ZAKIR ABDUL MIRAJKAR versus THE STATE OF MAHARASHTRA & ORS.
[2022] 9 S.C.R. 150, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Body
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ZAKIR ABDUL MIRAJKAR
v.
THE STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 1125 of 2022)
AUGUST 24, 2022
[DR DHANANJAYA Y. CHANDRACHUD AND
SURYA KANT, JJ.]
Maharashtra Control of Organized Crime Act,1999 –
ss.2(1)(f), 3(1)(ii), 3(2), 3(4), 3(5), 18, 23 and 427 – Penal Code
1860 – ss. 143, 147, 149, 395, 307, 353, 332, 155, 109, 324, 323
and 427 – Maharashtra Prevention of Gambling Act 1887 – s. 4
and 5 –Maharashtra Prohibition Act 1949 – s.65(e) – Bombay Police
Act 1951 – s. 37 – Interpretation of the provisions of s.18 MCOCA
– Case of the prosecution was that the appellants are members of
an organized crime syndicate which has engaged in systematic
course of activities for cheating members of public by conducting
the ‘Mumbai Matka’ (Gambling den) – Police personnel raided one
of the Matka den – FIR was registered on the basis of a complaint
made by one of the members of raiding party – During the course
of investigation, the Additional Superintended of Police recorded
the confession made by many of the accused including the
appellants – The competent authority sanctioned the prosecution
of the appellants for the offences under the MCOCA – Appellants
and other accused were arrested – The appellants instituted writ
petition before the High Court for quashing of the FIR, which was
dismissed by the High Court – On appeal, the appellant submitted
that : (i) Confession recorded by an Additional Superintended of
Police
(Addl. SP) u/s 18 MCOCA cannot be proved against the
accused (As s.18(1) provides for, confession made by a police officer
“not below the rank of the superintendent of Police” shall be
admissible in trial) and (ii) The provisions of MCOCA have not
been validly invoked – Held:– (i) The expression “rank” must be
understood as a class or category which encompasses multiple posts
– The posts of SP, Addl. SP ,and DCP all fall within the same rank
– (ii) The approval order under s.23(1)(a) MCOCA is with respect
to the offence and not the offender – Though illegal gambling is
not an organized crime but it may be route through which the accused
[2022] 9 S.C.R. 150
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were abetting the commission of organized crime, therefore the
appellants may be charged with some offences punishable under
MCOCA in relation to the charge of illegal gambling – Further,
more than one chargesheet is not required to be filed with respect to
each accused.
Dismissing the appeals, the Court
HELD:1. It is view of this court that the expression “rank”
must be understood as a class or category which encompasses
multiple posts. The posts of SP, Addl. SP, and DCP all fall within
the same rank as they exercise similar functions and powers and
operate within similar spheres of authority. Every person within
a particular rank will not be of the same seniority. Officers of the
same rank may have been in service for a different number of
years. At times, this may even bear on the post to which they are
appointed but their rank remains undisturbed. A difference in
the seniority of a particular officer is not the same as a difference
in their ranks. The insignia on officers‘ uniforms denote, in this
case, their seniority as well as their designations. [Para 63][197-
F-G]
2. The order of approval under Section 23(1)(a) MCOCA
need not name every accused person at the outset. Often, limited
information is available to the investigating authorities at the time
of recording information about the commission of an offence. The
involvement of persons other than those named initially may come
to light during the course of investigation by the police. In fact,
the very purpose of an investigation is to determine whether a
crime has been committed and if so, to shed light on the details
of the crime including the identity of the perpetrators. This is
true of every crime but especially true in the case of organized
crime, where an organized crime syndicate may consist of scores
of persons involved in unlawful activities in different capacities.
Section 23(1)(a) MCOCA speaks of recording information about
the commission of an offence of organized crime, and not of
recording information about the offender. The competent authority
may record information under Section 23(1)(a) once it is satisfied
that an organized crime has been committed by an organized crime
syndicate. [Para 72][201-D-G]
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA
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3. The appellants‘ submission that the allegation of engaging
in illegal gambling would not sustain the invocation of the penal
provisions of Section 3(2) MCOCA is simplistic. Although
gambling may not, by itself, constitute an organized crime, it may
be the route through which the accused are abetting the
commission of organized crime. The question of whether the
appellants are in fact abetting organized crime in this manner, is
to be determined at the stage of trial. Similarly, the question of
whether offences under the IPC would attract MCOCA in the
present case is to be determined at the stage of trial and depends
on the facts and circumstances of each case. The appellants have
argued that in the preceding ten years, more than one charge-
sheet has not been filed in respect of each of them. This
submission does not hold water. It is settled law that more than
one charge sheet is required to be filed in respect of the organized
crime syndicate and not in respect of each person who is alleged
to be a member of such a syndicate. Other courts, too, have held
that persons who are alleged to be members of an organized crime
syndicate need not have more than one charge-sheet filed against
them in an individual capacity. Rather, charge-sheets with respect
to the organized crime syndicate are sufficient to fulfil the
condition in Section 2(1)(d).  [Para 77, 79][204-E-F, H; 205-A, G-
H]
State of Maharashtra v. Keshav
Bhaurao Mulik,
Criminal Appeal No 835 of 1974; Kartar Singh v. State
of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375; State
of Rajasthan v. Ajit Singh, (2008) 1 SCC 601 : [2007]
11 SCR 251; State of Maharashtra v. Kamal Ahmed
(2013) 12 SCC 17 : [2013] 5 SCR 128; Yakub Abdul
Razak Memon v. State of Maharashtra, (2013) 13 SCC
1 : [2013] 15 SCR 1; Ranjit Singh v. State of Punjab
(2002) 8 SCC 73 : [2002] 2 Suppl. SCR 247; Supreme
Court Advocates-on-Record Association v. Union of
India (1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659;
Nyadar Singh v. Union of India (1988) 4 SCC 170 :
[1988] 2 Suppl. SCR 546; State of Maharashtra v. Lalit
Somdatta Nagpal (2007) 4 SCC 171 : [2007] 2 SCR
473; Vinod G. Asrani v. State of Maharashtra, (2007) 3
SCC 633 : [2007] 2 SCR 1023; Kavitha Lankesh v.
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State of Karnataka 2021 SCC OnLine SC 956; Govind
Sakharam Ubhe v. State of Maharashtra, 2009 SCC
OnLine Bom 770 – Referred to.
State Inspector of Police Vishakhapatnam v. Surya
Sankaram Karri (2006) 7 SCC 172 : [2006] 5 Suppl.
SCR 229; State of Madhya Pradesh v. Chunni Lal (2009)
12 SCC 649 : [2009] 6 SCR 145; State of Madhya
Pradesh v. Babbu Rathore (2020) 2 SCC 577 : 2020
(1) JT 243; State of Punjab v. Hardial Singh, (2009)
15 SCC 106 : [2009] 8 SCR 559 – held inapplicable.
Case Law Reference
[1994] 2 SCR 375
referred to
Para 38
[2007] 11 SCR 251
referred to
Para 40
[2013] 5 SCR 128
referred to
Para 41
[2013] 15 SCR 1
referred to
Para 41
[2002] 2 Suppl. SCR 247
referred to
Para 41
[1993] 2 Suppl. SCR 659
referred to
Para 47
[1988] 2 Suppl. SCR 546
referred to
Para 62
[2006] 5 Suppl. SCR 229
held inapplicable
Para 66
[2009] 6 SCR 145
held inapplicable
Para 67
[2009] 8 SCR 559
held inapplicable
Para 68
[2007] 2 SCR 473
referred to
Para 71
[2007] 2 SCR 1023
referred to
Para 73
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1125 of 2022.
From the Judgment and Order dated 21.04.2020 of the High Court
of Judicature at Bombay in Writ Petition No. 3418 of 2019.
With
Criminal Appeal Nos. 1127, 1126, 1129, 1128 and 1130 of 2022.
Amit Desai, Aabad Ponda, Sidharth Luthra, Pradeep Rai, Sr. Advs.,
Sandeep Sudhakar Deshmukh, Sajid Imtiyaz Mahat, Irshad Malik,
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA
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Ms. Bansuri Swaraj, Siddhesh Kotwal, Ms. Ana Upadhyay, Ms. Manya
Hasija, Akash Singh, Nihar Dharmadhikari, Akshat Kumar, Sheezan
Hasmi, Nirnimesh Dube, Kunal Verma, Mrs. Yugandhara Pawar Jha,
Swapnil Wagh, Ashwin Nair, Ms. Lavanya Dhawan, Sheezan Hashmi,
Kumar Kashyap, Ritik Gupta, Kunal Verma, Atmaram NS Nadkarni,
Kunal Verma, Mrs. Yugandhara Pawar Jha, Salvador Santosh Rebello,
Swapnil Wagh, Ashwin Kumar Nair, Ms. Lavanya Dhawan, Ms. Deepti
Arya, Adiraj Bali, Ritik Gupta, Ms. Rajshri Rai, Anand Mishra, Amrendra
Kumar Singh, Vinay Rai, Mohnis Nirwan, Ms. Ritika Gaur, Shashank
Rai, Shree Prakash Sinha, Rakesh Mishra, Ms. Mohua Sinha,
Nawalendra Kumar, Rishabh Gupta, Shekhar Kumar, Advs. for the
Appellant.
Raja Thakare, Sr. Adv., Rahul Chitnis, Sachin Patil, Aaditya A.
Pande, Geo Joseph, Ms. Shwetal Shepal, Akash Kavade, Advs. for the
Respondent.
The Judgment of the Court was delivered by
DR DHANANJAYA Y. CHANDRACHUD, J.
Contents
A. Facts ................................................................................ 3*
B. Issues ................................................................................8*
C. Submissions ......................................................................9*
D. Analysis ......................................................................... 18*
i. An overview of the Maharashtra Control of Organized
Crime Act 1999 ............................................................ 18*
ii. Confession made before a police officer “not below
the rank of the Superintendent of Police” ............... 22*
iii.Conditions for invocation of the MCOCA……. . 65*
A. Facts
1. The prosecution alleges that the appellants are members of an
organized crime syndicate which has engaged in a systematic course of
activities for cheating members of the public by conducting the ‘Mumbai
Matka’. To explain ‘matkas’ in simple terms, those who wish to gamble
place bets on numbers/playing cards. At the end of the cycle, the results
are to be declared based on a random draw of numbers / playing cards
*Ed. Note : Pagination is as per the original judgment.
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and those who correctly guess the winning digits / playing cards win
while the others lose. Instead of declaring the winning digits on the basis
of a random draw, the organizers of the Mumbai Matka are alleged to
identify the number on which the least bets are placed and declare that
to be the winning digit. This is allegedly done in order to ensure that the
pay-out is minimal and the profit is as large as possible.
