Vishal Sharma @ Rinku vs State
2014 Latest Caselaw 1730 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Judgment :31,03.2014
+     CRL.REV.P. 198/2014
      VISHAL SHARMA @ RINKU
                                                              ..... Petitioner
                             Through       Mr. Baldev Raj and Ms.Shikha
                                           Tyagi, Advs.
                             versus
      STATE
                                                             ..... Respondent
                             Through       Mr. Navin K. Jha, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)

Crl. M.A. No.5302/2011 (Exemption)

1 Exemption is allowed subject to all just exceptions.

2     Application disposed off.

CRL.REV.P. 198/2014 & Crl. M.A. No.5301/2014

3     This revision petition has been filed against the order dated

18.02.2014 wherein charges had been framed under Sections 392/411/34

of the IPC as also under Section 3 (1) (ii), 3 (2), 3 (4) and 3 (5) of the

Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred

to as the 'said Act'). The petitioner is aggrieved by the aforenoted order.

4 Attention has been drawn to an order passed by this Court on

13.01.2014; submission being that the matter had been remanded back

to the trial Judge by this Court and the fresh order had been passed by

the Sessions Judge without keeping in mind the law which has been laid

down under Section 23 (2) of the said Act. Submission of the learned

counsel for the petitioner being that the Special Court cannot take

cognizance of any offence under the said Act without the previous

sanction of the Additional Director General of Police. It is pointed out

that admittedly in this case cognizance had been taken on 04.07.2011 on

a challan which had been filed on 02.07.2011 which had not been

accompanied by the sanction which is a mandatory requirement under

Section 23 (2) of the said Act. It is pointed out that the supplementary

challan filed only on 19.11.2011 contained the sanction but the first

order dated 04.07.2011 taking cognizance without the sanction suffers

from a vice which could not have been cured by filing of the

supplementary charge-sheet which legal position has not been properly

appreciated by the trial Judge.

5 Section 23 (2) of the said Act reads herein as under:-

"23. Cognizance of, and investigation into, an offence:- (1) Notwithstanding anything contained in the Code:-

       (a)    xxxxxxxxxxxxxx
       (b)    xxxxxxxxxxxxxx

       (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 Director General of Police"

6 These submissions have been refuted by the learned APP for the

State. It is pointed out that a sanction which has not accompanied the

original charge-sheet can well be filed by way of a supplementary

charge-sheet and this defect can be cured at the later stage. Reliance has

been placed upon a judgment of a Bench of this Court reported as 2002

(61) DRJ 553 Romesh Sharma Vs. State.

7 This submission of the learned public prosecutor is the correct

legal position. There is no doubt that section 23 (2) of the said Act is

contained in a mandatory language and cognizance of any offence under

the said Act without previous sanction cannot be taken. However, there

is no prohibition in law for filing a supplementary charge-sheet after

obtaining sanction in accordance with law. This has been noted by a

Bench of this Court in Romesh Sharma (supra). This was a case under

Section 25 of the Arms Act which mandates a previous sanction under

Section 39 of the said Act which is also a mandatory provision and a

special law. In the case of Romesh Sharma (supra), the charge-sheet had

been filed without the requisite sanction under Section 39 of the said

Act. However, after the sanction had been obtained, a supplementary

charge-sheet had been filed and cognizance was taken; it had been noted

that the first order of cognizance without the sanction was a nullity but

after filing of the supplementary charge-sheet which contained the

mandatory sanction, the earlier defect got cured. The impugned order

has recited the correct legal position after discussing the law including

the judgment of Romesh Sharma (supra).

8 This petition is nothing but an abuse of the process of the Court.

Dismissed with costs quantified at Rs.10,000/-.

INDERMEET KAUR, J MARCH 31, 2014 A