Bombay High Court
Rasiklal Manikchand Dhariwal vs Central Bureau Of Investigation on 8 December, 2010
Bench: A.M. Khanwilkar, U. D. Salvi
1 wp.1956.05.sxw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1956 OF 2005
Rasiklal Manikchand Dhariwal,
Aged 67, residing at 100/101,
D.Kennedy Road, Manikchand House,
PUNE -1, Maharashtra. ...Petitioner
Versus
1.Central Bureau of Investigation,
Through its Director, Block IV,
CGO Complex, Lodhi Road,
New Delhi - 110 003.
2.The State of Maharashtra,
Through (D.C.B., C.I.D., Mumbai) ...Respondents
WITH
CRIMINAL WRIT PETITION NO.2016 OF 2005
Jagdish M.Joshi,
Age : 48 years, Residing at 55/12,
Raj Apartments, Ashok Path,
Law College Road,
PUNE - 411 004. ...Petitioner
Versus
1.Central Bureau of Investigation,
Through its Director, Special Crime Region-III,
7th Floor, Yashwant Place, Chanakya Puri,
NEW DELHI - 110 021.
2.The State of Maharashtra,
Through its D.C.B. C.I.D., Mumbai. ...Respondents
......
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Mr.Sushil Kumar, Sr.Counsel with Mr.S.K.Jain, Mr.Hitesh Jain & Ms.Adity
Kumar i/b Mr.Subhash Jadhav for Petitioner in Cri.WP/1956/2005.
Mr.Shirish Gupte, Sr.Counsel with Mr.Ganesh Gole & Mr.Jaimini Shah for
Petitioner in Cri.WP/2016/2005.
Mr.Darius Khambatta, Addl.Solicitor General & Sr.Counsel with Mr.Raja
Thakare, Ms.Revati Mohite-Dere & Mr.Afroz Shah for Respondent No.1
(CBI).
Dr.F.R.Shaikh, A.P.P. for Respondent No.2/State.
......
CORAM:- A.M.KHANWILKAR AND
U.D.SALVI, JJ.
JUDGMENT RESERVED ON :- 17th SEPTEMBER , 2010.
JUDGMENT PRONOUNCED ON :- 8th DECEMBER, 2010.
JUDGMENT (Per A.M.Khanwilkar, J.):
1. Both these Petitions can be conveniently disposed of together, as the
questions raised in the respective Petitions are common.
2. Shorn of details, the facts which have given rise to filing of the above
two Writ Petitions by Rasiklal Manikchand Dhariwal (hereinafter referred
to as `RMD' for the sake of brevity) and Jagdish M.Joshi (hereinafter
referred to as `JMJ' for the sake of brevity), can be set out as under:
3 wp.1956.05.sxw
(a) The Petitioners have rushed to this Court essentially on account of
order, passed by the Special Court constituted under the Maharashtra
Control of Organised Crime Act, 1999 (hereinafter referred to as the
`MCOC Act') for Greater Mumbai, dated 26th July 2005, in Special Case
No.1/2005; and also because of non-bailable warrants issued against them
in connection with the said case i.e. DCB CID CR No.152/2004. The
Petitioner RMD asserts that he is the Chairman of M/s.Dhariwal Industrial
Limited, having its registered office at Pune. The said Dhariwal Industries
is part of Manikchand Group Industries, which is interalia engaged in the
business of Gutka, Panmasala, Bidi, Electrical Accessories, Lamination,
Packaging, Mineral Water, etc. for the last 40 years. Whereas, Petitioner-
JMJ asserts that he is the Master Blender of Perfumes and Fragrances and
holds registered Patent for Mouth Freshener preparation issued by the
Government of India. According to him, besides India, he has business
establishments carrying manufacturing and blending of Perfumes and
Mouth Fresheners' preparation and U.A.E., Singapore and Indonesia.
(b) Both these Petitioners assert that they are not even remotely
connected with the criminal case originally registered for offence
punishable under the provisions of Section 3 and 25 of the Arms Act and
4 wp.1956.05.sxw
Sections 120-B, 384, 387 r/w 34 of the Indian Penal Code (hereinafter
referred to as the`I.P.C.') against one Jamiruddin @ Jumbo @ Kalya Gulam
Rasul Ansari and three others.
The said F.I.R. was registered on 27th September 2004 as LAC Case
(c)
being CR No.122/2004. The accused No.1 Jamiruddin came to be arrested
on 10th October 2004 followed by another accused namely one Rajesh @
Rajubhai Laxminarayan Panchariya. During the interrogation, the arrested
accused allegedly referred to some transaction in Dubai involving both the
Petitioners before this Court. It is the case of the Petitioners that they had
no connection with the said transaction, in particular, the case under
investigation.
(d) During the course of investigation of the said case on the basis of
material which became available to the Investigating Officer, it was
decided to proceed against the named accused persons also for offence
under MCOC Act. Accordingly, prior approval of the Joint Commissioner
of Police (Crime), Mumbai under Section 23(1)(a) of the MCOC Act was
obtained. The said Authority recorded satisfaction that there was sufficient
material to disclose that offence of organized crime has been committed by
5 wp.1956.05.sxw
the members of the organized crime syndicate as defined in Section 2 of
MCOC Act.
(e) Being satisfied, the said Authority granted prior approval for
applying the provisions of Section 3 of the MCOC Act against the named
accused persons along with Sections 120-B, 384, 387 and 34 of the I.P.C.
r/w Section 25 of the Arms Act. The said approval order dated 21st October
2004 reads thus:
"No.58:/Jt.C.P.(Crime)/U-IX/2004
Office of the
Jt.Commissioner of Police (Crime),
Brihan Mumbai.
Date : 21 October, 2004.
ORDER
PRIOR APPROVAL UNDER SECTION 23(1)(a) OF MAHARASHTRA
CONTROL OF ORGANISED CRIME ACT, 1999
Reference: Proposal submitted by Asst.Commissioner of Police of
(D-1/N-W), Crime Branch, Mumbai seeking prior approval
under section 23(1)(a) of Maharashtra Control of Organised
Crime Act, 1999, for applying section 3 of M.C.O.C. Act,
1999.
I have perused the proposal submitted by A.C.P. Shri Suresh
Walishetty, Asst. Commissioner of Police (D-1/N-W), Crime Branch,
Mumbai through the Dy.Commissioner of Police (Detention), Mumbai
about the involvement of (1) Anis Ibrahim Kaskar, (2) Mohammed Farukh
Mansuri, (3) Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and (4)
Rajesh Laxminarayan Panchariya, seeking prior approval as required
under section 23(1)(a) of M.C.O.C. Act, 1999, for applying section 3 of
the M.C.O.C. Act, 1999 to DCB CID C.R.No.122/2004 (J.J. Marg Police
6 wp.1956.05.sxw
Station C.R.No.249/2004) u/s 120(b) IPC r/w 384, 387, 34 IPC r/w 3, 25
Arms Act.
On going through the papers and reports placed before me, I am
satisfied that Jamiruddin @ Jambo @ Kalya Gulam Rasul Ansari and
Rajesh Laxminarayan Panchariya are in touch with Anis Ibrahim Kaskar
through the mobile phones used by them and the documentary evidence
gathered so far, shows that they are active members of Organized Crime
Syndicate of Anis Ibrahim Kaskar, a faction of Dawood Ibrahim Gang. It
also appears that Mohammed Farukh Mansuri is also instrumental in
transferring the machines from Dubai to Karachi. From the interrogation
and recorded statements of Jamiruddin @ Jambo @ Kalya Gulam Rasul
Ansari and Rajesh Laxminarayan Panchariya in DCB CID C.R.No.
122/2004 (J.J.Marg Police Station CR.No.249/2004) u/s 120(b) IPC r/w
384, 387, 34 IPC r/w 3, 25 Arms Act, it has transpired that they are active
members of the Organized Crime Syndicate of Anis Ibrahim Kaskar. The
arrested accused Jamiruddin @ Jumbo @ Kalya Gulam Rasul Mansuri
assisted the Organized Crime Syndicate by arranging the export of 5
machines used for Gutka packing worth of Rs.2,64,000/- obtained by way
of extortion by putting the complainant in fear of death. The said machines
were manufactured by Rajesh @ Rajubhai Laxminarayan Panchariya and
were delivered to Dubai from where the said machines were cleared for
onward delivery to Karachi by other active associates of Anis Ibrahim
Kaskar namely Farukh Mansuri. Few months back i.e. in the month of
July-2004 the said accused persons again delivered spare parts of Gutka
Filling .... Pouch Packing Machine to Anis Ibrahim Kaskar.
From the evidence on record, I am satisfied that there is sufficient
evidence to prove continuous unlawful activities of the organized crime
syndicate headed by gangster Anis. I am personally satisfied that this
offence amounts to as Organized Crime committed by the members of
Organized Crime Syndicate, as defined in Section 2 of M.C.O.C. Act,
1999.
Therefore, I, Meeran C.Borwankar, IPS, Jt.Commissioner of Police
(Crime), Mumbai, in exercise of the powers conferred upon me under
section 23(1)(a) of said Act, 1999, hereby grant prior approval for
applying the provision of section 3 of Maharashtra Control of Organised
Crime Act, 1999 to DCB, CID, Unit-IX C.R.No.122/04 u/s 120(b) IPC r/w
384, 387, 34 IPC r/w 3, 25 Arms Act and hereafter appoint Shri Suresh
Walishetty, Asst.Commissioner of Police (D-1/N-W), Crime Branch,
Mumbai to investigate the said case.
A.C.P. Shri Suresh Walishetty should obtain the sanction of the
Commissioner of Police, Mumbai before filing charge sheet in the case.
7 wp.1956.05.sxw
Sd/-
(Meeran C.Borawankar)
Jt.Commissioner of Police (Crime),
Mumbai."
(emphasis supplied)
(f) Consequent to the said approval, after registration of offence against
the named accused persons, investigation was proceeded also for offence
punishable under Section 3 of the MCOC Act.
(g) Significantly, neither in the F.I.R. nor the prior approval granted by
the Appropriate Authority, any reference is found to the involvement of the
Petitioners before this Court in connection with the said offence.
Notwithstanding the same, the Investigating Officer in the course of the
investigation of the offence as registered, wanted the Petitioners to appear
before him.
(h) The Petitioners conveyed their inability to appear before the
Investigating Officer on the specified dates on the ground that they were
out of India in connection with their business activities. It is the case of the
Petitioners that they, however, gave assurance to the Investigating Officer
that as and when they would return to India, would appear before him.
8 wp.1956.05.sxw
(i) However, the Investigating Officer precipitated the matter by moving
Application before the Special Court for issuance of non-bailable warrant
against the Petitioners herein on the ground that they were not cooperating
with the investigation of the offence in question. It is on that Application,
the Special Court, proceeded to issue non-bailable warrants against both the
Petitioners herein.
(j) As soon as the Petitioners learnt about issuance of non-bailable
warrants against them, they moved applications before the Special Court
for cancellation of non-bailable warrants on the grounds stated in their
Applications. The said Applications filed by the Petitioners herein,
however, came to be rejected by the Special Court on 1st February 2005.
(k) In the meantime, the Investigating Officer after obtaining sanction
from the Appropriate Authority as required under Section 23(2) of the
MCOC Act, proceeded to file charge-sheet against the named accused on
24th January 2005. The sanction was accorded by the Commissioner of
Police, Brihan Mumbai on 21st January 2005, which reads thus:
9 wp.1956.05.sxw
"No.01/CP/PA/MCOC/2005
Office of the
Commissioner of Police,
Brihan Mumbai-400 001.
Date - 21/01/2005
ORDER
Sanction U/s.23(2) of Maharashtra Control of Organised Crime Act, 1999.
REFERENCE : Report of A.C.P., D-1/N-W, Crime Branch, CID, Mumbai
dated 17/01/2005 submitted through D.C.P. (Detention)
and Jt.Commissioner of Police (Crime), Mumbai.
