S. Balakrishnan vs State Of Maharashtra [Alongwith ...
2004 Latest Caselaw 325 Bom

JUDGMENT

S. Radhakrishnan, J.

1. In both the petitions, the facts involved are common and issues are also common though the petitioners are different. Hence, both the petitions were heard together and being disposed of by this common Judgment.

2. It appears that "Times of India" an English Newspaper had carried a news item on 12.11.2003 whereby the petitioner in Criminal Writ Petition No. 1776 of 2003 had reported a news item which was published in the said Newspaper wherein it was mentioned that the multi-crore stamp scam had acquired a new dimension with the police alleging that the prime accused Abdul Karim Telgi had links with Dawood Ibrahim, the Pakistan based don. The said report indicated that the police were aware that Dawood Ibrahim was also involved in Telgi racket.

3. The learned Special Judge of the Maharashtra Control of Organised Crime Act 1999, (hereinafter referred to as MCOCA) in City Civil and Sessions Court, after perusal of the aforesaid news report, suo moto directed the notice to be issued to the said reporter and also to the Editor being the petitioner in criminal Writ Petition No. 1836 of 2003, and publisher of Times of India to explain and disclose sources of the police referred to in said News item, upon affidavit on or before 19.11.2003. The said reporter was also directed to remain present in Court on 19.11.2003. A copy of the aforesaid order was directed to be sent to the Commissioner of Police. The above order was passed.

on 12.11.2003. On 19.11.2003 it appears that the petitioner had sought an adjournment on the ground of ill-health. However, the petitioner had appeared before the SIT on 26th November, 2003 and had given a statement in writing with regard to the above. Thereafter, the learned Special Judge by his order dated 27.11.2003 had opined that Mr. Balkrishnan ought to have considered it as his duty to disclose the sources referred to in the aforesaid news report published on 12th November, 2003 and the petitioner was directed to attend the court on 29.11.2003 and disclose the sources in Police as mentioned in the aforesaid report.

4. Aggrieved by the aforesaid orders, both the petitioners have filed the present petitions in this court on 28.11.2003 and this court had granted ad-interim relief in terms of prayer Clause-(c) thereby the learned Special Judge was restrained from proceeding further with regard to the aforesaid Suo Moto Notice No. 1 of 2003.

5. Shri C.H. Wakade, the Supdt. of Police, Special Investigation Team, SRP Group-II, Pune, has filed an affidavit dated 11.3.2004. In his affidavit he has categorically stated in paragraph-3 that there is no iota of truth in the aforesaid news item which was published in The Times of India dated 12.11.2003. The learned Counsel appearing on behalf of State of Maharashtra, state that there is absolutely no truth in the above news item.

6. The basic issue raised in these two petitions is whether the learned Special Judge can initiate any enquiry before taking cognizance of any offence punishable under MCOC Act 1999. In that behalf the learned Counsel for the petitioners brought to our notice that the learned Judge has issued the aforesaid orders referring to Section 9(1) of the MCOCA. Section 9(1) of MCOCA reads as under:-

"A Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts."

7. The learned Counsel for the petitioners also brought to our notice Section 2(2) of the MCOCA wherein it is clearly mentioned that words and expressions used but not defined in that Act and defined in the Code shall have the meanings respectively assigned to them in the Code. The aforesaid Act does not define "complaint" and also does not define "police report". The definitions are found in Section 2(d) and 2(r) of the Code of Criminal Procedure 1973 which read as under:-

"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."

2(r) "police report" means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173."

Learned Counsel for the petitioners also brought to our notice Section 190 of Code of Criminal Procedure, 1973. Even though Section 190 would not be relevant in the instant case as cognizance has been taken by a Special Judge under MCOCA, who is a Sessions Judge. The provisions of Section 190 of the Code of Criminal Procedure 1973 deals with the powers of the Magistrate. Section 190 contemplates that Magistrate may take cognizance of any offence which are indicated in Clauses-(a), (b) and (c). Clause-(a) provides for upon receiving a complaint of facts which constitute such offence? Clause-(b) provides that upon a police report of such facts and Clause-(c) provides that upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

8. Learned Counsel for the petitioners brought to our notice the above provisions to point out that the Legislature while drafting Section 9 of MCOCA has specifically provided only what is contemplated in Clauses- (a) and (b) of Section 190 of Code of Criminal Procedure 1973, in the sense that the Special Judge could take cognizance upon receiving a complaint of facts which constitutes such an offence or upon a police report of such facts. There is a clear and wilful omission of Clause-(c) in the said Section 9 of MCOCA. It is the contention of the learned Counsel for the petitioners that the Special Judge was empowered to take cognizance or even issue notice only if its squarely falls within the scope of Section 9(1) of MCOCA, i.e. upon receiving the complaint of facts which constitute such offence or upon a police report of such facts. The learned Counsel for the petitioners contended that in the instant case there is no complaint lodged constituting any offence and similarly there is no police report. Therefore, the contention is that the learned Judge could not have issued any notice or called upon the petitioners to disclose sources based on which aforesaid news item was published in Times of India. It is the contention of the learned Advocate for the petitioners that if a Special Judge could not have even taken cognizance of the offence under MCOC Act then such a notice and direction could not have been issued as he had no such authority in Law.

9. In view of the very clear legal provision under Section 9(1) of the MCOCA, it is explicitly clear to us that the learned Special Judge could have initiated steps upon receiving a complaint of facts constituting such an offence or upon a police report. In the instant case there is no such complaint of facts constituting such an offence. Admittedly there is no police report. If that be so, learned Judge could not have taken any action suo moto and he had no authority in Law to do so. In these circumstances, Rule is made absolute in terms of prayer Clauses-(a) and (b) as far as prayer Clause-(b) is concerned, except the bracketed portion therein. The said bracketed portion in prayer Clause-(b) reads as under:-

"or before the Special Investigation Team investigating into the Telgi Scam or in any other proceedings;".

10. As the special investigation team is not now concerned with the Telgi scam and the same has been taken over by CBI pursuant to the order passed by the Supreme Court on 15th March, 2004, the petitioners are at liberty to approach this court in the event the CBI were to take any steps against the petitioners.

11. Parties be given an ordinary copy of this order duly authenticated by the Personal Secretary/Court sheristedar.

Issuance of certified copy expedited.