2. Salim Mulla is alleged to be a bookie who accepts bets for the
Mumbai Matka. It is the prosecution’s case that he would transfer the
money he received through the Mumbai Matka to Rakesh Agarwal and
Manish Agarwal if he anticipated that he would be unable to repay in the
event that the number on which he accepted the highest number of bets
was declared the winning number. Rakesh Agarwal and Manish Agarwal
would allegedly accept the risk and discharge the obligation to pay the
gamblers if that particular number was indeed declared the winning
number. Further, they would in turn allegedly transfer the money they
received from Salim Mulla to Samrat Korane, the appellant in SLP
(Criminal) No. 3722 of 2020, and Zakir Mirajkar, the appellant in SLP
(Criminal) No. 3213 of 2020. The latter two, along with Sharad Korane,
the appellant in SLP (Criminal) No. 3629 of 2020 would assume the risk
and transfer the money once again to Viral Savla, the appellant in SLP
(Criminal) No. 3915 of 2020 and Jayesh Savla, the appellant in SLP
(Criminal) No. 4170 of
2020, amongst others. It is alleged that in this
fashion, the petitioners and various others are members of an organized
crime syndicate, of which the lynchpin is Salim Mulla. The main organizers
of the Mumbai Matka are alleged to be Prakash Savla, the appellant in
SLP (Criminal) No. 3943 of 2020, his son Viral Savla and his brother
Jayesh Savla. Finally, Rajendra Dave, the appellant in SLP (Criminal)
No. 6034 of 2022 is alleged to assist Salim Mulla and the Savla family by
distributing protection money to various gangsters and purchasing property
from the proceeds of the illegal gambling business. According to the
prosecution, the proceeds from the matka business are used to finance
criminal gangs and underworld dons.
3. On 8 April 2019, the Assistant SP, Kolhapur and a team of
police personnel raided what is alleged to be a gambling den (colloquially
known as a ‘matka’ den) controlled by Salim Mulla. It is the prosecution’s
case that Salim Mulla’s wife, Shama Mulla, along with some others,
assaulted the police team when they were recording the panchnama at
the gambling den.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
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4. FIR 136 of 2019 for offences punishable under Sections 143,
147, 149, 395, 307, 353, 332, 155, 109, 324, 323 and 427 of the Indian
Penal Code 1860,1 Sections 4 and 5 of the Maharashtra Prevention of
Gambling Act 1887,2 Section 65(e) of the Maharashtra Prohibition Act
1949 and Sections 37 and 135 of the Bombay Police Act 1951 was
registered in PS Rajarampuri, Kolhapur on the basis of a complaint made
by one of the members of the raiding party. The Investigating Officer
was of the opinion that the accused were members of an organized
crime syndicate led by Salim Mulla, as defined in Section 2(1)(f)
Maharashtra Control of Organized Crime Act 1999.3 She consequently
submitted a proposal seeking to invoke offences punishable under the
MCOCA, to the competent authority under Section 23(1)(a). The
competent authority approved the proposal on 10 April 2019 and Sections
3(1)(ii), 3(2), 3(4), and 3(5) MCOCA were added to the FIR. During the
course of investigation, the Additional Superintendent of Police4 recorded
the confessions made by many of the accused, including the appellants.
Statements of various persons under Section 161 Code of Criminal
Procedure 19735 were also recorded.
5. On 4 October 2019, the competent authority sanctioned the
prosecution of the appellants (amongst others) for offences under the
MCOCA. Upon the completion of the investigation, the IO submitted a
charge-sheet/final report under Section 173
CrPC on 5 October 2019.
The charge-sheet was filed with reference to Sections 109, 120(B), 143,
147, 149, 155, 332, 353, 307, 395, 427 and 420 IPC, Sections 21(2), 21(3)
and 23 of the Banning of Unregulated Deposit Schemes Act 2019,
Sections 4 and 5 of the Gambling Act, Section 65(e) of the Maharashtra
Prohibition Act 1949, Sections 37 and 135 of the Bombay Police Act
1951, and Sections 3(1)(ii), 3(2), 3(4), and 3(5) of the MCOCA.
6. Some of the appellants as well as other accused were arrested
at different points in time following the registration of the FIR. Two of
them (Samrat Korane and Prakash Savla) are absconding. The petitioners
in SLP (Criminal) Nos. 3213 of 2020, 3722 of 2020, 3629 of 2020, 3915
of 2020, 3943 of 2020 and 4170 of 2020 instituted writ petitions before
the Bombay High Court for quashing of the FIR. By a judgment dated
1 “IPC”
2 “Gambling Act”
3 “MCOCA”
4 “Addl. SP”
5 “CrPC”
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21 April 2020 a Division Bench of the Bombay High Court dismissed the
petitions for the following reasons:
a.
Though gambling may not by itself constitute an organized
crime, an organized crime syndicate may utilize the profits
from the illegal activity for other unlawful activities such as
contract killing, abduction and dacoity. If the state becomes
aware of the existence of an organized crime syndicate
while conducting a raid on a gambling establishment, it may
take recourse to MCOCA and carry out an investigation;
b.
MCOCA penalizes not only persons who engage in
organized crime but also those who are members of an
organized crime syndicate and those who abet the
commission of organized crime. The appellants are alleged
to have assisted Salim Mulla by providing him
accommodation in the contingency of excessive risks
incurred by him. Such assistance is sufficient to invoke the
provisions of the MCOCA;
c.
Some of the appellants are absconding and their
interrogation is necessary for a proper investigation;
d.
If certain persons are found to be involved in the commission
of organized crime and their names were not mentioned in
the order granting approval to record information under
Section 23(1)(a) MCOCA, they may nevertheless be
proceeded against once sanction is obtained under Section
23(2) MCOCA;
e.
The confessions recorded by the Addl. SP are admissible
because Addl. SPs are in the same rank as Superintendents
of Police,6 in terms of clause 25(2) of
the Bombay Police
Manual 1959.7
Aggrieved by the judgment of the High Court, the appellants
invoked the jurisdiction of this court under Article 136 of the
Constitution. Rajendra Dave, filed SLP (Criminal) No. 6034 of
2022 to challenge an order of aSingle Judge of the Bombay High
Court dated 11 August 2021 declining bail in connection with the
same FIR for the following reasons:
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
6 “SP”
7 “Police Manual”
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a.
Prima facie, there is sufficient evidence to show the
complicity in the commission of the alleged offences;
b.
The charge-sheet alludes to sufficient material to show
active membership of an organized crime syndicate.
c.
A case for the grant of bail is not made out in light of the
restrictions contained in Section 21(4) MCOCA.
B.
Issues
7.
Based on the submissions which have been canvassed on
behalf of the appellants, two questions arise for
determination:
a. Whether a confession recorded by an Addl. SP under
Section 18 MCOCA can be proved as against the
accused; and
b. Whether the provisions of MCOCA have been validly
invoked.
8. Since similar issues arise in the batch of cases, the appeals
have been heard together.
C. Submissions
9. Mr. Amit Desai, Mr. Siddharth Luthra, Mr. Abad Ponda, Mr. V.
Giri, Mr. Pradeep Rai, and Mr. ANS Nadkarni, senior counsel, led
arguments on behalf of the appellants. Mr. Amit Desai, learned senior
counsel who led the arguments (supported by Mr. Abad Ponda)
specifically stated that the challenge in the cases he is arguing is confined
to the authority of an Addl. SP to record a confession, in view of the
interdict of Section 18. Mr Desai submitted that the individual facts in
the appeal are not being put forth in this proceeding since the appellants
would follow their remedies at the appropriate stage when they apply
for regular bail.
10. Their submissions were:
a. Several statutory
safeguards have been introduced in the
MCOCA including:
i.
Informing the accused that the statement would be used
against them;
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ii. Certification of the statement in writing;
iii. Transmission of the statement to the CJM/CMM to ensure
that no tampering takes place and requiring that the
statement be forwarded to the court taking cognizance; and
iv. Mandate of production before the CMM/CJM who has to
record either a complaint or an absence of a complaint.
These statutory safeguards are a facet of Article 21 of the
Constitution, to ensure the protection of the accused who has
made the statement to a police officer while in custody. Their
object is to ensure a fair trial in a serious crime involving an
organized crime syndicate.
b.
Section 25 commences with a non-obstante provision
conferring overriding effect to the MCOCA, notwithstanding
anything inconsistent contained in other legislations. The High
Court has erred in holding that an Addl. SP is empowered to
record a confession under the MCOCA, by relying on Para
25(2) of the Police Manual. Moreover, the Police Manual is
a compendium of administrative circulars and cannot
override the statutory provisions contained in Section 18 of
the MCOCA which mandate that no police officer below
the rank of an SP can record a confession;
c.
Section 18 MCOCA, which stipulates that confessions made
to “a police officer not below the rank of Superintendent of
Police” are admissible in evidence, is an exception to the
general rule in Section 25 of the Indian Evidence Act 18728
and must be construed strictly. An Addl. SP is not of the
same rank as
an SP because:
i.
Section 8 of the Bombay Police Act 1951 provides that
the state government “may empower an Additional
Superintendent to exercise and perform … all or
any of the powers, functions or duties to be exercised
or performed by a Superintendent …”. Hence, the
power vested in the Addl. SP is not inherent but must
be conferred by the state government. The State of
Maharashtra has not empowered Addl. SPs to exercise
the powers of SPs.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
8 “Evidence Act”
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ii.
Para 25(2) of the Police Manual indicates that an Addl.
SP “performs such duties and exercises such powers
of the Superintendent the State Government might
have assigned to him”. The manual recognizes that
the Addl. SP is not in the same rank as the SP. It is only
by a fiction of law that they become of the same rank.
The State of Maharashtra has not issued a notification
assigning the power of recording a confession under
MCOCA to Addl. SPs;
iii.
Even if such notifications existed or were to be issued,
they would be contrary to Section 25 MCOCA which
is an overriding provision.
iv.
The insignia on the Addl. SP’s uniform is different from
that on the SP’s uniform, indicating that their ranks are
not the same.
v.
The Model Police Act 2006 prepared by the Union
Government is meant to serve as a benchmark for the
states to follow. Clause 32, of the Model Police Act
2006 stipulates that a commandant “equivalent in rank
to Superintendent of Police, shall head each Armed
Police Battalion. The Commandant shall be assisted
by a Deputy Commandant, equivalent in rank to
Additional Superintendent of Police”. This
recognizes the difference in rank between an Addl. SP
and an SP. The Police Acts in Sikkim and Himachal
Pradesh contain similar provisions.
d.
Trial courts must not be required to answer the question of
whether one post is equivalent to another. Rather, they must
be required to ask and answer the simple question of
whether the police officer recording the confession is an
SP. To allow persons other than SPs to record the confession
would lead criminal justice down a slippery slope;
e.
In Sangli district, the post of an SP was in fact available
and hence there was no reason to pick and choose officers
from the rank of Addl. SP for the purpose of recording the
confession.
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f.
It is a well settled principle of law that where the statute
lays down a procedure, it must be scrupulously followed.
In the MCOCA, the legislature has disclosed an intent of
seeking a proper investigation of a serious crime while at
the same time preserving fairness to the accused.
g.
The legislative intent behind Section 18 MCOCA is to
prevent the harassment of the accused. The provision is
mandatory and must be strictly construed. There exists a
legal presumption that senior, experienced officers will not
indulge in inappropriate methods of interrogation during the
course of investigation. There is a significant misuse of
police powers and hence there is a need to exercise caution
while expanding the scope of Section 18 MCOCA.
Recording a confession is different from exercising the
ordinary power of investigation. The recording of a
confession is not a ministerial act – a confession recorded
under the MCOCA is a piece of substantive evidence and
can be used against the maker of the statement. The
MCOCA embodies stringent provisions for bail in section
21(4);
h.