READ : Papers of investigation of DCB CID C.R.No.122/2004,
U/sec.120(B) r/w.384, 387, 34 I.P.C. r/w 3(1)(ii), 3(2),
3(4) of MCOC Act, 1999.
WHEREAS, the Investigation Officer in the above mentioned case,
Suresh Walishetty, Assistant Commissioner of Police, D-1/N-W, CB CID,
Mumbai has submitted his report dated 17/01/2005 along with the papers
of investigation in DCB CID C.R.No.122/2004, U/sec.120(B) r/w 384,
387, 34 I.P.C. r/w 3(1)(ii), 3(2), 3(4) of MCOC Act, 1999 through the
D.C.P. (Detection) and Jt.Commissioner of Police (Crime), Mumbai for
according sanction to prosecute the accused persons as required under
section 23(2) of MCOC Act, 1999.
2. AND WHEREAS, the prior approval of the Jt.Commissioner of
Police (Crime), Mumbai was obtained vide No.591/2004 dated 21/10/2004
for applying the provisions of MCOC Act, 1999 to DCB, CID, CR No.
122/2004.
3. AND WHEREAS, I A.N.Roy, Commissioner of Police, Brihan
Mumbai and in the rank of Addl.Director General of Police have gone
through the report and on perusal of the statements of the witnesses, other
papers of investigation and reports enclosed with the proposal under
reference.
4. AND WHEREAS, on going through the case papers, statements
and reports placed before me, I am satisfied that prima facie case is made
out against the accused persons for being tried for the offences of the India
Penal Code mentioned above and under section 3 of MCOC Act.
10 wp.1956.05.sxw
5. AND WHEREAS, I find that in the year 2002 arrested accused by
name Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari and Rajesh @
Rajubhai Laxminarayan Panchariya assisted the organized crime syndicate
headed by Anis Ibrahim Kaskar by arranging the export of five machines
used for Gutka packing, worth of Rs.2,64,000/- obtained by way of
extortion by putting the complainant in fear of death. Thus they have
jointly committed in organized crime on behalf of members of organized
crime syndicate headed by Anis Ibrahim Kaskar.
6. AND WHEREAS, I am satisfied that there is sufficient evidence to
prove continuous unlawful activities of the organized crime syndicate
headed by accused Anis Ibrahim Kaskar and his associates, and more than
one charge sheets have been filed before a Competent Court within last 10
years and the Court has taken cognizance of charge sheets against Anis
Ibrahim Kaskar and his associates.
7. NOW, THEREFORE, I, A.N.Roy, Commissioner of Police, Brihan
Mumbai in the rank of Addl.Director General of Police, in experience of
powers conferred upon me by sub-section 2 of section 23 of MCOC Act,
1999, do hereby accord sanction for the prosecution of the 2 arrested
accused namely (1) Jamiruddin @ Jumbo @ Kalya Gulam Rasul Ansari,
aged 37 yrs, R/o.002, Maqdoom Sea Palace, Ground Floor, B Wing, Kaidal
Road, Lane Opp.Jain Mandir, Mahim, Mumbai and (2) Rajesh @ Rajubhai
Laxminarayan Panchariya, aged 33 yrs., R/o.B-3/202, Vikas Complex,
Castle Mil Compound, Dist-Thane and 2 wanted accused (1) Anis Ibrahim
Kaskar, (2) Mohd Farukh Mohd Yasin Mansuri, for the respective offences
under section 3 of MCOC Act, 1999 for taking cognizance by the Hon'ble
Designated Court, Mumbai constituted for trying such offence under
Maharashtra Control of Organized Crime Act, 1999.
Given under my signature and seal on this 21 day of January 2005.
Sd/-
(A. N. Roy)
Commissioner of Police,
Brihan Mumbai."
(l) According to the Petitioners, the involvement of the Petitioners
herein is not disclosed either in the F.I.R. as registered nor in the prior
approval granted under Section 23(1)(a) of MCOC Act or for that matter,
11 wp.1956.05.sxw
sanction accorded by the Authority under Section 23(2) of the MCOC Act.
Moreover, even in the charge-sheet filed before the Special Court, there is
nothing to indicate that the Petitioners herein were connected with the
commission of offence referred to in the said charge-sheet. Inspite of that,
the matter was pursued against the Petitioners herein with respect to the
said offence.
(m) The further investigation of the alleged offence was entrusted to CBI
consequent to Notification issued by the Under Secretary to the
Government of India on 9th February 2005. The said Notification reads
thus:
"228/17/2005-AVD.II
GOVERNMENT OF INDIA
MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND
PENSIONS (DEPARTMENT OF PERSONNEL AND TRAINING)
NEW DELHI
********
Dated February 9, 2005
NOTIFICATION
S.O. ...................................... In exercise of the powers conferred
by sub-section (1) of section 5 read with section 6 of the Delhi Special
Police Establishment Act 1946 (Act No.25 of 1946), the Central
Government with the consent of the State Government of Maharashtra
communicated vide Letter No.`CRM/2005/4/POL-11 dt. Jan 11, 2005,
hereby extends the powers and jurisdiction of the members of the Delhi
Special Police Establishment to the whole of the State of Maharashtra for
12 wp.1956.05.sxw
further investigation of case number 249/2004 of J.J. Marg Police Station,
Mumbai, Maharashtra under section 120-B of IPC read with sections 384,
387 and 34 of IPC and sections 3 and 25 of the Arms Act read with
Sections 3(1) (ii), 3(2) and 3(4) of the Maharashtra Control of Organized
Crime Act 1999 relating to nexus between `gutka' manufacturers and the
underworld, and attempts, abetments, conspiracies in relation to, or in
connection with the said offences, and any other offences committed in the
course of the same transaction or arising out of the same facts.
Sd/-
(Shubha Thakur)
Under-Secretary to the Government of India
To
The Manager,
Government of India Press,
Mayapuri,
Ring Road,
New Delhi-110 064.
No.228/17/2005-AVD.II Dt.February 9, 2005
Copy to :
1.The Chief Secretary, Government of Maharashtra, Mumbai.
2.Principal Home Secretary, Government of Maharashtra, Mumbai.
3.Director, CBI, CGO Complex, Lodhi Road, New Delhi.
4.DIG, SCR-III, VII Floor, NDMC Building, Chanakyapuri, New Delhi.
5.Directorate of Prosecution, CBI, CGO Complex, Lodhi Road, New
Delhi.
Sd/-
(Shubha Thakur)
Under-Secretary to the Government of India"
(n) The Petitioners being dissatisfied with the order of issuance of non-
bailable warrants against them, filed Writ Petitions before this Court.
(o) Insofar as Writ Petition filed to espouse the cause of RMD being
13 wp.1956.05.sxw
Criminal Writ Petition No.421 of 2005 is concerned, the same came to be
dismissed on 22nd February 2005. Against the said decision, RMD carried
the matter before the Apex Court by way of SLP (Cri.) 1257/2005. Insofar
as Petitioner JMJ is concerned, he chose to appear before the Special Court
on 25th February 2005 after returning to India from his business trip. Insofar
as Petitioner RMD is concerned, the Appeal filed by him before the Apex
Court eventually came to be disposed of on 11th April, 2005. In the said
proceedings, statement was made by the Solicitor General of India that
Petitioner-RMD was cooperating with the investigating agency and his
statements have been recorded. Further, the Petitioner RMD filed affidavit
to the effect that he will make himself available for further questioning by
the police as and when required. On that basis, the non-bailable warrant
issued against Petitioner-RMD by the Special Court on 31st December 2004
came to be discharged and the Appeal was disposed of on that basis.
(p) According to the Petitioner-RMD, when the case was listed on 24th
June 2005 before the Special Court, the Special Judge directed the CBI to
submit report regarding further investigation against the named accused as
also against wanted accused. Thereafter, on 28th June 2005, the Special
Judge passed the following order:
14 wp.1956.05.sxw
"I have seen extracts from crime report uptodate, I think in the
interest of justice more time is required to be given to the I.O. particularly
considering that Shri Rasiklal Manikchand Dhariwal and Shri J.M.Joshi
are not readily available to the Investigating Officer for interrogation and
co-operation in the investigation, which they had assure. It is expected that
the aforesaid persons were granted relief in respect of non bailable warrant
issued against them upon condition that they will co-operate with the
investigation. If their failure is brought to the notice of the Court, again
further appropriate action according to law will have to be taken to bring
them before the Court. I.O. prayed for time to file final report hence time
is extended till 15/7/2005 for to submit the final report."
(q) According to the Petitioners; the aforesaid observation of the learned
Judge of non-cooperation was erroneous and unwarranted. The same was
not consistent with the record. In that, on 15th July 2005, the Investigating
Officer submitted draft Letters of Rogatory and stated that further material
evidence in connection with the alleged offence will have to be collected
from abroad. On the basis of the said submission of the Investigating
Officer, the Special Court on 15th July 2005, proceeded to observe as
follows:
"Dated : 15/07/2005.
Spl.P.P.Mr.P.Arun for the CBI present. T.O. present.
Accused No. produced from custody.
Accused No.2 on bail present.
Heard. Pursuant to noting dated 28/06/2005 the Investigating Officer
from the C.B.I. was directed to submit his report so as to be filed till
today. Today draft of letter rogatory mark pages 1 to 96 in one file and
page no 1 to 73 in 2nd file along with report about investigation
permitted in view of Sec.173(8) of the Cr.P.C. in this case is filed but
it appears that the investigating agency is handicapped by the fact that
15 wp.1956.05.sxw
some material evidence in this case will have to be collected from
abroad. According to I.O. the proposed accused against whom
investigation is pending are co-operating and attending whenever
required. If that is so I do not think it necessary at this stage pending
the investigation against proposed accused to adopt any coercive
process so as to compel their attendance before the court. The
investigating officer is seeking issuance of letter rogatories to be
processed through the Secretary Ministry of External, Affairs
Government of India so as to collect further evidence in this case
before supplementary charge sheet can be laid in this case as against
proposed accused.
The I.O. as also Ld.Spl.P.P. Are at liberty to apply before this court for
issuance of letter rogatories to be processed through Ministry of
External Affairs, Government of India. Such applications be regd. As
Misc. applications. According to Spl.P.P. the investigating agency has
already moved Ministry of External Affairs for to route the letter of
rogatories through proper channel. The investigating agency in view
of the fact that material evidence will have to be collected from the
countries outside India is permitted to carry on further investigation
for to submit supplementary report regarding further investigation
permitted in view of sec.173(8) of Cr.P.C. It is also expected that the
proposed accused shall attend the investigating officer as and when
required. In the event of non-co-operation further process for a
compel their attendance before the investigating officer and also
before this court will be passed. According to I.O. passport of Shri
Jagdish N.Joshi has been surrendered before Sessions Court Satara
while Shri Rasiklal Manikchand Dhariwal has not yet surrendered his
passport. Shri Rasiklal Manikchand Dhariwal be informed to
surrender his passport to the investigating officer until further order
from this court.
The proposed accused be informed to attend this court of next date of
hearing in this case. The investigating agency to expedite the process
of investigation so as to submit supplementary charge sheet as early as
possible.
The interim report with two files regarding further investigation
tendered today be kept in envelop sealed under my signature until
further order. Adjd. for reporting compliance as to further
investigation and also orders passed by this court. Adjd. to 25/07/2005
to allow C.B.I. to move appropriate application before this court.
Sd/x.x.x."
