Ranjitsing Brahmajeetsing ... vs The State Of Maharashtra
2004 Latest Caselaw 190 Bom

JUDGMENT

V.G. Palshikar, J.

1. These three petitions raise identical questions of law and therefore by consent of parties, are heard together and will be decided together by this common order.

2. Criminal Writ Petition No. 3 of 2004 has been filed by Shri Ranjitsing Sharma who retired as Commissioner of Police, Bombay. He has challenged by this petition the investigation and the FIR by which an offence under Section 3(2) and 3(5) of the MCOCA is registered against him by the police.

3. Criminal Writ Petition No. 38 of 2004 is filed by Shri Anil Gote, a sitting M. L. A. of the Maharashtra Legislature, challenging the investigation and the FIR by which provisions of MCOCA were applied to him. He has therefore challenged the entire proceedings including the FIR and has contended like Shri Ranjeet Sharma that the application of these sections is improper, illegal and therefore void.

4. The third petition being Cri W. P. No. 170 of 2004 is filed by Shri P. B. Sawant who is prosecuted along with two others in what is known as Fake Stamp scam. He also is facing an FIR challenging application of MCOCA. He has also therefore challenged the entire proceedings.

5. A reply to the petition of petitioner Shri Sharma has been filed by the State and since the questions of law only were to be agitated, the counsel for the petitioner Shri P. B. Sawant and Shri Anil Gote agreed to proceed with the matter without a detailed reply to their cases, as according to them the contentions raised are pure questions of law. During the pendency of these petitions on 3rd February, 2004, the investigation team filed charge sheets against several accused named in it including the three petitioners in the above petitions and affidavit discloses filing of charge sheets in all the cases. The learned Advocate General appearing on behalf of the investigation authority submitted that in view of the filing of the charge sheets, the petition is rendered infructuous, as according to the learned advocate general all the contentions, both on fact and law raised by all the petitioners can be squarely considered by the designated court under MCOCA and there is therefore alternate remedy available to the petitioner. He therefore claimed that the petitions are liable to be dismissed on this ground.

6. It would therefore be necessary for us to decide this preliminary objection and then consider the submissions made on merits of the case.

7. The petitioner in Cri. W. P. 3 of 2004, on 5-2-2004, has filed an application for amendment of his petition, so as to include the challenge to the charge sheet filed on 3-2-2004 as also prayed to quash the same. On the grounds already mentioned above, this application was also opposed by the learned Advocate General. However, we see no reason to deny the amendment. It is granted and the petition is considered as amended. The objections are taken to the maintainability of the petition as amended because the challenges and the contesting contentions remain the same.

8. It is pertinent to note that though all these petitions raise questions of law pertaining to the validity of the nomination of Mr. Puri as head of the investigation team, but all the learned advocates appearing on behalf of all the petitioners specifically stated before us that they do not press those questions and the petitions are restricted to the question of application of provisions of MCOCA to the petitioners only. They also do not desire to challenge application of other sections under the Indian Penal Code. According to them the basic contention, they are raising is, even if it is assumed that they have possibly committed certain crime and those crimes would be only punishable under the IPC and application of the provisions of MCOCA is mala fide and deliberate to deny them their fundamental right of liberty.

9. Shri V. R. Manohar the learned counsel appearing on behalf of the petitioner Shri Sharma led the argument on behalf of all petitioners and the contentions raised by Shri Manohar stated briefly are as under :

(i) The petitions as filed by the petitioners are maintainable and this Court should in the circumstances, exercise its extra ordinary jurisdiction under Article 226 of the Constitution to quash the proceedings. Reliance was placed on several judgments of the Supreme Court of India. The contention being that if the averments as disclosed by the FIR are accepted as true and without any addition or substraction thereto, if no offence under MCOCA is disclosed, according to the dicta of the Supreme Court of India, such FIR is liable to be quashed.

(ii) Even if all the allegations made in the FIR are accepted, they do not disclose any offence punishable under MCOCA. Applications of those provisions is mala fide and made for the purpose of depriving the petitioners of their fundamental rights to their liberty and life. Hence FIRs are liable to be quashed for this reason also.

10. Shri Nitin Pradhan the learned counsel appearing for Shri B. Gote while agreeing with the submission made by Shri V. R. Manohar, contended that in his case certain other questions arise. According to him the question is whether a member of the Legislative Assembly is a public servant or not, is a important question which would give rise to several other questions and therefore the entire allegations are liable to be examined in writ jurisdiction.