The mere existence of sanction under Section 23(2)
MCOCA does not cure the defect in following the procedure
under Section 23(1) MCOCA, as it is non-est and suffers
from non-application of mind.
i.
Gambling by itself is not an organized crime. Gambling is
punishable with a maximum sentence of 2 years and does
not, therefore, fall within the scope of MCOCA (which
requires the commission of a
crime punishable with
imprisonment of 3 years or more). The offences under the
IPC do not fall within the ambit of Section 2(d) MCOCA
and do not constitute a continuing unlawful activity. MCOCA
has been incorrectly invoked; it is impermissible to invoke
MCOCA for ordinary crimes.
j.
Rule 3(4) of the Maharashtra Control of Organised Crime
Rules 19999 stipulates that the police officer recording the
confession must give the accused not less than 24 hours to
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
9 “MCOC Rules”
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reconsider their decision to confess. This rule was not
adhered to in the present case.
k.
The legislature was cognizant of the difference between
various ranks while enacting MCOCA. Section 23(1)(b)
refers to a Deputy SP. Sections 14(10) and 23(2) refer to
the Additional Director General of Police. In contrast,
Section 18 MCOCA does not refer either to Deputy SPs or
to Addl. SPs. If the legislature intended to include Addl.
SPs within the ambit of Section 18 MCOCA, it would have
done so expressly.
11. Apart from the above submissions, Mr. Siddharth Luthra,
learned senior counsel made the following submissions with respect to
Sharad Korane, Prakash Savla, Jayesh Savla, Suresh Sawant and
Meghraj Kambhar:
a.
They are not named either in the FIR or in the approval order;
and
b.
There is no connection between them and the activities of the
gang in question;
c.
All the confessions barring one are not recorded by an officer
of the rank of an SP but by an Addl. SP.
Learned counsel also submitted that there was no confession as
against Suresh Sawant.
12. Mr. ANS Nadkarni, learned senior counsel urged that the name
of Viral Savla is missing regarding the filing of a charge sheet against
him. Mr. Pradeep Rai submitted that Samrat Korane was named for the
first time in the sanction order, and that he had been discharged in 3 out
of 5 FIRs registered in relation to his alleged gambling activities.
13. Shree Prakash Sinha appeared
on behalf of Rajendra Dave
i.e., the petitioner who was denied bail. He submitted that his client’s
name was not mentioned either in the FIR or in the order granting approval
under Section 23(1)(a). He also argued that his client has been in custody
for 3 years and deserves to be released on bail.
14. The submissions urged on behalf of the petitioners have been
opposed by the State of Maharashtra. Mr. Raja Thakare, learned senior
counsel made the following submissions:
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a. Section 18 MCOCA confers the power to record confessions
by rank and hence, no separate authorisation from the state
government is necessary. Section 25 contains an overriding
provision and MCOCA does not require a separate authorisation
under any other statute.
b. Addl. SPs and SPs are of the same rank because:
i.
The posts of Addl. SP, SP, Deputy Commissioner of
Police,10 and Commandant are interchangeable upon
transfer. The post of DCP is attached to a
Commissionerate. A DCP posted in a Commissionerate
can be transferred to a district either as an Addl. SP or as
an SP. Likewise an Addl. SP or SP in a district can be
posted on transfer as a DCP in a Commissionerate.
Illustratively, Mr. Nikhil Pingale and Mr. Samadhan Pawar
were DCPs who became Addl. SPs upon being
transferred in 2018. MCOCA does not mention DCPs or
their powers under the enactment. Yet, a DCP may record
a confession under Section because she would not be
below the rank of an SP. If the petitioner’s arguments
were to be accepted, a person can record a confession
under MCOCA while posted as a DCP in a particular
district but the same person would be unable to record a
confession upon transfer to another district as Addl. SP.
ii.
The pay scale for Addl. SPs and SPs is the same.
iii.
SPs as well as Addl. SPs can be promoted to the post of
Deputy Inspector General of Police.
iv.
Addl. SP is a non-cadre post. Specific rules in that regard
have been framed under Article 309 of the
Constitution
on 25 August 1975. The appointment on promotion is from
the rank of ACP, Deputy SP or SDPO with a stipulated
number of years of service.
c. The State of Maharashtra has complied with the requirements
of Section 18 MCOCA and Rule 3, MCOC Rules.
d. The approval granted by the competent authority under Section
23(1)(a) MCOCA is with respect to the offence and not with
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
10 “DCP”
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respect to the offender. The approval granted is akin to an
FIR, where the names of all the offenders need not be
mentioned. Hence, non-inclusion of any accused person’s name
in the order of approval is not fatal to the investigation. The
approval was granted on the basis of a proposal submitted by
the Police Inspector, Rajarampuri Police Station to the Special
IG.
e. The validity of the approval granted under Section 23(1)(a) or
of the sanction under Section 23(1)(b) cannot be tested at this
stage. Their validity can only be determined at the stage of
trial, when the prosecution has the opportunity to adduce
evidence.
f. Sub-sections 1, 2, 3 and 5 of Section 3 commence with the
expression “whoever”. Unlike the above provisions, sub-section
4 of Section 3 does not contain the word ‘whoever’ and hence
any person who is a member of an organised crime syndicate
is liable. The MCOCA was validly invoked as the petitioners
have abetted organized crime by rendering financial assistance
to the organized crime syndicate by taking on any potential
losses from the matka. The material on record points towards
a financial link between the petitioners and the organized crime
syndicate.
D. Analysis
i. An overview of the Maharashtra Control of Organized
Crime Act 1999
15. The Maharashtra Control of Organized Crime Act 1999, as
its long title indicates, is “an Act to make special provisions for the
prevention and control of, and for
coping with, criminal activity by
organized crime syndicate or gang and for matters connected therewith
or incidental thereto”. The statement of objects and reasons contains
the reasons which constituted the foundation for the legislature to step
in:
Firstly, organized crime which is in existence for some years poses
a serious threat to society;
Secondly, organized crime is not confined by national boundaries;
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Thirdly, organized crime is fuelled by illegal wealth generated by
contract killing, extortion, smuggling and contraband, illegal trade
in narcotics, kidnapping for ransom, collection of protection money
and money laundering, and other activities;
Fourthly, the illegal wealth and black money generated by organized
crime pose adverse effects on the economy;
Fifthly, organized crime syndicates make common cause with
terrorists fostering narcoterrorism which extends beyond national
boundaries;
Sixthly, the existing legal framework in terms of penal and
procedural laws and the adjudicatory system were found inadequate
to curb and control organized crime; and
Seventhly, the special law was enacted with “stringent and deterrent
provisions” including in certain circumstances, the power to
intercept wire, electronic or oral communication.
16. In understanding the ambit of the enactment, emphasis must
be given to three definitions:
a. Organized crime (Section 2(1)(e));11
b. Organized crime syndicate (Section 2(1)(f));12 and
c. Continuing unlawful activity (Section 2(1)(d).13
17. The expression ‘organised crime’ is defined with reference to
a continuing unlawful activity. The definition is exhaustive since it is
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
11 Section 2(1)(e) – “organized crime” means any continuing unlawful activity by an
individual, singly or jointly, either as a member of an organized crime syndicate or on
behalf of such syndicate, by use of violence or threat of violence or intimidation or
coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or
gaining undue economic or other advantage for himself or any other person or promoting
insurgency.
12 Section 2(1)(f) – “organised crime syndicate” means a group of two or more persons
who, acting either singly or collectively, as a syndicate or gang indulge in activities of
organised crime.
13 Section 2(1)(d) – “continuing unlawful activity” means an activity prohibited by law
for the time being in force, which is a cognizable offence punishable with imprisonment
of three years or more, undertaken either singly or jointly, as a member of an organised
crime syndicate or on behalf of such syndicate in respect of which more than one
charge-sheets have been filed before a comptent Court within the preceding period of
ten years and that Court has taken cognizance of such offence ;
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prefaced by the word “means”. The ingredients of an organized crime
are:
a. The existence of a continuing unlawful activity;
b. Engagement in the above activity by an individual;
c. The individual may be acting singly or jointly either as a member
of an organized crime syndicate or on behalf of such a
syndicate;
d. The use of violence or its threat or intimidation or coercion or
other unlawful means; and
e. The object being to gain pecuniary benefits or undue economic
or other advantage either for the person undertaking the activity
or any other person or for promoting insurgency.
18. The above definition of organized crime, as its elements
indicate, incorporates two other concepts namely, a continuing unlawful
activity and an organized crime syndicate. Hence, it becomes necessary
to understand the ambit of both those expressions. The ingredients of a
continuing unlawful activity are:
a. The activity must be prohibited by law for the time being in
force;
b. The activity must be a cognizable act punishable with
imprisonment of three years or more;
c. The activity may be undertaken either singly or jointly as a
member of an organized crime syndicate or on behalf of such
a syndicate;
d. More than one charge-sheet should have been filed in respect
of the activity before a competent court within the preceeding
period of ten years; and
e. The court should have taken cognizance of the offence.
19.The elements of the
definition of “organized crime syndicate”
are :
a. A group of two or more persons;
b. Who act singly or collectively, as a syndicate or gang; and
c. Indulge in activities of organized crime.
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20. Both Section 2(1)(d) while defining “continuing unlawful
activity” and Section 2(1)(e) while defining “organized crime” contain
the expression “as a member of an organized crime syndicate or on
behalf of such syndicate”. While defining an organized crime syndicate,
Section 2(1)(f) refers to “activities of organized crime”.
21. Section 3 provides for the punishment for organized crime.14
Sub Section (1) of Section 3 covers “whoever commits an offence of
organized crime”. Sub Section (2) covers whoever conspires or attempts
to commit or advocates, abets or knowingly facilitates the commission
of an organized crime or any act preparatory to organized crime. Sub
Section (3) covers whoever harbours or conceals or attempts to harbour
or conceal any member of an organized crime syndicate. Sub Section
(4) covers any person who is a member of an organized crime syndicate.
Sub Section (5) covers whoever holds any property derived or obtained
from the commission of an organized crime or which has been acquired
through the funds of an organized crime syndicate. Section 4 punishes
the possession of unaccountable wealth on behalf of a member of an
organized crime syndicate.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
14 Section 3 – (1) Whoever commits an offence of organised crime shall,— (i) if such
offence has resulted in the death of any person, be punishable with death or
imprisonment for life and shall also be liable to
a fine, subject to a minimum fine of
rupees one lac;
(ii) in any other case, be punishable with imprisonment for a term which shall not be
less than five years but which may extend to imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees five lacs. (2) Whoever conspires or
attempts to commit or advocates, abets or knowingly facilitates the commission of an
organised crime or any act preparatory to organised crime, shall be punishable with
imprisonment for a term which shall be not less than five years but which may extend
to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of
rupees five lacs.
(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an
organised crime syndicate shall be punishable with imprisonment for a term which shall
not be less than five years but which may extent to imprisonment for life, and shall also
be liable to a fine, subject to a minimum fine of rupees five lacs.
(4) Any person who is a member of an organised crime syndicate shall be punishable
with imprisonment for a term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to a fine, subject to a minimum
fine of rupees five lacs.