16 wp.1956.05.sxw
(r) According to the Petitioners, the Special Court was acting in excess
of jurisdiction in not only having issued non-bailable warrants, but also
directed the Petitioners herein to surrender their passports inspite of the fact
that there was no material before him which would even remotely disclose
the involvement of the Petitioners herein in the commission of the alleged
offence. Nevertheless, the Petitioners appeared before the Special Court. To
their shock and surprise, the Special Court by a speaking order noted that
considering the material collected during the investigation of the case
before him, the same discloses illegal acts of commission and omission of
the Petitioners herein which may amount to aiding and abetting continuing
unlawful activities of the organized crime syndicate of Dawood Ibrahim
Kaskar assisted by his brother Noora, Mustkin, Hamid Antulay, etc.
operating from Dubai (U.A.E.) and Karachi (Pakistan) through their
conduits and henchmen in Mumbai and elsewhere. The Special Judge
proceeded to observe that it is the duty of the Court trying the case to
proceed against all those persons who appear to have been involved in the
offences disclosed in the case but who may have been left over or dropped
by the investigating agency. The learned Judge observed that further
investigation of the case has already been permitted under Section 173(8)
17 wp.1956.05.sxw
of the Criminal Procedure Code, 1973 (hereinafter referred to as the
`Cr.P.C.') and which was still in progress. Having said this, the Special
Judge proceeded to observe that it may be appropriate to summon the
persons who may be indictable as additional accused. In his opinion, it was
appropriate that such persons were given prior notice and opportunity to
make their statements before the Court as to why they should not be named
as additional accused. The Special Judge was of the view that it was open
to him to take recourse to such measure in view of Section 319 of Cr.P.C.
where after, the noticees can be proceeded against in connection with the
alleged offence along with the accused already named in the charge-sheet.
He further went on to observe that the noticees were free to make
statements to explain their position if they so desire and such statements
made by them can be recorded as their defence under Section 313 of the
Cr.P.C. The Special Judge has noticed in his order dated 26th July 2005 that
the Petitioners herein had objected to the course of action contemplated by
the Special Judge essentially on the ground that previous statutory sanction
as contemplated under Section 23(2) of the MCOC Act was not granted
against the Petitioners herein (RMD and JMJ). In absence of such sanction,
it was not open to the Special Judge to proceed against the Petitioners
herein at all. This objection, however, has been overruled by the Special
18 wp.1956.05.sxw
Judge on the finding that prior approval as also sanction to prosecute the
already named accused has since been granted by the Appropriate
Authority, it is only thereafter the Court had taken cognizance of the case.
Further, on the basis of material which has already come on record
disclosing the complicity of the Petitioners herein, it was open to the Court
trying the case to add the Petitioners as additional accused to be tried along
with the named accused. It has opined that it is the Court of law which after
judicial scrutiny is satisfied of the materials placed before it that another
offence is made out and such satisfaction of the Court is of the highest
caliber than the satisfaction of the Sanctioning Authority. To buttress this
opinion, reliance is placed on the decision of the Apex Court in the case of
Kalpanathrai vs. State through CBI reported in 1998 SCC (Cri.) 134,
wherein, it has been held that once cognizance of the offence under the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as `TADA') has been taken validly by the Designated Court with
a proper sanction, the Court is not disabled for convicting the accused for
any other offence proved during the trial whether or not the sanction has
been accorded in respect of such other offence. Reliance was also placed on
another decision in the case of N.Natarajan vs. B.K.Subharao reported
in 2003(1) Crimes 235 which takes the view that any individual can set the
19 wp.1956.05.sxw
machinery of law in motion by lodging complaint of facts constituted in
Section 9(1) of the MCOC Act. The Court observed that by implication, it
is the duty of the Special Court to take cognizance of any offence without
the requirement of committal order after receiving complaints of fact or
police reports in respect of facts constituting offence. In substance, the
Special Judge went on to observe that even in absence of specific sanction
order to prosecute the Petitioners herein under Section 23(2), it would not
preclude the Court from proceeding against them if the Court was
convinced that the material already on record disclosed the involvement of
the Petitioners herein in the commission of the alleged offence. The Special
Judge also made reference to the decision of the Apex Court in Rambhai
Nathabhai Gadhvi vs. State of Gujarat reported in (1997) 7 SCC 744,
which takes the view that taking cognizance is the act which the Special
Court has to perform and granting sanction is the act which the Sanctioning
Authority has to perform. In the said decision, it has been held that sanction
is condition precedent for the investigating agency for valid approach to the
Special Court. For which, the same is insisted upon, when the investigating
agency were to approach the Court with a charge-sheet. The Special Judge
went on to observe that the said restriction may not come in the way of the
Court and it was open to the Court to proceed against any person if the
20 wp.1956.05.sxw
material on record discloses the involvement of such person in the
commission of the alleged offence. That could be done in exercise of
powers under Section 319 Cr.P.C. by the Special Court and even before
waiting until the actual beginning of the recording of evidence of the
witnesses in the trial. It went on to observe that the expression "evidence"
appearing in Section 319 of Cr.P.C. will have to be given wide meaning to
include material collected by the Investigating Officer in the course of
investigation and produced before the Court along with his report. The
Special Judge then proceeded to direct the Special Public Prosecutor to
prepare copy of the investigation papers duly truncated in view of the
protection given to for the proposed witnesses to be examined in the trial as
per Section 19 of the MCOC Act. The Special Judge further directed the
Special Public Prosecutor to ensure that the names and addresses of the
proposed witnesses shall not be disclosed with a view to protect the identity
of the witnesses in the case. Thereafter, the Court directed that the copies of
the investigation papers so prepared, shall be accompanied with the
statement of the prosecuting agency (CBI) or the State of Maharashtra as to
whether prosecution of the accused to be added is also sanctioned as
required under Section 23(2) of the MCOC Act and then to supply copies
thereof to the accused proposed to be added in the trial of the case before
21 wp.1956.05.sxw
him. In other words, the Special Judge assumed that the Petitioners herein
were proposed accused to be tried along with named accused in the pending
case. The Petitioners were asked to collect the investigation papers under
written acknowledgment. The Special Judge then placed the matter for
hearing on 25th August 2005 for giving opportunity to the Petitioners herein
and then to pass appropriate orders as may be necessary.
(s) Being aggrieved by the above said order dated 26th July 2005, both
the Petitioners have invoked the jurisdiction of this Court by way of present
Writ Petitions under Articles 226 and 227 of the Constitution of India.
(t) The thrust of the grievance of the Petitioners in the Writ Petitions as
originally filed is that the description of the Petitioners as proposed accused
was inappropriate and unwarranted, inasmuch as the involvement of the
Petitioners herein in the commission of the offence as registered is not even
remotely mentioned in the FIR or the prior approval and sanction, or for
that matter, the charge-sheet as filed against the named accused. However,
the Special Judge assumed that the material on record did disclose the
involvement of Petitioners herein in the commission of the alleged offence.
Even so, the Petitioners herein have not been named as accused or wanted
22 wp.1956.05.sxw
accused as such at any point of time. If so, no direction could have been
issued against the Petitioners herein either by the Investigating Officer or
the Court. In absence of any offence registered against the Petitioners
herein, neither any investigation against them, much less, for offence
punishable under the provisions of MCOC Act was possible. Nor the Court
could take cognizance of the offence against them. In any case, the
cognizance against the Petitioners could be taken by the Court only after
sanction was accorded by the Appropriate Authority as required under
Section 23(2) of the Act. It is the case of the Petitioners that the tenor of the
order passed by the Special Judge was clearly indicative of the fact that the
Special Judge had already decided to arraign the Petitioners as accused in
the pending trial without there being any tangible material to disclose the
involvement of the Petitioners herein in the commission of the alleged
offence and more so, in absence of prior approval under Section 23(1)(a)
and sanction under Section 23(2) of the MCOC Act. That the Special Judge
has misread and misapplied the decisions of the Apex Court in taking the
view that it was open to him to proceed against the Petitioners herein.
According to the Petitioners, the Special Judge has acted in excess of
jurisdiction and issued directions against the Petitioners without authority
of law. The Petitioners have also contended that it was not open to the
23 wp.1956.05.sxw
Special Judge to invoke powers under Section 319 of the Cr.P.C. in the fact
situation of the present case. In any case, in absence of sanction accorded
by the Appropriate Authority under Section 23(2) of MCOC Act, it was not
open to take cognizance of the offence against the Petitioners herein. It is
also urged that the operation of the MCOC Act is restricted to the State of
Maharashtra. Whereas, the alleged offence by the Petitioners is stated to
have been committed outside India. Therefore, the provisions of MCOC
Act are not attracted against the Petitioners at all. It is the grievance of the
Petitioners that the Special Judge, on his own, has decided to embark upon
action against the Petitioners by describing them as proposed accused.
According to the Petitioners as recently as on 15th July 2005, the
Investigating Officer had informed the Court that the further investigation
was still in progress. The Special Judge instead of awaiting the further
report of the Investigating Officer, has embarked upon the role of
supervising the investigation and to issue direction, which is not
permissible in law. It is abuse of process of law. Further, it has resulted in
influencing the fairness in further investigation of the case, more so, having
recorded prima facie opinion that the material already on record, discloses
the involvement of Petitioners herein of having aided and abetted the
commission of the alleged offence of continuing unlawful activities of the
24 wp.1956.05.sxw
organized crime syndicate. These are the broad contentions raised on
behalf of both the Petitioners in their respective Petitions as originally filed.
(u) Ordinarily, this Court would have been required to essentially
address the question regarding the correctness of the view expressed by the
Special Judge in his order dated 26th July 2005. However, in view of the
supervening events, the scope of controversy has undergone some change.
Inasmuch as, it has now come on record that during the pendency of these
Petitions, the Commissioner of Police, Brihan Mumbai has accorded
sanction to prosecute both the Petitioners in connection with the alleged
offence. That sanction is stated to have been accorded on 21st February
2006. In view of this development, the primary grievance of the Petitioners
with regard to the jurisdiction of the Special Court to proceed against the
Petitioners has receded in the background and is of no consequence. In
that, if there is a valid sanction to prosecute both the Petitioners before this
Court, that would not only permit the Investigating Officer to file further
police report/supplementary charge-sheet before the Trial Court for naming
the Petitioners herein as additional accused, but also enable the Special
Court to take cognizance of offence referred to in the supplementary
charge-sheet against the Petitioners herein. In the light of this development,
25 wp.1956.05.sxw
both the Petitioners moved formal applications for amendment of memo of
Writ Petitions. That permission has already been granted to the Petitioners
on the basis of which, the Petitioners carried out amendment in the original
Petitions to urge additional grounds and also pray for further reliefs. The
Respondents have also filed further reply affidavit in response to the
amended Petitions.
(v) By way of amendment, the Petitioner-RMD prays for further relief of
quashing and setting-aside the sanction granted by the Commissioner of
Police, Mumbai for taking cognizance of the alleged offence against him
under MCOC Act. In support of this relief, by way of amendment of the
Writ Petition, additional grounds have been raised which essentially purport
to question the justness of the process of according sanction by the
Appropriate Authority qua the said Petitioner-RMD. Grievance is also
made about the fresh non-bailable warrants issued against the Petitioners on
27th February 2006 by the Special Court on the basis of incorrect
representation made by the Respondents that the Petitioners were not
cooperating during the further investigation. Further, the Special Court was
persuaded to issue non-bailable warrants inspite of the fact that the order of
stay of further proceedings passed by this Court was in force. Nevertheless,
26 wp.1956.05.sxw
the Petitioners appeared before the Court and made application for
furnishing copy of the FIR and inspection of Roznama. According to the
Petitioner-RMD as recently as on 6th February 2006, the Investigating
Officer informed the Special Court that he would require at least one
month's time for finalization of the investigation and yet the sanction was
accorded by the Commissioner of Police, Brihan Mumbai on 21st February
2006. In other words, even though the further investigation was
inconclusive, sanction has been accorded by the Commissioner of Police
which clearly indicates that it is a case of non-application of mind. In the
additional grounds of challenge, it is urged by Petitioner-RMD that till date,
no FIR for any offence against the said Petitioner, much less, under MCOC
Act has been registered. Moreover, there is nothing on record to show that
prior approval has been given by the Police Officer not below the rank of
Deputy General of Police for registration of MCOCA offence against the
Petitioners. In absence thereof, no investigation could proceed against him.