11. As observed earlier, the learned Advocate General desired that the petitions should be dismissed as the petitioners can effectively raise all these contentions before the Designated Court at the time when the charge is being framed by an independent application for that purpose. The existence of such efficacious alternate remedy are therefore barring consideration of these contentions in a writ jurisdiction of this Court. He has also relied on several judgments of the Supreme Court of India and contended that it is now a settled law by the Supreme Court of India that the High Court should not exercise its jurisdiction under Article 226 of the Constitution to interfere with criminal proceedings and quash the FIR or the proceedings except in exceptional and rare cases. He therefore prayed that the petitions be dismissed.

12. We would therefore have to consider the aforesaid submissions in the perspective in which they are made. It would be proper to first note the scope and extend of jurisdiction of this Court to interfere in the matter of quashing of FIR or the entire proceeding as determined by the Supreme Court of India. We would like to note here with little emphasis the several judgments of the Supreme Court of India on this aspect of the matter. The learned advocates for both the sides agree that there is unanimity of opinion of the Supreme Court of India in this regard, and contended that what is led down by the Supreme Court of India is what the prosecution is submitting or what is being laid down by the Supreme Court of India is what the petitioners are submitting. We would therefore examine, if necessary in extenso the observations made by the Supreme Court of India and our understanding of those observations. The endeavour is to reach to a proper conclusion. In so doing, we would be writing our opinion or our understanding of what is the dicta of the Supreme Court of India in a particular case and we would like it to be noted that it is our understanding of the dicta of the Supreme Court of India, which we are stating and we do not wish to explain the ratios flowing from these precedents. In any manner, we fully aware of the binding nature of and the provisions of Article 141 of the Constitution of India.

13. Reliance was placed by both the parties on a decision of the Supreme Court of India State of Maharashtra v. Abdul Hamid Haji Mohd. Where the Supreme Court of India has observed that the High Court in its writ Jurisdiction under Article 226 can interfere only in extreme cases where charges levelled do not constitute any offence under TADA. It cannot, according to the Supreme Court of India, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, quash the proceeding where applicability of the Act is a debatable issue. This matter was taken to the Supreme Court of India, challenging the order passed by this Court, holding that the provision of TADA are not attracted to the case, then popularly known as Bomb Blast case, and consequently directed to the release of the petitioner therein on bail on terms mentioned in the judgment. In that case noted above the Supreme Court took up for consideration as the first question raised in that case and the question was whether the High Court was empowered in that case to invoke its jurisdiction under Article 226 of the Constitution : (Para 7) "The first question is : whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the correctness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act? Shri Jethmalani contended, placing reliance on the decisions in R. P. Kapur v. State of Punjab and State of Haryana v. Bhajan Lal , that in the facts of this case, the High Court had such a jurisdiction since there is no accusation against the respondent in the charge sheet filed in the Designated Court, which, if believed, must result in his conviction for an offence punishable under TADA Act. We are not impressed by this argument of Shri Jethmalani. It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act, is such that ex facie it cannot constitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under TADA Act. The moment there is a debatable area in the case, it is not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely, raising the objection before the Designated Court, and, if necessary, challenging the order of the Designated Court by appeal in the Supreme court as provided in Section 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order, not being an interlocutory order of a Designated Court, there is no occasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. We have no doubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material containing the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was not available. The ratio of the decisions of this Court in R. P. Kapur and Bhajan Lal on which reliance is placed by Shri Jethmalani, has no application to the facts of the present case. There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act."

14. What is stated above is in itself sufficient to hold that the moment there is a debatable question, the jurisdiction under Article 226 cannot be invoked. Then the Supreme Court of India proceeded to consider the matter on merit and observed as aforesaid. As we understand the dicta of this judgment, the jurisdiction of the High Court under Article 226 to examine the correctness or otherwise of the FIR or proceedings before the Designated Court stands ousted the very moment debatable question arises from the facts on record taken as they are.