(5) Whoever holds any property derived or obtained from commission of an organised
crime or which has been acquired through the organised crime syndicate funds shall be
punishable with a term which shall not be
less than three years but which may extend
to imprisonment for life and shall also be liable to fine, subject to a minimum fine of
rupees two lacs.
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ii. Confession made before a police officer “not below the
rank of the Superintendent of Police”
22. The crux of the controversy in the present batch of cases
turns on the interpretation of the provisions of Section 18.15 Sub Section
(1) of Section 18 is prefaced with a non obstante provision which
operates notwithstanding anything contained in the CrPC16 or the Evidence
Act.
23. Having incorporated a non obstante clause in sub Section
(1), the statute uses the expression “but subject to the provisions of this
15 Section 18 – (1) Notwithstanding anything in the Code or in the Indian Evidence Act,
1872, but subject to the provisions of this section, a confession made by a person
before a police officer not below the rank of the Superintendent of Police and recorded
by such police officer either in writing or on any mechanical devices like cassettes,
tapes or sound tracks from which sounds or images can be reproduced, shall be admissible
in the trial of such person or co-accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is charged and tried in the same
case together with the accused.
(2) The confession shall be recorded in a free atmosphere in the same language in which
the person is examined and as narrated by him.
 (3) The police officer shall, before recording any confession under sub-section (1),
explain to the person making it that he is not bound to make a confession and that,
if he
does so, it may be used as evidence against him and such police officer shall not record
any such confession unless upon questioning the person making it, he is satisfied that
it is being made voluntarily. The concerned police officer shall , after recording such
voluntry confession, certify in writing below the confession about his personal
satisfaction of the voluntary character of such confession, putting the date and time of
the same.
(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the
area in which such confession has been recorded and such Magistrate shall forward the
recorded confession so recived to the Special Court which may take cognizance of the
offence.
(5) The person from whom a confession has been recorded under subsection (1) shall
also be produced before the Chief Metropolitan Magistrate or the Chief Judicial
Magistrate to whom the confession is required to be sent under sub-section (4) alongwith
the original statement of confession, written or recorded on mechanical device without
unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously
record the statement, if any, made by the accused so produced and get his signature and
in case of any complaint of torture, the person shall be directed to be produced for
medical examination before a Medical Officer not lower in rank than of an
Assistant
Civil Surgeon.
16 The expression Code which used in Section 18(1) is defined in Section 2(b) to mean
the Code of Criminal Procedure 1973.
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section”. Sub Section (1) stipulates that a confession made by a person
before a police officer “not below the rank of the Superintendent of
Police” shall be admissible at the trial of such a person or a co-accused,
abettor or conspirator, if it has been recorded by such police officer
either in writing or on any mechanical devices like cassettes, tapes or
sound tracks from which sounds and images can be reproduced. The
confession can be used against a co-accused, abettor or conspirator if
they are charged and tried in the same case together with the accused.
24. The reason why Section 18(1) contains a non obstante
provision overriding the Evidence Act is because Section 25 of the
Evidence Act stipulates that no confession made to a police officer shall
be proved as against a person accused of an offence. The bar contained
in Section 25 is limited by sub Section (1) of Section 18 of the MCOCA.
Evidently, the Legislature while lifting the bar was conscious of the
underlying rationale for Section 25 of the Evidence Act. Section 25 of
the Evidence Act is based on a legislative understanding that there is a
grave danger that a confession made to a police officer may have been
obtained under coercion, torture, or duress.
25. Hence, while lifting the bar contained in the provisions of the
Evidence Act, the legislature has employed the expression “subject to
the provisions of this section”. In doing so the legislature has indicated
an intent that the
admissibility of a confession recorded under sub Section
(1) of Section 18 is subject to compliance with the statutory safeguards
which are embodied in the provision.
26. Sub Section (1) of Section 18 contains two safeguards, the
first being with reference to the person who records the confession and
the second in terms of the modalities for recording the confession. As
for the former, sub Section (1) stipulates that the confession must be
made before a police officer “not below the rank of the Superintendent
of Police”. The other safeguards which the statute has embodied in
Section 18 are:
a.
the requirement that the confession should be recorded
either in writing or on any mechanical devices from which
sounds or images can be reproduced (sub Section (1));
b.
the confession (besides being admissible at the trial of the
maker) is admissible at the trial of a co-accused, abettor or
conspirator only when the co-accused abettor or conspirator
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
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are charged and tried in the same case together with the
accused (proviso to sub Section (1)).
c.
the recording of the confession in “a free atmosphere”, in
the same language in which the person is examined and as
narrated by him (sub Section (2));
d.
the duty of the police officer to disclose to the person making
the confession, before recording the confession under sub
Section (1), that:
i.
he is not bound to make a confession;
ii. if he does so, it may be used as evidence against him
(sub Section (3));
e.
the mandate that the police officer shall not record any
confession unless upon questioning the person making it,
he is satisfied that it is being made voluntarily (sub Section
(3));
f.
the requirement that upon being satisfied that the confession
is being recorded voluntarily, the police officer shall certify
the same in writing below the confession along with the
date and time (sub Section (3));
g.
the transmission of the confession forthwith to the Chief
Metropolitan Magistrate or the Chief Judicial Magistrate
having jurisdiction of the area and the forwarding of the
confession so received to the Special Court which may take
cognizance of the offence (sub Section (4));
h.
the production of the maker of the confession before the
Chief Metropolitan Magistrate or the Chief Judicial
Magistrate to whom the confession is required to be sent
under sub Section 4, together with the original statement of
the confession,
without unreasonable delay (sub Section (5));
and
i.
the duty of the Chief Metropolitan Magistrate or the Chief
Judicial Magistrate to scrupulously record the statement
made by the accused produced before him and get his
signatures, and in the event of a complaint of torture, to
direct the production of the accused for medical examination
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before a Medical Officer not lower in rank than an Assistant
Civil Surgeon. (sub Section (6)).
The legislature has made the admissibility of a confession recorded
in terms of sub Section (1) of Section 18 conditional on the
observance of the above statutory safeguards.
27. The outcome of these appeals depends on the construction of
the expression “before a police officer not below the rank of the
Superintendent of Police”. The provisions contained in Section 18(1)
are an exception to the general principle embodied in Section 25 of the
Evidence Act and must be strictly construed.
28. The issue as to whether a confession recorded by an Addl. SP
is a confession made “before a police officer not below the rank of the
Superintendent of Police” was raised before the High Court. The
submission of the appellants was that since Section 18 contemplates the
recording of confessions by a police officer not below the rank of SP,
almost all the confessions in connection with the present FIR were
inadmissible, having been recorded by an Addl. SP. It appears from the
judgment of the High Court that the Special Public Prosecutor, while
responding to this submission, placed reliance on para 25(2) of the Police
Manual to urge that the Addl. SP (as the High Court noted the submission)
“is in the same position as the SP in the area for which he is appointed”.
The High Court rejected the appellants’ submission in the absence of a
challenge to para 25(2) of the Police Manual.17
29. It is necessary to clear the air of the argument which was
founded on para 25 of the Police Manual. The Police Manual purports
to contain rules under the Bombay Police Act 1951, the Bombay Police
(Extension and Amendment) Act 1959 and other departmental regulations.
Para 25 of the Police Manual provides that:
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
17 Para 19 of the impugned judgment of the High Court reads as follows:
“19] One more contention came to be raised on behalf of the petitioners to the effect
that the confessions recorded in the present matter are inadmissible and they need to be
ignored. It is submitted that Section 18 of the MCOC Act contemplates recording of
confessions by a police officer not below the rank of Superintendent of Police. It is
submitted that in the present matter almost all confessions are recorded by Additional
Superintendent of Police. As against this, the learned Spl. P.P. has pointed out clause 25
(2) of Bombay Police Manual, 1959, which inter-alia states that Additional
Superintendent of Police is in the same position as the Superintendent of Police in the
area for which he is appointed. In absence of any challenge to the said clause, we are
compelled to reject this contention.”
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“25. Superintendent of Police:
(1) Subject to the orders of the District Magistrate and the Inspector
General of Police in their respective spheres of authority, the
direction and regulation of the Police through-out a district is vested
in the Superintendent as the executive head of the force and he
has full control over the internal economy of the force under him
including arms, drill, exercise, prevention and investigation of crime,
prosecution, discipline and other matters of executive detail;
(2) An Additional Superintendent of Police is in the same position
as the Superintendent of Police in the area he is appointed and
performs such duties and exercise such powers of the
Superintendents the State Government might have assigned to
him.
30. Sub-para 1 of para 25 indicates that the direction and regulation
of the Police throughout the district is vested in the Superintendent as
the head of the force, subject to the orders of the D.M. and the IGP in
their spheres of authority. Sub para 2 indicates that an Addl. SP “is in the
same position as” the SP in the area for which he is appointed and
“exercises such powers of the Superintendents the State government
might have assigned to him”.
31. Dealing with the provisions of para 25 (2) of the Police Manual,
Mr Amit Desai urged:
a. The Addl. SP is not in the same rank as the SP;
b. By extension, the Addl. SP is in the same position as an SP and
performs such duties and
exercises such powers which are
assigned by the State government; and
c. There is no notification by the Government of Maharashtra
assigning the power of recording confessions under the
MCOCA to the Addl. SP in terms of para 25(2) of the Police
Manual.
32. The reliance on para 25(2) of the Police Manual by the Special
Public Prosecutor was misconceived for more than one reason. The
High Court and this Court, in appeal, have been called upon to interpret
the provisions of a special Act, the MCOCA. Section 18(1) MCOCA
does not envisage a specific delegation of authority to a police officer
“not below the rank of the SP” for the purpose of recording a confession.
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The admissibility of the confession is determined by whether it has been
recorded by a police officer “not below the rank of the SP” and by
whether the statutory safeguards have been complied with. Section 25
MCOCA gives overriding effect to the provisions of the Act and to any
rules made under it as well as to orders issued under a rule notwithstanding
anything inconsistent contained in any other law for the time being in
force or any instrument having the force of law.18
33. Section 18(1) does not interpose an additional requirement of
a specific authorization by the state government for recording a
confession under the MCOCA, the requirement of the statute being that
the police officer who records such confession is not below the rank of
SP. The effort on the part of the Special Public Prosecutor to justify the
authority of the Addl. SP to record a confession under Section 18(1) on
the basis of the provisions of para 25(2) of the Police Manual was
therefore fraught with error. As a matter of fact, Mr Thakare, learned
senior counsel appearing on behalf of the state is therefore right in
submitting that there is no question of importing the requirement of an
authorization into Section 18(1) by reading it together with para 25(2) of
the Police Manual. The High Court was led into relying on the Police
Manual by the submission of the public prosecutor. A submission which
is made on a question of law by counsel appearing for a party (in this
case, the state)
cannot bind that party or for that matter, preclude this
Court from correctly interpreting the law. During the course of the
submissions, the provisions of Section 8 of the Maharashtra Police Act
1951 have been adverted to.19 Section 8 provides as follows:
“8. Appointment of [Superintendent and] Additional, Assistant and
Deputy Superintendents.
The State Government may appoint for each District or for a part
of a district or for one or more Districts [a Superintendent of
Police] and one or more Additional, Assistant and Deputy
Superintendents of Police, as it may think expedient.