If any investigation has been made, the same would be illegal and without
authority of law. Further, the sanction granted under Section 23(2) of the
MCOC Act against the Petitioners is without jurisdiction and not in
accordance with the provisions of law. It is urged that the further
investigation has been entrusted to CBI to find out the link between the
27 wp.1956.05.sxw
Gutka Manufacturers and the underworld i.e. Dawood Ibrahim and others.
It is stated that CBI has investigated offence by registering FIR in Crime
No.RC 4(S)/2005/9.2.05. However, no copy of the FIR against the
Petitioner has been forwarded to the MCOC Court under Section 157 of the
Cr.P.C. Although the CBI is investigating to find out any link between the
Petitioner and the underworld Dawood Ibrahim and others, since no link
has been found, CBI has not registered any FIR in this matter against the
Petitioner-RMD. At the end, it is urged that the Petitioner be permitted to
urge further grounds after the contents of the text of the sanction accorded
by the Commissioner of Police, Mumbai becomes available to the
Petitioner.
(w) More or less, similar additional contention has been taken in the
second Petition filed by Petitioner-JMJ. In the amended grounds of Writ
Petition filed by JMJ, it is prayed that the sanction issued by the
Respondent No.2 under Section 23(2) of the MCOC Act against the
Petitioner-JMJ be quashed and set-aside. This Petitioner (JMJ) has also
prayed for quashing and setting aside order dated 22nd February 2006
passed by the Special Court of issuing non-bailable warrant against the
Petitioner in Special Case No.1/2005. To buttress these additional reliefs
28 wp.1956.05.sxw
by way of amended grounds, it is urged by this Petitioner-JMJ that
assuming for the sake of argument that the allegation against the Petitioner
that he had supplied a formula to manufacture Gutka to a member of the
organized crime syndicate to be true, that would not attract the offence
within the meaning of Section 3(2) of the MCOC Act. In other words, there
is no material to disclose involvement of the Petitioner of having aided or
abetted commission of offence in connection with the organized crime
syndicate. There was nothing to show that the Petitioner-JMJ has rendered
any assistance or entered into communication with the organized crime
syndicate with actual knowledge thereof. According to this Petitioner, the
alleged act of commission and omission of the Petitioner is at best
assistance to a member of the organized crime syndicate unconnected with
the activity of the organized crime or continuing unlawful activity. For that
reason, the Petitioner cannot be proceeded for offence under Section 3(2) of
the Act. It is also reiterated that the Special Judge proceeded to issue non-
bailable warrant on 27th February 2006 inspite of the fact that the stay
granted by the Division Bench of this Court dated 24th August 2005 was in
force.
3. Counsel appearing for the parties, in addition to making oral
29 wp.1956.05.sxw
submissions, took liberty to file written submissions. Although, attempt
has been made to improve upon and enlarge the grounds of challenge
during the oral arguments as well as in the written submissions, we would
prefer to decide the matter on the basis of the case as pleaded in the
respective Petitions. As aforesaid after the issuance of sanction order by the
Commissioner of Police, Brihan Mumbai dated 21st February 2006, the
controversy must now revolve around the said sanction order. The basis or
the reasons recorded by the Special Court in his order dated 26th July 2005
would recede in the background and in our opinion, would be of no
consequence. As a matter of fact, the said order passed by the Special
Court dated 26th July 2005 is a benign order which purports to issue
directions to the Special Public Prosecutor to make copies of the relevant
documents and furnish the same to the Petitioners herein so as to give
opportunity to the Petitioners to make statement before the Court, if they so
desire, on the basis of which, appropriate orders were likely to be passed.
At best, the observations in the said order to the extent it has rejected the
objection of the Petitioners that the Court cannot resort to the stated
procedure against the Petitioners in absence of a valid sanction accorded
under Section 23(2) of the MCOC Act to prosecute the Petitioners herein in
connection with the alleged offence, is adverse to the Petitioners. Similarly,
30 wp.1956.05.sxw
the opinion recorded by the Special Court that it was open to the Court to
take recourse to such measure in exercise of powers under Section 319 of
Cr.P.C. can also be considered as adverse to the Petitioners. However, we
need not dilate on the correctness or otherwise of the said opinion
expressed by the Special Court in his order dated 26th July 2005, which was
the basis of filing the two Writ Petitions under consideration before this
Court. That, however, would not mean that we are approving the view
recorded by the Special Court in the said decision dated 26th July 2005 in
any manner. This is so because, if the Appropriate Authority has already
accorded sanction and if the said sanction to prosecute the Petitioners
herein is valid, that would not only enable the Investigating Officer to file
the further police report/supplementary charge-sheet to name the
Petitioners before us as additional accused to be tried along with the named
accused in the FIR, but even the Special Court would be within its
jurisdiction to take cognizance of offence against the Petitioners herein as
alleged in the proposed further police report/supplementary charge-sheet. If
so, the substratum of the reasons recorded in the order of the Special Court
dated 26th July 2005 would be of no relevance. In other words, the matter
must proceed on the basis of the stated sanction order passed by the
Commissioner Police, Brihan Mumbai dated 21st December 2006, which in
31 wp.1956.05.sxw
turn accords sanction to proceed against both the Petitioners before this
Court in connection with the alleged offence mentioned in the further
police report/supplementary charge-sheet proposed to be filed before the
Special Court against the Petitioners herein.
4. Thus understood, in our opinion, the broad points that may have to
be addressed by us, on the basis of the subsequent event and the grounds
pleaded in the two Writ Petitions and arguments in that behalf, can be
articulated as follows:
(i) Can the Petitioners be proceeded on the basis of pre-existing
registered FIR which does not even make remote reference to the
involvement of the Petitioners herein? Further, was it incumbent
to at least formally register offence against the Petitioners herein
in the first place before undertaking any investigation about the
involvement of the Petitioners in connection with the alleged
offence referred to in the FIR?
(ii) Whether before registration of offence against the Petitioners,
prior approval under Section 23(1)(a) of the MCOC Act is a sine-
32 wp.1956.05.sxw
qua-non? In absence of such prior approval, neither registration of
offence against the Petitioners herein nor investigation could be
proceeded against and if done, the same will be invalid and
without authority of law?
(iii) When the further investigation of the case is transferred to
independent investigating agency namely CBI, can the sanction
order under Section 23(2) of the MCOC Act be issued by the
member of the police force of State of Maharashtra
(Commissioner of Police, Brihan Mumbai) or was required to be
issued by the member of the Special Police Force called Delhi
Special Police Establishment?
(iv) Can sanction under Section 23(2) of the Act be accorded by
the Appropriate Authority even before the further investigation is
complete?
(v) Whether sanction accorded under Section 23(2) in the fact
situation of the present case is invalid having been given under
dictation of the Special Court?
33 wp.1956.05.sxw
(vi) Whether there is any material to disclose the nexus or
involvement of the Petitioners herein having assisted,
communicated or associated with a person belonging to organised
crime syndicate in his criminal activity or organised crime?
(vii) Considering the fact that the alleged act of commission and
omission of the Petitioners herein took place outside India, can
the matter proceed against the Petitioners herein in absence of
previous sanction of the Appropriate Authority under Section 188
of the Cr.P.C.?
(viii) Whether the Special Judge has committed manifest error
and acted in excess of his jurisdiction and without authority of
law in issuing directions contained in his order dated 26th July
2005 including of issuing non-bailable warrants against the
Petitioners herein and for surrendering their passports?
34 wp.1956.05.sxw
POINTS (i) & (ii) :
5. Reverting to the first two points, which, in our opinion, can be
addressed together, it is not in dispute that no fresh FIR against the
Petitioners herein has been registered. It is also not in dispute that no
separate prior approval under Section 23(1)(a) of the Act has been obtained
qua the Petitioners in connection with the offence referred to in the
registered FIR or in the proposed supplementary charge-sheet/further police
report. Therefore, the question is: whether the prosecution is precluded
from proceeding against the Petitioners herein in connection with the
offence referred to in the supplementary charge-sheet/further police report.
To answer the points under consideration, it would be useful to advert to the
exposition of the Division Bench of our High Court in the case of John
D'Souza vs. Assistant Commissioner of Police reported in
Manu/MH/0797/2007. In that case, the Court considered three questions.
Firstly, whether it is necessary that a separate information under Section
23(1)(a) of the MCOC Act should be recorded after the approval is
accorded under this Section even in cases where the crime has already been
registered after recording the FIR under Section 154 of Cr.P.C. for the
35 wp.1956.05.sxw
offence under the I.P.C.? The second question considered was whether a
Police Officer, other than the Officer mentioned in Section 23(1)(a) of the
MCOC Act, has power to club two or more similar offences together,
having been committed by the very same organised crime syndicate before
the sanction under Section 23(2) is accorded without seeking a fresh
approval in respect thereof and the Police Officer mentioned in sub-section
23(1)(b) can proceed to investigate them as a single offence? The third
question considered was whether the sanction accorded under Section 23(2)
of the MCOC Act would be rendered invalid on the ground that prior
approval under Section 23(1)(a) was not obtained for recording an
information about offence registered earlier which is clubbed with another
offence for which the approval had been granted? With regard to the first
question, in paragraph 17, the Court observed thus:
"17. It is thus clear, that recording of FIR and registration of an
offence, though appear to be independent acts, where latter follows the
former, FIR cannot be recorded without it being registered as an offence
or there cannot be registration of an offence without recording FIR.
In other words, an "information" about the commission of a cognizable
offence, becomes FIR within the meaning of Section 154 of the Code or
even section 23(1)(a) of MCOCA, only if and when the offence is
registered on the basis thereof, otherwise it would, at the most, be a
statement under section 161 of the Code. These two acts, in fact, are
performed simultaneously. The word "information" and the expression
"shall be recorded" employed in Section 23(1)(a), thus, mean
"registration of an offence" in the case where the offence had already been
registered under ordinary law. In other words, the word "recorded" used
in Section 23(1)(a) will also have to be read to mean "registration" of an
36 wp.1956.05.sxw
offence. It is now well settled that there can be no second FIR.
However, there could be fresh registration of the offence and in that
case there could be a new number of the crime register. In the present
case itself, initially the offence was registered by Dr.D.B.Marg Police
Station and subsequently it was transfer to DCB, CID where it was once
again registered and different C.R.number was given by DCB, CID. "
(emphasis supplied)
Insofar as the other two questions, the Court expounded as follows:
"24. A conjoint reading of all the three definitions clearly demonstrate
that seeking prior approval of the competent police officer for recording
information about the commission of an offence of "organised crime"
under MCOCA is a condition precedent and it is mandatory in nature.
It does not provide for the prior approval in relation to any single act of
crime constituting an offence but the approval is in relation to "organised
crime and continuing unlawful activity of organised crime syndicate".
Merely because a police officer approaching the competent police officer
seeking prior approval under section 23(1)(a) making reference to a
particular crime does not mean that the prior approval pertains to only that
crime. In our opinion, an act of making reference to only one crime is
with a view to seek the approval for registering the commission of an
offence of "organised crime" by a particular organised crime syndicate
and in respect of continuing unlawful activity under MCOCA and to
set the criminal law in motion and marks the commencement of
investigation. In the course of investigation if the investigating officer
comes across any other offence of similar nature or which, in the opinion
of the investigating officer, also constitutes an offence of "organised
crime" under MCOCA and if it is committed by the very same organised
crime syndicate, we find no reason as to why he cannot make it a part of
the same offence of "organised crime" to which the prior approval has
been granted. We do not find any provision in MCOCA which prohibits
or put any fetter on the powers of the investigating officer from doing
so. No separate approval under section 23(1)(a) to every such offence
is necessary. The investigating officer under section 23(1)(a), in our
opinion, has every right to investigate an offence of organised crime of
the organised crime syndicate and not only an offence in relation to
which the prior approval has been granted. In other words, once
having granted the approval the investigating officer after
recording/registering an offence under MCOCA has every right, in the
course of investigation, to club any other offence committed by the
same organised crime syndicate disclosing the offence of
organised crime under MCOCA. With every new offence of organised
37 wp.1956.05.sxw
crime, being disclosed after the approval is accorded in connection with
a particular crime, there need not be a fresh procedure for a police
officer to follow starting with fresh approval in relation
thereof. In our opinion, once the approval is granted, until the stage
of seeking sanction reaches, there is no prohibition or fetter on the
powers of such investigating officer to club other offence/s committed
by the very same organised crime syndicate and which, in the opinion of
the investigating agency, is a part of organised crime, namely, continuing
unlawful activity of the very same organised crime syndicate.