15. The next judgment which was submitted for consideration is Kartar Singh v. State of Punjab. In this case also the Supreme Court of India examined the scope and extent of powers of this Court under Article 226 of the Constitution and in paragraph 354 the Supreme Court has observed that the scope and extent of High Court's jurisdiction under Article 226 in respect of grant of bail is nagging question which requires consideration of the Supreme Court of India. In this case the Supreme Court then considered the judgment cited above i.e. State of Maharashtra v. Abdul Hamid Haji Mohd. (1995 Cri LJ 415) and quoted two paragraphs from that judgment with approval. It is to be noted that the judgment in Kartar Singh was delivered by a Bench of five Judges, and the judgment in Abdul Hamid was delivered by a Bench of two Judges. The observations quoted by us above and the observations quoted by the Supreme Court of India in para 354 give rise to a clear dicta that the interference by High Court under Article 226 is not permissible except in rarest of rare cases. The para 357 of Kartar Singh's case (1994 Cri LJ 3139, para 364) is therefore liable to be quoted extensively.

357. In a recent judgment, this Court in State of Maharashtra v. Abdul Hamid Haji Mohammed (1995 Cri LJ 415) after examining a question regarding the justification of the High Court to exercise its jurisdiction under Article 226 for quashing the prosecution for an offence punishable under the TADA Act has observed thus : (SCC PP. 669-70 (at P. 418 of Cri LJ) para 7).

"........... It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot constitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under TADA Act......... There was thus no justification for the High Court in the present case to exercise it jurisdiction for the High Court in the present case to exercise it jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act."

After observing thus : the Court finally concluded (SCC p. 67 at, para 10) "The view taken by the High Court on this aspect is contrary to law apart from being unjustified and impermissible in exercise of its jurisdiction under Article 226 of the Constitution."

16. It will be seen that the five Honourable Judges Bench deciding Kartar Singh's case (1994 Cri LJ 3139) quoted with approval the decision in Abdul Hamid's case (1995 Cri LJ 415) and observed that there was thus no justification for the High Court in that case to exercise its jurisdiction under Article 226 for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act. Then the Supreme Court of India considered in para 359 (of SCC) : (Para 366 of 1995 Cri LJ 415) of Kartar Singh's case the scope and extent of powers of High Court under 226 of the Constitution.

359. "Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an interlocutory order) of a Designated Court etc. The overriding effect of the provisions of the act (i.e. Section 25 of TADA Act) and the Rules made thereunder and the non-obstante clause in Section 20(7) reading, "Notwithstanding anything contained in the Code............ " clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in Abdul Hamid Haji Mohammed that if the High Court is Inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket. However, we would like to emphasise and re-emphasise that the judicial discipline and comity of courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution."

It will be seen from the quotation above, that it is not possible to categorise what those rare cases are where the High Court can exercise its jurisdiction.

17. We will now consider four judgments of the Supreme Court reported in Supreme Court cases.

(i) Rajesh Bajaj v. State, NCT of Delhi.

(ii) , G. Sagar Suri v. State of U. P.

(iii) , B. S. Joshi v. State of Haryana.

(iv) , State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru.

These judgments were cited and relied upon by both the State as also the petitioner for the proposition that this Court can under Article 226 interfere with and quash the FIR or proceedings arising therefrom. It would therefore be necessary, in our opinion, to consider these cases in detail.

18. We would first take up for consideration the judgment in Bajaj's i.e. . In this case the Delhi High Court was moved for quashing the FIR in exercise of the power under Section 482 of Cr. P.C. and Article 226 of the Constitution of India. A Division Bench of the Delhi High Court quashed the FIR on the premises that the finding did not disclose the offence under which the crime was registered. Feeling aggrieved by the judgment of the Delhi High Court, the matter was taken to the Supreme Court of India and the Supreme Court of India in this case held as under : (Para 9 of Cri LJ)

"It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulour scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the Information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (1992 Cri LJ 527) this Court laid down the premises on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder. (SCC p. 379, para 103), (Para 109 of Cri LJ, AIR)

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases : that the Court will not be justified in embarking upon an enquiry as to the reliability or genuiness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers to not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

19. Relying on the aforesaid paragraph it was therefore contended by the learned Advocate General that the present is not a fit case where jurisdiction should be exercised. Relying on this very paragraph the contentions of the petitioner was that the High Court should interfere under Article 226, if factual foundation for the offence in the complaint has been laid, the jurisdiction need not be exercised. The contentions being that no such factual foundation is to be found in the present FIR in this case and therefore even according to Bajaj's case, this Court has jurisdiction to consider quashing of the FIR. The Supreme Court then proceeded to set aside the judgment of the Delhi High Court where the Delhi High Court has exercised jurisdiction under Article 226. According to Shri Manohar, the learned counsel appearing for the petitioner, the Supreme Court of India has in the quoted judgment of State of Haryana v. Bhajan Lal (1992 Cri LJ 527) has observed that the jurisdiction under Article 226 can be exercised very sparingly with circumspection and that too in the rarest of rare cases. Relying on this observation, the contention was that without going into the reliability of the submissions made in the charge sheet or in the FIR, if it is disclosed that no offence is made out, exercise of jurisdiction under Article 226 would be proper.