The State Government may by a general or special order, empower
an Additional Superintendent to exercise and perform in the district
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
18 Section 25 of the MCOCA is as follows:
The provisions of this Act or any rule made thereunder or any order made under any
such rule shall, have effect notwithstanding anything inconsistent therewith contained
in any other law for the time being in force or in any instrument having the force of law.
19 “Police Act”
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for which he is appointed or in any part thereof, all or any of the
powers, functions or duties to be exercised or performed by a
[Superintendent] under this Act or under any law for the time
being in force.
The District Superintendent may, with the previous permission of
the State Government delegate any of the powers and functions
conferred on him by or under this Act to an Assistant or Deputy
Superintendent;
4 [Provided that, the powers, to be exercised by the Superintendent
of making, altering or re
Gujarat Amendment: In Sec. 8 of the Bombay Police Act, 1951 in
Sub-section (3), for the words “conferred on him by or under this
Act to an Assistant or Deputy Superintendent”, the words
“conferred on him by or under this Act, except the power to make,
alter or rescind rules or orders under Sec. 33, to an Assistant or
Deputy Superintendent” shall be substituted.
[8-A.] 2 (Appointment of Director of Police Wireless and
Superintendent], Assistant and Deputy Superintendents for
Wireless System, Motor Transport System or any specific duty.
The State Government may appoint for the whole of the State or
for any part thereof- 3 [(i) one or more Directors of Police Wireless
and Deputy Inspector General of Police for the Police Wireless
System (hereinafter referred to as “the Director of Police
Wireless)as it thinks fit; and (ii) one or more Superintendents of
Police and Assistant and Deputy Superintendent of Police as it
thinks
fit]. a) For the Police Wireless System; b) For Police Motor
Transport System; or c) For the performance of such specified
duties as the State Government may from time to time determine
in this behalf.
4 [Any Director of Police Wireless and Superintendent] appointed
shall exercise such powers and perform such functions as the
State Government may from time to time 5 [assign to each of
them]. [The Director may, with the previous permission of the
State Government, delegate any of the powers and functions
conferred on him by or under this Act to a Superintendent, or to
an Assistant or deputy Superintendent and the Superintendent may,
subject to the like previous permission, delegate such powers and
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functions to an Assistant or Deputy Superintendent:] Provided
that the powers and functions aforesaid shall be exercised or
performed by 6 [the District Superintendent or Assistant or Deputy
Superintendent, subject to the control of Inspector-General.].”
34. Sub-section (1) of Section 8 empowers the State government
to appoint an SP and one or more Addl. SP, Assistant SPs and Deputy
SPs as it may think expedient for each district, a part of a district or for
one or more districts. In terms of sub-Section (2) the State government,
by a general or special order, may empower an Addl. SP to exercise and
perform in the district for which he is appointed or in any part thereof, all
or any of the powers, functions or duties to be exercised or performed
by an SP under the Police Act or under any law for the time being in
force. Sub-Section (3) empowers the SP to delegate his powers and
functions to an Assistant SP or Deputy SP, with the previous permission
of the State government. Section 8 is adverted to by the appellants for
the purpose of indicating that:
a. There exists a specific statutory conferment of power on the
state government to appoint inter alia SPs and Addl. SPs in
any given district; and
b. Addl. SPs may exercise and perform the powers, functions
and duties entrusted to an SP in that district, upon being
empowered by the State government by a general or special
order.
35. The argument of the appellants is that the enabling power in
sub-section (2)
of Section 8 has not been exercised by the State
government by empowering the Addl. SP to exercise the power conferred
on an SP under Section 18(1) of the MCOCA misses the crux of the
matter. The MCOCA is a special Act enacted with an overriding
provision in Section 25. The tenability of the submission that an Addl. SP
does not fit the description of an officer not below the rank of SP cannot
be determined by reading into the MCOCA provisions for authorization
contained either in the Police Manual (para 25(2) as noticed above) or in
another statute (Section 8(2) of the Police Act). The answer to the
challenge which was raised before the High Court and on behalf of the
appellants before this Court must turn on the interpretation of the
provisions of Section 18(1) MCOCA itself. Section 18(1) renders
admissible a confession made by a person before a police officer “not
below the rank” of the SP.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
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36. Mr Amit Desai, learned seniour counsel placed reliance on a
judgment of a Single Judge of the Bombay High Court dated 1 September
1977 in State of Maharashtra v. Keshav Bhaurao Mulik,20 where
the respondent had been acquitted by the JMFC Solapur on the charge
of having committed offences punishable under Sections 4 and 5 of the
Gambling Act. The prosecution was based on the allegation that one of
the accused was using a house in Solapur as a common gaming house
for accepting matka bets. This house was raided by certain officers led
by the Addl. SP of that area; no warrant was obtained before the raid
was effected. The prosecution argued that a warrant was not necessary
as the Addl. SP was empowered to conduct the raid. In exercise of the
power conferred by Section 8(2) of the Police Act, the Government of
Maharashtra issued a notification on 24 November 1971 empowering
the Addl. SP, Solapur to exercise and perform in Solapur district “all the
powers, functions and duties to be exercised and performed by a District
Superintendent of Police under said Act”. The Single Judge of the High
Court held that by virtue of this order, the Addl. SP was only empowered
to exercise the powers, functions and duties of an SP under the Police
Act and not under any other law for the time being in force. Section 6 of
the Gambling Act stipulated that it shall be lawful for a police officer not
below the rank of a Sub-Inspector and
either empowered by general
order in writing or authorized in each case by a special warrant issued
by the Commissioner of Police to enter any house, room, or place which
he has reason to suspect was being used as a common gaming house, to
conduct a search. A similar provision was contained for areas other than
those within the jurisdiction of a Commissioner of Police.
37. The decision of the Single Judge of the High Court in the
above case is clearly distinguishable since the Gambling Act specifically
contained a requirement of a warrant of authorization. The warrant of
authorization which was relied upon by the State under Section 8(2) of
the Police Act only related to the performance of functions under the
Police Act. It was in this backdrop that the Single Judge held that the
Addl. SP could not have exercised the powers of an SP under the Gambling
Act and could not have issued a warrant to carry out a search. In other
words, there was a specific requirement of an authorization under the
Gambling Act for carrying out a search and in the absence of such an
authorization, the search was itself held to be unlawful.
20 Criminal Appeal No 835 of 1974
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38. At this stage, it would be necessary to advert to some of the
decisions of this Court bearing on the issue. In Kartar Singh v. State of
Punjab,21 a Constitution Bench of this Court inter alia considered the
validity of Section 15 of the Terrorist and Disruptive Activities (Prevention)
Act 198722 on a challenge that it violated Article 14 of the Constitution.
While rejecting the challenge, the Court held :
“254. In view of the legal position vesting authority on higher police
officer to record the confession hitherto enjoyed by the judicial
officer in the normal procedure, we state that there should be no
breach of procedure and the accepted norms of recording the
confession which should reflect only the true and voluntary
statement and there should be no room for hyper criticism that
the authority has obtained an invented confession as a source of
proof irrespective of the truth and creditability (sic) as it could be
ironically put that when a Judge remarked, “Am I not to hear the
truth”, the prosecution giving a startling answer, “No, Your Lordship
is to hear only the evidence”.”
39. The Court upheld the statutory provision under challenge, noting
that the power to record confessions had been vested in a “higher police
officer” which had hitherto been enjoyed by a judicial officer. The court
held that there should be no breach of procedure or accepted norms
while recording the confession, which should reflect only true and
voluntary statements. The
Court proceeded to formulate guidelines to
ensure that a confession obtained in a pre-indictment interrogation by a
police officer not lower in rank than an SP was not tainted.23
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
21 (1994) 3 SCC 569
22 “TADA”
23 The guidelines which have been formulated in paragraph 263 of the judgment are as
follows:
“(1) The confession should be recorded in a free atmosphere in the same language in
which the person is examined and as narrated by him;
(2) The person from whom a confession has been recorded under Section 15(1) of the
Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial
Magistrate to whom the confession is required to be sent under Rule 15(5) along with
the original statement of confession, written or recorded on mechanical device without
unreasonable delay;
(3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should
scrupulously record the statement, if any, made by the accused so produced and get his
signature and in case of any complaint of torture, the person should be directed to be
produced for medical examination before a Medical Officer not lower in rank than of an
Assistant Civil Surgeon;
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40. In State of Rajasthan v. Ajit Singh,24 a two judge Bench of
this Court while considering the provisions of Section 15 of the TADA
adverted to the decision in Kartar Singh, observing:
“10. It will be seen that Section 15 is a clear departure from the
general law that a statement made to a police officer is not
permissible in evidence. In Kartar Singh case [(1994) 3 SCC
569 : 1994 SCC (Cri) 899] this Court while upholding the vires of
Section 15 repeatedly dwelt on the severity of this provision as
one laying down altogether a new procedure and emphasised that
the provisions of the Act and the Rules must be scrupulously
observed with particular reference to the provisions relating to
the recording of confessions.”
41. The decision of a two judge Bench in State of Maharashtra
v. Kamal Ahmed25 dealt with the validity of a confession which was
recorded under the MCOCA. The Court observed that since Section 18
of the MCOCA is an exception to the rule laid down in Sections 25 and
26 of the Evidence Act, it would have to be interpreted strictly “for the
limited purpose contemplated there under”. In Yakub Abdul Razak
Memon v. State of Maharashtra,26 a two judge Bench of this Court
held that compliance with the provisions of Section 15 and Rule 15 of
the TADA is required before a confession made to a police officer is
admissible in law. In Ranjit Singh v. State of Punjab,27 a two judge
(4) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973, no
police officer below the rank of an Assistant Commissioner of Police in the Metropolitan
cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent
rank, should investigate any offence punishable under this Act of 1987.
This is necessary in view of the drastic provisions of this Act. More so when the
Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic Prevention
Act, 1956 under Section 13, authorise only a police officer of a specified rank to
investigate the offences under those specified Acts.
(5) The police officer if he is seeking the custody of any person for pre-indictment or
pre-trial interrogation from the judicial custody, must file an affidavit sworn by him
explaining the reason not only for such custody but also for the delay, if any, in seeking
the police custody;
(6) In case, the person, taken for interrogation, on receipt of the statutory warning that
he is not bound to make a confession and that if he does so, the said statement may be
used against him as evidence, asserts his right to silence, the police officer must respect
his right of assertion without making any compulsion to give a statement of disclosure”
24 (2008) 1 SCC 601
25 (2013) 12 SCC 17
26 (2013) 13 SCC 1
27 (2002) 8 SCC 73
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Bench of this Court noted that an Addl. SP (PW4) recorded the
confessional statements of two of the accused on the oral directions of
the SP (PW3) who he admitted was above him in the administrative
hierarchy,. Half an hour had been granted to the accused, who had
emerged from police custody of 18-20 days, to reflect on whether they
should make their statements. This Court held half an hour was inadequate
to enable the accused to reflect. After noticing the admission of the
Addl. SP that the SP who had instructed him to record the confession
was above him in the administrative hierarchy, the court held :
“19. There is another aspect of recording of confessional
statements by PW 4. As already noticed, he was Additional SP.