25. In short, on receipt of an "information" about the commission
of an offence of organised crime under MCOCA or having realised in
the course of investigation of the offence registered under ordinary law,
that the provisions of MCOCA are attracted a police officer can seek
approval under section 23(1)(a) of the police officer not below
the rank of the Deputy Inspector General of Police. Then the
competent police ig officer under section 23(1)(b) has to investigate not
merely the offence/crime registered for which the approval has been
sought but also other offences/crimes found to have been committed in
the course of investigation by the same "organised crime syndicate"
as a part of their "continuing unlawful activity". Such offence/s could
be clubbed and treated as one single offence of "organised crime" under
MCOCA. No separate approval under section 23(1)(a) is necessary in
such a situation to either club or investigate such offences and try them as
one single offence under MCOCA after seeking sanction under section
23(2). The last filter, that is, according a sanction under section 23(2) is
sufficient enough to take care of any wrong or illegality committed by
the investigating officer in the course of investigation. "
(emphasis supplied)
6. The exposition of another Division Bench of our High Court in the
case of Pradip Madgaonkar @ Bandya Mama vs. State of Maharashtra
decided on 10th November 2006 in Criminal Writ Petition No.988/2006
along with companion matters may also be useful for the points under
consideration. In Paragraph 8, the Court observed that the only point which
required consideration was whether the prosecution has complied with the
38 wp.1956.05.sxw
provisions of Section 23(1) and (2) of the MCOC Act. Insofar as Petitioner
Vinod Asrani in the said case was concerned, his name did not figure in the
prior approval order under Section 23(1)(a) of the Act dated 13th December
2005 passed by the Joint Commissioner of Police (Crime) Mumbai. On that
basis, it was argued that the Investigating Officer have had no jurisdiction
to investigate his complicity in the organised crime. This argument was
resisted by the prosecution on the argument that once prior approval under
Section 23(1)(a) was granted to the Investigating Officer with regard to
offence under MCOC Act, that would be sufficient to authorise the
Investigating Officer to investigate the matter not only against the named
accused but also against other persons if the material becomes available
during the course of investigation disclosing their involvement in the
commission of the alleged offence. The Division Bench in Paragraph 14,
negatived the plea taken on behalf of Vinod Asrani in the following words:
"14. In so far as the case of the petitioner Vinod Asrani as
to the second limb of argument canvassed by Mr. Sushil Kumar,
the learned Senior Advocate appearing for the petitioner, that the
Commissioner of Police could not grant sanction under Section
23 (2) against the petitioner as the case against him has not been
investigated without seeking prior approval under sub-section (1)
of Section 23 of MCOC Act, 1999 is concerned, it cannot be accepted
as we do not find that the sanction accorded against the petitioner
by the Commissioner of Police is vitiated for want of prior approval
which is not the pre-requisite for granting of sanction."
39 wp.1956.05.sxw
In Paragraphs 16 and 17, the Division Bench went on to observe as
follows:
"16. The plain reading of the said section clearly indicates the
safeguards it provides against the misuse/abuse of the provisions of the
MCOC Act, 1999 by the State and, therefore, it clearly lays down in
so far as the first part is concerned that no information about the
commission of offence of organised crime under this Act shall be recorded
by police officer without prior approval of the police officer not below
the rank of Deputy Inspector General of Police and that no
investigation of an offence under the provisions of this Act shall be
carried out by a police officer below the rank of the Deputy
Superintendent of Police which in our view regulated the registering of
an offence as an organised crime under the MCOC Act, 1999 and
senior
information
its investigation. The contention of Mr.
advocate appearing for
about the commission
Sushil Kumar, the learned
the petitioner, that the
of an offence of an organised
crime has to be qua all the persons who are found to be
involved in commission of such an offence cannot be accepted as
sub-section (1)(a) of Section 23 of the said Act does not say so. Mr.
Sushil Kumar has referred to the proviso of Section (3)(a) of Section 20
of the MCOC Act of 1999 to make a point that unless the
information is in respect of the persons found having committed an
organised crime, there cannot be any blanket approval as even in
case of all persons who have been found to be absconding or concealing
themselves they cannot be apprehended, the proviso requires that
the date of registering offence against such person who has
absconded or is concealing himself would rather go to indicate that the
information received has to be against such person which
would necessarily require approval before offences under MCOC
Act are registered on the basis of any information for having
committed an organised crime punishable under the MCOC Act, 1999
as held in Mukhtiar Ahmed Ansari's case (cited supra). In the
absence of any prior approval either in writing or oral the
proceedings will stand vitiated and, therefore, in the case of Vinod
Asrani when the approval was granted his name did not figure
in the list of persons against whom information was
received of having committed or associated with organised
crime and therefore he could not have been subsequently arrested
without prior approval which is admittedly not there in his case. With
all humility at our command, the decision in Mukhtiar
Ahmed Ansari's case (cited supra) cannot be misconstrued and read so
as to mean that after an approval has been granted by the police
40 wp.1956.05.sxw
officer not below the rank of Deputy Inspector General of
Police as required under sub-section (1)(a) of Section 23 of
registering an offence of organised crime under this Act if in the course
of investigation of the offence of organised crime committed by
organised crime syndicate, complicity of other members of the organised
crime syndicate including the persons who have been found to have
aided and abetted the organised crime committed by the
organised crime syndicate is seen, the investigating officer will have to
seek further approval in a case of such a person/suspect. Therefore,
in our view once an approval has been granted as contemplated
under sub-section (1)(a) to Section 23 in respect of information
about the commission of offence of organised crime under this Act,
there is no requirement under the law to seek further approval in
the course of investigation of the organised crime which may lead to
collection of further material and disclosure of complicity of
persons whose names and involvement did not figure at the
time the initial information
ig about the commission of an
offence about the organised crime under the MCOC Act comes within the
knowledge of the investigating agency if it is arising out of the
commission of the offence and in the course of same transaction
which was revealed by the information about the commission of an
offence of an organised crime under the said Act. Otherwise it
would lead to an absurdity that with the progress of
investigation if additional material is collected and involvement
of persons whose complicity was not known at the time the initial
information was received is seen, the police officer who is
investigating the offence will have to again go and seek prior approval qua
the person whose involvement in the offence is subsequently found.
The protection/safeguard relates to the initial information about the
commission of an offence about organised crime under this Act which
requires prior approval of the police officer not below the rank of Deputy
Inspector General of Police for registering the case under the provisions
of MCOC Act of 1999. Mukhtiar Ahmed Ansari's case also
stands distinguished on facts. His prosecution stood vitiated under
the provisions of TADA (P) Act, 1987 as no prior approval u/s 20-A(1)
was taken at all to register offences under the said Act against him and he
was the sole accused who was put on trial before the Designated Court
under the said Act which is not so in the case of the Petitioner. Prior
approval has been taken under sub-section (1)(a) of Section 23 of the
MCOC Act of the competent authority on receipt of the information
and thereafter offences under MCOC Act, 1999 came to be registered
and investigation was conducted.
17. It is not that once the police gets prior approval as contemplated
in sub-section (1)(a) of Section 23 in respect of information of
commission of an offence about the organized crime, there is no further
41 wp.1956.05.sxw
check on them. It will otherwise mean a blanket approval so that they
can rope in any person they desire without his complicity being scrutinised
by superior police officer of the rank of Deputy Inspector General of
Police. Sub-section (2) of Section 23 takes care of such a
contingency as sanction is required before a person is required to be
charge sheeted and then only the Special Court can take cognizance of
an offence under this Act. It cannot be done without the previous sanction
of the police officer not below the rank of Additional Director General
of Police and the stage when the charge sheet is required to
be filed the investigating officer will have to satisfy the
Additional Director General of Police to accord sanction qua
the persons who are proposed to be charge sheeted before the
Special Court and the law on this issue is well settled. Sanction
for prosecution is required to be obtained with respect to specific
accused as this being a special statute and hence maxim generalia
specialibus non derogant would apply and it has a overriding effect over
the general provisions of Section 190 or Section 319 of Criminal
Procedure Code and the Special Court cannot take cognizance of the
offence against the person to whom no sanction is granted by the
sanctioning authority. The provision of sanction is the most salutary
safeguard. The sanctioning authority is placed somewhat in the position
of a sentinel at the door of criminal Courts in order that no
irresponsible or malicious prosecution can pass the portals of Court of
Justice and, therefore, at the subsequent stage before a person is
exposed to prosecution, his complicity is to be adjudged by the
sanctioning authority. Therefore, we do not find any error merely
because name of the petitioner Vinod Asrani did not figure at the
initial stage about the commission of offence of organised crime i.e.
in Crime No. 150 of 2005 of DCB, CID, but subsequently on
investigation when the investigating officer submitted his report dated
1.6.2005 along with papers of investigation, the prior approval of the
Joint Commissioner of Police (Crime), Mumbai, dated 13.12.2005
was obtained for applying the provisions of the MCOC Act, 1999 to
the said case, the Commissioner of Police granted sanction against the
petitioner for his prosecution in the category of wanted accused vide
order dated 24.3.2006. Therefore, we do not find any merit in the
petition filed by Vinod Asrani and it stands dismissed. 18. In so far as the
petition filed by Jayant Mule is concerned for quashing the proceedings
against him also does not require any consideration for want of merit.
Therefore, this petition also stands dismissed. " (emphasis supplied)
7. Notably, the above said decision has been upheld by the Apex Court
42 wp.1956.05.sxw
in the case of Vinod G.Asrani vs. State of Maharashtra reported in AIR
2007 SC 1253. The Supreme Court proceeded to observe as follows:
8. We have carefully considered the submissions made on behalf of the
respective parties and the relevant provisions of MCOCA and we are of
the view that the High Court did not commit any error in dismissing the
petitioner's writ application. We are inclined to accept Mr. Altaf Ahmed's
submissions that non-inclusion of the petitioner's name in the approval
under Section 23(1)(a) of MCOCA was not fatal to the investigation as far
as the petitioner is concerned. On the other hand, his name was included in
the sanction granted under Section 23(2) after the stage of investigation
into the complaint where his complicity was established. The offences
alleged to have been committed by the petitioner has a direct bearing
and/or link with the activities of the other accused as part of the Chhota
Rajan gang which was an organized crime syndicate.
9. As pointed out by Mr. Ahmed, this Court in the case of Kari
Choudhary v. Mst. Sita Devi and Ors., (2002) 1 SCC 714 ((2001 AIR
SCW 5051), had while considering a similar question observed that the
ultimate object of every investigation is to find out whether the offences
alleged have been committed and, if so, who had committed it. 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 F.I.R. and they surface only at the stage of the
investigation. The scheme under Section 23 of MCOGA is similar and
Section 23(1)(a) of MCOCA provides a safeguard that no investigation
into an offence under MCOCA should be commenced without the
approval of the concerned authorities. Once such approval is obtained, an
investigation is commenced. Those who are subsequently found to be
involved in the commission of the organized crime can very well be
proceeded against once sanction is obtained against them under Section
23(2) of MCOCA. (emphasis supplied)
43 wp.1956.05.sxw
8. We may also usefully refer to the decision of the Apex Court in the
case of Ahmed Umar Saeed Sheikh vs. State of U.P. reported in (1996)
11 SCC 61, wherein the provisions of Section 20-A of TADA Act were
considered. These provisions are analogous to the provisions of Section 23
of the MCOC Act. The Court on analysing the legal position, went on to
observe that grant of subsequent approval when during investigation
involvement of the accused in TADA offence is revealed and filing of
charge-sheet with the sanction of the authority concerned was sufficient
compliance.