20. The next case is G. Sagar Suri and Ors. v. State of U. P. . In this case also the Supreme Court reiterated the position that jurisdiction under Article 226 has to be exercised with great care. Reliance was placed on this judgment by the learned counsel for the petitioner, particularly on the following paragraph.

"Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused, it is a serious matter. The Supreme Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 492 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under Section 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution, to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial."

21. The submission was that the contents of FIR are not to be noted superficially, it is to be found out whether the complaint is a cloak of criminal offence to cover a transaction which is essentially of civil. In this case this argument is of no use to the petitioner for the reason that there is not even a whisper of civil dispute between the parties. Reliance was placed on the very observations of the Supreme Court in this case by the State also and it is contended that even the detail examination of the FIR would reveal that prima facie the offences mentioned in the FIR are committed if those averments are taken as they stand. Therefore this Court should not exercise the jurisdiction under Article 226 of the Constitution.

22. The third case in which reliance was placed by both the sides are B. S. Joshi v. State of Haryana. Reliance is placed in this case on the observations of the Supreme Court in Bhajan Lal's and the contention of both the sides if following the paragraph laid by Bhajan Lal's case the writ should not be entertained. Whereas relying on the observations in para 6, it is contended by the petitioner that the Supreme Court by relying on the judgment in Pepsi Foods observed that it is well settled that these powers have no limits. Therefore where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers. Invoking of power under Article 226 should therefore be declined as a matter of course. It will be seen that relying on this observation, it is contended by the petitioner that in the present case, such scrutiny of FIR is necessary and should be undertaken by this Court.

23. The next case which comes up for consideration is latest judgment of the Supreme Court in the case of State through Special Cell, New Delhi v. Navjot Sandhu . In this case the State Government relying on paras 15, 16, 21 and 28 of this judgment submitted that writ should not be entertained. Mr. Manohar for the petitioner relying on that contents of paras 11, 15, 20, 22, 23 and 31 for the proposition that this Court can interfere under Article 226. Para 15 is relied upon by both the parties. What has been held by the Supreme Court of India is that from the facts of that case power under Articles 227 and 482 of the Code should not have been exercised by the High Court. The contentions appears to be that in that case (Navjot's case) interference was not warranted, but in this case looking to the averments made in the FIR, interference is warranted. In para 16 the Supreme Court of India has observed that law at the instance of exercise of jurisdiction under Article 226 and 227 is clear and that the Supreme Court in case of Navjot proceeded to take note of the precedents. Paras 28 and 29 of this judgment, in our opinion, scrutinised what the law is and which according to the Supreme Court is clear, which reads as under :

"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of jusiticial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances ton warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise."

"29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code." Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayan Sharma cases this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision to the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."

24. It is therefore obvious that whether the power is of under Article 226 or Article 226 or under Section 482 of the Code, it should be exercised sparingly and only to keep the subordinate Courts within the bounds of their authority and not to correct mere errors. The inherent power is to be used in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. Then the Supreme Court of India has observed that the most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. In the present case no such motive can be attributed to the prosecution. Here investigations are carried out on a very large scale, thousands of crores of rupees are involved in the scam, more than 60 persons are accused of several crimes, provisions of MCOCA are sought to be applied, charge sheet has been filed and all these exercises is to whether the charges disclosed in the FIR make out prima facie any offence under MCOCA or not or the question whether such charges are liable to be framed or not is an exercise which can be conveniently undertaken before the Designated Court. By requiring the petitioners to do so, no injury of any kind would be caused to the petitioner.