In the administrative hierarchy he was lower in rank than PW 3
Shri Niwas Vashisht, SP. Learned counsel for the State has not
been able to show any rule, regulation or other provision to
establish the status of PW 4 — a police officer, an Additional
Superintendent of Police. Nothing was brought to our notice to
establish that he was a police officer not lower in rank than the
Superintendent of Police. It was, however, submitted by the learned
counsel that even if the two confessional statements recorded by
PW 4 are kept out of consideration still the conviction can be
upheld only on the basis of the confessional statements recorded
by PW 3. We have already expressed hereinbefore our views in
respect of the confessional statements
recorded by PW 3.”
42. The above finding, therefore, turned on a specific admission
by the Addl. SP that the SP was above him in the administrative hierarchy
and on the inability of the State to produce any rule, regulation or provision
to establish the status of the Addl. SP
43. Section 18(1) MCOCA stipulates that “a confession made by
a person before a police officer not below the rank of the Superintendent
of Police” shall be admissible subject to other statutory stipulations. The
expression “not below the rank of” is used in certain other provisions of
the MCOCA. Section 14(10) uses the expression “an Officer not below
the rank of Additional Director General of Police” while specifying who
is empowered to authorize an investigating police officer to intercept
wire, electronic or oral communications. Section 23 uses the expression
“police officer not below the rank of” or, as the case may be, “police
officer below the rank of” in three contexts: first, in relation to the
recording of information about the commission of an offence of organized
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crime; second, in relation to an investigation into an offence under the
provisions of the MCOCA; and third, taking of cognizance of an offence
under the MCOCA by a court. On the recording of information about
the commission of an offence of organized crime under the Act, Section
23(1)(a) requires the prior approval of a police officer not below the
rank of Deputy Inspector General of Police. Section 23(1)(b) prohibits
the investigation of an offence under the MCOCA by a police officer
below the rank of Deputy SP. Before the court takes cognizance of an
offence under the Act, Section 23(2) requires the previous sanction of a
police officer not below the rank of Additional Director General Of Police.
44. The submission of the appellants is that the legislature was
conscious of different ranks in the hierarchy of Maharashtra Police and
has consciously used the expression “Additional” in Section 14(1) while
referring to the Additional Director General of Polic). Similarly, it has
been urged that the legislature has consciously used the expression
“Deputy” while referring to the Deputy Inspector General of Police in
Section 23(1)(a) and the Deputy SP in Section 23(1)(b). By a process of
deduction, it has been urged that when in Section 18(1), the legislature
has used the expression “Superintendent of Police” it could well have
employed the words “or Additional Superintendent of Police” as it has
used the expression
“Additional” in the statutory provisions noted above.
Based on this reasoning, it has been urged that the absence of the
expression “Additional” in Section 18(1) should lead to the conclusion
that the legislature intended that only the SP should record a confession.
45. The submission which has been urged on behalf of the
appellants by drawing a comparison with certain other provisions of the
MCOCA, must on close reflection be treated with caution. Section 18(1),
like certain other provisions of the MCOCA which have been noted
earlier, uses the expression “rank”. The expression “rank” cannot be
conflated or equated with a designation or post. In P Ramanatha Aiyar’s
Law Lexicon (1997 edition), the expression rank has been defined in the
following terms:
“Rank-Precedence. The word ‘rank’ in common parlance, as also
in English diction refers to a position, especially an official one
within a social organization, of high social order or other standing
status. Likewise, the word ‘precedence’ denotes the ceremonial
order or priority to be observed on formal occasions, or a right to
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preferential treatment. S.C. Advocates on Record Association v.
Union of India, AIR 1994 SC 268, 445.”
46. Black’s Law Dictionary (fifth edition) similarly defines the
expression “rank” as:
“Rank, n. Position in society. Grade of quality or value. Grade of
official standing. The order or place in which certain officers are
placed in the army and navy, in relation to others. Rank is often
used to express something different from office. It then becomes
a designation or title of honor, dignity, or distinction conferred upon
an officer in order to fix his relative position in reference to other
officers in matters of privilege, precedence, and sometimes of
command, or by which to determine his pay and emoluments.
This is the case with the staff officers of the army. Wood v. U.S.,
15 Ct.Cl. 151, 159.” 
47. In Supreme Court Advocates-on-Record Association v.
Union of India,28 a nine-judge Bench of this Court observed that the
word “rank” was intimately associated with primacy:
“494. … In the same strain the word “primacy” denotes the state
of being first in rank or being in formal state i.e. the most important
state. Thus it would be seen that not only is the word “primacy”
inextricably linked up with the words “rank” and “precedence”
but conceptually they all are of the same family and breed, block
and substance.”
48. The legislature has not used the expression “designation” or
“post” in Section 18 but, on the other hand, has used the expression
“rank”. The
true question is whether the rank of the SP comprehends
within it an Addl. SP. If an Addl. SP is of a rank inferior to that of an SP
then clearly the holder of the rank of an Addl. SP would not be competent
to record a confession under Section 18(1). Contrariwise, if an Addl. SP
belongs to the same rank as an SP there would be no statutory bar on an
Addl. SP recording a confession. Whether an Addl. SP fulfils the
description of a police officer “not below the rank of the Superintendent
of Police” cannot be deduced on a superficial consideration of other
provisions of the MCOCA but the answer to the question must be deduced
independently.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
MAHARASHTRA [DR DHANANJAYA Y. CHANDRACHUD, J.]
28 (1993) 4 SCC 441
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49. Section 2 of the All India Services Act 1951 defines the
expression “an all India Service” to mean “the service known as the
Indian Administrative Service or the service known as the Indian Police
Service or any other service specified in Section 2A”. Section 3(1)
empowers the Central Government, after consulting the governments of
the states concerned, to make rules for regulating the recruitment and
the conditions of service of persons appointed to an all India Service. In
exercise of the powers conferred by Section 3(1), the Union Government
has framed the Indian Police Service (Cadre) Rules 1954. Rule 2(a)
defines the expression ‘cadre officer’ as “a member of the Indian Police
Service”. Rule 2(b) defines ‘cadre post’ to mean any of the posts specified
under item 1 of each cadre in the schedule to the Indian Police Service
(Fixation of Cadre Strength) Rules 1955. Rule 1(2) stipulates that the
posts which are borne on and the strength and composition of the cadre
of the Indian Police Service of the various states shall be as specified in
the schedule to the regulations. The schedule contains entries pertaining
to the states, among them, the State of Maharashtra. The entry relating
to Maharashtra is extracted below.

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ZAKIR ABDUL MIRAJKAR v. THE STATE OF
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50. The schedule indicates that the cadre strength is distributed
between various posts including:
a. Director General of Police;
b. Additional Director General of Police;
c. Commissioner of Police;
d. Special Inspector General of Police;
e. Joint Commissioner of Police;
f.
Additional Commissioner of Police;
g. Deputy Inspector General of Police;
h. Superintendent of Police;
i.
Commandant, State Reserve Police Force; and
j.
Deputy Commissioner of Police.
51. On 16 October 2018, the Central Government, in exercise of
the powers conferred by Section 3(1) of the All India Services Act 1951
read with sub-rules 1 and 2 of Rule 4 of the IPS (Cadre) Rules 1954,
notified the Indian Police Service (Fixation of Cadre Strength) Second
Amendment Regulations 2018. The schedule to the Indian Police Service

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ZAKIR ABDUL MIRAJKAR v. THE STATE OF
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52. We have adverted to the All India Services Act 1951 and the
Indian Police Service (Cadre) Rules 1954 and the All India Services Act
1951. Apart from the cadre strength as constituted on the basis of the
above provisions, it becomes necessary to advert to the rules which
have been framed by the State government on 25 August 1975 in
pursuance of the provisions of Article 309 of the Constitution for
recruitment to the non-cadre posts of SP and Deputy Commissioner of
Police. These rules which govern the non-cadre posts are called the
Superintendent of Police and Deputy Commissioner of Police (Non-
Cadre) Recruitment Rules 1976.29 Rule 2 provides as follows:
“2. Unless the post is filled by appointment of an I.P.S. Officer
appointment to the non-cadre post of Superintendent of Police
(including Deputy Commissioner of Police) may be made by
promotion of a suitable officer from the State Police Service, who
has to his credit six years of continuous service as a Deputy
Superintendent of Police or Assistant Commissioner of Police or
in a post which in the opinion of the State Government is of an
equivalent rank.”
53. These rules were amended on 9 June 1987. Rule 2 of the
1976 Rules was amended so as to substitute the requirement of seven
years of continuous service for six years of continuous service. These
rules which have been framed under Article 309 of the Constitution
indicate that besides the cadre strength of SPs
drawn from the IPS,
there are non-cadre SPs and DCPs who are appointed in accordance
with the 1975 Rules.
54. The Counter Affidavit which has been filed by the State
indicates that fifteen confessional statements have been recorded in the
present batch of cases. The details of the confessions are set out below:
a.
Confessional Statement dated 13 April 2019 of Mr. Shridhar
Shijavi Kamble (Accused No. 17), recorded by the Addl.
SP, Satara;
b.
Confessional Statement dated 13 April 2019 of Mr Mushfiq
Nibikhan Pathan (Accused no. 20), recorded by the Addl.
SP, Satara;
29 “1976 Rules”
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c.
Confessional Statement dated 13 April 2019 of Mr Sahil
Niyaj Mujawar (Accused no. 15), recorded by the Addl.
SP, Satara;
d.
Confessional Statement dated 14 April 2019 of Mr. Ajay
Balaso Kamble (Accused no. 13), recorded by the Addl.
SP, Sangli;
e.
Confessional Statement dated 9 May 2019 of Mr Zakir
Abdul Miajkar (Accused no. 31) (Petitioner) recorded by
the Addl. SP, Sangli;
f.
Confessional Statement dated 13 May 2019 of Mr Rakesh
Madanlal Agrawal (Accused no. 30) recorded by the Addl.
SP, Baramati, Dist. Pune (Rural);
g.
Confessional Statement dated 13 May 2019 of Mr Ankush
Maruti Vagre (Accused no. 32), recorded by the Addl. SP,
Baramati Dist. Pune (Rural);
h.
Confessional Statement dated 6 June 2019 of Mr Suresh
Jaywant Sawant (Accused no. 34) recorded by the Addl.
SP, Sangli;
i.
Confessional Statement dated 16 June 2019 of Mr Shailesh
Gunvantrao Maniyar (Accused no. 37) recorded by the
Addl. SP, Baramati, Dist. Pune (Rural);
j.
Confessional Statement dated 18 June 2019 of Mr Jayesh
Shevantilal Shah (Accused no. 36) recorded by the Addl.
SP, Baramati Dist. Pune (Rural);
k.
Confessional Statement dated 24 June 2019 of Mr Viral
Prakash Savla (Accused no. 38) recorded by the Addl. SP,
Baramati Dist. Pune (Rural);
l.
Confessional Statement dated 27 June 2019 of Mr Jitendra
@ Jitu Kantilal Gosaliya (Accused no. 39) recorded by the
SP, Satara;
m.
Confessional Statement dated 25 July 2019 of Mr Jayesh
Hirji Savla (Accused no. 40) recorded by the Addl. SP,
Pune
(Rural);
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
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n.
Confessional Statement dated 12 August 2019 of Mr
Rajendra @ Raju Dharamse Dave @ Topi (Accused no.
41) recorded by the Addl. SP, Satara; and
o.