9. From the above decisions, it would necessarily follow that once
prior approval was granted by the Competent Authority on 21st October
2004 for applying the provisions of Section 3 of MCOC Act, to DCB CID
Unit 9 CR No.122/2004 under Section 120-B of the I.P.C. r/w Sections 384,
387 and 34 of the I.P.C. r/w Sections 3 and 25 of Arms Act, that authorised
the Investigating Officer to investigate the said case against all concerned
and not limited to the named accused. Indeed, after the investigation, before
filing of charge-sheet in Court, the Investigating Officer is obliged to obtain
sanction under Section 23(2) of the MCOC Act from the Appropriate
Authority. If such sanction were to be granted generally with reference to
44 wp.1956.05.sxw
the proposed charge-sheet, that would be sufficient compliance. However,
if the Sanctioning Authority were to accord sanction to prosecute only some
of the accused referred to in the charge-sheet then the sanction to prosecute
would apply only as against those accused and offence under the provisions
of MCOC would apply only qua those accused. In which case, the accused
against whom such sanction is not accorded, cannot be proceeded further
for the offence under MCOC Act, as the Special Court cannot take
cognizance of that offence against such accused.
10. In the present case, the investigation for offence under Section 3 of
the MCOC Act proceeded only after prior approval was granted on 21st
October 2004 by the Competent Authority. Indeed, the investigating agency
was later on changed and eventually CBI took over the investigation with
effect from 9th February 2005. The fact that there was change in the
investigating agency, does not mean that the new investigating agency
could not have proceeded in the matter or undertaken further investigation
from the same stage when it took over the case, unless fresh prior approval
procedure under Section 23(1)(a) was followed. Such argument clearly
overlooks that with the change of investigating team, what happens is only
further investigation is taken over by the subsequently nominated
45 wp.1956.05.sxw
investigating team. That does not efface the prior approval granted by the
competent Authority. Even the fact that the newly appointed investigating
agency re-registers the case, does not affect the prior approval granted by
the Competent Authority. The re-registration of the case with the newly
appointed investigating agency is with a view to continue with the further
investigation of the same case and not an independent case as such. In this
view of the matter, the fact that the Petitioners herein have been proceeded
on the basis of pre-existing registered FIR, which does not make reference
to the involvement of the Petitioners in the offence referred to in the said
FIR would not take the matter any further. Inasmuch as, during the course
of investigation, if material has come on record to disclose the involvement
of the Petitioners herein in relation to the offence referred to in the FIR
and on the basis of which charge-sheet were to be filed, it would not be
necessary to first register offence against such persons whose involvement
has been disclosed during the investigation. But the prosecuting agency
would be competent to file charge-sheet on compliance of other formalities
preceding filing of the charge-sheet in Court against such persons. In such a
case, the question of obtaining of prior approval under Section 23(1)(a) of
the MCOC Act against such person, would not arise and the prior approval
which has already been granted on the basis of which investigation for
46 wp.1956.05.sxw
offence punishable under Section 3 of the MCOC Act proceeded, would be
sufficient compliance. As a matter of fact, on fair reading of prior approval
dated 21st October 2004, it is not as if it has been granted only against
specific accused. Such argument cannot be countenanced. In any case, in
law, even if the prior approval under Section 23(1)(a) of the MCOC Act
was to be granted in connection with the FIR which mentioned name of
only some of the accused; but if during the course of investigation, it
transpires that even other persons were engaged in the commission of the
alleged offences, the prior approval so granted would be sufficient
compliance and the investigating agency would be free to investigate the
matter even against such persons but would be bound to take sanction of
the Appropriate Authority even against the additional accused, before filing
of the charge-sheet which would name those persons in addition to the
named accused. Suffice it to observe that no separate approval under
Section 23(1)(a) would be required for every offence subsequently
investigated and found to have been committed by the same organised
crime syndicate as part of its continuing unlawful activity. For, it could be
clubbed and treated as one single offence of organised crime under the
MCOC Act. The question as to whether that offence is in relation to offence
of organised crime committed in the course of some other transaction or
47 wp.1956.05.sxw
not in relation to same facts , is a matter to be considered only after filing of
further police report and the sanction order.
11. Counsel for the Petitioners would, however, rely on the decision of
the Apex Court in the case of State of Maharashtra & Ors. Vs. Lalit
Somdatta Nagpal & Anr. reported in (2007) 4 SCC 171. In this case,
however, the question primarily considered was whether the provisions of
MCOC Act would have application to the cases covered by the provisions
of Essential Commodities Act, 1955. In other words, the applicability of
MCOC Act to the offence alleged to have been committed under the
provisions of Essential Commodities Act was the matter in issue. The Apex
Court on analysing the Scheme of the two Enactments, has taken the view
that the offence ascribable to the provisions of the Essential Commodities
Act would not attract the offence of organized crime under the MCOC Act.
It is on that finding, the Court went on to hold that the sanction as well as
prior approval accorded to prosecute the accused therein, suffer from non
application of mind. We fail to understand how this decision would be of
any avail to the Petitioners.
48 wp.1956.05.sxw
12. Reliance was also placed on the decision in the case of Mukhtiar
Ahmed Ansari vs. State (N.C.T. of Delhi) reported in (2005) 5 SCC 258.
In that case, however, no prior approval for investigating the offence of
TADA was granted "at all". It is on that finding of fact, the Court
proceeded to hold that the investigation done and the subsequent
proceedings in absence of such prior approval were vitiated insofar as the
offences punishable under the provisions of TADA were concerned. The
Court positively found that the prosecution had failed to prove that the
Appropriate Authority had ever granted prior approval either in writing or
orally as the case may be. Whereas, the sanction order merely made
reference to the offence punishable under the provisions of the Arms Act. In
this backdrop, the Court opined that the entire proceedings with regard to
the offence punishable under TADA Act were vitiated.
13. In the present case, it is stated on behalf of the Respondents that
sanction under Section 23(2) has already been accorded qua the Petitioners
before this Court in relation to offence in question punishable under the
provisions of Section 3 of MCOC Act; and consequent to the said sanction,
the further police report/supplementary charge-sheet naming the Petitioners
as accused in the said crime will be presented before the Special Court. The
49 wp.1956.05.sxw
question whether the said sanction is valid or otherwise and whether there
is enough material either to accord such sanction for prosecution of
Petitioners herein much less, for filing of charge-sheet against them, is a
matter which can be examined at the appropriate stage.
14. Counsel for the Petitioner has placed reliance on the case of
Jamiruddin Ansari vs. CBI & Anr. reported in (2009) 6 SCC 316. In
this case, however, the principal question considered was about whether an
investigation could be ordered by the Special Court constituted under
MCOC Act, save and except in accordance with Section 23(1) of MCOC
and interplay, if any, between Section 9(1) and Section 23 of MCOC Act.
The matter has been considered in that perspective. This decision cannot be
pressed into service as an authority on the proposition that in absence of
prior approval specifically against the Petitioners herein, no investigation
could be proceeded against the Petitioners inspite of prior approval granted
by the Appropriate Authority at the time of invoking offence under Section
3 of the Act or for that matter, it was not open to the Appropriate Authority
to accord sanction to prosecute the Petitioners herein, even if such a
sanction were to be valid sanction on the basis of which the Special Court
could take cognizance of offence even against the Petitioners herein.
50 wp.1956.05.sxw
15. Counsel for the Petitioners also relied on another decision of the
Apex Court in the case of Anjani Kumar vs. State of Bihar & Anr.
reported in (2008) 5 SCC 248 to contend that pre-trial challenge was open
and could be resorted to by the Petitioners on the ground that there was no
valid sanction or prior approval against the Petitioners. In that case, the
High Court took the view that no sanction was required to prosecute the
accused persons who were public servants in the facts of that case. The
Apex Court overturned the said opinion of the High Court on the basis of
factual background essentially on the finding that the complaint made
against the accused persons who were public servants was itself malafide.
Indeed, in Paragraph 14 of the Judgment, it went on to observe that even
the applicability of Section 197 of the Code would be attracted. Taking
overall view, therefore, the Apex Court quashed the continuance of the
proceedings by the prosecution against the Petitioners on the finding that it
would be abuse of the process of law. In the present case, however, the
Respondents have stated that sanction has been accorded by the
Appropriate Authority to prosecute the Petitioners herein in connection
with the alleged offence for which the proposed supplementary charge-
sheet/further police report would be presented before the Special Court.
51 wp.1956.05.sxw
The question whether the said sanction to prosecute the Petitioners herein is
a valid sanction or otherwise, as aforesaid, is a matter which will have to be
answered at the appropriate stage after the supplementary charge-
sheet/further police report is presented before the Special Court along with
the sanction order.
16. Counsel for the Petitioners had also relied on authorities on the
proposition that cognizance can be taken by the Court for offences under
provisions of Section 3 of MCOC Act only after sanction to prosecute the
concerned accused is accorded by the Competent Authority (See Harpal
Singh vs. State of Punjab-(2007) 13 SCC 387 (Paras 8, 12 & 13), Dilawar
Singh vs. Parvinder Singh @ Iqbal Singh & Anr. - (2005) 12 SCC 709
(Paras 4, 7 & 8), AIR (38) 1951 SC 207 (Paras 8 & 9). As also on the
proposition about the requirements of a valid sanction. (Rambhai
Nathabhai Gadhvi & Ors. vs. State of Gujarat-(1997) 7 SCC 744 (Paras 8,
10, 14 & 20), Mansukhlal Vithaldas Chauhan vs. State of Gujarat-(1997) 7
SCC 622 (Para 19 also see Paras 18 & 23). Reliance is also placed on the
decision in Ranjitsingh B.Sharma vs. State of Maharashtra reported in
2005(5) SCC 294 and Madan R.Gangwani v. State of Maharashtra
reported in 2009 All.M.R. (Cri.) 1447 to contend that unless material is
52 wp.1956.05.sxw
shown to indicate the nexus of the Petitioners with the member of the
organised crime syndicate or to attract the ingredients of organised crime,
the Petitioners cannot be proceeded against in connection with the alleged
offence. This argument can be looked into only after filing of further police
report. The learned A.S.G., however, relies on the decisions in the case of
Anil Sadashiv Nandurkar vs. State of Maharashtra reported in 2008 (3)
Mah.L.J. (Cri.) 650 (paras 13, 18, 19, 24 & 25); and R.R.Chari vs. State of
Uttar Pradesh reported in AIR 1951 SC 207 (paras 8 and 9). The decisions
referred to above need not detain us. In the first place, as aforesaid, the
Respondents assert that now sanction is accorded to prosecute the
Petitioners before us by the Appropriate Authority. If so, the Special Court
would be free to take cognizance of offence against the Petitioners before
us. Whether the said sanction is valid or otherwise, is a matter which will
have to be considered at the appropriate stage only after it is presented
before the Special Court along with the supplementary charge-sheet/further
police report.
POINT NO.(iii) :
17. That takes us to Point No.(iii). It is not in dispute that the FIR was
registered by the local State Police Force on 27th September 2004 in respect
53 wp.1956.05.sxw
of offences punishable under the Arms Act and IPC. After prior approval
was accorded by the Competent Authority, FIR in respect of offence
punishable under Section 3 of the MCOC Act along with the offence under
the Arms Act and IPC came to be registered by the local State Police Force.
The investigation into the said offence was done by the local State Police
Force and charge-sheet came to be filed against the named four accused on
24th January 2005. The Court then permitted further investigation under
Section 173(8) of the Code. However, at a later stage, new investigating
agency, namely, CBI, came to be appointed on 9th February 2005 to
undertake further investigation. Significantly, before that, the charge-sheet
against the named four accused was filed on 24th January 2005, on the
basis of sanction accorded by the Commissioner of Police, Brihan Mumbai
dated 21st January 2005. That sanction was only in respect of four accused
named in the FIR. However, after further investigation by the newly
appointed investigating agency namely CBI, the papers were once again
submitted to the Commissioner of Police, Brihan Mumbai for according
sanction to prosecute the Petitioners before this Court. It is stated that the
Commissioner of Police, Brihan Mumbai has accorded sanction to
prosecute the Petitioners herein on 21st February 2006.
