State of Maharashtra Vs. Bharat (iii) State of Maharashtra Vs. Bharat Baburao Baburao Baburao Gavhane & Ors. Gavhane & Ors. Gavhane & Ors. reported in 2006 All MR (Cri.) 2895. (iv) Anirudhsinhji Karansinhji Jadeja & Anr. (iv) Anirudhsinhji Karansinhji Jadeja & Anr. (iv) Anirudhsinhji Karansinhji Jadeja & Anr. Vs. Vs. Vs. State of Gujrat State of Gujrat State of Gujrat reported in (1995) 5 SCC 302, the learned counsel appearing for the appellant submitted that the law on the point of requirement of clear and valid approval is well settled. The approval should disclose proper application of mind by the competent authority, as regards the involvement of the offence for which approval for recording of FIR and investigation is to be granted. In case of absence of reference to such offence in the approval letter, it would reveal non application of mind by the concerned authority. Referring to the approval dated 28th August 2004 stated to have been issued in exercise of powers - 5 - under Section 23(1)(a) of MCOC Act, he submitted that it ex-facie discloses that the same nowhere refers to any finding about involvement of the petitioner in an offence which could be said to be of the nature of organized crime within the meaning of the said expression under MCOC Act and therefore the approval is to be held to be bad in law and consequently all further proceedings are required to be declared unlawful. Further referring to the decisions in the matter of- (i) Mukhtiar Ahmed Ansari Vs. State (NCT of Mukhtiar Ahmed Ansari Vs. State (NCT of Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi), Delhi), Delhi), reported in (2005) 5 SCC 258, (ii) Rambhai Rambhai Rambhai Nathabhai Nathabhai Nathabhai Gadhvi & Ors. Vs. State of Gujrat Gadhvi & Ors. Vs. State of Gujrat Gadhvi & Ors. Vs. State of Gujrat reported in (1997) 7 SCC 744. (iii) Dilawar Singh Vs. (iii) Dilawar Singh Vs. (iii) Dilawar Singh Vs. Parvinder Parvinder Parvinder Singh @ Iqbal Singh & Anr. Singh @ Iqbal Singh & Anr. Singh @ Iqbal Singh & Anr. reported in (2005) 12 SCC 709 and Lalit Somdatta Nagpal (supra) Lalit Somdatta Nagpal (supra) Lalit Somdatta Nagpal (supra), he submitted that the sanction for prosecution under MCOC Act should ex-facie disclose that the authority had considered the case of the accused with reference to the materials on record before the grant of sanction. It should ascertain whether the provisions of MCOC Act are attracted in case of each of the accused or not and the consideration thereof should be ex-facie apparent on the face of sanction order, failing which sanction should be considered invalid, entitling the accused for discharge. He further submitted that the existence of - 6 - valid sanction is sine-qua-non sine-qua-non sine-qua-non for taking cognizance of the offence under MCOC Act and in view of invalid sanction, no prosecution can lie against the appellant. He further submitted that considering the stringent provisions of MCOC Act, they are to be strictly interpreted and having so interpreted, the requirement of valid sanction has to be considered as a pre-requisite for prosecution. 5. The learned PP on the other hand drawing our attention to the decision in Kalpanath Rai Vs. Kalpanath Rai Vs. Kalpanath Rai Vs. State State State (through (through (through CBI), reported in (1997) 8 Supreme Court CBI), reported in (1997) 8 Supreme Court CBI), reported in (1997) 8 Supreme Court Cases Cases Cases 732 732 732 and referring to the decision of this Court in Crim. Writ Petition Nos. 988 of 2006, 989 of 2006, 1043 of 2006, 1840 of 2006, delivered on 10th November 2006, submitted that the order of approval and that of the sanction being merely to initiate the proceedings and as both the orders in the case in hand ex-facie disclose that all the relevant materials were produced before the concerned authorities before the grant of approval and sanction, no fault can be found with the impugned order dismissing the application for discharge. He further submitted that the law on the point as to whether the accused is required to be heard or not prior to grant of approval or sanction is well - 7 - settled and the law in that regard is that no such hearing is required to be granted to the accused. He further submitted that mere grant of approval or sanction cannot be said to be affecting the rights of the accused. He also submitted that in any case, even assuming that there is any deficiency in the letter of approval or sanction, the same can be explained by leading evidence by the prosecution and and being so, even assuming that there is some omission of some words in the sanction or approval order, that could be no justification for discharge of the accused without affording opportunity to the prosecution to establish the validity of the approval or sanction by leading necessary evidence in the course of trial. He further submitted that reading of the approval as well as sanction in question nowhere discloses any such irregularity, and even ex-facie both the orders are valid and lawful and therefore, there is no substance in the grievance sought to be made on behalf of the appellant. 