Confessional Statement dated 23 September 2019 of Mr
Manish Kishor Agarwal (Accused no. 42) recorded by the
Addl. SP, Baramati Pune (Rural).
55. Thus fourteen of the fifteen confessions have been recorded
by Addl. SPs. The fifteenth (at serial ‘l’ above) has been recorded by
the SP, Satara. The State Government has stated in its Counter Affidavit
that “ranks” and “posts” have distinct connotations. Moreover, it has
been stated that an Addl. SP is of the rank of an SP and is vested with all
the powers, duties and functions of an SP. The state government seeks
to contrast the provisions of Section 8(2) with Section 8(3) of the
Maharashtra Police Act. Under section 8(2) the State Government may
by general order empower Addl. SPs to exercise or perform the powers,
duties and functions of SPs. On the other hand, sub-section 3 of Section
8 provides that the District SP may, with the previous permission of the
State Government, delegate any of the powers and functions conferred
upon him to the Assistant or Deputy SP. The State Government argues
that while section 8(3) provides for the delegation of the powers of an
SP to an Assistant or Deputy SP, it does not envisage a delegation of the
powers of the SP to an Addl SP because the Addl SP is of the same rank
and hence, no question
of the delegation of powers arises.
56. We have already noted earlier that Section 18(1) MCOCA
does not contemplate any specific authorisation of a police officer not
below the rank of SP for the purpose of recording confessions. The
stand of the State Government with reference to the provisions of clause
25(2) of the Police Manual and Section 8 of the Maharashtra Police Act
would therefore have to be read subject to the analysis in the earlier part
of this judgment.
57. The State Government has explained in its Counter Affidavit
that an officer having the same rank can be posted at various positions/
posts in different parts of the police organisation. The rank of SP has a
grade pay of Rs. 6,600/- and includes Addl. SP, DCP, Commandants and
Principals. If an officer having the rank of SP is posted in:
a. a Commissionerate area, then he/she is posted as a DCP;
b. a District area, then he/she is posted as an SP or Addl. SP;
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c. Crime Investigation Department (CID) or Anti-Terrorist Squad
(ATS), then he/she is posted as SP.
A DCP is competent to record confessions under the MCOCA. lf
an SP or Addl. SP is transferred to the area of a Commissionerate, he /
she is posted as a DCP and is competent to record the confession under
the MCOCA.
58. The above explanation by the State Government on affidavit
has been duly supported during the course of the hearing on the basis of
orders of promotion or posting which have been produced on record.
The rules of 1975 provide for the creation of Addl. SP non-cadre posts
of Addl SP and DCP. An ACP in a Commissionerate or a Deputy SP in
a district or a Sub-Divisional Police Officer with the stipulated period of
continuous service can be posted on promotion as a DCP (in a
Commissionerate) or, as the case may be, as an Addl. SP or Commandant
in the State Reserve Police Force. An Addl. SP, DCP and Commandant
are in the same rank as an SP and these posts are interchangeable on
transfer.
59. During the course of his submissions, Mr Raja Thakare, learned
senior counsel has adverted to a notification dated 1 October 2016 issued
by the Home Ministry of the Government of Maharashtra notifying the
promotion list for 2015-2016. Learned senior counsel has pointed out
that, for instance, Serial No. 11 (Vivek Gopalrao Patil) who was a Sub-
Divisional Police Officer was
promoted as DCP in the State Intelligence
Department. Mr Thakare has also relied upon a notification dated 27
July 2018 by the Home Ministry, Government of Maharashtra notifying
the transfer and posting of police officers. Serial Nos. 86 (Samadhan N
Pawar) and 87 (Sandip Jadhav) were persons who were posted as DCPs
and were transferred to the post of Addl. SPs. A DCP when posted in
the Commissionerate may record a confession since the incumbent is in
the same rank as an SP. On transfer, a DCP can be posted as an Addl.
SP and continues to be in the same rank as an SP. There is therefore no
basis to conclude that an Addl. SP does not fulfil the description specified
in Section 18(1) MCOCA as being “a police officer not below the rank
of the Superintendent of Police”.
60. The appellants have produced during the course of the hearing
the structure of the Mumbai police from the website of the Maharashtra
Police. For convenience of reference, it is extracted below:
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61. Mr Amit Desai, learned Senior Counsel has relied upon the
above depiction. The structure as set out on the website has no bearing
on the power, functions, or authority which is exercised by non-cadre
officers of the rank of DCP (within a Commissionerate) or, as the case
may be, by Addl. SPs (in a district posting). The above structure indicates
that a DCP may be in the rank of SP (selection grade), SP (junior
management grade), Addl. SP (less than ten years’ service) or Addl. SP
(state police service). This internal classification, however, does not disturb
the basic position that all these ranks are subsumed within the designation
of DCP. A DCP, when posted in a Commissionerate, is of the same rank
as an SP and can therefore record a confession under Section 18(1). A
DCP is interchangeable upon transfer with an Addl. SP or SP. The
authority which attaches to the post of a DCP to record a confession
under Section 18(1) is not diluted when the posting is in a district either
as an Addl. SP or, as the case may be, as an SP. Accepting the submission
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of the appellants will lead to an obvious incongruity. A DCP, while being
posted in a Commissionerate, can record a confession under Section
18(1) of the MCOCA (a point which is not disputed during the course of
submissions by the appellants). Yet, if the submission of the appellants
were to be accepted, a DCP who is on transfer posted as an Addl SP in
a district would be disentitled to record a confession under section 18(1).
Hence, there is an obvious fallacy in the submissions of the appellants.
62. This Court’s observations in Nyadar Singh v. Union of India30
(albeit in the context of Article 311 of the Constitution) are useful to
understand the meaning of the expression “rank”:
“13. … In Article 311(2) the penalty of “reduction in rank” is
classed along with “dismissal” and “removal” for the reason that
the penalty of reduction in rank has the effect of removing a
government servant from a class or grade or category of post
to a lesser class or grade or category. Though the government
servant is retained in service, however, as a result of the penalty
he is removed from the post held by him either temporarily or
permanently and retained in service in a lesser post. The expression
“rank”, in “reduction in rank” has for purposes of Article 311(2)
an obvious reference to the stratification of the posts or grades or
categories in the official hierarchy. It does not refer
to the mere
seniority of the government servant in the same class or grade or
category.”
(emphasis supplied)
63. It is our view that the expression “rank” must be understood
as a class or category which encompasses multiple posts. The posts of
SP, Addl. SP, and DCP all fall within the same rank as they exercise
similar functions and powers and operate within similar spheres of
authority. Every person within a particular rank will not be of the same
seniority. Officers of the same rank may have been in service for a
different number of years. At times, this may even bear on the post to
which they are appointed but their rank remains undisturbed. A difference
in the seniority of a particular officer is not the same as a difference in
their ranks. The insignia on officers’ uniforms denote, in this case, their
seniority as well as their designations.
30 (1988) 4 SCC 170
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64. Mr Amit Desai has sought to rely on the Model Police Code
2006. The provisions of a model code cannot be deployed to bear upon
the true interpretation of the statutory provision enacted in Section 18(1).
65. The appellants have relied on the decision of this court in
State Inspector of Police Vishakhapatnam v. Surya Sankaram
Karri31 to urge that an Addl. SP is not authorized to record confessions
under the MCOCA. The decision in Surya Sankaram Karri (supra)
related to an offence punishable under the Prevention of Corruption Act
1988.32 The second proviso to Section 17 of the PC Act provides that an
offence under Section 13(1)(e) shall not be investigated without the order
of a police officer not below the rank of an SP. In other words, a police
officer of the rank of SP must authorize any investigation into an offence
alleged to have been committed under Section 13(1)(e). The Investigating
Officer in that case was unable to produce any record which established
that he had been duly authorized by the SP to conduct the investigation.
Therefore, this Court found that the statutory requirements under the
PC Act had not been met.
66. The judgment in Surya Sankaram Karri (supra) is of no
assistance to the appellants as the court did not have occasion to discuss
the distinction between rank and designation or to explore the conditions
under which officers could be said to be of equivalent ranks. The question
for
consideration in that case was not whether an officer who had
authorized the investigation could be said to be of the same rank as an
SP, but whether any authorization existed at all. In the present case, no
question of authorization arises as the MCOCA itself empowers any
officer not below the rank of SP to record a confession. The SP (or an
officer of equivalent rank) is not required to obtain authorization from an
officer senior to her or from the government, prior to recording
confessions.
67. The appellants also rely on State of Madhya Pradesh v.
Chunni Lal33 to urge that confessions recorded by an Addl. SP are
inadmissible in evidence because an Addl. SP is not of the same rank as
an SP. In Chunni Lal (supra), the respondent was accused of committing
an offence under the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act 1989.34 Section 9 of the SC/ST Act read with Rule
31 (2006) 7 SCC 172
32 “PC Act”
33 (2009) 12 SCC 649
34 “SC/ST Act”
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7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Rules 199535 stipulates that an investigation into an offence
under the Act shall be conducted by an officer “not below the rank of a
Deputy Superintendent of Police”. The investigation in Chunni Lal
(supra) was conducted by a Sub-Inspector and was, therefore, found to
be illegal and invalid. This Court held that an officer below the rank of
Deputy SP could not act as an investigating officer with respect to
offences under the Act due to the statutory requirement in Section 9 and
Rule 7(1). It was not in dispute that a Sub-Inspector was lower in rank
to the Deputy SP. The competent authority had mistakenly appointed an
officer who could not be empowered to conduct an investigation into
offences under the Act. Similarly, the decision in State of Madhya
Pradesh v. Babbu Rathore36 pertains to a case where a Sub-Inspector
conducted the investigation into an offence under the SC/ST Act. The
investigation there was also found to be invalid and illegal for similar
reasons as in Chunni Lal (supra). These cases did not necessitate a
discussion on when an officer could be said to be of the same rank as
the Deputy SP. It is for this reason that the decisions in Chunni Lal
(supra) and Babbu Rathore (supra) cannot be relied upon to support
the submission of the appellants that an Addl. SP is not of the same
rank
as an SP.
68. In State of Punjab v. Hardial Singh,37 the SP(D) authorized
a Deputy SP to conduct an investigation into offences under the SC/ST
Act. However, Rule 7(1) of the SC/ST Rules stipulates that the
Investigating Officer is to be appointed by the State Government or the
Director General of Police or the SP. The High Court of Punjab and
Haryana ruled that an SP(D) was not competent to appoint a Deputy SP
to conduct an investigation as an SP(D) was not in charge of her district.
The power to do so lay only with the three authorities specified in the
SC/ST Rules i.e., the State Government, the Director General of Police,
and the SP. It is important to note the language used in the SC/ST Rules
and in MCOCA respectively. Rule 7(1) of the SC/ST Rules states:
“An offence committed under the Act shall be investigated by a
police officer not below the rank of a Deputy Superintendent of
Police. The investigating officer shall be appointed by the State
35 “SC/ST Rules”
36 (2020) 2 SCC 577
37 (2009) 15 SCC 106
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Government /Director General of Police/Superintendent of
Police after taking into account his past experience, sense of ability
and justice to perceive the implications of the case and investigate
it along with right lines within the shortest possible time.”