25. Reliance was also placed on behalf of the petitioner on a judgment of the Supreme Court of India in S. W. Palanitkar v. State of Bihar, , particularly in para 25 thereof was pressed which reads as follows :

25. "The High Court dismissed the petition filed under Section 482, Cr. P.C. by the impugned order placing reliance, in particular, on two decisions of this Court, one Trisuns Chemical Industry, (1999 Cri LJ 4325) (SC) and Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. (2000 Cri LJ 1487) (SC) in the first case, the Court held that the exercise of inherent power should be limited to very extreme exceptions. Further it was held that referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. It may be noted that the said judgment gets attracted only when the disputed act is an offence, which the High Court has failed to notice. No doubt, exercise of inherent power under Section 482, Cr. P.C. by the High Court should be limited to very extreme exceptions but in a case where ingredients of alleged offences are not satisfied, even prima facie, it cannot be said that power under Section 492, Cr. P.C. should not be exercised to quash the process issued by a Magistrate. In the case of Nagawwa it is laid down that in such a case, power under Section 492, Cr. P.C. can be exercised to quash the process issued by a Magistrate."

26. According to the petitioner, therefore, in the present case, this Court should examine the FIR or charge sheet to satisfy itself that ingredients of MCOCA are not made out. If consideration of these averments in the FIR leads to a prima facie conclusion then the provisions of MCOCA can be applied and only in that case the petition can be rejected. Relying on these observations therefore the learned counsel for the petitioner urged before us to look into the facts as disclosed in the FIR or in the charge-sheet. In para 27 of this judgment the Supreme Court of India has observed that the High Court should exercise powers under Section 482 of the Code with circumspection to prevent the abuse of process of law. The learned counsel also relied on the judgment of the Supreme Court in Pepsi case and para 22 thereof in which it has been observed by the Supreme Court that the guidelines for exercise of jurisdiction under Section 482 of the Code or Article 226 or together are stated in State of Haryana v. Bhajan Lal, then the Supreme Court proceeds to observe that one of such guideline is where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, then the High Court can exercise its powers under Article 226 or under Section 482 of the Code or both. Therefore it was the contention on behalf of the petitioner that the FIR or the charge sheet is liable to be scrutinised in light of these observations.

27. We will now consider the submission on behalf of the State. Assuming that all these examinations can be undertaken under Article 226 now it is not necessary to do so because they have efficacious remedy before the Designated Court itself. They can raise all these contentions before the Designated Court either by application for discharge or at the time when the charges are being framed. The Designated Court has every jurisdiction to consider these contentions. It may accept these contentions and no injury would be caused to the petitioner if the petitioners are dismissed and the parties are relegated to go before the appropriated Designated Court. Countering this submission it was contended by Shri Manohar that in this case it is the question of fundamental right of the petitioner guaranteed by Articles 19 and 21 and/or at the time of detention in custody, whether judicial or police is continued, infringement of that right and, therefore, this Court can exercise its jurisdiction. In our opinion, this argument may not now be available to Shri Manohar for the simple reason that the charge sheet has been filed and the application for bail can be moved before the Court. The learned Judge of the Designated Court would now be able to appreciate the submission made, and the request of grant of bail under the provisions of MCOCA would take adequate care and also the allegations of infringement of fundamental right of liberty.

28. There is yet another aspect which we would like to emphasise in such cases. The petitioners have approached this Court directly and the order granting or refusing bail can be questioned in this Court by the party aggrieved. The order refusing to frame charge under MCOCA or granting is also an order which can be questioned in this Court. Further appeal under Article 136 is yet another remedy available. In the event of the petitioners are directly entertained, both the parties would loose one substantial remedy. Our order can be questioned before the Supreme Court of India. The Supreme Court would also be deprived of the opinion of the designated Judge. The marshalling of facts and law would be twice in the event of regular remedies are followed and no infringement of any kind would cause to the fundamental right of any of the accused persons. It is well settled in our opinion that right of liberty or life are always subject to reasonable restrictions put by the criminal law. The accused of a crime whether under the Penal Code or MCOCA, cannot complaint of the violation of his fundamental right by his detention in custody, if adequate remedy for protection of that right are provided. That being the position, there is no reason why exercise of jurisdiction under Article 226 should be undertaken.

29. However, we may take up the scrutiny of FIR or the averments made in the charge-sheet. We should note that the challenge in the petition is limited. The challenge is to the application of the provisions of MCOCA or offence spelt thereunder to the petitioner. The petitioner are charged of different offences either under Section 3 or under Section 4, or under Section 24 of MCOCA. We will consider the averments in the charge sheet in this regard, to find out if these averments do not make out any offence, then exercise of jurisdiction under Article 226 be undertaken as laid down by the case of Pepsi.

