Jamiruddin Ansari vs Central Bureau Of Investigation & Anr

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.

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.

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