6. Only point which arises for consideration in the matter is whether the approval dated 28th August 2004 stated to have been granted in exercise of powers under Section 23(1)(a) of MCOC Act and the sanction - 8 - dated 7th January 2005 granted in terms of Section 23(2) of MCOC Act are valid and lawful. 7. As long back as in 1948, the Privy Counsel in Gokulchand Dwarkadas Vs. The King, Gokulchand Dwarkadas Vs. The King, Gokulchand Dwarkadas Vs. The King, reported in AIR 1948 Privy Counsel 82 had laid down that the sanction for prosecution would be good if it was proved by evidence that it had been granted after all the necessary facts had been placed before the sanctioning authority though those facts might not have been stated on the face of the sanction itself. The view taken by the Privy Counsel was fully endorsed by the Apex Court in Feroz Din and Ors. Vs. State of West Bengal, Feroz Din and Ors. Vs. State of West Bengal, Feroz Din and Ors. Vs. State of West Bengal, reported in AIR 1960 Supreme Court 363. 8. In State of Rajasthan Vs. Tarachand Jain, State of Rajasthan Vs. Tarachand Jain, State of Rajasthan Vs. Tarachand Jain, reported in (1974) 3 Supreme Court Cases 72 1974) 3 Supreme Court Cases 72 1974) 3 Supreme Court Cases 72 the Apex Court while dealing with the aspect of burden of proof regarding sanction held that, "the burden of proof that the requisite sanction had been obtained rests upon the prosecution. The burden includes proof that sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by - 9 - independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority." While ruling so, reference was made to the observations of Privy Counsel in Gokulchand Gokulchand Gokulchand Dwarkadas (supra). Dwarkadas (supra). Dwarkadas (supra). 9. In Superintendent of Police (C.B.I.) Vs. Superintendent of Police (C.B.I.) Vs. Superintendent of Police (C.B.I.) Vs. Deepak Deepak Deepak Chowdhary & Ors. Chowdhary & Ors. Chowdhary & Ors. reported in (1995) 6 Supreme (1995) 6 Supreme (1995) 6 Supreme Court Court Court Cases 225, Cases 225, Cases 225, Apex Court while dealing with the similar issue held that, "the grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing to the accused before according sanction does not arise." 10. In Mohd. Iqbal Ahmed Vs. State of Andhra Mohd. Iqbal Ahmed Vs. State of Andhra Mohd. Iqbal Ahmed Vs. State of Andhra - 10 - Pradesh Pradesh Pradesh reported in (1979) 4 Supreme Court Cases 172, (1979) 4 Supreme Court Cases 172, (1979) 4 Supreme Court Cases 172, it was held that it is incumbent upon the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence and this should be done in two ways : either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, or (2) by adducing evidence aliunde to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it. The said ruling was given in a case where the resolution of the Sanctioning Authority did not disclose the facts on the basis of which the prosecution was sanctioned against the appellant therein nor the said document contained any ground on which the satisfaction of the Sanctioning Authority was based or it had applied its mind, and the document merely mentioned that the sanction was given on the basis of a note of the Commissioner of Municipal Corporation. No evidence was produced, either primary or secondary, to prove as to what were the contents of the materials which were placed before the Sanctioning Authority. It was therefore, observed by the Apex Court that, "the grant of sanction is not an idle - 11 - formality or acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against the frivolous prosecution and must therefore, be strictly complied with before any prosecution can be launched against the Public Servant concerned." 