30. In para 24 of the charge-sheet it is asserted that while accused-Sharma was working as Commissioner of Police he was fully aware of the illegal activities of the Organised Crime Syndicate of Abdul Karim Ladsab Telgi. In para 30 it is alleged by the investigating agency that accused-Sharma had knowledge of subversion of the supervisory officer, accused No. 61-Mohammad Mulani and yet he deliberately allowed him to closely associate in the investigation of the crime including sending him to Bangalore alone to meet kingpin accused-Abdul Karim Telgi without the Investigating Officer accompanying him as mentioned above. It was only after these meetings of accused No. 61-Mulani that kingpin accused-Abdul Karim Telgi had consented to be taken to Pune for interrogation. It will be seen that the allegations made in this paragraph speak of accused-Sharma actively abetting the actions of Abdul Karim Telgi. It may after evidence is led, amounts to an offence under Section 3(2) which met the abetment of Organised Crime Syndicate and the commission of organised crime by itself is a crime. These allegations quoted above prima facie discloses the accused-Sharma could be charged for this offence. It is open for Sharma to say before the designated Court that these averments do not disclose such offences and invite the finding of the designated Judge. For us to find anything at this juncture even as a prima facie case, would be forfeiting the right of the petitioner to make an application before the designated Court for his very purpose. Our examination of prima facie case in this paragraph is strictly for the purposes of considering the contention of Shri V. R. Manohar that these averments in the charge-sheet noted above do not disclose any offence under MCOCA. The Supreme Court has in several authorities quoted above has held that wherever a debatable question arise, as to whether the contents in para 30 above, made out an offence under Section 3(2) of MCOCA, the High Court should not and cannot exercise its jurisdiction. Similar instances can be found further in the charge-sheet. In para 31 of the charge-sheet it is averred as under :

"31. On 16-10-2002 a letter was received by accused-Ranjit Sharma from Addl. Commissioner of Police, S. M. Mushiff complaining about the subversion of accused-Mulani and about the fact that names of known wanted accused had not been reflected in the charge-sheet filed in the Court, and the names of accused against whom no evidence apparently was collected were shown as wanted with ulterior and mala fide intentions. However, even after receipt of such serious complaint, no immediate action was taken in the direction of neutralizing the tainted accused-Mulani thereby ensuring that the help and support was rendered to the continuing unlawful activities of Organised Crime Syndicate of kingpin accused-Abdul Karim Telgi through accused-Mulani."

31. The charge seems to be that accused-Sharma by not neutralising accused-Mulani rendered help and support to the continuing unlawful activities of the Organised Crime Syndicate of accused-Telgi. If these averments are to be considered without any addition or alteration or subtraction, in our opinion, an arguable question then arise as to whether this activity or action of accused-Sharma can be covered by provisions of Section 3(2) of MCOCA. When such is the situation on facts without any addition or alteration of the allegations made, in our opinion, it is the clear dicta of the Supreme Court of India that High Court should not in such situation interfere. According to us, therefore no case for interference is made out.

32. We do not propose to examine the charge-sheet in relation to other petitioners because the propositions are same and such examination as to whether the allegations made in the charge-sheet are correct or not or whether to frame the charge is the discretion of the designated Court before whom these persons are facing trial and may be charged.

33. For all these reasons, therefore the petitioners are liable to be dismissed as the petitioners have adequate avenue, to protect their fundamental right or statutory right. They can apply to the designated Court to discharge from the charges with which they are charged and can also apply for the release on bail under the provisions of MCOCA. In the event of any of the orders going against them, they have further remedy, as the case may and, therefore, in our opinion, it is a fit case where we should refuse to exercise our jurisdiction under Article 226 as explained by the Supreme Court of India in numerous cases.

34. Interest of justice would be met if the petitions are dismissed with following directions.

1) In the result therefore all these petitions are dismissed.

a) These petitioners shall be at liberty to apply for discharge before designated Court.

b) These petitioners shall be at liberty to apply for grant of bail under the provisions of MCOCA.

c) If such applications are made the designated Court is requested to disposed of these applications as expeditiously as possible preferably in two months from the date of filing of those applications.

d) All the contentions raised in these petitions shall remain available and open for the petitioners to be raised before the designated Court.

e) All observations made by us in the above judgment are made solely for the purposes of determining whether it is a fit case for exercise of jurisdiction under Article 226 of the Constitution. We have found that it is not so fit and, therefore the observations should end with the dismissal of the petitions.

2. Parties to act on the authenticated copy of this order.