(emphasis supplied)
In contradistinction, Section 18(1) of MCOCA states:
Notwithstanding anything in the Code or in the Indian Evidence
Act, 1872, but subject to the provisions of this section, a confession
made by a person before a police officer not below the rank
of the Superintendent of Police and recorded by such police
officer either in writing or on any mechanical devices like cassettes,
tapes or sound tracks from which sounds or images can be
reproduced, shall be admissible in the trial of such person or co-
accused, abettor or conspirator :
Provided that, the co-accused, abettor or conspirator is charged
and tried in the same case together with the accused
(emphasis supplied)
69. Rule 7(1) of the SC/ST Rules indicates that other than the
State Government, only those persons designated as the Director General
of Police or as the SP may appoint an investigating officer. Unlike Section
18(1) MCOCA, Rule 7(1) does not provide for officers of a rank
equivalent to the Director General of Police or to the SP to appoint
investigating officers. In contrast, Section 18(1) MCOCA clearly vests
those officers who are of the same rank as the SP with the power to
record
confessions, in addition to vesting that power with the SP. This is
clearly evident from the use of the expression “not below the rank of
Superintendent of Police”. The SC/ST Rules are concerned with the
designation of the competent authority while MCOCA is concerned with
the rank of the relevant officer. Hence, the appellants cannot rely on
Hardial Singh (supra) to argue that an Addl. SP is not the same rank as
an SP.
iii. Conditions for invocation of the MCOCA
70. It is the appellants’ case that the provisions of the MCOCA
have not been validly invoked. Their arguments (which have been noted
in the segment on submissions) are addressed below.
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a. The approval order under Section 23(1)(a) MCOCA is with
respect to the offence and not with respect to the offender.
71. The appellants rely on State of Maharashtra v. Lalit
Somdatta Nagpal38 to argue that the order of approval dated 10 April
2019 is vitiated by non-application of mind. This Court observed that the
approval order under Section 23(1)(a) in that case did not mention the
name of one of the accused persons. This omission was partly the reason
for its decision to set aside the proceedings under the MCOCA with
respect to said accused. However, this was not the only factor which
had a bearing on the Court’s decision. The Court was also persuaded to
set aside the proceedings because the authorities had arraigned the
concerned accused on charges under MCOCA in respect of violations
of sales tax and excise laws. The Court found that violations of sales tax
and excise laws were not intended to attract MCOCA and that some
degree of coercion or violence was required to charge an accused under
the provisions of the MCOCA.
72. The order of approval under Section 23(1)(a) MCOCA need
not name every accused person at the outset. Often, limited information
is available to the investigating authorities at the time of recording
information about the commission of an offence. The involvement of
persons other than those named initially may come to light during the
course of
investigation by the police. In fact, the very purpose of an
investigation is to determine whether a crime has been committed and if
so, to shed light on the details of the crime including the identity of the
perpetrators. This is true of every crime but especially true in the case
of organized crime, where an organized crime syndicate may consist of
scores of persons involved in unlawful activities in different capacities.
Section 23(1)(a) MCOCA speaks of recording information about the
commission of an offence of organized crime, and not of recording
information about the offender. The competent authority may record
information under Section 23(1)(a) once it is satisfied that an organized
crime has been committed by an organized crime syndicate.
73. In Vinod G. Asrani v. State of Maharashtra,39 this Court
noticed the similarities of the scheme of MCOCA and of the CrPC in
that persons could be charged with committing offences, following the
completion of investigation:
38 (2007) 4 SCC 171
39 (2007) 3 SCC 633
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“9. … The scheme of the Code of Criminal Procedure makes it
clear that once the information of the commission of an offence is
received under Section 154 of the Code of Criminal Procedure,
the investigating authorities take up the investigation and file
charge-sheet against whoever is found during the investigation to
have been involved in the commission of such offence. There is
no hard-and-fast rule that the first information report must always
contain the names of all persons who were involved in the
commission of an offence. Very often the names of the culprits
are not even mentioned in the FIR and they surface only at the
stage of the investigation. The scheme under Section 23
of MCOCA is similar and Section 23(1)(a) provides a safeguard
that no investigation into an offence under MCOCA should be
commenced without the approval of the authorities concerned.
Once such approval is obtained, an investigation is commenced.
Those who are subsequently found to be involved in the commission
of the organised crime can very well be proceeded against once
sanction is obtained against them under Section 23(2) of MCOCA.
10. As to whether any offence has at all been made out against
the petitioner for prosecution under MCOCA, the High Court has
rightly pointed out that the accused will have sufficient opportunity
to contest the same before the Special Court.”
74. In Kavitha Lankesh v. State of Karnataka,40 a three-judge
bench
of this Court held that prior approval under the Karnataka Control
of Organized Crime Act 2000 was concerned with the offence and not
with the offender:
“27. At the stage of granting prior approval under Section 24(1)(a)
of the 2000 Act, therefore, the competent authority is not required
to wade through the material placed by the Investigating Agency
before him along with the proposal for grant of prior approval to
ascertain the specific role of each accused. The competent
authority has to focus essentially on the factum whether the
information/material reveals the commission of a crime which is
an organized crime committed by the organized crime syndicate.
In that, the prior approval is qua offence and not the offender as
such.”
40 2021 SCC OnLine SC 956
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Section 24(1)(a) of the Karnataka Control of Organized Crime
Act 2000 is pari materia to Section 23(1)(a) MCOCA. Whether
the appellants were named in the approval order under Section
23(1)(a) is immaterial while determining its validity.
75. In Kavitha Lankesh (supra), the Court also held:
“27. … As long as the incidents referred to in earlier crimes
are committed by a group of persons and one common individual
was involved in all the incidents, the offence under the 2000
Act can be invoked.”
b. The appellants may be charged with some offences
punishable under MCOCA in relation to the charge of
illegal gambling.
76. The appellants argued that gambling is punishable with a
maximum sentence of 2 years and does not, therefore, fall within the
scope of MCOCA (which requires the commission of a crime punishable
with imprisonment of 3 years or more). However, not all the offences
punishable under MCOCA have this requirement. The appellants have
been charged under the following provisions of MCOCA:
a. Section 3(1) i.e., the offence of committing organized crime
requires the accused to have committed a cognizable offence
which is punishable with imprisonment of three years or more.
b. One part of Section 3(2) also contains a similar requirement
to Section 3(1), namely persons can be accused of conspiring,
attempting to commit, advocating, or knowingly facilitating the
commission of an organised crime or any act preparatory to
organised crime, only if the offence
in question is a cognizable
one, which is punishable with imprisonment of at least three
years. However, those accused of abetting the commission of
organized crime need not themselves be charged with
committing a cognizable offence punishable with imprisonment
of at least three years. They need only be abetting those who
are guilty of committing a cognizable offence punishable with
imprisonment of at least three years, which offence amounts
to an organized crime. The definition of “abet” in Section
2(1)(a) would be applicable in such cases.
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
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c.
Section 3(4) provides that any person who is a member of an
organized crime syndicate is liable to be penalized. The
definition of an organized crime syndicate in Section 2(1)(f)
indicates that it is necessary to indulge in organized crime to
be considered a member. Section 2(1)(e) indicates that persons
are said to commit organized crime when they are involved in
continuing unlawful activity. Continuing unlawful activity, in
turn, means a prohibited activity which is a cognizable offence
punishable with imprisonment of at least three years.
d.
Section 3(5) stipulates that those who hold any property derived
or obtained from commission of an organised crime or which
has been acquired through the organised crime syndicate funds
are liable to be punished. Once again, the definition of an
organized crime requires the commission of a cognizable
offence punishable with imprisonment of three years of more.
Hence, Section 3(5) MCOCA may be invoked only with
respect to offences which are punishable with imprisonment
of three years of more.
77. From the analysis above, the appellants’ submission that the
allegation of engaging in illegal gambling would not sustain the invocation
of the penal provisions of Section 3(2) MCOCA is simplistic. Although
gambling may not, by itself, constitute an organized crime, it may be the
route through which the accused are abetting the commission of organized
crime. The question of whether
the appellants are in fact abetting
organized crime in this manner, is to be determined at the stage of trial.
Similarly, the question of whether offences under the IPC would attract
MCOCA in the present case is to be determined at the stage of trial and
depends on the facts and circumstances of each case. The observation
in Lalit Somdatta Nagpal (supra) that some degree of coercion or
violence is required to charge an accused under provisions of MCOCA
must be read together with Section 2(1)(e) which recognizes that “other
unlawful means” may be used while committing organized crime, in
addition to coercion and violence.
c. More than one charge-sheet is not required to be filed with
respect to each accused person.
The appellants have argued that in the preceding ten years, more
than one charge-sheet has not been filed in respect of each of them.
This submission does not hold water. It is settled law that more than one
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charge sheet is required to be filed in respect of the organized crime
syndicate and not in respect of each person who is alleged to be a member
of such a syndicate.
78. In Govind Sakharam Ubhe v. State of Maharashtra,41 a
two-judge Bench of the Bombay High Court, speaking through Justice
Ranjana Desai (as the learned judge then was) held that:
“37. … Section 2(1)(d) which defines ‘continuing unlawful activity’
sets down a period of 10 years within which more than one charge-
sheet have to be filed … It is the membership of organized crime
syndicate which makes a person liable under the MCOCA. This
is evident from section 3(4) of the MCOCA which states that any
person who is a member of an organized crime syndicate shall be
punished with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life and
shall also be liable to fine, subject to a minimum of fine of Rs. 5
lakhs. The charge under the MCOCA ropes in a person who as a
member of the organized crime syndicate commits organized crime
i.e. acts of extortion by giving threats, etc. to gain economic
advantage or supremacy, as a member of the crime syndicate
singly or jointly. Charge is in respect of unlawful activities of the
organized crime syndicate. Therefore, if within a period of
preceding ten years, one charge-sheet has been filed in respect
of organized crime committed by the members of a particular
crime syndicate, the said charge-sheet can be
taken against a
member of the said crime syndicate for the purpose of application
of the MCOCA against him even if he is involved in one case.
The organized crime committed by him will be a part of the
continuing unlawful activity of the organized crime syndicate. What
is important is the nexus or the link of the person with organized
crime syndicate. The link with the ‘organized crime syndicate’ is
the crux of the term ‘continuing unlawful activity’. If this link is
not established, that person cannot be roped in.”
79. Other courts, too, have held that persons who are alleged to
be members of an organized crime syndicate need not have more than
one charge-sheet filed against them in an individual capacity. Rather,
charge-sheets with respect to the organized crime syndicate are sufficient
to fulfil the condition in Section 2(1)(d).
41 2009 SCC OnLine Bom 770
ZAKIR ABDUL MIRAJKAR v. THE STATE OF
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80. For the above reasons, we find no merit in the appeals. The
appeals shall stand dismissed. However, it is clarified that: (i) the
appellants are at liberty to approach the High Court for release on bail;
and (ii) the evidentiary value of confessions alleged to have been made
by the appellants shall be considered by the trial court and the mere
validation of their being recorded by an officer in the rank of
Superintendent of Police shall not be construed as the approval of the
contents or voluntary nature of the alleged confessions by this Court.
81. Pending application(s), if any, stand disposed of.
Ankit Gyan
Appeals dismissed.
(Assisted by : Aarsh Choudhary, LCRA)