54 wp.1956.05.sxw
18. In this backdrop, the question is: whether the further investigation
having been done exclusively by the members of Police Force called Delhi
Special Police Establishment namely the CBI, can the sanction be accorded
by the member of the Police Force of State of Maharashtra i.e. the
Commissioner of Police, Brihan Mumbai or whether the sanction ought to
have been granted only by the member of the Special Police Force called
Delhi Special Police Force Establishment.
19.
To answer this controversy, we would first turn to Section 23 of the
MCOC Act. Section 23(2) of the MCOC Act postulates that no Special
Court shall take cognizance of any offence under MCOC Act without the
previous sanction of the police officer not below the rank of additional
Director General of Police. The expression `police officer' has not been
defined in the MCOC Act of 1999. That expression has not been defined
even in the Cr.P.C. Indeed, Section 2 (s) of the Cr.P.C. defines the
expression "police station" and Section 2(o) defines the expression "officer
in-charge of a police station". Considering the fact that the MCOC Act is a
State Legislation, it would necessarily refer to the members of the Police
Force in the State of Maharashtra as referred to in Mumbai Police Act,
Mumbai General Clauses Act and Mumbai Police Force Establishment Act.
55 wp.1956.05.sxw
20. Ordinarily, it is the member of the Police Force of the State of
Maharashtra who is expected to discharge the duty of according sanction
under Section 23(2) of the MCOC Act. Indeed, the said Officer should be
Police Officer not below the rank of additional Director General of Police.
However, in the present case, the further investigation was handed over to
CBI which is a Special Police Force called the Delhi Special Police
Establishment. The said police force is established by virtue of the Delhi
Special Police Establishment Act, 1946 (hereinafter referred to as `the Act
of 1946'). The scope of activity of the said police force can be discerned
from the said enactment. The preamble of the Act predicates that it is an act
to make provision of a constitution of a Special Police Force in Delhi "for
the investigation of certain offences" in the Union territories, for the
superintendence and administration of the said force and for the extension
to other of the powers and jurisdiction of the members of the said force "in
regard to the investigation of the said offences". From the preamble, it is
obvious that emphasis has been placed on the activity of investigation of
the specified offence by the Special Police Force constituted under the said
Act of 1946. Section 2 of the said Act deals with constitution and
powers of special police establishment. Sub-section (1) thereof provides
56 wp.1956.05.sxw
that notwithstanding anything in the Police Act, 1861, the Central
Government may constitute a special police force to be called the Delhi
Special Police Establishment "for the investigation" in any Union territory
of offences notified under Section 3. On issuance of order by Central
Government, the members of the Special Police Force of or above the rank
of Sub-Inspector may exercise any of the powers of the officer in-charge of
a Police Station in the area in which he is for the time being and when so
exercising such powers be deemed to be an officer in-charge of a Police
Station discharging the functions of such an officer within the limits of his
Station. Insofar as extending the jurisdiction of Special Police
Establishment to other areas other than Union territories such as State of
Maharashtra, that is done by issuance of order under Section 5(1) of the
Act. We would, therefore, reproduce Section 5 of the Act of 1946, which
reads thus:
"Section 5 - Extension of powers and jurisdiction of special police
establishment to other areas
(1) The Central Government may by order extend to any area (including
Railway areas),1[in2[a State, not being a Union territory]] the power and
jurisdiction of members of the Delhi Special Police Establishment for the
investigation of any offences or classes of offences specified in a
notification under section 3.
(2) When by an order under sub-section (1) the powers and jurisdiction
of members of the said police establishment are extended to any such
57 wp.1956.05.sxw
area, a member thereof may, subject of any orders which the Central
Government may make in this behalf, discharge the functions of a police
officer in that area and shall, while so discharging such functions, be
deemed to be a member of a police force of that area and be vested
with the powers, functions and privileges and be subject to the liabilities
of a police officer belonging to that police force.
(3) where by such order under sub-section (1) is made in relation to any
area, then, without prejudice to the provisions of sub-section (2) any
member of the Delhi Special Police Establishment of or above the rank of
Sub-Inspector may subject to any orders which the Central Government
may make in this behalf, exercise the powers of the officer in charge of a
police station in that area and when so exercising such powers, shall be
deemed to be an officer in charge of a police station discharging the
functions of such an officer within the limits of his station."
21. We have already reproduced the Government Notification dated 9th
February 2005 in terms whereof the further investigation of the case has
been made over to CBI with the consent of the State Government. The
further investigation is relating to nexus between the gutka manufacturers
and the underworld, and attempts, abetments, conspiracies in relation to, or
in connection with the said offences, and any other offences committed in
the course of the same transaction or arising out of the same facts.
22. On plain language of Section 5, it would appear that upon issuance of
the above said Notification, the powers and jurisdiction of members of the
Delhi Special Police Establishment "for the investigation of any offence or
class of offence" specified in a Notification under Section 3 would stand
extended to said area, in the present case, State of Maharashtra. Further, the
58 wp.1956.05.sxw
members of the Special Police Establishment, subject to any orders which
the Central Government may make in this behalf, discharge the functions of
a police officer in that area and shall while so discharging such functions
are deemed to be members of the police force of that area. For that
purpose, they are vested with the powers, functions and privileges and be
subject to the liabilities of a police officer belonging to that police force. In
the first place, the language of sub-section (2) clearly indicates that on
account of deeming fiction, the members of the Special Police Force
would be deemed to be members of the Police Force of the concerned area
(in the present case, State of Maharashtra). That per se would not divest the
powers, functions, and privileges as also liabilities of police force of State
of Maharashtra. On account of the deeming provision, in law, the members
of the Special Police Force may "also" be entitled to discharge the
functions such as under Section 23(2) of the MCOC Act. The fact that the
members of the Special Police Force are exclusively entrusted with the
further investigation of the criminal case on account of the Notification
dated February 9, 2005 or otherwise does not divest the powers, functions
and privileges and the liabilities of the members of the Police Force of
State of Maharashtra, in particular, in the context of Section 23(2) of the
MCOC Act. Indeed, in law, on account of the deeming fiction, the police
59 wp.1956.05.sxw
officer not below the rank of Additional Director General of Police in the
Special Police Establishment would also be competent to discharge the
function of considering grant or non grant of sanction to prosecute any
person for offence punishable under the MCOC Act.
23. Indubitably, sub-section (2) of Section 5 envisages that the member
of the special force may consequent to issuance of Notification under
Section 5(1) discharge the functions of a police officer of the concerned
area subject to any orders which the Central Government may make in this
behalf. Going by the Notification dated February 9, 2005, the order issued
by the Appropriate Authority in exercise of powers under Section 5(1) r/w
Section 6 of the Act of 1946 is only to extend the powers and jurisdiction of
the Delhi Special Police Establishment to the whole of the State of
Maharashtra for further investigation of the case. Perhaps, out of abundant
cautela or extreme caution, the Investigating Officer who is a member of
Delhi Special Police Establishment must have been advised to seek
sanction from the police officer not below the rank of Additional Director
General of Police of State of Maharashtra. The fact that the Commissioner
of Police, Brihan Mumbai qualifies the said designation, is not in issue. In
other words, the fact that sanction has been accorded to prosecute the
60 wp.1956.05.sxw
Petitioners herein by the Commissioner of Police, Brihan Mumbai, even
though the further investigation has been done by the Officer or member of
the Special Police Establishment namely, the CBI, the same would be
sufficient compliance of Section 23(2) of the MCOC Act. That, however,
would be subject to the question whether the same can be considered as a
valid sanction or otherwise on other considerations.
24. Reliance has been justly placed by the learned Additional
Solicitor General on the decision of the Apex Court in the case of
A.C.Sharma vs. Delhi Administration reported in AIR 1973 SC 913.
The provisions of the Act of 1946 have been analysed by the Apex Court
and it has been noted that the Scheme of the Act does not either expressly
or by necessary implication divest the regular Police authorities conferred
on them by under any other competent Law. The Apex Court in Para 12
observed thus:
"................... Section 3 which empowers the Central Government to
specify the offences to be investigated by the D.S.P.E. has already been set
put. The notification dated November 6, 1956 referred to earlier specifies
numerous offences under various enactments including a large number of
ordinary offences under I.P.C. Clauses (a) to (J) of this notification take
within their fold offences under a number of statutes specified therein.
Clause (k) extends the sweep of this notification by including in its scope
attempts, abetments and conspiracies in relation to or in connection with
the offences mentioned in Clause (a) to (h) and also any other offence
committed in the course of those transactions arising out of the same facts.
It may also be stated that after 1956 in a number of further notifications
61 wp.1956.05.sxw
the list of the offences specified under Section 3 has increased manifold.
We consider it unnecessary to refer to them in detail. According to Section
4 the superintendence of D.S.P.E. vests in the Central Government and
Section 5 empowers the Central Government to extend to any area in a
State not being a Union territory the powers and jurisdiction of members
of this establishment for the investigation of any offences or classes of
offences specified under Section 3. Subject to the orders of the Central
Government the members of such Establishment exercising such extended
powers and jurisdiction are to be deemed to be members of the police
force of that area for the purpose of powers, functions, privileges and
liabilities. But the power and jurisdiction of a member of D.S.P.E. in such
State is to be exercised only with the consent of the Government of the
State concerned. The scheme of this Act does not either expressly or by
necessary implication divest the regular police authorities of their
jurisdiction, power and competence to investigate into offences under any
other competent law. As a general rule, it would require clear and express
language to effectively exclude as a matter of law the power of
investigation of all the offences mentioned in this notification from the
jurisdiction and competence of the regular police authorities conferred on
them by Cr. P.C. and other laws and to vest this power exclusively in the
D.S.P.E. The D.S.P.E. Act seems to be only permissive or empowering,
intended merely to enable the D.S.P.E. also to investigate into the offences
specified as contemplated by Section 3 without impairing any other law
empowering the regular police authorities to investigate offences.
(emphasis supplied)
25. A priori, the fact that the member of the Special Police Force could
also have legitimately considered the proposal for grant or non grant of
sanction to prosecute the Petitioners before this Court, would not vitiate the
sanction accorded by the Commissioner of Police, Brihan Mumbai who is
a member of the Police Force of the State of Maharashtra and otherwise
competent to accord such sanction in exercise of powers under Section
23(2) of MCOC Act.
62 wp.1956.05.sxw
26. The argument of the Petitioners that the member of the same police
force which has investigated the criminal case is well equipped to decide
on the issue of grant or non grant of sanction to prosecute the accused,
clearly overlooks the marked distinction between the process of
investigation and the process of grant of sanction. The Authority to accord
sanction can be an independent authority to wit; even as per the Scheme of
Section 197 of Cr.P.C., sanction is to be accorded by the State of
Maharashtra or the Central Government, as the case may be and not by the
superior officer of the police force of the State of Maharashtra. In other
words, the argument that there is special advantage if the superior officer
of the same police force were to consider the proposal for grant or non
grant of sanction to prosecute offences punishable under MCOC Act is
without any basis. Suffice it to observe that the mandate of Section 23(2),
envisages that it would be sufficient compliance if the police officer not
below the rank of additional Director General of Police of the Police Force
of Maharashtra were to accord sanction under Section 23(2) of MCOC Act.
The fact that, that sanction could also be given by the member of the
Special Police Force (CBI), by virtue of the legal fiction provided in
Section 5 of the Act of 1946, does not take the matter any further.
