Delhi High Court
Vishal Sharma @ Rinku vs State (Govt Of Nct Of Delhi) on 3 September, 2012
Author: Manmohan
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 156/2012 & Crl. M A 3746/2012
VISHAL SHARMA @ RINKU ..... Petitioner
Through Mr. Baldev Raj, Advocate
versus
STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through Mr. Manoj Ohri, APP for State with
Mr. Laxmi Narain, ACP, PS Preet
Vihar Insp. Om Prakash, PS, Preet
Vihar.
15 CRL.REV.P. 248/2012 & Crl. M As. 5548-5549/2012
VARUN KUMAR @ SHERU ..... Petitioner
Through Mr. Sumit Choudhary, Advocate
versus
STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through Mr. Manoj Ohri, APP for State with
Mr. Laxmi Narain, ACP, PS Preet
Vihar Insp. Om Prakash, PS, Preet
Vihar.
% Date of Decision : 03rd September, 2012
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
CRL.REV. Ps.156/2012 & 248/2012 Page 1 of 8
JUDGMENT
MANMOHAN, J : (Oral)
1. The present Revision Petitions have been filed challenging the
order on charge dated 21st January, 2012 and 7th February, 2012 by
virtue of which, the trial Court has taken cognizance under Section
3(1) (ii), 3(2), 3 (4) and 3(5) and under Section 3(5) of the
Maharashtra Control of Organised Crime Act, 1999.
2. Learned counsel for the petitioners submits that the trial Court
has taken cognizance against the present petitioners without previous
sanction having been obtained under Section 23 (2) of MCOCA.
Section 23(2) of MCOCA reads as under :-
(2) "No Special Court shall take cognizance of any
offence under this Act without the previous sanction of
the police officer not below the rank of Additional
Commissioner of Police."
3. Having heard the parties at length and having perused the
Section, this Court is of the view that the aforesaid provision is a
mandatory one. It prohibits a Special Court from taking cognizance of
any offence under MCOCA without any previous sanction of an
police officer not below the rank of Additional Commissioner of
Police. Consequently, this Court sets aside the cognizance order dated
4th July, 2012 as well as all subsequent orders passed by the trial
Court.
4. However, keeping in view the fact that now sanction has been
obtained under Section 23 (2) of MCOCA on 16th November, 2011,
the trial Court is directed to re-consider the issue of cognizance.
5. In fact, this approach of the Court is in consonance with the
judgment of the Supreme Court in Balbir Singh Vs. State of Delhi,
(2007) 6 SCC 226. In the said case, the Supreme Court in similar
circumstances upheld a High Court judgment, in which it was held
that when an accused is discharged, the trial Court is competent to
take cognizance once again. The relevant portion of the Supreme
Court judgment is re-produced hereinbelow:-
3."The appellant and one Paljit Kaur @
Richpal Kaur @Pali, wife of Paramjit Singh
had allegedly committed offence punishable
under Sections 3, 4, 5 and 6 of the TADA Act and
Sections 25 and 26 of the Arms Act. Charge sheet
was filed on 20.8.1993. The allegations related to
alleged commission of offence on 5.12.1992. By
amendment to the TADA Act, Section 20-A(2) was
introduced with effect from 22.5.1993 i.e., prior to
filing of the charge sheet. Charges were framed on
16.12.1993. Bail was granted to the appellant on
6.5.1994. Subsequently, on expiry of eight years'
currency period, the term of the TADA Act expired
on 23.5.1995. By order dated 19.4.1997, the
Designated Court held that in absence of sanction
of the Commissioner of Police as required under
sub section (2) of Section 20-A of the TADA Act,
the proceedings were non est and the cognizance
taken by the court for offences under the TADA Act
was bad in law.
4. The expression used by the court
concerned in the judgment dated 19.4.1997 was
"acquittal of the accused persons for the want of
sanction". Subsequently, pursuant to the order by
the court concerned goods seized were retained on
3.2.1998. On 4.7.2001 sanction was accorded and
the order in that regard was passed and the
charge-sheet was filed on 18.7.2001 and summons
were issued on 2.3.2002 by the impugned order.
5. The court overruled the objections raised
by the appellant that the proceedings were non est
as it virtually amounted to infraction of Section
300 of the Code of Criminal Procedure, 1973 (in
short "the Code"). The Designated Court did not
accept the plea and observed that though the
expression "acquittal" was used, in essence it
cannot be an order of acquittal on merits of the
case and could only operate as an order of
discharge.
xxx xxx xxx
16. The impugned order passed by the
Designated Court does not suffer from any
infirmity to warrant interference. However, the
trial court is requested to dispose of the matter as
early as practicable preferably within 6 months
from the date of communication of this order."