11. In State (Anti-Curruption Branch), Govt. State (Anti-Curruption Branch), Govt. State (Anti-Curruption Branch), Govt. of of of NCT of Delhi & Anr. Vs. Dr. R. C. Anand & Anr. NCT of Delhi & Anr. Vs. Dr. R. C. Anand & Anr. NCT of Delhi & Anr. Vs. Dr. R. C. Anand & Anr. reported in (2004) 4 Supreme Court Cases 615, the Apex Court while disapproving the view taken by the Delhi High Court in the facts of the case before it, held that "certain material evidence was not looked into by the governing body to form its own independent opinion to depart from the view of the President while granting sanction" and while reiterating its earlier decision in Kalpanath Kalpanath Kalpanath Rai Rai Rai Vs. State Vs. State Vs. State reported in (1997)8 SCC 732 to the effect that the Sanctioning Authority is not required to wait for the report of the experts, ruled that the Sanctioning Authority has only to see whether the facts disclosed in the complaint prima-facie disclose commission of the offence or not and further held that, "authority of the sanction, would, therefore, depend upon the material placed before the Sanctioning Authority and the fact that all the - 12 - relevant facts, material and evidence including transcript of the tape record have been considered by the Sanctioning Authority; consideration implies application of mind. The order of sanction may ex-facie disclose that the Sanctioning Authority has considered the evidence and further material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the Sanctioning Authority". While arriving at the said ruling the Apex Court also referred to its two earlier decisions in the matter of Jaswant Jaswant Jaswant Singh Vs. State of Punjab, Singh Vs. State of Punjab, Singh Vs. State of Punjab, reported in AIR 1958 SC 124 and in State of Bihar Vs. P. P. Sharma, State of Bihar Vs. P. P. Sharma, State of Bihar Vs. P. P. Sharma, reported in 1992 Supp (1) SCC 222. 12. In C.S. Krishnamurthy Vs. State of C.S. Krishnamurthy Vs. State of C.S. Krishnamurthy Vs. State of Karnataka Karnataka Karnataka reported in (2005) 4 Supreme Court Cases 81 the Apex Court while reiterating its earlier decision in R.S. Pandit Vs. State of Bihar, R.S. Pandit Vs. State of Bihar, R.S. Pandit Vs. State of Bihar, reported in 1963 Supp (2) SCR 652 to the effect that "the facts should be referred to on the face of the sanction and if they do not so appear, the prosecution must prove them by extraneous evidence, is certainly sound having regard to the purpose of the requirements of a sanction..." it - 13 - was held that, "ratio in sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the Sanctioning Authority for due application of mind. In case sanction speaks for itself then the satisfaction of the Sanctioning Authority is apparent by reading the order." 13. The settled law by a catena of decisions of the Apex Court is to the effect that it is desirable that every order whether the approval or sanction it should speak for itself, i.e. ex-facie it should disclose consideration of the materials placed before it and application of mind thereto. However, failure to reproduce or refer those recitals in the resolution or order itself would not render the order of approval or sanction to be invalid unless the prosecution fails to establish by leading evidence that all the materials necessary for the grant of approval or sanction were placed before the concerned authority for due application of mind by such authority before the grant of approval and or sanction. It apparently discloses that question of validity of approval or sanction cannot be decided unless the prosecution is afforded - 14 - opportunity to lead evidence in that regard. Undoubtedly, an accused desiring to raise objection regarding the defects in such approval or sanction, or grant, he can raise such objection; however, for conclusive decision on the said point the accused has to wait till the trial is complete and on that ground he cannot insist for discharge unless the objection relates to inherent lack of jurisdiction to the concerned authority to grant sanction or approval and such issue can be decided on undisputed facts. The law being well settled to the effect that the prosecution in a case where sanction or the approval order does not ex-facie show consideration of all the materials and/or application of mind, is entitled to establish the same by leading necessary evidence regarding production of materials before the concerned authority, the question of discharge of accused merely on the basis of such objection being raised cannot arise. The decision on the point of defect, if any, in the order of approval or sanction will have to be at the conclusion of the trial. 