63 wp.1956.05.sxw
POINT NO.(iv) :
27. That takes us to Point No.(iv). The grievance of the Petitioners is
that from the admitted facts emerging from the record, it is amply clear that
as late as till 6th February 2006, the stand of the Investigating Officer was
that the further investigation was still incomplete and he would require at
least one month's time to finalise the case and file report under Section 173
(8) of Cr.P.C. before the Court. That was because Letters Rogatory were
issued by the Court to U.A.E. and Pakistan and the execution thereof was
being pursued with the authorities concerned. On this basis, it was
contended that if the investigation was still incomplete, and in any case,
there was no changed situation, from the position stated by the Special
Judge in his order dated 15th July 2005, it would necessarily follow that the
Sanctioning Authority has accorded sanction without application of mind
and more so, under the dictation of the Special Court which gave hint to
proceed against the Petitioners. The question as to whether it is a case of
non application of mind or for that matter, the sanction order has been
passed under dictation of the authority of the Court will be a mixed
question of fact and law. That can be addressed at the appropriate stage and
certainly not in the present Writ Petitions.
64 wp.1956.05.sxw
28. We would simply deal with the legal question as to whether there is
any inhibition in according sanction before the further investigation was
completed. In our opinion, the fact that one charge-sheet has already been
filed against the named accused; and even if we were to accept the
argument of the Petitioners that the same does not disclose complicity of
the Petitioners herein, that however, cannot come in the way of further
investigation. The fact that further investigation was undertaken after filing
of the first charge-sheet and that too with the permission of the Court is not
in dispute. The material gathered during the further investigation would
form part of the proposed further police report/supplementary charge-sheet.
The Investigating Officer has perhaps already compiled the further police
report/supplementary charge-sheet on the basis of the available material.
But before presenting the same in Court as required by Section 23(2) of the
MCOC Act, he was obliged to obtain sanction of the Competent Authority.
He has resorted to that measure. Whether the said supplementary charge-
sheet contains enough material to disclose the complicity of the Petitioners
in the commission of the alleged offence referred to in the said
supplementary charge-sheet, is a matter which will have to be addressed at
the appropriate stage. No legal provision has been brought to our notice
65 wp.1956.05.sxw
which would preclude or prohibit according of sanction to file
supplementary charge-sheet or further police report under Section 173(8)
of Cr.P.C., even when further investigation is still inconclusive. It is not
unknown that more than one charge-sheet/police reports are filed in a given
case, if the situation so warrants. Even after filing further police
report/supplementary charge-sheet, which may be intended to name the
Petitioners herein for the first time, as being involved in the commission of
the alleged offence referred to therein, it may be open to the Investigating
Officer to continue with the further investigation with the permission of the
Court and to file further police report/supplementary charge-sheet. It is not
necessary for the Investigating Officer to wait until the response on the
Letters Rogatory is received from the foreign agency, if he were to be
convinced that the material already gathered by him was sufficient to
proceed against the Petitioners herein and to file supplementary charge-
sheet/further police report in that behalf. Further, after receipt of response
from the foreign agency in respect of Letters Rogatory, he may proceed to
file further police report/supplementary charge-sheet in addition to already
filed, including against the Petitioners herein, after complying with the
requisite formalities, if he so desires. We express no opinion in that behalf.
We also express no opinion as to whether the proposed supplementary
66 wp.1956.05.sxw
charge-sheet/further police report to be filed by the Investigating Officer on
the basis of the sanction accorded by the Commissioner of Police, Brihan
Mumbai to prosecute the Petitioners herein in relation to the offence
referred to therein, is valid or otherwise. That is a matter which will have
to be considered at the appropriate stage. Suffice it to observe that, in law,
nothing precludes the Investigating Officer to pursue with the Sanctioning
Authority for according sanction to prosecute even before the further
investigation is completed.
29. Since much emphasis was placed on the report dated 6th February
2006 filed by the Investigating Officer, we may only mention that the
thrust of the said report is that at the relevant time, the Investigating Officer
expected to finalise the case within one month's time, as the response in
relation to the Letters Rogatory was likely to be materialized. That
however, as aforesaid, would not preclude him in law to move the
Sanctioning Authority for according sanction to prosecute the Petitioners
herein in connection with the offence referred to in the proposed
supplementary charge-sheet/further police report on the basis of the
material already available with him. Accordingly, even this contention will
have to be stated to be rejected.
67 wp.1956.05.sxw
POINTS NO. (v) AND (vi) :
30. That takes us to Points No.(v) and (vi). The grievance therein
essentially is with regard to the validity of the sanction order on the ground
that it has been issued under dictation of the Special Court or that there was
no sufficient material on the basis of which the Sanctioning Authority
could have arrived at the satisfaction about the nexus or involvement of the
Petitioners in the commission of the alleged offence of organized crime. It
is premature to entertain such grievance. The sanction order has still not
been served on the Petitioners, nor the Investigating Officer has so far filed
the supplementary charge-sheet/further police report which would name
the Petitioners in the commission of the organized crime or any other
offence. It is only after filing of the charge-sheet and placing the sanction
order on record of the Special Court, such grievance can be looked into at
the appropriate stage. Suffice it to observe that this grievance is premature
and cannot be examined in the present Writ Petitions.
31. We are conscious of the argument of the Petitioners that the question
regarding validity of sanction can be gone into even at a pre-trial stage.
68 wp.1956.05.sxw
However, the scope of that challenge at the pre-trial stage, would be very
limited. If the challenge raises an issue which is mixed question of fact and
law, that cannot be decided at pre-trial stage unless the prosecution is given
opportunity to lead evidence. We need not dilate on this aspect any further.
In our opinion, Point Nos.(v) and (vi) cannot be addressed in the present
Writ Petitions. The question whether there is enough material to indicate
complicity of the Petitioners in commission of the alleged offence of
organized crime or otherwise, is a matter which will have to be agitated by
the Petitioners at the appropriate stage. We express no opinion in that
behalf.
POINT NO.(vii) :
32. Insofar as Point No.(vii) is concerned, the question as to
whether the alleged offence took place wholly or partly outside India and if
so, is it open to the prosecution to proceed against the Petitioners before
this Court, in absence of previous sanction of the Appropriate Authority
under Section 188 of Cr.P.C., is also a mixed question of fact and law. In
any case, that question need not detain us. It is premature to examine the
said grievance. That grievance can be looked into at appropriate stage after
69 wp.1956.05.sxw
the supplementary charge-sheet is filed naming the Petitioners as involved
in commission of alleged offence, which according to them, had taken
place outside India. Accordingly, we do not wish to elaborate on this point
for the reasons already mentioned while dealing with the other points.
POINT NO.(viii) :
33. That takes us to Point No.(viii) which is essentially regarding the
grievance about the correctness and validity of the order passed by the
Special Court on 26th July 2005. In our opinion, the said order is a benign
order. It merely issues direction to the Special Public Prosecutor to compile
the documents to be made over to the Petitioners who in turn would get
opportunity. The said exercise was prelude to naming of the Petitioners by
the Court as additional accused to be tried along with already named
accused in the same criminal case. The primary grievance of the Petitioners
was that such course cannot be adopted by the Special Court especially in
absence of sanction accorded by the Appropriate Authority to prosecute the
Petitioners herein specifically. The other issue was whether the Special
Court could have exercised such power by invoking Section 319 of Cr.P.C.
and also proceed to record the statements of the Petitioners which can be
treated as their defence under Section 313 of the Cr.P.C.? However, all
70 wp.1956.05.sxw
these questions have receded in the background after the grant of sanction
by the Appropriate Authority to prosecute the Petitioners herein in
connection with the alleged offence on 26th February 2006. In the light of
the said sanction, the Investigating Officer is now competent to present the
supplementary charge-sheet/further police report to name the Petitioners as
accused in the pending criminal case. If so, the question as to requirement
of prior sanction, which is the quintessence as per Section 23(2) of the
MCOC Act, for taking cognizance of offence, does not survive for
consideration. As a result, whether the Special Court could invoke powers
under Section 319 of the Cr.P.C. at this stage of the proceedings so as to
name the Petitioners as additional accused would also not survive for
consideration. Similarly, it may not be now necessary to call upon the
Petitioners to make their statements which can be treated as their defence
under Section 313 of the Cr.P.C. Instead, if the supplementary charge-
sheet/further police report were to be filed which names the Petitioners
herein as additional accused, the matter would proceed against them in
accordance with law as in the case of already named accused. In the
circumstances, we do not wish to delve into the argument regarding the
validity and propriety of the opinion recorded by the Special Judge in his
order dated 26th July 2005. Instead, we would make it clear that in the light
71 wp.1956.05.sxw
of the supervening events, in particular, of sanction accorded by the
Appropriate Authority to prosecute the Petitioners herein, none of the
observations in the said order dated 26th July 2005 will remain on record
and will be treated as effaced without going into the question of correctness
of the opinion so recorded. Those questions are left open.
34. That takes us to the question about the validity of the order passed
by the Special Judge directing the Petitioners to deposit their passports in
Court. Since the prosecution now intends to file supplementary charge-
sheet/further police report which would name the Petitioners herein as
additional accused to be tried along with the already named accused in
connection with the offences referred to in the said charge-sheet, we hope
and trust that the Special Court would consider the question regarding the
necessity of requirement to deposit passports of the Petitioners herein on its
own merits afresh. In our opinion, the said direction in the changed
circumstances, need not be considered in the present Writ Petitions.
Instead, we leave the question open to be reexamined by the Special Judge
as and when the Petitioners would appear before the said Court on the next
date of hearing.
72 wp.1956.05.sxw
35. Insofar as the order passed by the Special Judge issuing non-bailable
warrants against the Petitioners before this Court is concerned, the same
would remain in abeyance for a period of four weeks from today to enable
the Petitioners to appear before the Special Court after giving 48 hours
prior notice to the Investigating Officer about such appearance, on which
date, it would be open to the Investigating Officer to present the
supplementary charge-sheet/further police report. On such further
report/supplementary charge-sheet being presented and if the same
discloses the name of any of the Petitioner herein, it would be open to the
Court to pass such further orders as may be warranted in the fact situation
of the case in accordance with law. All questions in that behalf are left
open. In other words, the non-bailable warrants already issued against the
Petitioners herein in connection with the offence in question shall not be
given effect to for a period of four weeks from today.
36. We may place on record that the Petitioners made grievance about
false statement made by the CBI before the Special Judge that the stay of
proceedings granted by this Court on 17th August 2005 has been vacated,
while considering CBI Application being Application No.110 of 2006 for
issuance of non-bailable warrant. The Respondents have offered
73 wp.1956.05.sxw
explanation in that behalf, which is plausible one. The Respondents on the
other hand, have made serious grievance as to how the certified copies of
the reports submitted by the Investigating Officer to the Court in sealed
cover and which were in fact kept in sealed cover, have been issued to the
Petitioners. We do not intend to enter into this controversy in the present
Writ Petitions. We leave even that question open to be examined by the
Special Judge and after due inquiry, take appropriate action as may be
advised. We do not express any opinion on either contention of the
Petitioners or the Respondents in that regard.
37. For the reasons mentioned hitherto, we proceed to dispose of both
the Writ Petitions on the above terms. We keep the question regarding
continuation of passports in the custody of the Special Judge as also
execution of non-bailable warrants issued against the Petitioners herein
open, to be decided by the Special Judge on its own merits in accordance
with law afresh. However, the non-bailable warrants shall not be given effect to for
a period of four weeks from today with liberty to the Petitioners to appear
before the Special Judge within such time after giving 48 hours clear
advance notice to the Investigating Officer, who in turn, may be free
74 wp.1956.05.sxw
to present the further police report/supplementary charge-sheet before the
Special Judge on such day and pray for appropriate reliefs.
38. We hope and trust that the Special Judge would examine the
grievance of the Respondents as to the circumstances in which certified
copy of the reports which were tendered by the Investigating Officer to the
Special Judge and which were ordered to be kept in sealed cover by the
Special Judge came to be issued to the Petitioners and if any irregularity is
noticed, is free to take such action as may be advised in accordance with
law.
39. Both Petitions are disposed of on the above terms.
(U.D.SALVI, J.) (A.M.KHANWILKAR, J.)