(emphasis supplied)
6. Similarly, this Court in Govt. of NCT of Delhi Vs. Rajesh, in
Crl. Rev. P. No. 286/2009, has held as under :-
"11. It is well settled that as soon as the court comes
to the conclusion that there is no valid sanction for
prosecuting the accused under Section 25 of the Act,
the court becomes incompetent to proceed further
with the matter and has to discharge or acquit the
accused. However, such an acquittal or discharge
cannot bar a second trial of the same accused on the
same facts. In the case of Yusofalli Mulla vs. The
King reported as AIR (36) 1949 Privy Council 264,
while holding that a prosecution instituted without a
valid sanction was a nullity, it was observed that
fresh institution after valid sanction was
permissible. The relevant observations of the Privy
Council are reproduced herein below :
"16.The next contention was that the failure
to obtain a sanction at the most prevented
the valid institution of a prosecution, but did
not affect the competency of the Court to her
and determine a prosecution which in fact
was brought before it. This suggested
distinction between the validity of the
prosecution and the competence of the court
was pressed strenuously by Mr. Page, but
seems to rest on no foundation. A Court
cannot be competent to hear and determine
a prosecution the institution of which is
prohibited by law and Section 14 prohibits
the institution of a prosecution in the
absence of a proper sanction. The learned
Magistrate was no doubt competent to
decide whether he had jurisdiction to
entertain the prosecution and for that
purpose to determine whether a valid
sanction had been given, but as soon as he
decided that no valid sanction had been
given the Court became incompetent to
proceed with the matter. Their Lordships
agree with the view expressed by the
Federal Court in Agarwalla's case : AIR
(32) 1945 F.C. 16:46 Cr.L.J. 510 that a
prosecution launched without a valid
sanction is a nullity." (emphasis added)
12. In the case of L D Healy vs. State of Uttar
Pradesh reported as (1969) 2 SCR 948, the Supreme
Court held that a fresh trial of the same accused on
the same set of facts was not barred, when the
earlier order of acquittal was passed in the absence
of proper sanction. The observations of the
Supreme Court in the aforesaid case are as under :-
"Para 4 (i) ....The Court may take cognizance
of an offence against a public servant for the
offences set out in Section 6 of the Prevention
of Corruption Act only after the previous
sanction of the specified authority is obtained.
The Special Judge who had taken cognizance
of the case on a sanction given by the Deputy
Chief Commercial Superintendent was
incompetent to try the case, and an order of
acquittal passed by a court which had no
jurisdiction does not bar a retrial for the same
offence. It is unnecessarily, therefore, to
consider whether the order quashing the
proceeding amounted to an order of
acquittal." (emphasis added)
13. In the case of Ramesh Sharma (supra), a Single
Judge of this Court, after taking note of the
aforesaid judgments as also the judgments in the
case of Om Prakash (supra), arrived at a conclusion
that there was no prohibition in law in filing
fresh/supplementary charge sheet after obtaining
sanction in accordance with law.
14. This Court finds no reason to differ with the
aforesaid view. While there can be no quarrel with
the proposition that mandate of Sanction 39 of the
Act requires a previous sanction for prosecution to
be instituted against a person in respect of an
offence under Section 3 of the Act, once such a
sanction is obtained by the concerned authority,
there is no bar on proceedings against the same
person in respect of the same offence on the same
sets of facts. In the present case, originally, there
was no sanction order for prosecuting the
respondent under Section 25 of the Act. The first
charge sheet was filed on 23.6.2005 and the records
reveal that a supplementary charge sheet filed by
the State/petitioner on a subsequent date, i.e, on
30.12.2006, was taken on the record on 3.1.2007.
Hence, the learned ASJ could have entertained the
supplementary charge sheet by treating the same as
a fresh charge sheet from the date of its institution,
ie., 30.12.2006/3.1.2007. At the said stage, the
documents enclosed with the supplementary charge
sheet including the sanction order dated 29.12.2006
as also the examination report of the CFSL dated
13.9.2005 could be considered.
15. As the parties are still at the stage of framing of
charges against the respondent, the present petition
is disposed of with directions to the learned ASJ to
treat the supplementary charge sheet as a fresh
charge sheet from the date of its institution and to
proceed further in the matter. The date of the
incident is 21.4.2005 and 5 years have since
expired. The learned ASJ is therefore requested to
proceed further in the matter as expeditiously as
possible."
(emphasis supplied)
7. In view of the aforesaid, the cognizance order dated 4th July,
2012 as well as all subsequent orders dated 21 st January, 2012 and 7th
February, 2012 are set aside, but the trial Court is directed to re-
consider the issue of taking cognizance of both the main as well as the
supplementary charge-sheet on 12th September, 2012.
8. Needless to say that the rights and contentions of both the
parties are left open.
MANMOHAN, J
SEPTEMBER 03, 2012
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