14. Reverting to the facts of the case, if one peruses the approval dated 28th August 2004, undoubtedly it refers to the effect of consideration of - 15 - all the materials which were placed before the authority and thereafter grant of approval for initiating proceedings under MCOC Act. Undoubtedly, while referring to the acts of the accused, all the ingredients of the definition of the "Organized Crime" do not seem to have been incorporated in the order of approval. However, that itself cannot be a justification for interference in holding the approval to be invalid or bad in law, in view of the fact that the prosecution is entitled to establish the same by leading necessary evidence. Prima-facie the competent authority appears to have taken into consideration all the materials which would reveal or disclose the commission of the offence of organized crime involving the appellant/accused. It is too premature to arrive at any conclusion to the contrary merely on reading of the order of approval. 15. It cannot be disputed that the provisions of MCOC Act being stringent, the same are to be strictly interpreted. The Apex Court in Lalit Somdatta Lalit Somdatta Lalit Somdatta Nagpal’s Nagpal’s Nagpal’s case case case (supra) has clearly ruled to that effect. That was a case wherein the prosecution under MCOC Act was sought to be initiated on the ground of violation of Sales Tax and Excise Laws and in that context it was - 16 - held that sanction granted for prosecution under MCOC Act on those grounds disclosed complete non application of mind as the violation of Sales Tax and Excise Laws could not amount to commission of offence of organized crime. The Apex Court, therefore, held that having regard to the stringent provisions of MCOC Act, its provisions will have to be very strictly interpreted and the authorities concerned would have to be bound down to the strict observance of the said provisions. 16. The provision of law as comprised under Section 23(1)(a) of the MCOC Act states that "notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of offence of organized crime under this Act shall be recorded by police officer without the prior approval of the police officer, not below the rank of Dy. Inspector General of Police". 17. The said provision of law precisely provides that in order to initiate investigation under MCOC Act, prior approval of the police officer, not below the rank of Dy. Inspector General of Police is necessary. The said provision of law does not regulate the approval to be necessarily in writing. - 17 - Undoubtedly, being a matter for investigation in relation to a criminal offence of serious nature, it would always be expected and advisable to have such approval in writing. But it is pertinent to note at this stage that the decision of the Apex Court in Kalpnath Kalpnath Kalpnath Rai (supra) Rai (supra) Rai (supra) wherein while deciding with the question as to whether prior approval envisaged under Section 20-A(1) of Terrorist and Disruptive Activities (Prevention) Act, 1987 should necessarly be in writing, had held that there is nothing in the said sub-section to indicate that prior approval of the District Superintendent of Police should be in writing. What is necessary is the fact of approval which is sine qua non sine qua non sine qua non for recording the information about the commission of the offence the said Act. It is pertienent to note that provision of law comprised under Section 20-A(1) of TADA Act is in pari materia with that of Section 23(1)(a) of MCOC Act, except in relation to the designation of the authority. The approval under TADA had to be by the Officer of the rank of District Superintendent of Police whereas under MCOC Act approval or sanction had to be by the officer of the rank of Dy. Inspector General of Police or above. The ruling of the Apex Court in Kalpnath Rai’s case Kalpnath Rai’s case Kalpnath Rai’s case (supra) clearly lays down the law that though the provisions of - 18 - MCOC Act being stringent and are required to be strictly interpreted, the provisions thereunder relating to grant of approval nowhere require the approval to be necessarily in writing. Undoubtedly that does not mean that the authorities can go on granting approval orally. There has to be authentic record regarding the grant of such approval prior in time of initiation of investigation under MCOC Act. 18. In the case in hand it is not in dispute that such approval was in writing granted on 28th August 2004. Whether it was on